North Carolina Department of Justice
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REPLY TO: Francis W. Crawley Environmental Division fcr awley@ mai l .j us. T elephone: 919/716-6600 Fax: 919/716-6767

October 11, 1999

Mr. Jimmy Johnson, Chairman North Carol ina Marine Fisheries Commission Post Office Box 2132 Washington, North Carolina 27889

RE: Advisory Opinion: Authority of the Marine Fisheries Commission to Commence a Lawsuit or Administrative Action Against the Department of Environment and Natural Resources; N.C.G.S. §143B-289.52(a)(9).

Dear Chairman Johnson:

We have received two letters, dated July 13, 1999 and September 7, 1999, requesting an opinion regarding the existing authority of the Marine Fisheries Commission (hereinafter “Commission”) to commence a contested case hearing under the Administrative Procedure Act or to file a civil lawsuit against the Department of Environment and Natural Resources (hereinafter “Department”). Initially, we note that a procedure for binding resolution of disputes between the Commission and the Department regarding their authority, has been established in

N.C.G.S. §143B-289.61, which reads as foll ows:

In the event of any question arising between ... the Department of Environment and Natural Resources and the Marine Fisheries Commission as to any duty, responsibility, or authority imposed upon any of these bodies by law or with respect to conflict involving rules or administrative practices, the question or conflict shall be resolved by the Governor, whose decision shall be binding.

Therefore, any question regarding the Commission’s abi li ty to take legal action with respect to the Department must ultimately be resolved through the Governor’s off ice. In considering such question, the Governor may be guided by the following legal analysis.

The Commission is created by statute as an agency in the Department, whose function and duties are to conserve, protect and regulate the marine and estuarine resources of the State,

N.C.G.S. §§143B-289.51; 113-132. As an agency of the executive branch of government, the


Commission’s powers and duties are those prescribed by the Legislature and set forth in the General Statutes. See North Carolina Constitution, Article III, Section 5(10). The authority of the Commissi on to carry out its statutory duties through li tigation against a sister agency should not be lightly inferred. Rather, express statutory authorization from the General Assembly is necessary.

In reviewing the sources of the Commission’s authority, we find the Legislature has authorized the Commission “[t]o comment on and otherwise participate in the determination of permit applications received by State agencies which may have an effect on the marine and estuarine resources of the State.” N.C.G.S. §143B-289.52(a)(9). In resolving issues concerning statutory construction, the pr imary task is to be sure the intent and purpose of the Legislature is carried out. “Legislative purpose is first ascertained from the plain words of the statute.” Electric Supply Co. V. Swain Electrical Co., 328 N.C. 651, 656 (1991). Absent any ambiguity and where words are not defined in the statute, the words are accorded their ordinary and plain meani ng. SeeCrowell Constructors, Inc. V. State Ex Rel. Cobey, 342 N.C. 838 (1996). Applying the foregoing rules of statutory construction to the statutes i n question, the phrase “to comment on and otherwise participate in the determination of ” must be given its common meaning because the phrase is not ambiguous on its face. This authority would appear to allow the Commission to communicate its views to other agencies through normal public hearing processes. Nowhere in this grant of authority is there an express empowerment to sue state agencies.

By comparison, the Legislature has used specific language in setting forth the powers and duties granted the Department and the Wildlife Resources Commission (“WRC”) to “(1) [c]omment on and object to permit applications submitted to State agencies” and to “(2) [i]nitiate contested case proceedings under Chapter 150B for review of permit decision by State agencies.” See N.C.G.S. §113-131(b). This statute specifically authorizes the Department and WRC to challenge permit decisions adversely affecting public trust rights by the initiation of contested case proceedings. Significantly, it does not apply to the Marine Fisheries Commission. By expressly authorizing other agencies both to comment and to initiate contested case proceedings while declining to use similar language to describe the Commission’s power to participate in permit review, it appears the Legislature did not intend to expand the authority of the Commission similarly.

You have attached to your letter a February 17, 1998 advisory letter1 from Dan McLawhorn, then of the Attorney General’s office, now counsel to the Department. In that letter, Mr. McLawhorn concludes that the Commission’s authority to “otherwise participate” would allow the Commission to initiate a contested case hearing. It must be clarified here that, in drafting his letter, Mr. McLawhorn was not presented with the fact situation which is the basis for your opinion request and, therefore, his letter can not be readily applied to the question presented here. Further, in his letter, Mr. McLawhorn did not consider that the Legislature has specifically given authority to file a contested case to both the Department and the WRC in Section 113-131(b), while failing to give similar authority to the Commission. Mr. McLawhorn, in his letter, also points out additional constraints on the Commission’s authority. Specifically,

1 Mr. McLawhorn’s letter was an advisory letter and was not reviewed and approved in accordance with procedures for issuing an Attorney General’s opinion.


under Section 113-132(c), the Marine Fisheries Commission does not have jurisdiction over any matters “clearly within the jurisdiction vested in ... the Environmental Management Commission... . ” As the Nucor permit is a matter under the Environmental Management Commission’s jurisdiction, even if Mr. McLawhorn’s interpretation were correct, the Commission would not have such jurisdiction in this matter.

We have provided a copy of this letter to Mr. Jack Jenkins, counsel to the Governor, for his information should the Commission decide to make inquiry of the Governor’s office for final resolution. Please feel free to contact us if you have additional questions.


Daniel C. Oakley Senior Deputy Attorney General

Francis W. Crawley Special Deputy Attorney General

cc: Marine Fisheries Commission Dan McLawhorn Jack Jenkins Dewey Botts Preston Pate George Hurst