Appeals court says NC fisheries challenge can continue

Published 11:55 pm Wednesday, September 7, 2022

RALEIGH — Coastal recreational anglers can keep suing the state of North Carolina over accusations that government regulators have devastated near-shore fishing stocks in violation of the state constitution, the state Court of Appeals ruled Tuesday.

The Coastal Conservation Association of North Carolina and more than 80 individuals sued the state in 2020, alleging it had failed its fiduciary duty to protect the state’s fisheries from overfishing. Their complaint cited constitutional provisions giving people the right to hunt and fish and making it the state’s policy “to conserve and protect its lands and waters for the benefit of all its citizenry.”

The constitutional right to hunt, fish and harvest wildlife was approved by voters in November 2018. The “conserve and protect” language cited in the lawsuit was added to the constitution in 1972.

In particular, the anglers blamed the state Division of Marine Fisheries and state Marine Fisheries Commission for allowing excessive for-profit commercial fishing and certain fishing methods that they say have led to dramatic declines in certain fish stocks since 1997. The plaintiffs want a court to declare violations have occurred and to force the state to make changes.

Superior Court Judge Bryan Collins refused last year to dismiss the lawsuit. He rejected arguments by state Department of Justice attorneys that individual rights haven’t been violated in the challenged constitutional provisions, which in part only clarifies state policies and functions. The state attorneys also said the state hasn’t waived sovereign immunity, which exempts state government from lawsuits unless an agency consents to be sued.

The state appealed Collins’ ruling. Court of Appeals Judge Toby Hampson wrote Tuesday that state courts hadn’t previously ruled until now whether sovereign immunity bars someone from suing to enforce the state’s “public trust” obligations.

The public trust doctrine states that natural resources are held in the government’s trust to benefit current and future generations. But Hampton said a review of North Carolina law by the three-judge panel hearing the case determines that sovereign immunity doesn’t bar such claims.

“The doctrine of sovereign immunity will not stand as a barrier to North Carolina citizens who seek to remedy violations of their rights guaranteed under the North Carolina Constitution,” Hampson wrote in the unanimous opinion. And he said the plaintiffs’ alleged wrongs — the inability to protect public waters and to carry out the right to harvest fish — can’t be addressed through any other means.

The Coastal Conservation Association of North Carolina praised Tuesday’s decision, which also was agreed to by Court of Appeals Judge Hunter Murphy and April Wood.

“We look forward to proving our case on the merits and ensuring that sustainable coastal fisheries will be there for our children and grandchildren,” David Sneed, the group’s executive director, said in a statement.

Division of Marine Fisheries spokesperson Patricia Smith said state attorneys were reviewing Tuesday’s decision and considering whether to appeal it to the state Supreme Court.

The complaint was filed in November 2020. It said fisheries regulators have “continued to allow — and even facilitated — several commercial fishing practices that result in substantial wastage of coastal fish stocks or their prey species, or result in critical habitat destruction.”

Those practices included shrimp trawling in estuarine waters heavily populated by young fish, unattended gill nets, and chronic overfishing of popular species, according to the association. Fish stocks that have declined markedly include weakfish, Atlantic croaker and river herring, the conservation group says.