July 22, 1998
Preston P. Pate, Jr. Director, Division of Marine Fisheries Post Office Box 769 Morehead City, North Carolina 28557-0769
Advisory Opinion: Town of Ocean Isle Beach Ordinance Prohibiting Gill Nets in Canals; G.S. §§ 160A-174, 113-133.
Dear Mr. Pate:
Per your request, we have examined Section 6-6-17 of the Town of Ocean Isle Beach Code of Municipal Ordinances (a copy of which is attached) for consistency with G.S. §§ 160A-174 and 113-133. Sec. 6-6-17(a) of the ordinance, adopted on June 9, 1998, provides:
It shall be unlawful for anyone to use and place a gill net within the natural and concrete canals of the Town of Ocean Isle Beach. That placement shall include, but is not limited to, attachment to a pier or left to float with any type of anchoring device.
The stated intent of the ordinance is public safety, a legitimate purpose for the exercise of the police power by a municipality. The preface to the ordinance recites the following finding:
WHEREAS, the Town of Ocean Isle Beach is concerned about the placement of gill nets that are used in the canals due to problems that arise in connection with navigation, safety to boaters and swimmers, interference with mammals and protected species of turtles that may become ensnared within the nets;
However, in G.S. § 160A-174(b), the General Assembly placed certain limitations on the ordinance-making power delegated to cities and towns. The pertinent part of the statute provides:
- (b)
- A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when: . . . .
- (2)
- The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law; [Emphasis added.]
Although the stated intent of the ordinance is public safety, it completely prohibits commercial fishermen, who are licensed by the State to use gill nets, from setting their nets in the canals within the town. The use of gill nets by licensed commercial fishermen is a method of fishing expressly authorized by State law, and the canals are public coastal fishing waters open to gill netting under the rules of the Marine Fisheries Commission ("MFC"). As a result, the local ordinance "makes unlawful an act, omission or condition which is expressly made lawful by State . . . law," and is barred by G.S. § 160A-174(b)(2). Thus we conclude that the ordinance is invalid, but only to the extent that it prohibits nets to be located where expressly permitted by State law.
Construing G.S. § 160A-174(b)(2), the North Carolina Supreme has concluded that: It has long been the law of this State that "towns and cities are parcels of the State; their corporate powers are emanations from the State for purposes of convenience, and it could never be allowed that they should contravene the policy of the State, or exercise powers not conferred, much less such as are either expressly or impliedly prohibited." [Citations omitted, emphasis added.] Greene v. City of Winston-Salem, 287 N.C. 66, 71, 213 S.E.2d 231, 235 (1975).
The manner in which the rule applies is illustrated by Tastee-Freez, Inc. v. Raleigh, 256 N.C. 208, 123 S.E.2d 632 (1962). In that case, an ice cream peddler had obtained a State license to conduct that business from a mobile freezer unit along the streets and highways, including those within the City of Raleigh. However, the city’s own licensing ordinance prevented the State licensee from peddling his products along the city streets. The Supreme Court held the city ordinance was invalid and unenforceable because it purported to prohibit a person from exercising a privilege granted by a State license. The same may be said of the Ocean Isle Beach ordinance, as it attempts to prohibit fishing permitted under commercial fishing licenses issued by the State.
This analysis is consistent with G.S. § 113-133, which the General Assembly enacted in 1965. That statute, captioned "Abolition of local coastal fishing laws," repealed all local fishing laws, including local ordinances on that subject. That provision provides, in part, that "[t]he 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." However, the statute provides that local governments may exercise their valid powers "over subjects other than the conservation of marine and estuarine resources, even though an incidental effect" of the ordinance may result in an overlap or conflict of jurisdiction on a matter not essential to the conservation objectives of that Subchapter of the General Statutes.
This office has previously opined that "[i]n view of this statute [G.S. § 113-133] the authority to regulate coastal fishing is within the exclusive power of the North Carolina Department of Conservation and Development [now the Department of Environment and Natural Resources]." Opinion of the Attorney General to Mr. Clifton L. Moore, Jr., Topsail Beach Town Attorney, 41
N.C.A.G. 642 (1971). Since that opinion issued, many of those regulatory functions have been transferred to the MFC. See G.S. §§ 113-181 and 113-182. That opinion concluded:
Although G.S. 113-133 does not prohibit local ordinances which exercise valid power over subject matters other than conservation of marine and estuarine resources within their jurisdiction, the regulation of commercial fishermen so as to prevent their fishing in certain areas or using methods permitted by State law would amount to the exercise of authority over the conservation of marine and estuarine resources. Local governments are not permitted to do so under G.S. 113-133. 41 N.C.A.G. at 643.
In addition, G.S. § 113-181 authorizes DENR to "regulate placement of nets and other sports or commercial fishing apparatus in coastal fishing waters with regard to navigational and recreational safety as well as from a conservation standpoint." G.S. § 113-182 also vests the MFC with control over opening and closing of coastal fishing waters, except as to inland game fish, whether entirely or only as to the taking of particular classes of fish, use of particular equipment, or as to other activities within the jurisdiction of the Department.
G.S. § 113-182(b)(1). In the exercise of that authority, the MFC has adopted rules which govern to placement of nets from the standpoint of public safety. Those rules prohibit, inter alia, the use of nets "in any . . .location where it may constitute a hazard to navigation;" or "[s]o as to block more than two-thirds of any natural or manmade waterway." 15A N.C.A.C. 3J.0101. The MFC has also delegated to the Fisheries Director authority to close areas to the placement of gill nets through proclamations issued under G.S. § 113-221. 15A N.C.A.C. 3J.103(a). The town could petition the MFC under G.S. § 150B-20 to adopt a rule closing the canals to gill netting, or request the issuance of a proclamation closing the area.
Finally, this opinion is not affected by private ownership of the bed of these man-made canals. The courts have long recognized the ability of the State to regulate fisheries on private property. State v. Sutton, 139 N.C. 574, 575, 51 S.E. 1012 (1905); Bryant v. Hogarth 127 N.C. App. 79, 488 S.E.2d 269, rev. denied, 347 N.C. 396, 494 S.E.2d 406 (1997). Further, the waters within the canals are coastal fishing waters under the jurisdiction of the MFC. 15A N.C.A.C. 2Q.0202(4);
G.S. § 113-132. For example, fish caught within the canals must comply with harvest restrictions adopted by the Commission.
In summary, it is our opinion that Section 6-6-17 of the Town of Ocean Isle Beach Code of Municipal Ordinances violates G.S. § 160A-174(b)(2), and is therefore invalid to the extent that it prohibits the location of gill nets where they are expressly permitted by State law.
Thank you for your opinion request. We hope this analysis is useful to you.
signed by:
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General