North Carolina is appealing a judge’s ruling that the state has failed to meet its constitutional obligation to manage and protect its fisheries, extending a years-long legal battle over coastal fishery management.
Lawyers with North Carolina Attorney General Jeff Jackson’s office filed a notice of appeal Wednesday, Sept. 16, according to The Carolina Journal. The appeal challenges an August ruling from Wake County Superior Court Judge Bryan Collins that found the state had breached obligations under the public trust doctrine and two provisions of the North Carolina Constitution.
“The Order in Liability Phase affects a substantial right that would be lost, prejudiced, and/or inadequately preserved without an immediate appeal,” the state said in its one-paragraph notice.
Collins issues the 190-page ruling Aug. 17 following a trial that stretched from January to February and included roughly six weeks of evidence. In his ruling, Collins concluded that the state had failed to meet its obligation to manage and protect fisheries for the general public, keep fisheries safe from “injury, harm, or destruction for all time,” and protect harvestable fish populations for North Carolina residents.
The case dates to 2020, when the Coastal Conservation Association of North Carolina led a group of more than 80 plaintiffs in suing the state over its management of coastal fisheries.
Among the issues raised in the lawsuit were shrimp trawling, unattended gillnetting, chronic overfishing of several species, and gaps in commercial harvest reporting, according to allegations outlined in an earlier North Carolina Court of Appeals decision cited by The Carolina Journal.
Data collection also emerged as an issue during the trial. The state argued that gaps in fisheries data prevented plaintiffs from carrying their burden of proof, an argument Collins rejected. “It is the State’s duty to manage our public trust fish,” Collins wrote. “The evidence is overwhelming that one of the critical aspects of that duty is to collect adequate data.”
Collins said the gaps themselves were evidence of failures in state fisheries management.
The legal fight had already reached the North Carolina Court of Appeals before the trial. In September 2022, a unanimous appellate panel ruled that the state could be sued over allegations that it failed to protect fishing rights, rejecting the state’s effort to dismiss the case on sovereign immunity grounds.
Writing for the panel, Appeals Court Judge Toby Hampson said the plaintiffs were not seeking to enforce public trust rights against commercial fishermen but were instead challenging the state’s management responsibilities.
“Plaintiffs are bringing an action directly against the State for an alleged breach of its obligation to manage and protect fisheries for the benefit of the general public,” Hampson wrote, as quoted by The Carolina Journal.
The plaintiffs also based their claims on two provisions of the state constitution. Article XIV, Section 5 addresses conservation of natural resources, while Article I, Section 38 protects the right to hunt, fish and harvest wildlife. North Carolina voters added the latter provision to the constitution in 2018.
In the 2022 decision, Hampson wrote that the constitutional right to fish would have little meaning without fish available to harvest. “Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time,” he wrote.
Collins’ August ruling addressed the liability phase of the case rather than a final remedy. He ordered the parties to meet and prepare a report within 45 days addressing scheduling and other issues ahead of further proceedings in the remedy phase.
The state’s new appeal comes before that phase is complete. In its notice, the state argues that waiting until the case concludes could jeopardize a substantial right, setting up another round of appellate review in the closely watched fight over North Carolina fisheries management.
