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REPLY TO: James C. Gulick Environmental Division jgulick@mail.jus.state.nc.us Telephone: 919/716-6600 Fax: 919/716-6767

September 22, 2003

Preston P. Pate, Jr., Director North Carolina Division of Marine Fisheries Post Office Box 769 Morehead City, North Carolina 28557

James A. Johnson, Jr., Chairman North Carolina Marine Fisheries Commission 121 North Reed Drive Washington, North Carolina 27889

Re: Advisory Opinion; Authority to grant leases or similar exclusive proprietary rights to the water column beneath docks and piers for the cultivation of shellfish for private consumption or use; N.C. Gen. Stat. §§ 113-202 and 113-202.1; Authority to conduct pilot study.

Dear Messrs. Pate and Johnson:

You have requested an Attorney General's opinion on the question of whether the Division of Marine Fisheries or the Marine Fisheries Commission has authority to grant leases or similar exclusive proprietary rights to the water column beneath docks and piers to individuals for the cultivation of shellfish for personal consumption or use. We are of the opinion that the Division and Commission do not have this authority; such exclusive, personal use of the water column beneath docks and piers would impinge upon long recognized public trust rights without clear and explicit authority from the legislature. You also ask whether the Division has the authority to conduct a temporary, pilot project to test the feasibility of private, non-commercial oyster harvesting program from a fishery management, enforcement and public acceptance perspective. In our opinion, it has that authority.

Under the public trust doctrine, the citizens of North Carolina possess public trust rights in the State's navigable waters which extend beneath privately held docks and piers. The common law privilege of constructing a pier to gain access to navigable water does not grant the riparian owner any greater rights in the water or bottom beneath the pier or dock than that held by his fellow citizens. Capune v. Robbins, 273 N.C. 581, 160 S.E.2d 881 (1968); RJR Technical Co. v. Pratt, 339 N.C. 588, 453 S.E.2d 147 (1995). In addition, ownership of riparian lands and piers extending over the water does not cloak the riparian owner with any exclusive right to fish in the waters fronting his property. Bell v. Smith, 171 Preston P. Pate, Jr. and James A. Johnson, Jr. September 22, 2003 Page 2

N.C. 116, 87 S.E. 987 (1916).

Public trust rights in the State's waters, including, among others the right to boat and to fish, arise from the common law. Gwathmey v. Hogarth, 342 N.C. 287, 296, 464 S.E.2d 647, 679 (1995). In the context of construing statutes and legislative grants of land, the public trust doctrine operates as a rule of statutory construction creating a presumption that the Legislature did not intend to alienate public trust rights in the State's navigable waters and the lands beneath. This presumption may be overcome only by the Legislature's clear and specific words stating otherwise. Gwathmey v. Hogarth, 342 N.C. 287, 304, 464 S.E.2d 647, 684 (1995) Therefore, statutes that create exceptions to the common law public trust doctrine should be strictly construed against an interpretation that invades or diminishes public trust rights. McKinney v. Deneen, 231 N.C. 540, 542, 58 S.E.2d 107, 109 (1950).

The Legislature has pervasively regulated the cultivation of shellfish in the State's waters. The State's statutes regulating shellfish allow an individual, who does not hold a State issued shellfish or standard commercial fishing license, to take up to one bushel of oysters per day for personal use from public or private shellfish grounds. N.C. Gen. Stat. §113-169.2. A license is required before a person may take shellfish from public or private grounds in quantities greater than that allowed for personal use, or by use of mechanical means. Id.

To encourage the cultivation of shellfish, the Legislature has provided for the leasing of non-productive submerged bottom and the superjacent water column for shellfish culture. N.C. Gen. Stat. §§ 113-202 and 113-202.1. At the same time, the Legislature has long sought to preserve for public use those natural beds where oysters are found in sufficient quantities to be valuable to the public. State, ex rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E. 2d 825 (1988), State, ex rel Blount v. Spencer, 114 N.C. 770, 19 S.E. 93 (1894). The Legislature has limited the program for granting exclusive leases of private shellfish beds and the superjacent water column to the cultivation of shellfish in commercial quantities for commercial purposes. N.C. Gen. Stat. §§ 113-201, 113-202, 113-202.1. Conspicuously absent from the shellfish bed leasing statutes is any reference to such leases being granted for cultivating shellfish for personal consumption and use, as distinguished from commercial production and use. The Legislature reinforced its intention to limit the leasing of private shellfish beds for the purpose of commercial production by declaring it to be against public policy as of January 1, 1966 for leased shellfish beds that do not produce in commercial quantities to continue to be held by private individuals. N.C. Gen. Stat. § 113-202(p).

In the absence of clear, express and specific language in the statutes authorizing the grant of exclusive leases of the bottom or water column for the cultivation of shellfish for personal, as distinguished from commercial, consumption or use, the Division and Commission have no authority to grant such exclusive leases in derogation of public trust Preston P. Pate, Jr. and James A. Johnson, Jr. September 22, 2003 Page 3

rights. Alternatively, we note that application of the rule of statutory construction,expressio unius est exclusio alterius, i.e., the mention of specific exceptions [to a general rule] implies the exclusion of other exceptions, would produce the same result. See, Morrison

v. Sears Roebuck & Co., 319 N.C. 298, 354 S.E. 2d 495 (1987); Campbell v. Church, 298

N.C. 476, 482, 259 S.E. 2d 558, 563 (1979); Walla Walla v. Walla Walla Water Co., 172

U.S. 1, 43 L.Ed. 341 (1898).

You also ask whether the Division has the authority to conduct a temporary, pilot project to test the feasibility of private, non-commercial oyster harvesting program from a fishery management, enforcement and public acceptance perspective. We understand the Division wants to see how manpower-intensive supervision of such a fishery will be, and that they also want to identify and evaluate any associated issues and problems, such as access to private piers and docks, accountability for the oysters, sources of the oysters, polluted area issues, harvest issues, and conflicts.

In our opinion, the Division has ample authority to conduct a research project for the purpose of studying the fishery management and enforcement aspects of the noncommercial growing of shellfish in cages under piers, even when it is otherwise inconsistent with authority for an ongoing regulatory program of general application. Gen. Stat. § 113-261.

Very truly yours,

James C. Gulick Senior Deputy Attorney General

J. Allen Jernigan Special Deputy Attorney General

Francis W. Crawley Special Deputy Attorney General