State management of fisheries the twin impacts of extended Federal jurisdiction and Douglas v. Seacoast Products, Inc

[From the U.S. Government Printing Office, www.gpo.gov]

,.oastal Zone
Information
Center

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NOV 1 1-77

Al
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A University of North Carolina
.N6
no. 77-15 Sea Grant College Publication
UNC-SG-77-15
September, 1977

Price: $1.50
Residents of North Carolina may request a single copy free of charge.
Copies are available from: UNC Sea Grant
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North Carolina State University
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STATE MANAGEMENT OF FISHERIES: THE TWIN IMPACTS OF EXTENDED

FEDERAL JURISDICTION AND DOUGLAS V. SEACOAST PRODUCTS, INC.,

By
Thomas J. Schoenbaum CSn', SM MINE
Gl@'11 MEIER,

and

Patricia E. McDonald

This work was sponsored by the Office of Sea Coast Grant,

NOAA, U.S. Dept. of Commerce, under Grant No.04-3-158-40 and

the North Carolina Dept. of Administration. The U.S. Govern-

ment is authorized to produce and distribute reprints for govern-

mental purpose notwithstanding any copyright that may appear here-

on.

SEA GRANT PUBLICATION UNC-SG-77-15 Sept., 1977

r
Property of CSC Library

U S DEPARTMENT OF COMMERCE NOAA
COASTAL SERVICES CENTER
2234 SOUTH HOBSON AVENUE
CHARLESTON , SC 29405-2413

SUMMARY

This study of the impact of new federal fishery law on state

marine fishery law, with special emphasis on North Carolina, draws the

following principal conclusions:

1. Extraterritorial state jurisdiction has been largely eliminated

under the Fishery Conservation and Management Act of 1976.

2. States will be increasingly compelled to adopt fishery manage-

ment rules that are satisfactory to federal authorities even with regard to

their own territorial waters.

3. Under recent decisions of the United States Supreme Court,

laws presently in effect in North Carolina and other states which dis-

criminate against non-residents appear to be unconstitutional.

4. North Carolina should require sports and recreational fisher-

men to obtain licenses to use marine fisheries resources.

5. In order to ameliorate the present conflict between sports and

commercial fishermen, North Carolina should consider raising the fees

now required to obtain a commercial fishing license. This would have

the effect of eliminating the economically-inefficient, occasional user

of commercial fisheries resources.

6. North Carolina should undertake to modernize its marine fisher-

ies laws in order to correlate them with new federal law. Among needed

changes is a legal framework for better data collection regarding stocks

and catch, economic and sociological research, and improved advisory

and other services rendered to the state's commercial fishermen.

Two recent events portend revolutionary changes in the management

of marine fisheries in the United States. The first was the passage
of the Fishery Conservation and Management Act of 1976, (FCMA)..!/ By

this act, Congress established a 197-mile wide exclusive fisheries

conservation zone contiguous to the three mile territorial sea of the

United States. Eight Regional Fisheries Management Councils are es-

tablished with the task of preparing and implementing fisheries

management plans for all fisheries within their geographical area
of authority. The impetus for this act, whIch has been widely noted
and discussed,Z/was to place some control over foreign fishing vessels

off our shores and to thereby benefit the domestic fishing industry.

Another aim was to promote the conservation of fisheries resources and

to restore those stocks which have been badly depleted by over-exploita-
tion.2/ An impact of the FCMA which has been largely overlooked,

however, is the effect on fisheries regulation by the individual states,

which up to now have enjoyed relative autonomy in developing their own

management principles.

The second important development, which carries major implications

for state fisheries management, is the Supreme Court's decision in Douglas
v. Seacoast Products, Inc.@@/ In that" case the court held that two Vir-

ginia statutes which discriminated against non-residents and aliens

were preempted by the federal statutes governing the enrollment and

-2-

licensing of fishing vessels. In effect,,a state will not be allowed

to deny a federally licensed ship the right to fish except through

reasonable conservation measures that are equally applicable to all

who use the resource.

The purpose of this article is to explore the implications of

these two developments and their impact an state management of marine

fisheries. The legal basis for state regulation will first be dealt

with,.followed byan analysis of the FCMA as an overlay an these

traditional legal principles. Then, in order to provide a concrete

setting for analysis, the present law of a typical coastal state,

North Carolina, will be describedg and conclusions will Oe offered as

to specific impacts and changes that are likely to come about in

state law as a result of the now era in fisheries management.

I. THE LEGAL AND CONSTITUTIONAL FRAMEWORK FOR STATE CONTROL OF

MARINE FISHERIES

A. The Leqal Basis of State Control

One of the perennial problems of the law of fisheries management

has been to determine the precise source of state jurisdiction and

control. Early decisions of the United States Supreme Court contained

language indicating that states exercise control based on their title
or ownership interest in fishes and wildlife..!/ In subsequent cases,

however, the Supreme Court repudiated the state ownership doctrine,
stating in Missmai v. Holland,A/ that state claim of title rests upon
a 11slender reed" and finallygin the 1948 decision in Toomer v. Witsell, 7/

calling the ownership theory "a fiction expressive in legal shorthand

of the importance to its people that State have power to preserve
and regulate the exploitation of an important resource." B/

The state ownership of fisheries doctrine again surfaced,

-3-

however, with the passage of the Submerged Lands Act2l in 1953. This

act grants to coastal states "title to and ownership of ... natural

resources" in lands beneath navigable waters and within such waters,

including the "right and power to manage, administer, lease, develop,
and use the said land and natural resources... MLV Natural resources

are defined in the act to include fish and other marine animal and
plant lifeAl/ This language of statutory grant was interpreted in cer-

tain quarters to grant the states ownership of marine resources within
their territorial waters. 12/

The Supreme Court in Douglas expressly rejected this argument

and reiterated the view stated in Toomer that the ownership doctrine

is only a legal fiction. The Submerged Lands Act interEISt given to the

states was interpreted not as a grant of ownership of living marine

resources but as a power of administration and control. Thus the

authority of the states over fish and other marine resources is merely

to manage.bhe resource, exercising "its police power in conformity
with the federal laws and constitution.'IL3/

Douglas accordingly broadly confirms the right of states to apply

"reasonable, non-discriminatory conservation and environmental protec-
tion measures IILY to coastal fishing within their territory, which

generally extends to offshore waters three nautical miles from the
J5/
coastline.

B. Extraterritorial State Jurisdiction

Under some circumstances , however, traditional state regulation

of marine fisheries has been permitted to extend beyond the limits of

territorial jurisdiction. Two judicially developed theories were

-4-

established prior to 229_qlas to validate such extraterritorial manage-

ment. The first line of decisions involves regulation in the form

of what are known collectively as state "landing laws." Under this

category of regulation, states commonly exercise control over fish

caught outside the three mile limit that are brought within their
16/
territorial waters. In the leading case of Bayside Fish Co. v. Gentryr-

the Supreme Court upheld a California law regulating the processing

of sardines as a valid exercise of the police power although it

applied to fish caught outside as well as within three miles. This

holding was based upon the ground that the purpose of the regulation

was to prevent depletion of the local supply of fish, and it was necessary

to exercise jurisdiction over fish brought into the state to prevent
evasion of the local policy.E/ The argument that the regulation

constituted an improper burden on interstate commerce was rejected,

the court stating that any impact on commerce was incidental and
beyond the purposes of the legislationA/ By the same token, states
are allowed to prohibit possession of fish taken outside the state 19/

and to require a permit for any fishing vessel operating in state
waters even if the catch came from operations wholly outside the stateAO-/

The second basis for state extraterritorial control is derived

from the right of a state to control the conduct of its citizens on

the high seas. This was the rationale used by the Supreme:Court
21/
in Skiriates v. Florida , which affirmed the conviction of a Florida

resident who had used gear prohibited under Florida law for the purpose

of harvesting sponges outside the territorial limits of the state.

.The state regulation was held to be a valid exercise of the police power

by the state upon one of its citizens, permissible in the absence of
any conflict with federal law. L2/

-5-

Recently, a series of cases arising in Alaska have explored a

possible new basis for state extraterritorial jurisdiction. The con-

troversy arose as a result of regulations controlling crab fishing

promulgated by the Alaska Board of Fish and Game. The regulations

were made applicable to a region denominated the Bering Sea Shellfish

Area, which was defined to extend hundreds of miles west of Alaska's

shoreline. They provided for the closing of the crab fishing area

each year once 23,000,000 pounds of crab had been taken. It was made

unlawful to possess, buy or sell such crab "taken in any waters seaward
of that officially designated as the territorial seas of Alaska."13/
In Hjelle v. Brooks, L4/ crab fishermen from the State of Washington

obtained a preliminary injunction against the enforcement of these

regulations on the ground that they constituted an unconstitutional

burden on interstate commerce. The court distinguished Bayside and

the landing law cases, pointing out that the Alaska crab regulations

purport to directly regulate extraterritorial conduct without any

showing that their purpose was to facilitate enforcement of conserva-
tion of the crab fishery within state waters. 25/

After the Hjelle decision, the offending regulations were repealed

and a set of emergency measures were issued. These established a

series of crab fishing closures for designated "statistical areas",

each of which consisted of (1) allregistratiorl'area of waters within state

jurisdiction and (2) an adjacent seaward "biological influence zone."
In State v. Bundrant,L6-/ the Alaska Supreme Court was called upon to

review the convictions of several crab fishermen charged with violating

the new regulations. There were two categories of defendants: (1) those

charged with possession within the three mile limit of crabs taken on

the high areas, (2) those charged with illegal activities within closed

areas from 16 to 60 miles from the Alaska coast. Only one of the crab

fishermen was a resident of Alaska.

-6-

In holding both categories of defendants to be properly charged

and subject to state regulation, the Alaska Supreme Court repudiated

the analysis of the Hjelle court and departed from the well-established

limits of state power to exercise extraterritorial jurisdiction.

The court declined to read the landing law cases restrictively

to require the showing of problem of enforcement within state terri-

torial waters as the basis for state jurisdiction; instead, the

test is whether extraterritorial control is.necessary on ecological

grounds for the conservation of a fisheries resources that exists

partially within state waters. Applying this doctrine, the court

found that crabs are migratory creatures, moving beyond the state's

territorial boundaries at various times during the year. Since the

regulation of activity on the high seas is necessary to protect the maxi-

mum sustainable yield within its waters, it is within the state's
authority under the police power. 17/

The court in Bundrant also extended the Skiriotes .-concept of

the power of a state to regulate the conduct of its citizens on the

high seas. Citing precedents from domestic and international law,

this principle was broadened to a general concept of "objective

territorial" jurisdiction --- that a state can control the activities

of non-citizens outside its jurisdiction if they produce detrimental

effects on the fishery within state waters. The impact of this concept

is that it would allow direct state enforcement against non-citizens
on the high seas. 28/

Although Bundrant held this unilateral assertion of jurisdiction

by a state over fisheries resources of the high seas was not preempted

by any paramount federal law, it would seem that this result would not

survive the passage, subsequent to the decision, of the FCMA, which declares

exclusive fisheries management authority for the United.States within

-7-

29/
the 197 mile fishery conservation zone , and prohibits a state from

directly or indirectly regulating fishing outside its boundaries with
the exception of state-registered vesselsAO/Morever, the analysis

employed in Bundrant seems to be highly questionable. The principle

of Skiriotes, which based the assertion of extraterritorial jurisdiction,

by analogy, on the "nationality" principle of international law, which

allows states to assert jurisdiction over citizens, is turned on its head

and transformed into "objective territorial" jurisdiction, which focuses

on the effect within the state of activities outside its territory.

Even the application of the objective territorial principle seems spurious

since the court did not discuss whether the effect within the state was

both direct and substantial, as required by section 18 of the Restatement

(second), Foreign Relations law of the United States, which the court
relied upon as authority. 311

A more difficult question is whether Congress intended through

the FCMA to preempt even the well established bases of state extra-

territorial jurisdiction. By its literal terms, the act appears to abolish

both landing law and state citizen jurisdiction except for vessels

registered under state lawsince the saving clause for state jurisdiction

relates only to its exercise within state boundaries and prohibits
direct or indirect regulation beyond.1-2/ The legislative history of

the FCMA is curiously silent on this problem, although a colloquy

between Senators Stevens and Gravel appears to confirm a legislative
intent to restrict the exercise of state control.23/ In any caseit

would seem that the implementation of the FCMA will make state extra-

territorial control much less important since the act contemplates

unified management plans promulgated by both states and Regional Councils

for those species of fish that are found both within and without the three

mile limit9and regulations pertaining to the fishery are to be coordinated

at the Council level.L4/Landing laws as enforcement devices would not

generally be needed since enforcement under the FCMA would be carried out

by federal authorities using the facilities and personnel of the states
on an as-needed basis.L5/ Similarly, the reason for state citizen extra-

territorial jurisdiction would seem to have disappeared @vith the coming of

national fisheries management.

C. Limits on State Jurisdiction

Even within the three mile limit, state control over marine fisheries

is limited by the Constitution and applicable federal law. In Toomer v.
Witsell,L/ the Supreme Court dealt with the constitutional limitations,

holding that a South Carolina statute which discriminated against non-

residents by requiring them to pay a $2500 license fee while residents were

allowed to pay $25, was a violation of privileges and immunities clause of

the Constitution. Interpreting the right of non-residents of a state

to engage in the business of fishing within a state on the basis of substan-

tial equality with citizens of that state as one of the privileges guaran-

teed by the clause, the court stated that a disparity of treatment of non-

residents may be justified only where there is a substantial reason for the

discriminatory treatment beyond the mere fact that they are citizens of another

state and, if such reason exists, the degree of discrimination must bear a
close relation to it.L7/ The arguments that the discriminatory fees were neces-

sary for conservation and for costs of enforcement were rejected by the court

as without factual basis in the record.

The Toomer court also struck down a South Carolina statute which re-

quired all owners of shrimp boats fishing within the state's territorial waters

to unload their catch at a South Carolina port. This law was held to consti-

tute a direct burden on interstate commerce with the object of diverting busi-

ness to South Carolina that might go to other states. This contravened the

commerce clause of the Constitution and could not be applied even to facili-
381
tate the collection of a valid tax on shrimp.-

-9-
The equal protection clause of the Fourteenth Amendment has also

been the basis of declaring state discrimination unconstitutional.
In Takahaski v-. Fish and Game Commission,2-9/ the Supreme Court held

that a California statute barring the issuance of commercial fishing

licenses to "persons ineligible for citizenship" was directed at

resident alien Japanese and was an impermissible classification. The

concept of equal protection protects the right of resident aliens

to work for a living on the basis of equality with citizens.

In the recent Douglas decision, the Supreme Court announced yet

another theory to combat state discrimination. In invalidating two

Virginia statutes which restricted the issuance of commercial fishing

licenses to United States citizens and prohibited non-residents from

catching menhaden in the Virginia portion of Chesapeake Bay, the court

chose to rely on a preemption analysis instead of a constitutional

ground. The challenge to Virginia laws was brought by Seacoast Pro-

ducts, Inc., a Delaware corporation qualified to do business in Vir-

ginia,which was owned by a British corporation almost entirely owned

by alien stockholders. Seacoast Products' fishing vessels were enrolled

and licensed United States flag ships under the Federal Enrollment and

Licensing Act, which permits a corporation having alien stockholders

to register or enroll ships if it is organized under domestic law, if

its president and chairman of its board are American citizens and if

no more of its directors than a minority of the number necessary to
constitute a quorum are noncitizens.40/
Relying on the famous case of Gibbons v,_@den,@Ll/ the Supreme Court

held that enrollment and licensing of a vessel under federal law implies

an authority to carry on the activity for which it is licensed. Since

Seacoast Products' vessels had been licensed for fishing, they had been

granted the right to fish in Virginia waters on the same basis as

_10-
Virginia residents. Thus the discriminatory Virginia laws must fall

under the Supremacy clause of the Constitution since they are in
direct conflict with federal law.@L2/ Enrolled or licensed fishing

vessels can therefore only be subjected to conservation and other

restrictions under state law as are equally applicable to state resi-
dents. 43/

It appears regrettable that the Supreme Court, in invalidating

the two Virginia statutesdid not simply use established constitutional

grounds as a weapon against the discrimination involved. In holding

for the first time, without any basis other than a weak analogy from
an 1824 case,@L4-/that the Enrollment and Licensing Act confers a federal

right to fish, the court seems to have unleashed a new concept that will

,have a life of its own beyond the court's purpose of ending state law

discrimination. This new federal "fishing license" would appear to

potentially conflict with the FCMA, which was intended by Congress

to provide comprehensive regulation of United States fisheries.

For example, under the authority of the FCMA, a fisheries management

plan prepared by a Regional Council may require a permit of any fishing

vessel wishing to fish within the fishery conservation zone and, under

certain conditions, may establish a limited entry system for using th6
fisheryA5/ Similarly, states may decide to limit entry to fisheries

located within their waters for conservation purposes. It is not clear

how such systems can be reconciled with the federal right to fish for

all documented vessels under the Enrollment-and Licensing Act.

At the same time, the court's decision in Douglas is subject to

criticism because it does not invalidate discrimination against all

non-residents, but only those with documented vessels. Certain categories
,,46/
of vessels, most importantly those of less than 5 net tons,,are exempL_

and not subject to documentation. Thus, at least under the Douglas

theory, states would be able to continue to deny fishing

to owners of smaller vessels..

I.I. THE FISHERY CONSERVATION AND MANAGEMENT ACT OF 1976

The avowed purpose of the FCMA is to establish comprehensive

management and conservation of the fisheries resources found off the

coasts of the United States. This broad aim is implemented through

the declaration of a federal fishery conservation zone contiguous to

and extending out 197 nautical miles from the geographical limit of state
territorial waters.L7/ All fishery resources found within this zoneg

with the exception of highly migratory species of tuna, are subject to

the exclusive management of the United States;. moreover this manage-

ment authority extends beyond the zone where necessary to comprehensively
manage continental shelf and anadromous fishery resources.L/

The authority to manage the fishery conservation zone is granted

to eight Regional Fishery Management Councils which are created under
-9/
the actA The states are to be represented in the Councils since

voting members of each are to include the principal marine fishery

management official from each state in the region, the regional director

of the National Marine Fisheries Service and from four to twelve persons

appointed by the Secretary of Commerce from lists of qualified indi-
viduals drawn up by the governors of the states in the region.20_/

,The primary duty of the Councils and the principal management tool

under the FCMA is the promulgation of a fisheries management plan for
each management unit of the fishery.L'-/ Each plan is subject to review

by the Secretary of Commerce for approval, disapproval or partial
disapproval. @-2/ If any Council fails to prepare a plan or does not modi-

fy a plan in an appropriate fashion, the Secretary has the power to
prepare the plan. 53/

-12-

There are seven national standards under the FCMA that each plan

must meet. The most important of these is the first, which is that

management efforts should prevent overfishing and achieve optimal
yield from each fishery on a continuing basis.2-4/ The determination

of optimal yield (OY) begins with the biological determination of

maximum sustainable yield (MSY), which is the largest average annual

catch or yield in terms of weight of fish caught that can be taken
continuously from a fishery stock.25/ The determination of OY is

then made taking additional factors into account, such as values of the

resource other than harvesting, the importance of the quality of

recreational fishing, social and economic factors, the need for fisheries
6/
products and the condition of the habitat.L- Other national standards

require that the plans be based on the best scientific information

available, provide for the management of stocks as a unit through-

out their range, not discriminate between residents of different states,

promote economic efficiency, allow for flexibility of management,
and avoid duplication.@L7/

Each management plan will consist of a description of the fishery

and the present fishing levels and interests involved, management and

conservation measures to be required, informational and data needs, as

well as the OY, including a calculation of potential harvest by fishing

vessels of the United States and the surplus available for foreign
8/
fishing.L Management and conservation measures that may be a part

of each plan, required of all who use the fishery, may include princi-

pally permit requirements, gear, area, seasonal, size and quantity
9/
limits.L- A system of limiting access to the fishery may also be
promulgated in order to achieve Oy.60/

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Foreign fishing within the conservation zone and for anedromous

fish is prohibited unless (1) there is an existing international fishery

a�reement or a governing international fishery agreement, (2) the

foreign nation extends substantially the same fishing privileges to

U.S. fishing boats as the U.S..extends to foreign vessels, and

(3) the foreign fishing vessel has a valid permit to engage in fishing
under the act.@ I/ The total amount of foreign fishing allowed is that
portion of the OY of each fishery not caught by American vessels.,@-2/

The Secretary of State in cooperation with the Secretary of Commerce

is to allocate the total amount of foreign fishing among different

nations according to traditional fishing patternsq past cooperation

and contribution to fishery research and enforcement and any other
matters that are appropriate.@3/ Applications for foreign fishing are

published in The Federal Register and circulated for comment to the

Councils and to committees of the House of Representatives and the
Senate.64/

Although the Federal Fisheries Conservation Zone is defined to
65/ and the FCMA contains a savings
exclude state territorial -waters, ,

clause allowing the states to continue to exercise jurisdiction within
66/
their boundaries-I it is evident that the federal fishing law created

by the FCMA has a potential extraterritorial impact on state authority.
This impact would, of course, be upheld under the preemption analysis.@7/

The principal source of potential extra territorial impact is the

injunction, under the third national standard for Councils management

plans,that individual stacks of fish should be managed as a unit
throughout their range.@B/ It is obvious that any stock that is fished

both within federal and state zones of authority cannot be adequately

-14-

managed if the state concerned enforces substantially different

regulations than the Council. Since under the FCMA, the Secretary

of Commerce has ultimate power over the type of management plan, the

legal mechanism exists for the federal government to conform state

management practices to federal standards, at least for fish stocks

that range outside the three mile limit. This federal authority can

be enforced, if necessary, through the override provision of the FCMA,

under which the Secretary, after notice and a hearing, can take over

state management authority (except in internal waters) upon a finding

that the state is frustrating the carrying out of a Council management
plan. 69/

Furthermore, under recently adopted regulations under the FCMA,

the third national standard also requires a consideration of the inter-
relationship of species and habitat.2-0/Management plans promulgated

by the Councils must also address the impact of pollution, wetland
and estuarine degradation on stocks of fish throughout their range.2-1/

This may provide a mechanism for federal involvement in wetland regula-

tion beyond that authority already exercised by the Corps of Engiheers
under section 10 of the Rivers and Harbors Ac' 72/
t-- and the Corps and

the Environmental Protection Agency under the Federal Water'Pollution
73/
Control ct.-

On the other hand, many mechanisms of state involvement were

built into the FCMA. States are heavily represented among the Council

members themselvesiand thus the management plans will undoubtedly

reflect state interests. This is confirmed by a specific provision of

the FCMA which allows the incorporation of state conservation and
-'4/
management measures into particular plans on a discretionary basis._

-15-

Two other possible state "handles" on Council planning activities

are.noteworthy. The procedures of the National Environmental Policy
Act 25/are fully applicable to the Councils' actions.26/ The standards
77/
of this acU- would appear to require the preparation of an environmental

impact statement in connection with the promulgation of most management

plans. The impact statement process would allow the states, as well

as other interested parties, the opportunity to comment an the plans.

In addition, the provisions of the Coastal Zone Management Act of 1972

require a consideration by federal agencies of the consistency of their
actions with the coastal zone management programs of the states. 78/

Thus Councils will need to coordinate their actions with state agencies
involved in coas-tal planning. 79/

III. AN ANALYSIS OF THE MARINE FISHING LAWS OF A

TYPICAL COASTAL STATE: NORTH CAROLINA

In order to highlight the coming changes in state management of

marine fisheries as a result of recent developments, it is useful to

focus on the laws and regulations of a particular coastal state.

North Carolina appears to be a good choice for such an exercise;

while it has not been in the forefront of pioneering legislative

developments, it has given serious attention to marine fisheries
regulation for many years. Be/

A. An Overview of North Carolina Fisheries Law

Marine fishing is an important industry in North Carolina.
l/
Commercial landings in 1976 totaled almost $27.A million, and

recreational fishing is one of the prime factors in a multi-million
do ilar coastal tourist industry. Major commercial species in North Carolina

-16-

are shrimp, blue crabs, hard clams, oysters, sea scallops, striped
82/
bass, flounder, croaker, spot, gray trout and menhaden,;_
Authority over the marine and estuarine resources of North Carolina

is vested in a Marine Fisheries Commission composed of fifteen mem-
bers appointed by the GovernorX3/ The Commission is responsible

for establishing policy and promulgating rules and regulations.

A state agency, the Division of Marine Fisheries, is charged with the
administration and enforcement*of coastal fisheries laws and regulations. 24/

It is divided into three sections: Law Enforcement, Research and

Development and Estuarine Studies. The Commercial and Sports Fisheries

Advisory Committee is empowered to serve in an advisory capacity to
85/
the Commission and Division..-

Substantively, North Carolina presently manages marine fisheries
as a common property resource 86/ with open access to all users. The

state has not employed the concept of limited entry, which has been

used in a few states for economic and conservation reasons to restrict

access to the resource to maximize the return in relation to the fishing
effort employed. 27/ The manner of regulation of each of the principal

fisheries in the state is to impose gear restrictions, area and seasonal

limits, methods of taking, fish size and amount limitations on the

fishermen that use the resource. The Marine Fisheries Commission
has broad discretion to promulgate appropriate measures. 88/

Geographically, North Carolina law asserts jurisdiction over a zone
200 miles from the coastline. 2-9/ This extension of jurisdiction was

probably invalid when passed and is surely void now that it has been

preempted by the FCMA. As a practical matter, North Carolina has
90/
never tried to regulate the area beyond the three mile limit.-

North Carolina also enforces several "landing laws" prohibiting the

-17-

possession of fish from whatever origin in violation of North Carolina
size and season limits.2-1/

Additional regulation of the fishery in North Carolina is through

requiring a variety of licenses, permits and leases of certain categories

of users of the resource. First, all vessels engaged in commercial

fishing, which is defined in terms of using commercial fishing equip-

ment or fishing with the purpose of selling the fish, are required

to obtain a commercial fishing license. This license requirement

also applies to vessels engaged in commercial fishing outside state
waters which have their primary situs in North Carolina.2-2/ Licensing

is a ministerial function whose primary purpose is to provide data

and to generate revenue. Even so, the fees are nominal for residents,

ranging from $1.00 for vessels without motors to seventy-five cents
a foot for vessels over 26 feet. 23/ Non-residents of North Carolina,

however, must pay $200.00 for each vessel licensed, regardless of its
length.2-4/ This latter provision is intended primarily for South Carolina

vessels; in the administration of the law, Virginia residents are

denied licenses on the ground that state discriminates against North
Carolina fishermen. 95/ It is also noteworthy that recreational and sports

fishermen who do not use commercial gear are free from any licensing

requirement.

Second, all persons taking oysters or clams in state waters

for commercial purposes must obtain a license. The fee for such a

license if $1.00, but its issuance is restricted to residents of the
state.2-6/ Third, persons who market fish commercially, with the exception
of commercial fishermen, must obtain a fish dealers' license.27/ The

primary purpose of this license is to facilitate the collection of

North Carolina's tax on fish sales and to gather sale statistics. There
is apparently widespread evasion of this tax, which currently amounts

to only about $28,000 per year. For this reason, fish sale statistics are
notoriously unreliable.2-8/ A fourth category of license, to land and sell

fish, covers any commercial fishermen who, although exempt from.,the commer-
cial fishing vessel license requirement, lands in the state to sell fish.2-9/

In addition, various types of gear, such as butterfly nets for the taking of

shrimp and hydraulic dredges for hard clams, cannot be used without a per-:
mitA-0/ Also, the Marine Fisheries Commission may lease to residents of

North Carolina public bottoms underlying coastal fishing waters for commer-

cial cultivation of oysters and clams, provided that,they do not contain a
natural oyster or clam bed. 101/ The Commission also administers North Carolina

law governing wetlands and requiring a permit for dredging or filling in
such areas. 102/

8. The Potential Impact of Federal Fisheries

Management on North Carolina Law.

On the canvas of North Carolina fisheries law, it is possible to paint

in vivid hues some of the changes that are bound to come to state fisheries

management as a result of new federal.involvement. It should be emphasized

at the outset that the impact on the states should not be totally negative,

in the direction of erosion of state power. The new federal program, it will

be seen, presents the states with new opportunities which, if taken, should

lead to an increased state role and enormous economic and social benefits

for fishing and coastal communities.

Considering the paradigm of North Carolina law, a major change will be

that whereas before the FCMA, theMarine Fisheries Commission exercised vir-

tually unlimited discretion in substantive management matters, such as legal

sizes and limits, seasons, area and gear restrictions, that freedom of action

will be greatly circumscribed under federal fisheries management. Except

_19-

for fisheries that are wholly within state waters, the Commissiono

in promulgating management regulations, will be compelled under the
103/
threat of federal override, - to follow the lead of the Regional

Councils. Since the full.-time staff of each Regional Council will
be extremely limited, 104/ it is expected that the major influence in

management policy will be the National Marine Fisheries Service (NMFS)

in the Depart ment of Commerce. This agency has better data.

collection capability and more information about the biology and
ecology of fisheries resources than any individual state agency. 105/

State fisheries programs may also be required to change quali-

tatively, in addition to having to coordinate gear, season and other

management restrictions with the Councils. NMFS and federal authorities

are likely to encourage the comprehensive management of each fishery.

The ultimate in this regard is some form of limited entry'program,

which restricts access to a fishery through the limited availability

of licenses, the establishment of quotas, or charging resource user fees

high enough to restrict entry to the most economically efficient opera-
106/
tions. Limited entry is very controversial from the political,
economic and constitutional points of view, 107/ but under the FCMA,

the Councils have discretion to adopt such a management program..

As pressures on fishing resources increase, the elements of the limited

entry management alternative will undoubtedly receive increasing attention.

Even if limited entry is not chosen, a state like North Carolina

should be compelled to employ a much more comprehensive system of regu-

lation. A major hole in the state's program is the lack of any license
requirement for recreational and sports fishermen. 108/ As a result,

there is presently little data on numbers of such fishermen or their
109/
catcn. it also renders impossible any fair system of allocation of

the resource between these and other.user groups and, as a result, conflicts

_20-

between sports and commercial fishermen have been increasing. 110/

Moreover, federal management through the Councils may compel North

Carolina to more closely integrate its regulation of marshland and

wetland resources with fisheries management and to establish a more
adequate program for attacking the problem of coastal pollution. 112/

One of the most serious problems of present North Carolina law

is discrimination against non-residents. It is astounding that twenty-
nine years after the Supreme Court's decision in loomer, 113/ North

Carolina, through a high-fee system or outright denial of the right to

fish, maintains the very system of partition of the fishery along state

lines that Toomer condemned. Other states similarly administer discrimina-
L14/
tory regulations. This situation is testimony to the ineffectiveness

of the various multi-state marine fisheries commissions created by inter-
state compact to secure the enactment of uniform fisheries laws. 115/

Under the standards of Supreme Court decisions, the discriminatory

practices of North Carolina appear to be unconstitutional. Under Douglas,

the state can no longer deny the right to use the fishery to vessels
documented under the Enrollment and Licensing Act.L1-6/Even as to un-'

documented vessels, the blanket denial of commercial fishing licenses

to Virginians and the high-fee charged South Carolinians would not seem

justified by any substantial state interest and would according vio-
late the privileges and immunities clause under the Toomer standard. L17/

The provision of North Carolina law limiting commercial clam and oyster
licenses to residents would be valid as to inland waters under McCready, 118/

but this 1876 case may be ripe for overruling by the Supreme Court.
119
Moreover, national standard four under the FCMA71-/prohibits discrimina-

tion between residents of different states, and this would provide

additional legal justification to force an end to these practices.

Thus under federal standards North Carolina fishermen will shortly

-21-

have to share the state's fishery with non-residents, but in return

will gain access to other states' resources.

The most important impact of federal fisheries management on the

states, howeverg will be to open new frontiers for their marine fisheries

management programs. Under the FCMA, provision is made to restrict

foreign fishing within 200 miles to that portion of OY that is surplus,
considering the capability of domestic fishermen. 120/ This is an invi-

tation to the states to upgrade their fishermen's ability to utilize

the resource. Furthermore, the determination of OY and the other

national standards for fishery management plans prepared by the Coun-

cils rest upon the application of biological, statistical, econo-
mic and sociological knowledge and information.1-21/ The effective-

ness of states' ability to influence Council decisions will be in

direct proportion to their ability to gather and inject such data

into the decision-making process.

Most states' programs are deficient in both these regards. North

Carolina operates a fishermen's economic development program con-
122/
sisting of advisory services to fishermen, but it has not been

given sufficient priority. A major problem has been, for example,

that the state's marketing and fish processing facilities have never

accommodated the commercial catchso that fish caught by the state's
123/
fishermen must be shipped elsewhere for processing and distributionr-

There is need to increase the existing programs of market analysis

and improvementq education in business and financial methods, finan-

cial assistance and technical advisory services to improve the capa-

bility of the state's fishermen. All states should establish a

comprehensive framework for the development of their commercial fish-

ing industry.

Similarly, there is a lack of knowledge on the state level of

-22-

biological information on stocks, catch statistics and the sociology

of coastal communities. In North Carolina, the National Marine

Fisheries Service is the primary source of catch statistics, and
these areIincomplete to a great degree. 124/ Fish sales are reported
only in connection wi.th tax payments and are thus unreliable. @L25/

Very little information exists with respect to stocks and their re-
126/
lation to environmental conditions. Social data is almost non-
existent. 127/ The future effectiveness of state programs will depend

to a great degree on the extent to which, in cooperation with federal

authoritiesq these gaps of knowledge can be remedied. New legal

authority and financial resources are needed as a framework for

a comprehensive attack on these problems.

-23-

CONCLUSION

The new Federal Fishery Management Conservation Act and the

recent Douglas decision in the United States Supreme Court present

the states with both new problems and opportunities regarding their

marine fisheries management programs. There is little doubt that

these developments on the federal level will compel revolutionary

changes in the way states presently manage fisheries. State

programs will have to be upgraded, and state authorities' freedom

of action will be severely constrained by increased federal involve-

ment. A major effect will be an end to any attempt by states to

reserve the fishery exclusively for their own citizens. At the same

time, the new fisheries management concepts give the states an un-

precedented opportunity to develop their fishing industries. It

is time f or states to undertake the comprehensive revision of their

laws and programs relating to marine fisheries in order to maximize

the potential provided by new federal requirements.

FO OTNOTES

Professor of Law, University of North Carolina at Chapel Hill.

A.B. 1975., University of Illinois; second year studentt University of.

North Carolina School of Law.

+ This article was prepared under a grant from the Office ofSea Grant,

National Oceanic and Atmospheric Administration, United States Depart-

ment of Commerce and the State of North Carolinap Department of Adminis-

tration.

1. Fishery Conservation and Management Act of 1976, 16 U.S.C.A. ��1801-

1882 (Supp. 1977).

2. Eq. Comment, The Fishery Conservation and Management Act of 1976:

Structure and Function of Contiguous Economic Zone,.12 Texas Int'l L.J.

331 (1975); Comment, The Effects of the 200-mile United States Fishing,

Zone, 37 La. L. Rev. 852 (1977).

3. 16 U.S.C.A. �IBOI; S. Ree. No. 4169 94th Cong., Ist Sess. 1 (1975),

reprinted in Comm. on Commerce, 94th Cong., lst_Sess., A Legislative

History of the Fishery Conservation and Manaciemeunt Act of 1976, at

653-725 (1976).

4. U.S. 97 S.Ct. 1740 (1977).

5. E.g. Martin v. Waddell, 41 U.S.(16 Pet.)367 (1842); Manchester v. Massachu-

setts, 139 U.S. 240 (1891); Geer v. Connecticut 161 U.S. 519 (1896).

6. 252 U.S. 416 (1920).

7. 334 U.S. 385 (1947).

B. Id. at 402.

9. 43 U.S.C. �1301 et seq. (1953).

10. Id. �1311(a).

11. JA. �1301(e).

12. Eq. See Douglas, 97 S.Ct. at 1751.

13. 97 S.Ct. at 1752. It is interesting to note, however, that Justices

-26-

Rehnquist and Powell, although concurring in the judgment, dissented from

that part of the court's opinion interpreting the Submerged Lands Act.

They agreed that the states do not own marine resources within their terri-

torial limits in the conventional sense, but posited that the states have

a substantial property interest" or "common ownership" right in fish and

game within their boundaries. This state right, in their view, predates

the Submerged Lands Act, which they deny to be the source of any right or

grant to the states over fish. Id. at 1754. It would seem that the purpose

of these two justices in expressing this view is to emphasize that it is

common law and not the federal grant of authority under the Submerged Lands

Act that is the real source of state control over fishing resources and

that, since state control exists independent of federal suffrage, states

have extremely broad power over fishery resourceso which can only be over-

ridden by a clear violation of a constitutional provision or a direct con-

flict with federal law. Thus there remains a difference of opinion among

the members of the Supreme Court as to the precise origin of the doctrine

of state control, and the ownership theory may yet surface in some form

in the future.

14. Id. at 1748.

15. The "coastline" under the Submerged Lands Act has been held to be identi-

cal to the "baseline" under international law.,United States v. California

381 U.S. 139 (1965). The three nautical mile limit has been held to be

the extent of state jurisdiction for the east coast states bordering on

the Atlantic Ocean under the Submerged Lands Act. United States v. Maine,

420 U.S. 515 (1975). The three mile rule similarly applies for other

coastal states with the possible exception of the Gulf Coasts of Florida

and Texas to which a limit of up to three marine leagues (9 nautical miles)

is applicable. United States v. Florida, 420 U.S. 531 (1975); United

States v. Louisiana, 382 U.S. 288 (1965).

-27-

16. 297 U.S. 422 (1936).

17. Id. at 426.

18. Id. at 426.

19. Eg. See Frach v. Schoettler, 46 Wash, 2d 281, 280 P.2d 1038 (1955);

State v. Richardso 285 A.2d 842 (Me..S.Ct. 1972).

20. Eq. Santa Cruz Oil.Corp. v. Milnor, 55 Cal. App. 2d 56, 130 P.2d 256 (1942).

21. 313 U.S. 69 (1941).

22. Other cases applying the Skiriotes rationale include People v. Foretich,

(2 Cal. Rptr. 481, 14 Cal. 3d Supp. 6 (Cal. App. 1970) and Felton v.

Hodges, 374 F.2d 337 (5th Cir. 1967).

23. 1973 Alaska Commercial Fishing Regulations,.5 AAC 36.0140..

24. 377 F.Supp. 430 (D. Alaska 1974), vacated, 424 F.Supp.'595 (D. Alaska

1976). The decision in the second H.jelle case cameafter the federal

plaintiffs voluntarily requested a stay of proceedings in order to allow

the disposition of state criminal proceedings and a decision by the Alaska

Supreme Court on the federal claims challenging the regulations constitu-

tionality. The consequence of this abstention by stipulation was to

prevent relitigation of the merits of the plaintiffs' claims.

25. Id. at 440-441.

26. 546 P.2d 530 (Alaska 1976); rehearing denied, 547 P.2d 838. (Alaska 1976);

appeal dismissed mem. sub nom., Uri v. Alaska, [email protected]. 97 S.Ct. 40.

27. Id. at 554. The Alaska Supreme Court has also applied this doctrine to

uphold extraterritorial regulations of the scallop fishery. State v. Sieminski.

556 P.2d 929 (Alaska S.Ct. 1976).

28. 546 P.2d at 555-556 (1976).

29. 16 U.S.C.A. H1811-1812 (Supp. 1977).

30. Id. �.1856(a).

31. 546 P.2d at 555 n. 105 (Alaska 1976).

-28-

32. 16 U.S.C.A. �1856(a) (Supp. 1977).

33. 122 Cong. Rec. 5116-5120 (daily ed. Jan., 19 1976) (Remarks of Sen.'s

Gravel and Stevens), reprinted in Comm. on Commerce, 94th. Cong., lst

Sess., A Legislative Histor of the Fishery Conservation and Management

Act of 197L, at 459-468 (1976). One commentator has suggested that Senator

Magnuson consciously and deliberately established federal preemption over

extraterritorial fisheries in order to advance the interests of Washington's

king crab fishermen in the waters off Alaska. C. Curtis, Alaska's Re_qula-

tion of King Crab on the Outer Continental Shelf, 6 U.C.L.A. Alas. L. Rev

375, 406-408 (1977).

34. NOAA.Guidelines for Regional Fisheries Management Councils, 42 Eed. Reg.

34449, 34459 (to be codified in 50 C.F.R. �602.2(d)(2)) (1977).[hereinaftler

cited as NOAA.Guidelines.]

35. 16 U.S.C.A. �1861 (Supp. 1977).

36. 334 U.S. 385 (1947).

37. Id. at 396-397. The court also rejected the state ownership theory as a

justification for state discrimination against non-residents. In doing

so, it distinguished the early case of McCready v. Virginia, 94 U.S. 391

(1876), which upheld a Virginia statLttp prohibiting citizens of other states,

but not Virginia citizens, from planting oysters in the tidal waters of

the Ware River. The court restricted the application of McCready to inland

waters and non-free swimming fish. 334 U.S. at 40L, The-McCready case has so

often been distinguished in subsequent cases that its continuing validity

is subject to doubt.

38. 334 U.S. at 404-406 (1947). The court upheld a statute which levied a

tax on shrimp, holding it to be a merely local measure and not a burden

on interstate commerce. 334 U.S. at 394-395.

39. 334 U.S. 410 (1947).

40. 46 U.S.C. 11 (1970); 46 C.F.R. �67.03-5(a) (1976).

-29-

41. 9 Wheat. 1, 6 L.Ed. 23 (1824).

42. Douglas, 97 S.Ct- at 1759 (1977).

43. Id. at 1748. In.a companion casev decided on the same day as Douglas,

the Supreme Court intimated that the Douglas rationale could be used to

invalidate a Massachusetts statute that prohibited non-residents from

dragging for fish by beam or otter trawl in Vinyard Sound during July,

August and September. Commonwealth of Massachusetts v. Westcott

U.S. 97 S.Ct. 1755 (1977).

44. The court acknowledged that the Gibbons courtis interpretation of the

Enrollment and Licensing Act is regarded by most scholars as questionable..

97 S.Ctat 1748, n. 13. Furthermore, the court's pronouncement of a

federal fishing right is an extensionbf Gibbons, which only involved

a right to engage in the "coasting trade."
45. 16 U.S.C.A. �1853(b) (Supp. 1977).

46. 46 C.F.R. �.67.01-11 (1976).

47. 16 U.S.C.A. �1811 (Supp. 1977).

48. Id. ��1812-13.

49. Id. �1852.

50. Id. �1852(b)(1).

51. Management unit is defined as "(a)ny species, stock, or group of species

or stocks of fish that is geographically or ecologically interrelated or

is affected as a group by fishin g practices, that is capable of being

managed as a unit on a rationale and timely basis." NOAA Guidelines

supr note34at34449, 34458 (to be codified 50 C.F.R. �602.2(a)(2)(ii))(1977).

52. 16 U.S.C.A. �1854(a) (Supp.1977).

53. Id. �1854(c).

54. Id. �1851(a)(1).

55. Id. �1802(16). NOAA Guidelines,, supra note 34 at 34449, 34458. (to be

codified at 50 C.F.R. �602.2(b)(2)).

-30-

56. Id.

57. 16 U.S.C.A. �1851(a)(2)-(7) (Supp. 1977).

58. Id. �1853(a).

59. Id. �-1853(b).

60. Id. �1853(b) (6).

61. Id. �1821(a)-(c).

62. Id.. �1821(d).

63. Id. �1821(e).

64. Id. �1824(b)(4).

65. Id. �1811.

66. Id. �1856(a).

67. Preemption derives in this instance from the commerce clause of the United

States Constitution. This was the basis of the holding in Douglas, which

broadly upheld the right of the federal government under the commerce clause

to regulate the taking of fish in state waters on the ground that this
is an activity which Congress could conclude affects interstate commerce.

This analysis would carry over to validate the more comprehensive federal

program instituted under the FCMA. Conflicting state laws and regulations,

therefore, could not stand.

68. 16 U.S.C.A. �1851(a)(3) (Supp. 1977); NOAA Guidelines, supra note 34, at

34458-34459 (to be codified at 50 C.F.R. �.602.2(d)).

69. 16 U.S.C.A. �1856(b) (Supp. 1977).
9602.2(d)).
70. NOAA Guidelines, supta note 34, at 34458-34459 (to be codified at 50 C.F.R./

71. Id.

72. 33 U.S.C. �403 (1970).

73. 33 U.S.C. �1344 (Supp. 1975).

74. 16 U.S.C.A. �1853(b)(5) (Supp. 1977).

75. 42 U.S.C. �1431 et seq. (1970).

-31-

76. NOAA Guidelines, supra note 34 at 34449, 34453 (to be codified at �.601.21(G)(5)).

77. The National Environmental Policy Act requires the preparation of an environ-

mental impact statement for any "major federal action significantly affect-

ing the human environment." 42 U.S.C. �;4332(2)(C). (1970).

78. 16 U.S.C. �1456(c) (Supp. 1975).
79. NOAA Guidelines, supra note 34 at 34449, 34453 (to be codified at �601.21(G)(3)).
80. See generally, W. Andrews, North.Carolina Fishing Law (Sea Grant NCSU, 1975).
81. M. Street, Trends in North Carolina Commercial Fish2XLes, 12 North Carolina
Tar Heel Coast, No.2,3 (August 1977).

82. Id.

83. N.C. Gen. Stat. �143B-287 (1975).

84. N.C. Gen. Stat. �113-181 (1975).

85. N.C. Gen. Stat. �1430-325.1 (Advance Legislative Serviceg C. 512, Pamphlet

No. 9@ 1977).

86. By statute, the marine and estuarine resources "belong to the people of

the State as a whole." N.C. Gen. Stat.�113-131 (1975).

87. Alaska and Washington have the most comprehensive limited entry systems with

California, Ohio and Michigan also regulating entry into their fisheries.

In Alaske,a state commission determines the maximum number of entry permits

and allocates them among fishermen based on economic dependency and past

participation in the fishery. The permits are freely transferable and can

be bought by the commission in order to reduce participation to an optimal

level. Alaska Stat. ��16.43.010-.380 (1973). Limited entry license pro-

visions are in effect for the herring and salmon fisheries in Washington.

To obtain a herring permit, individuals must show proof of prior holding of

commercial license and actual capture of herring between 1971-1973. If

the number of permits needs to be reduced, the units with the shortest history

are eliminated. Entry permits for vessels in the salmon fishery are limited

to those vessels previously holding gear and area licenses for salmon and

which actually caught salmon in the years 1970-1973. The licenses are

-32-

1ransferable and there are provisions for hardships cases. Wash. Rev. Code

Ann. ��75.28.450-.485 (Supp. 1974). Ohio, [Ohio Rev. Code Ann �.1533.342

(Supp. 197019 Michigan [Mich. Stat. Ann. �.'13.1491(b) (1973)], and California,

[14 Cal. Fish and Game CommIn Reg. �163 (1974)], have statutes that delegate

authority to establish a limited entry programs to their fishery depart-

ments.

88. N.C. Gen. Stat. �143B-286 (Advance Legislative Service, C. 512, Pamphlet

No.9, 1977). State management controls have been described to be inade-

quate to protect the resource. North Carolina Science Councils North Carolina's

Coastal Resources. 6-18 (Dec. 15, 1972).

89. N.C. Gen. Stat. �113-134.1 (1975).

90. Interview with Edward G. McCoy, Director, North Carolina Division of

Marine Fisheries, in Morehead City, North Carolina (August 11, 1977).

91. North Carolina Fishina Re_qulations for Coastal Waters, �.1104 (calico

scallops), �.1201 (lobster) (1977).

92. N.C. Gen. Stat. �113-152 (1975).

93. Id. �113-152(c)(l)-(c)(4) (1975).

94. Id. �113-152(c)(5) (Advance Legislative Service, C. 999, 1977).

95. Interview, supra note 90.

96. N.C. Gen. Stat.1113-154(c) (1975).

97. Id. 1113-156 (1975).

98. Interview, supra note 90.

99. N.C. Gen. Stat. �113-155 (1975).

100. North Carolina Fishing Requlations, supra note 91, at H.0202 .0203.

101. N.C. Gen. Stat. �113-202(a) (1975).

102. Id. ��113-229-230 (1975).

103. See text accompanying note 69 supra.
�.601.22(c).
104. NOAA Guidelines, supra note 34, at 34449, 34454. (to be codified 50 C.F.R./

-33-

105. Interview with Ted Riceq Regional Director, National Marine Fisheries

Service, in Morehead City, North Carolina, July 19, 1977.
106. H.G. Knight & J. Lambert, Legal Aspects of Limited Entry for Commercial

Marine Fisheries, 3 (National Marine Fisheries'Service and Louisiana State

University, Negotiated Research Contract No.03-4-042-23, Oct. 15, 1975).

107. For a discussion of the economics and constitutional issues of limited

entry management see, Knight and Lambert, supra note 106; Notes Legal

Dimensions of Entry Fishery Management,17 Wm &_n2ry.L. Rev. 757'(1976);

R. Groseclose and G. Boone, An Examination of Limited Entry as a Method

of Allocating Commercial Fishing Rights, 6 UCLA Alas. L. Rev.,201 (1977).

See also Isakson v. Rickey, 550 P.2d 359 (Alaska 1976), in which the court

held that a provision restricting applications for entry permits to fisher-

men who had gear licenses before a specific cut-off date did not have a
Alaska limited entry
fair and substantial relation to the purpose of the/ act. As a means for

stopping a rush to buy gear, the cut-off date contradicted the purpose of

the limited entry law, which was to allow access to the fishery based on

a number of factors, not just past participation. This decision merely

overturned the cut-off date;.the limited entry management survivecF. As far as
'/AsuconcernBd
North Carolina o bt has e6n expressed as to the constitutionality of a

limited entry system. See, H.G. Knight and T. Jackson, Legal Impedimenta

to the Use of Interstate Agreements in Coordinated Fisheries Management

Programs: States in the N.M.F.S. Southeast Region 73 (N.M.F.S. and Louisiana

State University, Contract No.03-3-042-28, Sept. 28, 1973). Knight and Jack-

son rely on the North Carolina Supreme Court's decision in In Re Certificate

of Need for Aston Park Hospital, inc.p 282 N.C. 543, 193 S.E.2d 729 (1973)4

holding that denial of the 11need peIrmit" required for construction of a

hospital constituted a deprivation of liberty without due process of law

-34-

and violated the equal protection clause of the North Carolina Constitution.

The court quoted Justice Higgins in Poller v. Allen, 245 N.C. 516, 518, 96

S.E.2d 851,854 (1957): "The right to work and to earn a living is a pro-

perty right that cannot be taken away except under the police power

of the State in the paramount public interest reasons of health, safety,

morals, or general welfare." Since there was not a reasonable relation

between the denial of the right to work and the promotion of public health,

the acts requiring "need permits" were invalidated. But this reasoning

probably would not apply to invalidate a limited entry system in North

Carolina. If entry permits were made freely transferable, individuals

would not be precluded from working, since they would be able to buy into

the system.

108. See text accompanying note 92 supra.

109. Interview, supra note 90, and interview, supra note 105.

110. Interview, supra note 90, Another aspect of the conflict between sports

and commercial fishermen in North Carolina is that the nominal fees for

commercial fishing licenses encourage sportsmen to buy a commercial fish-

ing license and to use commercial fishing gear, even though they may only

use the fishery a few times a season. The numbers of such persons is in-

creasing, and their use of the fishery causes conflicts with fishermen

who fish commercially as a livelihood. Interview, supra note 90. One'way to

solve this problem is to increase the fees for commercial fishing licenses

so that only the more efficient producers will be able to use commercial

gear to exploit the fishery.

111. North Carolina presently regulates dredging and filling in marshlands,

wetlands and navigable waters. Supra note 102; in addition, under the

-35-

state's coastal zone management program, wetlands and marshlands are

flareas of environmental concern" [N.C. Gen. Stat. J113A-113 (1975)], and

development within them is subject to a state permit. [N.C. Gen. Stat.

�113A-118 (1975)].

112. More than one-third of North Carolina's estuarine and coastal wat ers are

closed to commercial shellfishing because of pollution, and the number of

closings is increasing. Interview, supra note 90.

113. See text accompanying notes 36-38 supra.

114. The Supreme Court'noted in Douglas that many states have discriminatory

fishing laws and cited Maryland, Massachusetts, and New York as examples.

97 S.Ct. at 17.52.

115. There are three interstate compacts in.the fisheries management field

approved of by Congress: Gulf States Marine Fisheries Commission, 63 Stat.

70 (1949), Atlantic States Marine Fisheries Commission, 56 Stat. 267 (1942),

as amended, 64 Stat. 467 (1950), and Pacific Marine Fisheries Commission,

61 Stat. 419 (1947). North Carolina has executed and become a member of the

Atlantic States Marine Fisheries Commission. N.C. Gen. Stat. �113-252 (1975).

The purpose of the compacts is to promote better utilization of the fisheries

by development of a joint program for the protection of the fisheries and

the prevention of waste. The commissions make recommendations to the

member states for coordination of the regulation of the fisheries. The

Commissions do not have any direct management authority. The compacts

amount only to agreements to consult; they have not been effective in pro-

viding a framework for coordination and uniformity among state fishery

management programs. H. G. Knight and T. Jackson, supra note 107 at 63.

The Supreme Court in Toomer recognized that Atlantic States Marine Fisheries

Commission's duties were mainly advisory and that it had little effect in

the South Atlantic shrimp fishery. 334 U.S. at 388 n. 5 (1947).
116. See text accompanying notes 42 and 43 supra.

117. See text accompanying note 37 supra.

118. See supra note 37.

119. 16 U.S.C.A. �1851(a)(4) (Supp. 1977).

-36-

120. Id. at ��1853(a)(4) and 1821(d).

121. See text accompanying notes 55 and 56 supra, and Office of Technology

Assessment, Establishing a 200 mile Fisheries Zone, 88-92 (Library of

Congress Card number 77-600021, 1977).

122. N.C. Gen. Stat. �113.-315.18 (Advance Legislative Service, C. 356,

Pamphlet No. 7, 1977).

123. North Carolina Marine Science Council, supra note 88, at 6-22 (1972).

124. Interview, supra note 105.

125. Interview, supra note 90.

126. Interview, supra note 90; interview, s upra note 105.

127. Interview, supra note 105 and Office of Technology Assessment, supra

note 121.

DATE DUE

GAYL6+RDNo. 2333 PRINTED IN U.S.A.

3 6668 14106 1491 i