By Mitch Kokai
Raleigh, NC – When more than 2 million North Carolinians voted in 2018 for extra protection of their rights to hunt and fish, few probably thought that vote would lead to more government regulation.
But that’s exactly what could happen. New regulation likely depends on the outcome of a lawsuit sitting in the N.C. Court of Appeals.
The state’s 2018 election ballot included a constitutional amendment “protecting the right of the people to hunt, fish, and harvest wildlife.” The measure passed with 57% of the vote.
Now Article I, Section 38 of the N.C. Constitution labels hunting and fishing rights “a valued part of the State’s heritage.” They “shall be forever preserved for the public good.”
The rights are “subject only to laws enacted by the General Assembly and rules” that “promote wildlife conservation and management” and “preserve the future of hunting and fishing.”
For plaintiffs in the case titled Coastal Conservation Association v. State of N.C., the 2018 amendment mandates new state restrictions on commercial fishing. They sued to force the state to enact fishing regulations.
State government lawyers tried to have the case thrown out. But Wake County Superior Court Judge Bryan Collins rejected the state’s arguments. He ruled in July 2021 that the lawsuit could proceed.
The state wants Appeals Court judges to overrule Collins. Both sides in the case are making a final plea to those judges this week.
The Coastal Conservation Association and 86 individual plaintiffs claim to have documented a “decades-long, uninterrupted, dramatic decline in North Carolina’s coastal fisheries resources,” according to a brief filed with the appellate court.
“[T]he State is tasked with forever preserving the public’s right to harvest fish in public waters by, at a minimum, protecting those coastal fisheries resources from waste and overexploitation,” the brief continues. “[H]owever, the State has utterly failed in this duty in a way that threatens the right of current and future generations to use public waters to fish.”
North Carolina has not followed “all other Southeastern states” in moving to curb “wasteful practices” involving shrimp trawling and unattended gillnets. The state also has “tolerated and failed to curb” overfishing of public trust fish stocks, according to the lawsuit.
For the plaintiffs, the facts lead to a legitimate claim for relief under the 2018 hunting and fishing amendment. “[T]he Article I, Section 38 right is more than just the right to cast a fishing line,” they argue. “After all, a right to ‘harvest’ fish is not a meaningful right without fish to harvest. And as the Supreme Court recently clarified, the question is not whether a constitutional right exists in the abstract or ‘structural’ sense, but whether a plaintiff has a ‘meaningful opportunity’ to exercise that right.”
State government lawyers reject the conservation group’s arguments. The state accuses the plaintiffs of claiming that Article I, Section 38 somehow incorporates the “public trust doctrine” into the N.C. Constitution.
“Under the public trust doctrine, the public may access certain lands and waters — primarily navigable waters and the underlying lands — to conduct specific activities subject to the State’s authority to regulate these activities and to convey public trust lands,” state lawyers explain in their brief to the Appeals Court. “The plaintiffs allege that they have a public trust doctrine right to fish in coastal waters and that the right has been infringed on because commercial fishing has reduced the availability of certain fish in those waters. They allege that the public trust doctrine requires the State to remedy this alleged infringement by regulating commercial fishing to better serve the plaintiffs’ interests.”
For the state’s lawyers, the 2018 amendment does not give the plaintiffs a right to demand new regulation. “The text and history of the Hunt/Fish Amendment make clear that its purpose is to protect the plaintiffs’ ‘right … to hunt, fish, and harvest wildlife’ from infringement by the State. That is, it limits State action; it does not require the government to take action to implement the plaintiffs’ conception of the public trust doctrine.”
The state’s brief also offers political context. “The Hunt/Fish Amendment was ratified against the backdrop of successful efforts by animal rights groups to have laws enacted in other states to protect wildlife at the expense of hunting. Its purpose was to create a firewall against such laws. Its ratification had nothing to do with the public trust doctrine.”
Appellate Judges Hunter Murphy, Toby Hampson, and April Wood are scheduled to hear oral arguments in the case Tuesday. A ruling is likely weeks or even months away. The issue could end up at the state Supreme Court.
So we’ll have to wait to learn whether a state constitutional amendment designed to promote tradition and freedom will end up forcing state policymakers to enact new regulations.
Mitch Kokai is senior political analyst for the John Locke Foundation.