June 20, 1994
Mr. Richard Hamilton North Carolina Wildlife Resources Commission 512 N. Salisbury Street Raleigh, North Carolina 27604-1188
RE: ADVISORY OPINION: AUTHORITY OF THE N.C. WILDLIFE RESOURCES COMMISSION TO PROMULGATE RULES ESTABLISHING DEFINITIONS AND PROCEDURES FOR THE DESIGNATION OF CRITICAL HABITAT AND, SUBSEQUENTLY, TO DESIGNATE AREAS OF THE STATE AS CRITICAL HABITAT,
G.S. 113-33, ET SEQ.
Dear Mr. Hamilton:
We are writing in response to your letter of May 20, 1994. In that letter, you mentioned that opponents of the proposed Critical Habitat rule have challenged the authority of the Wildlife Resources Commission (WRC) to promulgate the rule or to act pursuant to the rule by designating Critical Habitat and coordinating development and implementation of conservation plans for the threatened and endangered species found in these areas.
For the sake of clarity, I will address the broader question of authority in terms of the following specific issues:
- Express statutory authority;
- Implied statutory authority; and
- Restrictions imposed by G.S. § 113-332.
1. Express Statutory Authority
Article 25 of the North Carolina General Statutes, entitled, "Endangered and Threatened Wildlife and Wildlife Species of Special Concern" (hereinafter "the article"), contains the primary statutory authority for the proposed rule. There is other legislation, both state and federal, that may impact actions taken by the WRC pursuant to the proposed rule, but it is Article 25 that provides the basic foundation for the WRC’s authority to act.
The powers and duties of the WRC as set out in G.S. § 113-333 are:
(1) To adopt and publish an endangered species list, a threatened species list, and a list of species of special concern, as provided for in G.S. § 113-334, identifying each entry by its scientific and common name; (2) To reconsider and revise the lists from time to time in response to public proposals or as the Commission deems necessary; (3) To coordinate development and implementation of conservation programs for endangered and threatened species of wild animals and for species of special concern; (4) To adopt regulations necessary to implement conservation programs for endangered, threatened, and special concern species and to limit, regulate, or prevent the taking, collection, or sale of protected animals; (5) To conduct investigations to determine whether a wild animal should be on a protected animal list and to determine the requirements for survival of resident wild animal species. G.S. § 113-333.
The WRC is thus given the power and responsibility to coordinate development and implementation of conservation programs. The statutory definition of "conservation" and "conserve" is "[T]he use and application of all methods, procedures and biological information for the purpose of bringing populations of native and once native species of wildlife in balance with the optimum carrying capacity of their habitat, and maintaining such balance. These methods and procedures include all activities associated with scientific resource management such as research; census; law enforcement, and habitat protection, acquisition, and enhancement." (Emphasis added.) G.S. § 113-331(1).
Read together, these sections explicitly authorize the WRC to coordinate development and implementation of conservation programs utilizing all activities associated with scientific resource management. Habitat protection, acquisition and enhancement are specifically set out as activities that are authorized for restoring and maintaining populations of threatened, endangered and special concern wildlife species. The designation of critical habitat and the subsequent activities logically fall within the term "habitat protection." It should also be noted that "habitat" as used in the statute is not restricted to public lands or game lands.
G.S. § 113-334 lists the criteria and procedures for placing animals on protected animal lists. Threatened destruction or curtailment of habitat is included as one of the criteria to be used in listing a species, indicating that the legislature recognized habitat destruction or curtailment as one of the primary factors that often threatens a species’ survival, and that habitat protection will logically be one of the measures utilized to protect and restore the species.
The Nongame Advisory Committee created by the statute is charged with advising the WRC on matters related to nongame wildlife, including, among other things, the development of conservation programs for endangered, threatened and special concern wildlife species. The committee is also empowered to "[r]ecommend critical habitat areas for protection or acquisition." G.S. § 113-336(5). This clearly implies that the WRC has the authority to designate critical habitat as a part of the development of conservation programs for threatened, endangered and special concern species. Again, it is significant to note that this authority is not limited to state-owned or game lands.
It is true that the article contains no discrete provision that specifically addresses the designation of critical habitat. When one reads the disparate sections of the statute, however, it appears that this action was clearly among those anticipated by the legislature. It has long been held by the courts of this state that all parts of a statute dealing with the same subject matter are to be considered in pari materia to give effect to the whole and to give effect to the intent of the legislation. Valentine v. Gill, Comr. of Revenue, 223 N.C. 396 (1943).
2. Implied Statutory Authority
In addition to the express provisions discussed above, one may reasonably assume that the statute contains certain implied powers that may not be specifically enumerated. In the construction of a grant of powers, it is a general principle of law that where the end is required, the appropriate means are given and that every grant of power carries with it the use of necessary and lawful means for its effective execution. There is therefore conferred by implication every power proper and necessary to the exercise of the powers and duties expressly given and imposed. 1 Am. Jur.
2d, Administrative Law, § 44, p. 846 (1962). It is the express policy and intent of the legislature in its grant of jurisdiction to the WRC that it act to protect and conserve wildlife that is endangered and of special concern and to develop conservation techniques and programs for this purpose. The proposed rule does not exceed this mandate, and it is therefore reasonable to assume that the WRC has both those powers explicitly set out in the statute and also those that may be reasonably implied as inherent in the underlying policies of the statute. United Steelworkers of America, AFL-CIO v. N.L.R.B., 390 F. 2d 846 (D.C. Cir. 1967), cert. denied sub nom., 391 U.S. 904 (1968)
3. Restrictions Imposed by G.S. § 113-332
G.S. § 113-332 sets out legislative intent regarding endangered species of wild animals and wild animals of special concern. In pertinent part it reads:
The General Assembly finds that the recreation and aesthetic needs of the people, the interests of science, the quality of the environment, and the best interests of the State require that endangered and threatened species of wild animals and wild animals of special concern be protected and conserved, that their numbers should be enhanced and that conservation techniques be developed for them; however, nothing in this Article shall be construed to limit the rights of a landholder in the management of his lands for agriculture, forestry, development or any other lawful purpose without his consent. G.S. § 113-332.
Opponents of the proposed rule urge a literal interpretation of the last sentence. Such a reading would render the article largely ineffective for the purposes stated in the basic Declaration of Policy. Conservation measures would be limited to measures affecting public lands or to symbolic gestures. It is our opinion that this clause is more properly construed to mean that the article authorizes no action that would amount to an unconstitutional "taking" of a landowner’s property. This construction is in harmony with existing real property law and still gives effect to the article. Where the construction of one section of a statute according to the letter will make it repugnant to another part and neutralize the whole act, such interpretations may be adopted which will give effect to each part of the act and relieve it from inconsistency. Tabor v. Ward, 83
N.C. 291 (1880). All parts of the same statute dealing with the same subject are to be construed as a whole and every part must be given effect if this can be done by any fair and reasonable interpretation so that none of its provisions shall be rendered useless or redundant. Any irreconcilable ambiguity in meaning must be resolved in the manner which most fully effectuates the true legislative intent. State ex rel. Hunt v. N.C. Reinsurance Facility, 302 N.C. 274 (1981). The best indicia of that legislative purpose are "the language of the statute, the spirit of the act, and what the act seeks to accomplish." Stevenson v. City of Durham, 281 N.C. 300, 303 (1972).
The power of the government to regulate the use of private property in ways that may have adverse impacts upon landowners has long been established and accepted. This power is limited by the constitutional prohibition against action that rises to the level of a "taking." An examination of what would constitute a taking in the context of the proposed rule is beyond the scope of this opinion. It is clear, however, that the mere designation of land as "Critical Habitat" would not amount to a taking. Whether or not the specific regulations enacted pursuant to that designation amount to a taking can only be answered in the context of those regulations as proposed.
In summary, it is our opinion that Article 25, read as a whole, gives the Commission the authority, express and implied, to designate critical habitat and to coordinate, develop and implement management and conservation programs pursuant to the designation. This is not to say that specific actions recommended as a part of some management and conservation programs may not exceed the authority or jurisdiction of the WRC or the participating agency, but this determination must be made on a case by case basis as the programs are developed.
We trust that this fully answers your questions. Please do not hesitate to contact us if we can be of any further assistance in this matter.
Ann Reed Senior Deputy Attorney General
Virginia A. Gibbons
Associate Attorney General