AGO 313.

• Case Date: June 24, 1997
• Court: North Carolina

North Carolina Attorney General Opinions 1997. AGO 313. June 24, 1997Attorney General Letter Opinion No. 313Representative Jean Preston North Carolina General Assembly State Legislative Building Raleigh, North Carolina 27601ADVISORY OPINION: Limitations on commercial fishing licenses available to non-residents in House Bill 1097; U.S. Const., Article IV, Section 2.Dear Representative Preston: This responds to your request of June 16, 1997 for an opinion on the constitutionality of treating North Carolina residents and nonresidents differently in commercial fishing licensing, as currently proposed in House Bill 1097 (Fisheries Reform Act-2). Your questions and our answers are set forth below. 1. May the State treat North Carolina residents and nonresidents differently as to the eligibility for commercial licenses? More specifically, may the State treat North Carolina residents and nonresidents differently as to the eligibility for a shellfish license for the harvest and sale of shellfish? Answer: Yes, if the differing treatment is consistent with the Privileges and Immunities Clause of the United States Constitution. However, for the following reasons, it is not possible to say with confidence that the existing statutory scheme carried forward in House Bill 1097, which bars non-residents from the commercial harvest and cultivation of shellfish, would survive a constitutional challenge. House Bill 1097 allows issuance of shellfish licenses only to residents of North Carolina. Statutory schemes which limit non-resident access to the State's resources are subject to scrutiny under the Privileges and Immunities Clause of the United States Constitution. The Privileges and Immunities Clause, Article IV, Section 2 of the United States Constitution protects the right of a citizen to enter any other State to engage in lawful commerce, trade or business; acquire personal property; obtain real estate; bring actions in the courts of the State; and be exempt from higher taxes than the State imposes upon its own citizens. Ward v. Maryland, 79 U.S. 418, 429-30 (1870); Little v. Miles, 204 N.C. 646, 169 S.E. 273 (1933). Although the Clause does not preclude disparity of treatment of non-residents in situations where there are valid independent reasons for such action, it does bar "discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Toomer v. Witsell, 334 U.S. 385, 396 (1948). In Toomer, the Supreme Court invalidated a series of South Carolina statutes which required that non-resident commercial shrimp fishermen pay a license fee of $2500.00, one hundred times higher than resident fishermen for shrimping in the state's territorial sea. Id. Cases arising under the Privileges and Immunities Clause have set out a two-pronged analysis in determining whether a statutory scheme setting differing fees based on residency will pass constitutional muster. First, the court will determine whether the benefit or activity constitutes a privilege or immunity protected by the Clause. Second, the court will determine whether there is a substantial state interest served by the disparate treatment of non-residents. Rotunda, Novak & Young, Treatise on Constitutional Law: Substance and Procedure, Sec. 12.7(1986). Upon review of the language of Ward v. Maryland and Little v. Miles, there is little doubt that commercial shellfishing licenses are privileges that are protected under the Privileges and Immunities Clause. These types of licenses are used for the purpose...