7 April 1995
The Honorable Jean R. Preston Room 403, Legislative Office Building 300 North Salisbury Street Raleigh, North Carolina 27603
RE: Advisory Opinion: Effect of North Carolina’s Withdrawal from the Atlantic States Marine Fisheries Commission; N.C.G.S. § 113-252.
Dear Representative Preston:
You have asked for advice concerning the effect of North Carolina’s official withdrawal from the Atlantic States Marine Fisheries Commission ("ASMFC" or "Commission"). Specifically, you have asked the following two questions in the context of State withdrawal from the ASMFC:
- Whether North Carolina would legally be required to implement fisheries management plans under the Atlantic Coastal Fisheries Cooperative Management Act? and
- Whether, and to what extent, voting privileges would be eliminated or restricted at the ASMFC?
For the reasons set out below, we conclude that if North Carolina legally effects withdrawal from the ASMFC, the State would continue to have to implement ASMFC fisheries management plans, but would have no voting privileges on the Commission.
ANALYSIS
In 1942 the United States Congress, in amending the "Fish and Wildlife Coordination Act", 16
U.S.C. §§ 661 et seq., created the ASMFC, specifically granting the consent and approval of Congress to an interstate compact relating to the better utilization of the fisheries (marine, shell and anadromous) of the Atlantic seaboard. See, 16 U.S.C. § 667a, Act May 4, 1942, c. 283, §§ 14, 56 Stat. 267. The decision on whether to join the Atlantic States Marine Fisheries Compact (i.e., the Commission) was left to the individual states. In 1949, the North Carolina General Assembly enacted Article 19, "Marine Fisheries Compact and Commission", of Chapter 113 of the North Carolina General Statutes. Pursuant to N.C.G.S. § 113-252 of that Article, North Carolina was authorized to become a member of the Compact and Commission, effective immediately upon any two other Atlantic coast states formally joining the Compact. Currently, the ASMFC has fifteen member states: Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina and Virginia.
The initial powers of the ASMFC were derived from the terms of the compact agreement entered into by its member states, rather than from federal law. Those powers are set out in N.C.G.S. § 113-252, and include the power to be represented on the Commission by three North Carolina delegates and to vote on all actions "by the Commission in regard to its general affairs." See, "Atlantic States Marine Fisheries Compact", Articles III & VI, N.C.G.S. § 113-252. Accordingly, it is clear that if the State repeals the relevant provisions of Article 19 of Chapter 113 of the General Statutes in order to withdraw from the ASMFC, North Carolina will no longer have any of the rights or powers concerning the Commission as set out in the Compact. That includes the right to vote on the ASMFC’s adoption of fishery management plans or other Commission business.
In addition to the Commission’s legal authorities derived from the terms of the Compact between member states, Congress has delegated specific powers to the Commission through the passage of two specific federal fisheries laws: (1) the Atlantic Striped Bass Conservation Act [Act Oct. 31, 1984, P.L. 98-613 §§ 1-9, 98 Stat. 3187; Oct. 1, 1986, P.L. 99-432, §§ 1-5, 100 Stat. 989, 990; Nov. 3, 1988, P.L. 100-589, §§ 1, 2, 4, 6(g), 102 Stat. 2984]; and (2) the Atlantic Coastal Fisheries Cooperative Management Act [Act Dec. 8, 1993, P.L. 103-465]. Citing the national interest in fisheries conservation and management, each federal law (1) requires the ASMFC to establish plans for the conservation and management of certain coastal fisheries, (2) requires the states to implement and enforce those plans, and (3) requires the Commission to annually monitor and review individual state compliance with the plans. In addition, both statutes adopt federal closure of the state fishery not being prosecuted in compliance with a Commission plan as the potential consequence for individual state noncompliance.
Section 803(13) of the Atlantic Coastal Fisheries Cooperative Management Act ("Act") defines the term "State" to mean "Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, the District of Columbia, or the Potomac River Fisheries Commission." 16 U.S.C. § 5102(13). By the terms of that definition, "state" is broader than just the membership of the ASMFC, i.e., the compacting states. That would appear to indicate that Congress intended plan implementation, enforcement and compliance under the Act to apply to all jurisdictions containing any "coastal fishery resource" within the meaning of the Act.
That interpretation is bolstered by reference to Congress’ findings and purpose statement supporting adoption of the Act. In those findings, Congress expressly declares that
- (5)
- The failure by one or more Atlantic States to fully implement a coastal fishery management plan can affect the status of Atlantic coastal fisheries, and can discourage other States from fully implementing coastal fishery management plans.
- (6)
- It is in the national interest to provide for more effective Atlantic State fishery resource conservation and management.
16 U.S.C. § 5101(a)(5) & (6). Taken together, those conclusions indicate Congress’ concern over the failure of certain coastal states to comply with ASMFC fishery conservation and management plans, and Congress’ intent to remedy that failure through promulgation of the Act. Clearly, that law would provide no such remedy if a state had only to withdraw from the ASMFC in order to remove itself from the coverage of the Act.
CONCLUSION
Based on the analysis set out above, it is our belief that the Act reasonably supports only a conclusion that its requirements fully apply to all jurisdictions wherein "coastal fisheries resources" occur, and not just to Commission member states. As a result, North Carolina’s withdrawal from the ASMFC would not have the result of the State no longer being subject to the terms of the Act, including its requirement that each affected state implement and enforce ASMFC fishery management plans. Instead, it would appear that the result of withdrawal from the ASMFC would be that North Carolina would be held to the terms of any Commission fishery management plans, without the benefit of voting on those plans or otherwise exercising the powers of Commission member states to influence plan development and adoption. If we can be of further assistance in this matter, please do not hesitate to contact us.
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General
Timothy D. Nifong Assistant Attorney General