North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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The Honorable E. David Redwine Page 2 February 17, 1999

In your letter, you articulate several reasons for restricting the time, place, seasons, or methods of harvesting menhaden in the Atlantic Ocean adjacent to the State’s beach communities that would be related to the conservation and management of the marine resources in the near shore waters. The presence of menhaden as a food fish for other species, and for bait for recreational fishermen, together with its commercial uses and the potential for conflict between recreational and commercial fishermen, demonstrates the sort of interrelationship that may support the management and regulation of this fishery. However, absent such a conservation or management basis, the Commission would be acting in excess of its statutory authority in expanding these current restrictions or placing similar restrictions in other coastal waters. N.C.G.S. §§113-132; 143B-289.52. In our opinion, a restriction based on tourism effects would be subject to challenge under the existing statutory authorities.

It should also be noted that the Marine Fisheries Commission’s authority to expand these current restrictions or place similar restrictions in other coastal waters by the adoption of further rules is presently limited by the statutory moratorium which restricts the Commission’s authority to regulate the commercial and recreational harvest of marine fisheries resources. Session Laws 1993 (Reg. Sess., 1994), c. 576, s. 4; Session Laws 1997, c. 400, s. 6.1. Upon the expiration of the moratorium on July 1, 1999, the Commission will regain full authority to regulate all activities connected with the conservation and regulation of marine and estuarine resources in the coastal waters.

In conclusion, except for the limitations discussed above, it is our opinion that the statutes now in effect provide authority to the Marine Fisheries Commission to regulate the time, place, seasons, and methods of harvesting menhaden in the near shore waters of the Atlantic Ocean along North Carolina’s coast for the conservation and management of the State’s marine and estuarine resources.

Thank you for your opinion request. We hope this analysis is useful to you.

Sincerely,

Daniel C. Oakley Senior Deputy Attorney General

Francis W. Crawley Special Deputy Attorney General

cc: Preston P. Pate, Jr. Jimmy Johnson

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