In today’s Sidebar, an interesting, and possibly portentous, case from the NC Court of Appeals.

In Coastal Conservation Association v. North Carolina, the court unanimously ruled that the CCA and a host of individual plaintiffs could maintain a claim against the state for violation of a constitutionally-protected right to fish in coastal waters.  That right, claimed the plaintiffs, was violated because the Marine Fisheries Commission and the Division of Marine Fisheries had grossly mismanaged practices by commercial fishing operations which resulted in dramatic reductions in fish populations, effectively denying residents and others the rights to harvest fish in coastal waters.  This could be a watershed case (excuse the pun) for the use of the Public Trust Doctrine in North Carolina courts.

For those of us unfamiliar with the Marine Fisheries Commission, its meetings are often contentious (some have compared them to “rock fights”).  The MFC has two basic constituencies – commercial fishing interests and recreational fishing groups.  Given that there are only so many fish in the sounds to which each constituent makes a claim, it would be safe to say that fishers are sometimes like fish, put them in a small enough tank and conflicts are bound to arise.  In this case, the claim is that the Commission has tilted the table toward the commercial interests, and the CCA, representing recreational anglers, have now taken their complaint to the courts.

CCA insists that the manner in which the MFC has allowed trawling for shrimp and the use of gill nets for finfish in a way that results in depletion of fish stocks, created conditions that harm the renewal of those stocks, and is unnecessarily wasteful.  As referenced above, the public trust doctrine forms the basis for the CCA’s claims.  Its position is that the MFC has failed in its duty to properly manage those public trust assets.

Notwithstanding its trip to the Court of Appeals, the case is still in a preliminary stage.  The state appealed the denial by the Superior Court of its motion to dismiss.  Ordinarily, such an appeal would not even be entertained by the Court of Appeals, but in this case, the state had sought the dismissal on the basis of sovereign immunity.  As readers of this publication will know, sovereign immunity is a doctrine not found in the U.S. Constitution nor the NC Constitution.  It is rooted, oddly, in the foundational common law maxim that “the King can do no wrong.”  Stated in a more modern way, the sovereign immunity means that the state cannot be sued without its consent.  Well, said the Court of Appeals, in this case, yes it can.

Because the plaintiffs asserted a direct claim of infringement of a constitutional right, the court found that allowing the state’s assertion of sovereign immunity would improperly leave the plaintiffs with no remedy for its claims.

Two separate constitutional provisions were asserted by the plaintiffs.  The first was that the NC Constitution obligates the state to conserve and protect its waters for the benefit of all its citizens, including the obligation to protect the fishery resources in those waters.  The second was that the state by its conduct or omissions, violated the right to hunt, fish and harvest wildlife bestowed by the 2018 amendment obligating the state to “forever preserve” those rights.

There are two very important takeaways from this opinion.  One is that the state’s sovereign immunity claim was rejected.  That, in itself, may not be remarkable.  But the court essentially rejected the assertion of the immunity claim because it concluded that granting the dismissal on those grounds would have left the plaintiffs with no remedy.  That, the court concluded, “would effectively reduce the public trust doctrine to nothing more than a ‘fanciful gesture’ and prevent judicial review.”

But isn’t that precisely what a defense of sovereign immunity is supposed to do?  More on that in a bit.

The second takeaway is that by not reversing the denial of the motion to dismiss, the court recognized that provisions in the NC Constitution can be directly pursued against the state.  Of course, it is important to note that the case is not over – the plaintiffs will still have to prove that the Marine Fisheries Commission, by its rules, and the Division of Marine Fisheries, by its conduct, violated constitutionally-protected rights or failed to meet its constitutional obligations resulting in harm to the plaintiffs (and all the people of North Carolina).

Remarkably though, this case may have very well opened the door for other litigants who may seek a remedy based directly on state constitutional language.  Imagine a litigant who contends that the adoption of a water quality standard is not sufficiently stringent.  That litigant may claim that the insufficient standard violates the state’s obligation to control and limit water pollution under the very same Conservation of Natural Resources clause relied upon by the Coastal Conservation Association.   Many NGOs consistently comment on any proposed water quality standard, typically claiming the standard is insufficiently stringent. The way is arguably now cleared for a direct constitutional challenge on that basis.  Litigants may also be eyeing the TMDL and “impaired waters” processes as candidates for more aggressive attention.  And consider the Rules Review Commission, in the event it rejects, on NC APA grounds, a standard or other rule which a litigant contends results in a constitutional violation.

To use a very current example, the Division of Water Resources recently proposed rules applicable to some wetlands.  The Rules Review Commission rejected those rules based on the provisions of NC Gen. Stat. §150B-19.  Is the state now at risk of being sued for failure to comply with the constitutional directive to “in every . . . appropriate way to preserve . . . wetlands?”  Consider also litigants who disagree that state enforcement efforts are inadequate to the point they constitute a failure “to conserve and protect its lands and waters.”

Finally, the ruling dovetails uncomfortably with the environmental regulatory agency’s recent emphasis on “emerging pollutants,” for which there are no numerical standards yet adopted because so little is known about them.  Can we look forward to groups seeking to compel state agencies to adopt standards based on information provided in litigation?  What about our state-specific OSHA regulations?  The Chamber is currently monitoring a rulemaking petition before NCDOL that could be strengthened by the theories accepted here.  All a litigant would have to do to survive the motion to dismiss would be to assert they have no other remedy for the constitutional violation, and the sovereign immunity defense would apparently become irrelevant.  The purpose of the deliberative rulemaking process is to engage all stakeholders and interested parties, and consider all comments and data submitted.  Is that function now to be ceded to litigants?

As noted, this case is in its preliminary stages, and the MFC has elected not to seek review in the NC Supreme Court of the recent decision.  Much can happen between now and the final appeals.  However, a rubicon may have been crossed that could fundamentally alter how future rules are promulgated.