| TO: | Representative Robert Grady |
| FROM : | Edwin M. Speas, Jr. Senior Deputy Attorney General |
| Daniel F. McLawhorn Special Deputy Attorney General | |
| DATE: | July 2, 1993 |
| SUBJECT: | Advisory Opinion; Local Coastal Fishing Laws; G.S. 113-133 |
In a recent conversation you asked that this office review the history of local coastal fishing laws for you.
The General Assembly adopted a major rewrite of coastal fishing law in 1965. Prior to that time, the legislature had regularly adopted local coastal fishing laws. In 1965, all such laws were repealed. N.C.G.S. § 113-133.
§ 113-133. Abolition of local coastal fishing laws.
The enjoyment of the marine and estuarine resources of the State belongs to the people of the State as a whole and is not properly the subject of local regulation. As the Department is charged with administering the governing statutes and adopting rules in a manner to reconcile as equitably as may be the various competing interests of the people as regards these resources, considering the interests of those whose livelihood depends upon full and wise use of renewable and nonrenewable resources and also the interests of the many whose approach is recreational, all special, local, and private acts and ordinances regulating the conservation of marine and estuarine resources are repealed. Nothing in this section is intended to invalidate local legislation or local ordinances which exercise valid powers over subjects other than the conservation of marine and estuarine resources, even though an incidental effect may consist of an overlapping or conflict of jurisdiction as to some particular provision not essential to the conservation objectives set out in this Subchapter. (1965, c. 957, s. 2; 1987, c. 827, s. 96.)
That statute should be compared to N.C.G.S. § 113-133.1, in which local wildlife laws continue to be authorized. To the best of our knowledge, the General Assembly has not adopted any local coastal fishing laws since 1965. Rather, the General Assembly has limited amendments to the coastal fishing laws to general, public laws applicable uniformally throughout the State.
In uncodified parts of Chapter 957 of the 1965 Session Laws, the General Assembly made clear its intention to "continue and broaden the powers and authority of the Department of [Environment, Health and Natural Resources] . . . with respect to all matters pertaining to the conservation of fisheries resources." It vested in the Department the discretion to continue, modify, or abolish any previous prohibition encompassed in a repealed local fishing law through the passage of regulations. "In numerous instances particular provisions contained in the former law are omitted from this codification in order to leave the matter within the discretionary power of the [Fisheries Commission]." Chapter 957, § 3 (1965 Session Laws).
Relying on G.S. § 113-133, the Attorney General issued an opinion in 1971 holding that local governments have no authority to regulate the subjects covered by the Marine Fisheries statutes in Chapter 113. The legislature has occupied the field and precluded the exercise of local ordinance power over marine and estuarine resources. Opinion of Attorney General to Mr. Clifton L. Moore, Jr., 41 N.C.A.G. 642 (1971).
Despite the strong statement of the 1965 legislature against local coastal fishing laws, N.C.G.S. § 113-133 is not a bar to future enactments of local coastal fishing laws by the General Assembly. One General Assembly cannot restrict or limit the constitutional power of a succeeding legislature. State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967). However, any such act may be barred by Article II, Section 24 of the Constitution of North Carolina. Each local coastal fishing law or bill would have to be separately examined to determine whether constitutional limitations on legislative power are a bar to its enactment.