AGO 251.
Case Date | March 26, 1996 |
Court | North Carolina |
North Carolina Attorney General Opinions
1996.
AGO 251.
March 26, 1996Attorney General
Letter Opinion No.
251Senator Charlie
AlbertsonRepresentative Jonathan Robinson
Co-Chairs, Legislative Research Commission Committee to
Study Withdrawal from the Atlantic States Marine Fisheries
Compact Legislative Office Building Raleigh, North
Carolina Re: Advisory Opinion;
Constitutionality of the Atlantic Coastal Fisheries Cooperative Act; 16 U.S.C.
§§ 5101 et seq.Dear Co-Chairmen:
We have carefully reviewed the questions presented in your letter
dated 22 February, 1996. In the course of our examination, we have also
consulted with the Executive Director of the Atlantic States Marine Fisheries
Commission (hereinafter ASMFC) and with Messrs. Berkley and Davis, the trial
counsel for the North Carolina Fisheries Association, to obtain their
respective opinions about the constitutionality of the Atlantic Coastal
Fisheries Cooperative Management Act, 16 U.S.C. 5101 et seq. (hereinafter
Atlantic Coastal Act). From our research, we offer the following Advisory
Opinion in reply to the questions presented in your letter. The Advisory
Opinion is divided into two parts. In the first section, we present summary
answers to your questions. In the second part, we provide a detailed
explanation of the reasoning and analysis leading to our reply.
Summary of Opinion
1. "Did the Atlantic Coastal Fisheries Cooperative Management Act
expand the powers of the ASMFC as established in the interstate compact
approved by the Congress in 56 Stat. 267 (1942) and by 64 Stat. 467 (1950)?"
Reply: Yes. The powers conferred on the ASMFC by the interstate
compact approved by Congress were limited to making recommendations to the
member states, unless the states expressly consented to ASMFC binding
regulations. The Atlantic Coastal Act enacted by Congress in 1993 expanded the
ASMFC's power to make its decisions binding on the states, as defined in the
Act, without the consent of the states.
2. "Did the Atlantic Coastal Fisheries Cooperative Management Act
alter the purposes of the ASMFC as established in the interstate compact
approved by the Congress?"
Reply: Yes. The original purpose of the ASMFC was to establish a
cooperative, voluntary fisheries management program. Pursuant to Amendment No.
1 of the Compact approved by Congress in 1950, member states could choose to
designate the ASMFC as a joint regulatory agency "for the regulation of the
fishing operations of the citizens and vessels of such designation states with
respect to specific fisheries in which such states have a common interest." The
original purpose of establishing a means for the voluntary and cooperative
regulation of fisheries by the member states was changed by Congress when it
enacted the Atlantic Coastal Act. That Act empowered the ASMFC to make binding
decisions, enforceable against the states through sanctions levied by the
United States Secretary of Commerce, even when there has been no determination
by the states to join in a particular regulatory program.
3. "If Congress altered the powers and/or purposes of the ASMFC
by adoption of the Atlantic Coastal Fisheries Cooperative Management Act, did
adoption of the Act thereby violate limitations imposed by the U.S.
Constitution on Congress in the adoption of statutes? In particular, did the
adoption of the Act violate the Compact Clause or the Tenth Amendment?"
Reply: This question cannot be answered with certainty. The
constitutional provisions at issue are complex and have been the subject of
shifting interpretation by the U.S. Supreme Court.
(a) Compact Clause.
If the Congress was authorized to adopt the Atlantic Coastal Act
through the Commerce Clause, it is unlikely the Compact Clause was violated
when Congress amended the powers and purposes of the ASMFC through adoption of
the Atlantic Coastal Act without the consent of the member states. The Congress
is not prohibited by its ratification of a compact from using its Commerce
Clause power to adopt new statutes in areas covered by compacts and which
affect members of compacts. The Atlantic Coastal Act would likely be held to be
such a statute; it established the federal power to regulate migratory fish
stocks and conferred the power on a pre-existing compact-created agency, the
ASMFC. Regulating the harvesting of migrating stocks of fish is probably within
Congress' power under the Commerce Clause.
(b) Tenth Amendment.
In New York v. United States, 505 U.S. 144 (1992), the Supreme
Court held that Congress cannot commandeer the states by compelling the
adoption of laws or rules to carry out its policies, thereby avoiding the
political consequences of its decisions. The Atlantic Coastal Act treads
closely to that...
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