Closure of Shad Season

June 13, 1995

Major Doug Freeman North Carolina Marine Patrol Post Office Box 769 Morehead City, North Carolina 28557

RE: Advisory Opinion: Closure of Shad Season – Conflict between Marine Fisheries Commission and Wildlife Resources Commission Rules; N.C.G.S. §113-132

Dear Major Freeman:

You have asked for advice on the following question regarding a conflict between Marine Fisheries Commission ("MFC") and Wildlife Resources Commission ("WRC") rules governing the hook-and-line season for shad in joint fishing waters. We thank you for your inquiry and are pleased to provide this reply.

QUESTION PRESENTED: Does 15A N.C. Admin. Code §10C.0401(a), the WRC’s rule allowing year-round taking of shad by hook and line, supersede the closed season for shad adopted by the MFC in joint waters, by operation of 15A N.C. Admin. Code §3Q.0106?

ANSWER: No. Both rules are effective, as the two commissions have overlapping, concurrent jurisdiction in joint waters. However, the conflict between the MFC rule, 15A N.C. Admin. Code §3M.0513, and the WRC rule, 15A N.C. Admin. Code § 10C.401(a), creates a significant problem for the N.C. Marine Patrol in enforcement of the season closure.

DISCUSSION

The WRC has authority to regulate hook-and-line fishing for shad in inland fishing waters under

N.C.G.S. §§113-132(b), and 113-136(c)(3). The WRC classifies shad as a non-game fish (see 15A N.C. Admin. Code §10C.0301), for which it has established a year-round open season for hook-and-line fishing in inland waters. 15A N.C. Admin. Code §10C.0401(a). Similarly, the MFC has regulatory jurisdiction over the taking of shad in coastal waters, including hook-andline fishing, per N.C.G.S. §§113-132(a) and 113-182. The MFC recently adopted a closed hookand-line season for shad in 15A N.C. Admin. Code §3M.0513, which was effective March 1, 1995. The MFC rule provides:

It is unlawful to take blueback herring, alewife, American shad and hickory shad by any method from April 15 through January 1. (Emphasis added.) The conflict between the two rules arises only in joint fishing waters, which are defined as coastal fishing waters "in which there are found a significant number of freshwater fish, as agreed upon by the Marine Fisheries Commission and Wildlife Resources Commission…." N.C.G.S. §113-132(e). The joint waters designation remains effective for so long as each commission maintains its joint rules. To the extent that the jurisdiction of the MFC and the WRC overlap in joint waters, the legislature has granted them concurrent jurisdiction, and empowered them to make joint rules delimiting the scope of their respective authority. N.C.G.S. §113-132(d). This is the source of the WRC’s jurisdiction in joint waters. As joint fishing waters are coastal fishing waters in which the two commissions have agreed to exercise joint regulatory authority, the MFC’s jurisdiction remains in place in those waters, unless expressly ceded to the WRC by the joint rules. The MFC and WRC have adopted joint rules in 15A N.C. Admin. Code 3Q. We examine those joint rules to determine the extent to which, if any, the MFC has relinquished its jurisdiction over shad in joint waters.

In 15A N.C. Admin. Code §3Q.0101, the two Commissions set forth the "Scope and Purpose" of the joint rules, as follows: In addition to the classification of the waters of the state these joint rules set forth guidelines to determine which fishing activities in joint waters are regulated by the Marine Fisheries Commission and which are regulated by the WRC. Finally, the joint rules set forth special fishing regulations applicable in joint waters that can be enforced by officers of the Division of Marine Fisheries and the Wildlife Resources Commission. These regulations do not affect the jurisdiction of the Marine Fisheries Commission and the Wildlife Resources Commission in any matters other than those specifically set out. (Emphasis added.)

In 15A N.C. Admin. Code §3Q.0104 the joint rules provide that , "[t]he regulation and licensing of fishing in joint waters shall be as stated in 15A NCAC 3Q .0106." 15A N.C. Admin. Code §3Q.0106, captioned "Applicability of Rules: Joint Waters" states:

(a)

All coastal fishing laws and regulations administered by the Department of Environment, Health, and Natural Resources and the Marine Fisheries Commission apply to joint waters except as otherwise provided, and shall be enforced by fisheries enforcement officers.

(b)

The following inland fishing laws and regulations administered by the Wildlife Resources Commission apply to joint waters and shall be enforced by wildlife enforcement officers:

(1)

all laws and regulations pertaining to inland game fishes,

(2)

all laws and regulations pertaining to inland fishing license requirements for hook and line fishing,

(3)

all laws and regulations pertaining to hook and line fishing except as hereinafter provided. (Emphasis added.)

Paragraph (a) establishes that coastal fishing laws, and regulations adopted by the MFC for coastal waters, remain effective in joint waters, "except as otherwise provided." Thus it is necessary to look to the joint rules for any which "otherwise provide" that the MFC’s rule closing the hook-and-line season for shad in coastal waters does not apply to joint waters. Paragraph (b) operates as a limited grant of jurisdiction to the WRC to enforce in joint waters the inland fishing laws and regulations specified in subparagraphs (b)(1), (b)(2) and (b)(3). The words "except as hereinafter provided" in subparagraph (b)(3) refer only to the joint rules which follow that provision (i.e., the remainder of subchapter 3Q). However, none of those rules address hook-andline fishing for shad in joint waters. Instead, they pertain principally to another migratory saltwater fish, striped bass, which was the subject of similar conflict a decade ago. The present joint rules evolved from that controversy, as in the absence of such joint rules resolving the jurisdictional conflict, a migratory saltwater fish is subject to regulation by both commissions in joint waters. Under .0106(b)(3) the WRC’s a year-round open season for taking shad by hookand-line fishing in inland waters also applies in joint waters.

Significantly, while § .0106(b) provides that certain types of inland fishing rules apply to joint waters, it does not state that the WRC’s rules apply exclusively, so as to oust MFC jurisdiction over migratory saltwater fish.. Where the joint rules intend to supersede inconsistent rules, or to grant exclusive jurisdiction to one commission, the rules expressly state that intent. See 15A

N.C. Admin. Code §3Q.0107 (special striped bass rules for joint waters "supersede any inconsistent rules of the Marine Fisheries Commission or the Wildlife Resources Commission that would otherwise be applicable in joint waters under the provisions of 15A NCAC 3Q .0106"). That joint rule clearly contemplates that inconsistent rules could be applicable to joint waters under §3Q.0106. Likewise, §3Q.0109 expressly confers "exclusive authority" to open and close seasons for striped bass to WRC for Roanoke River and MFC for Albemarle Sound, regardless of classification. Thus it would be improper to read §3Q.0106 as vesting the WRC with exclusive jurisdiction over hook-and-line fishing for shad in joint waters, absent such an express statement of intent.

The Legislature, in creating the present regulatory scheme, recognized that conflicts may occur from time to time between the commissions, and established in N.C.G.S. §113-132(d) a mechanism for resolving such conflicts. The statute provides:

(d) To the extent that the grant of jurisdiction to the Marine Fisheries Commission and the Wildlife Resources Commission may overlap, the Marine Fisheries Commission and the Wildlife Resources Commission are granted concurrent jurisdiction. In cases of conflict between actions taken or regulations promulgated by either agency, as respects the activities of the other, pursuant to the dominant purpose of such jurisdiction, the Marine Fisheries Commission and the Wildlife Resources Commission are empowered to make agreements concerning the harmonious settlement of such conflict in the best interests of the conservation of the marine and estuarine and wildlife resources of the State. In the event the Marine Fisheries Commission and the Wildlife Resources Commission cannot agree, the Governor is empowered to resolve the differences. (Emphasis added.)

N.C.G.S. §143B-289.11 contains substantially similar provisions. Thus the MFC has the option of proceeding under this provision by reaching an agreement with WRC regarding the shad closure, or sending the matter to the Governor for resolution.

A second option is a rule change to make the MFC’s shad season consistent with the WRC’s. This would require public notice and hearing, as the requirements in N.C.G.S. §150B-21.1 for adoption of a temporary rule are absent.

Ultimately, this situation confronts the Marine Patrol with a serious enforcement dilemma. While the closed season remains in force and citations may be issued for violations, as a practical matter prosecution will be difficult in the face of the WRC’s conflicting rule.

Thank you for your inquiry. Please advise if we may be of further assistance.

Daniel C. Oakley Senior Deputy Attorney General

J. Allen Jernigan

Special Deputy Attorney General