March 9, 1998
Colonel B. M. Rivenbark
N.C. Marine Patrol Division of Marine Fisheries
P.O. Box 769 Morehead City, North Carolina 28557-0769
Re: Advisory Opinion: The Marine Fisheries Commission has regulatory jurisdiction and the Marine Patrol has territorial and subject matter jurisdiction in the Exclusive Economic Zone (EEZ)
Dear Colonel Rivenbark:
This responds to your request for an opinion regarding the jurisdiction of the N.C. Marine Patrol to enforce state fisheries laws in the Exclusive Economic Zone ("EEZ"). We thank you for your inquiry and are pleased to offer this reply.
In N.C.G.S. § 113-134.1, the General Assembly vested the Marine Fisheries Commission with regulatory authority in the Atlantic Ocean to the seaward extent of State jurisdiction. The statute also conferred to the Marine Patrol the authority for enforcement of state fisheries statutes in the ocean. That provision reads:
The Marine Fisheries Commission is directed to exercise all regulatory authority over the conservation of marine fisheries resources in the Atlantic Ocean to the seaward extent of the State jurisdiction over the resources as now or hereafter defined. Marine fisheries inspectors may enforce these regulations and all other provisions of law applicable under the authority granted in this section in the same manner and with the same powers elsewhere granted them as enforcement officers.
In addition, N.C.G.S. § 113-136(a) provides that "[Fisheries] [i]nspectors. . .are granted the powers of peace officers anywhere in this State, and beyond its boundaries to the extent provided by law," within their subject matter jurisdiction.
The General Assembly has also specified that the subject matter jurisdiction of the Marine Fisheries Commission in the EEZ extends to the power to "authorize, regulate, prohibit, prescribe, or restrict":
(3) The possession, transportation, importation, exportation, sale, purchase, acquisition, and disposition of all fish taken in the Atlantic Ocean out to a distance of 200 miles from the State’s mean low watermark, consistent with the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq., as amended.
N.C.G.S. § 113-182(b)(3). The Division of Marine Fisheries is also authorized to license those activities in the EEZ.
Furthermore, N.C.G.S. § 143B-289.51(b)(3) provides: "The functions, purposes, and duties of the Marine Fisheries Commission are to: . . . (3) Implement management measures regarding ocean and marine fisheries in the Atlantic Ocean consistent with the authority conferred on the State by the United States."
State jurisdiction to regulate fisheries in the ocean beyond the three-mile limit is governed by the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq. The Sustainable Fisheries Act of 1996, Pub. Law 104-297 (effective Oct. 11, 1996), which amended the Magnuson Act, clarified the jurisdiction of the states in the EEZ. Section 1856(3)(A) now reads:
- (3)
- A State may regulate a fishing vessel outside the boundaries of the State in the following circumstances:
- (A)
- The fishing vessel is registered under the law of that State, and (i) there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operation; or (ii) the State’s laws and regulations are consistent with the fishery management plan and applicable Federal fishing regulations for the fishery in which the vessel is operating. 16 U.S.C. § 1856(3)(A).
The Legislative History of the amendment sets out the intent of Congress:
. . .to clarify that a State may regulate a fishing vessel registered under its laws outside its boundaries if there is no Federal fishery management plan in place for a fishery, or if the State’s laws are consistent with a Federal fishery management plan in place for a fishery.
Senate Report 104-297, p. 30. The Legislative History recognized that the existing Magnuson Act provision was "somewhat vague with respect to a State’s authority to regulate its own vessels." The amendment was "intended to allow a State to apply State regula- tions to fishing vessels registered in that State." Id.
Therefore, under the Magnuson Act, as newly amended, a state may "regulate" vessels "registered under" its laws fishing in the EEZ if there is no federal fishery management plan ("FMP") or regulation for the fishery, or if the State regulation is consistent with the applicable federal FMP or regulation for that fishery. In this context, the term "regulate" includes enforcement of the state’s laws and rules against vessels registered in that state. See State v. Hayes, 603 A.2d 869 (Me. 1992); People v. Weeren, 607 P.2d 1279 (Ca. 1980) (construing prior version of Magnuson Act, 16 U.S.C. § 1856(3)(A)).
The Legislative History also clarifies the meaning of the term "registered under the law of the State."
Vessels would be considered registered under the law of a State if: (1) the owner, captain or vessel holds a fishing license or other document issued by the State that is prerequisite to participating in the fishery; (2) the vessel is numbered in the State; or (3) the vessel’s Federal documentation lists as a homeport a location within the State. Senate Report 104-297, p. 30.
Therefore, the Marine Fisheries Commission has the power to regulate North Carolina vessels in the EEZ, and the Marine Patrol has the power to cite those vessels in the EEZ. It is our opinion that the Marine Patrol has both subject matter jurisdiction and territorial jurisdiction over state registered vessels in the EEZ, subject to the restrictions set forth above. However, there remains no recourse available to the Marine Patrol against out-of-state vessels fishing in the EEZ off North Carolina and landing fish in another state. Of course, if the conduct prohibited in the EEZ is also prohibited in State waters, such as possession or landing, an out-of-state vessel may be cited once it enters State waters.
Thank you for your inquiry. Please advise us if we can be of further assistance.
signed by:
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General
cc: Preston Pate Frank Crawley Dan McLawhorn