AGO 251.

Case DateMarch 26, 1996
CourtNorth 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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