November 9, 1995
The Honorable Jean Preston House of Representatives 211 Pompano Drive Emerald Isle, North Carolina 28594 Re: Advisory Opinion: Marine Fisheries Commission Rulemaking During License Moratorium; Session Laws 1993 (Reg. Sess., 1994), c. 576, s.4.
Dear Representative Preston:
You have asked this Office to review the text of the proposed rules being sent to public hearing and the procedures followed by the Marine Fisheries Commission at its September, 1995 meeting, for compliance with the statutory restrictions on the Commission’s authority to regulate and control the harvest of fish during the current license moratorium. The pertinent statute provides that
"[d]uring the moratorium, the Marine Fisheries Commission shall be limited in the exercise of its existing authority to regulate and control the commercial and recreational harvest of marine fisheries resources to measures: (i) that prevent further endangerment of the resources; (ii) that involve user conflicts; or (iii) that are necessary to maintain State control of its fishery resources in order to avoid the exercise of federal fishery management authority over those resources." Session Laws 1993 (Reg. Sess., 1994), c. 576, s.4
The Commission considered each proposed rule separately, and debated and determined in regular session which of the three criteria applied and provided the basis for proceeding to rulemaking. The Commission found the proposed rule enlarging the area in Dare County where fishing for menhaden with purse seines is restricted involves a conflict between commercial and recreational fishermen. The September 5, 1995 resolution of the Town of Southern Shores supporting the menhaden fishing restriction expressed the common belief that close-in commercial fishing operations reduce for some period of time the number of shallow-water fish species sought by recreational fishermen, and also disrupt and interfere with recreational fishing during the months when this activity is at its peak. Furthermore, the proposed rule which extends the restricted area to Southern Shores is an amendment to the original rule that previously designated restricted fishing areas in Dare County. The Commission found a user conflict presently exists and thus was statutorily permitted to exercise its rulemaking and regulatory authority. Based on our review of the materials considered and discussed by the Commission, there exists a reasonable factual basis for the Commission’s determination that the proposed rule addresses an area of user conflict. In our opinion, the current and proposed rules are within the statutory authority of the Commission to reasonably regulate the menhaden fishery and the area restriction does not discriminate among those fishermen properly licensed to participate in the fishery.
It appears the Commission followed the proper statutory guidance, and appropriately exercised its judgment to initiate rulemaking for each of the proposed rules approved for public hearing and comment at the September meeting. Lastly, the current and proposed rules for restricting the harvest of menhaden off the Dare County beaches do not appear to raise issues concerning the provisions of the United States Constitution or North Carolina Constitution.
We hope this is responsive to your questions. Please contact Frank Crawley if you feel clarification is necessary.
Daniel C. Oakley Senior Deputy Attorney General
Francis W. Crawley
Special Deputy Attorney General