CCA NC, Arguing Public Trust May Be a Bust!
A recent study conducted by researchers at LSU shows that Southern Flounder Stocks have declined throughout their entire range from North Carolina to Texas. The study was triggered by dramatic declines in the number of Southern Flounder in Louisiana waters. In 2017, Louisiana’s recreational Southern Flounder harvest declined to a mere 124,000 pounds, down from a high of 624,000 pounds in 2013.
When researchers went looking for the cause of the states declining flounder numbers, they discovered that Louisiana was not alone, in fact the species was experiencing a range-wide decline. In a Sea Grant Louisiana article titled, “Undocumented Flounder Population Decline Discovered”, lead LSU researcher Steve Midway was quoted as saying “Our findings show a clear range-wide decline of Southern Flounder, suggesting that local factors are unlikely to be the driving force behind the drop.” The Sea Grant Louisiana article, goes on to state that “the exact cause for the (range-wide) decline is still unknown, but environmental factors such as water temperature could be responsible.”
The findings of the LSU study fly directly in the face of claims made by the Coastal Conservation Association (CCA) of NC and the NC Wildlife Federation (NCWF), who suggests that decline of Southern Flounder is solely a NC issue caused by commercial fishing, specifically gillnetting.
Of course, as the CCA and NCWF constantly point out every other state, that makes up the Southern Flounders range, has severely restricted gillnets meaning gillnetting in NC is a “local factor” and could not be responsible for the simultaneous range-wide decline of Southern Flounder.
That said, it would be absurd to even suggest that gillnets were the issue for Southern Flounder in NC and at the exact same time some other factor impacted the species throughout its entire range. Absurd or not, that’s exactly what the CCA and NCWF are claiming!
This study raises an interesting question. Can one State, like North Carolina for instance, be responsible or even held accountable for the decline of a multi-state or coast wide stock?
According to the CCA, the answer is yes.
In the fall of 2020, the CCA filed a lawsuit against the State of North Carolina claiming that the decline of several coast-wide fish stocks, including Southern Flounder, is proof that NC has failed to satisfy its obligations under the public trust doctrine. In NC, the public trust doctrine dates back to the original thirteen colonies and required that the navigable waters of the State and those lands submerged beneath could not be privately owned, instead they are held by the State, in trust, for use by all. The CCA claims that the public trust doctrine is part of the State Constitution and therefore “imposes on the State a legal duty to hold and manage in trust, for the benefit of its current and future citizens, all of North Carolina’s public trust resources.” While we disagree with their interpretation of the state constitution, we do agree that the State holds certain resources in trust for the benefit of all.
So, what are “North Carolinas public trust resources?
North Carolina General Statute 113-131. (e) defines “public trust resources” as “land and water areas, both public and private, subject to public trust rights as that term is defined in G.S. 1-45.1.” G.S. 1-45.1 defines public trust rights as “those rights held in trust by the State for the use and benefit of the people of the State in common.” “They include but are not limited to the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the state and the right to freely use and enjoy the states ocean and estuarine beaches and public access beaches.”
NC Statute clearly identifies public trust resources as real property, “land and water areas”, held by the state and protects and defines the public trust rights to use and access, but not privately own these public trust resources.
Of course, the CCA has a much different interpretation of a public trust resource, asserting that “these public trust resources include the fish that swim in those public waters, which the state holds in trust for the benefit of all North Carolinians.” Their lawsuit notes the decline of multiple fish stocks, which they refer to collectively as “North Carolinas coastal fisheries resources” but makes no mention of the fact that these fish stocks do not reside solely or even continuously within North Carolinas borders. Can a resource which does not reside, permanently, within North Carolinas borders be considered a public trust resource of the state and therefore subject to our states Constitution, as the CCA claims?
In my opinion the answer is a resounding NO!
The truth is most of the fish species the CCA cites as proof of our states failure to satisfy its obligations under the public trust doctrine are not managed by the state. Congress has empowered the Atlantic States Marine Fisheries Commission with the authority to make binding decisions regulating these multi-state or coast-wide stocks. North Carolina, as a member state of the ASMFC has a seat at the table and vote but does not have authority to manage these fisheries as we see fit. Compliance is required, member-state or not, and enforceable by the US Secretary of Commerce.
Congress determined these multi-state stocks could not be effectively managed through state-by-state management and that a federally empowered agency with the ability to control the states was necessary, thus confirming that these interjurisdictional species were not public trust resources of any individual state but rather a broader resource that could not be maintained by any single state. North Carolinas sole responsibility is to comply with the ASMFC which it has done.
Despite this widely known fact, the CCA still claims the NC Constitution requires our state to do something we do not have the ability to achieve, assume sole responsibility for the management and overall abundance of coastwide fish stocks. The CCA claims “the people of North Carolina in their Constitution have mandated that the state uphold its public-trust obligations and respect their public trust rights” and cites Article XIV, Section 5 and Article I, Section 38 of the North Carolina Constitution as proof.
In my opinion both fall far short of supporting the CCA’s arguments.
Article XIV, Section 5 of the States Constitution states that “It shall be the policy of this state to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the state of North Carolina and its political subdivisions to…. preserve as a part of the common heritage of this state its…. estuaries [and) beaches.”
This clearly refers to the lands and waters, held in trust by the state, and makes no mention of the marine life living in those waters as they are not a resource covered by the public trust doctrine. In my opinion, Article I, Section 38 which states “The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife” confirms this conclusion.
Public-Trust resources are held permanently in trust by the state and cannot be privately owned. By making it a constitutional right to harvest fish and other wildlife, the citizens of this state made it a right to own those resources, which after being legally harvested are private property.
If you don’t believe me, go to your local fish market and try to harvest some “public-trust” fish without paying for them, see what happens. When you end up in court, and you will, maybe you should get your attorney to argue that the publics access to these public-trust resources is protected and guaranteed in the States Constitution.
You just might get away with it!
As crazy as that may seem, in my opinion it’s no more absurd than the CCA’s lawsuit. They blame “local factors” such as commercial fishing in North Carolina for the simultaneous decline of several multi-state stocks but completely ignore the undeniable impacts of other sources like recreational fishing. Once again, rules for thee, but not for me! Or maybe fun for me, but no seafood for thee!
Either way this lawsuit, like everything they do, is about allocation. More for them, less for everyone else. While these marine fishes are certainly a public resource, their ability to leave our states and even our federal waters certainly exclude them from being ‘public trust resources of the State” and while access to the waters of our state is a public trust right, access to a constant supply of fish within those waters is not. As for the CCA’s primary argument, that recreational fishing is a constitutional right while access to the resource through any other means is simply a very limited privilege, I’ll leave you with the following questions.
Is this what the NC General Assembly and NC voters intended?
What about the citizens who eat seafood but don’t fish? What rights do they have?
We may soon find out. If this case moves forward, it will be up to a judge to determine whether the “fishing public” has more right to our marine resources than those citizens who choose to access the resource through commercial fishermen, fishing guides, fish dealers, or restaurants, all of which are private businesses which depend on access to these resources.
NCFA- Executive Director
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