Coastal Conservation Ass'n v. State of N.C.

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-589
No. COA21-654
Filed 6 September 2022
Wake County, No. 20 CVS 12925
COASTAL CONSERVATION ASSOCIATION, d/b/a CCA NORTH CAROLINA;
BRUCE C. ABBOTT; CHARLES P. ADAMS, JR.; CONSTANTINE A. ARETAKIS, II;
FREDERICK L. BERRY; ANDREW R. BOYD; HARRY T. BRANCH; TROY D.
BRANHAM; RUPERT D. BROWN; JUDITH C. BULLOCK; WILLIAM L. BYRD, JR.;
JOHNNY L. CANUP; MICHAEL D. CARTER; WILLIE T. CLOSS, JR.; KENNETH
D. COOPER, JR.; L. AVERY CORNING, IV; PAUL N. COX; BENJAMIN M.
CURRIN; DANIEL E. DAWSON; MARY F. DAWSON; CHARLES B. EFIRD; FRANK
K. EILER; CHRISTOPHER ELKINS; DAN E. ESTREM; ANDREW P. GILLIKIN;
LELAN E. HALLER, JR.; JOHN M. HISLOP; RAYMOND Y. HOWELL; JOEY S.
HUMPHREY; THOMAS G. HURT; CLARK W. HUTCHINSON, JR.; ANDREW G.
JONES, JR.; GEORGE M. KIVETT, JR.; JOHN C. KNIGHT, JR.; BRADFORD A.
KOURY; CHARLES H. LAUGHRIDGE; CASEY M. LLOYD; MARILYN R. LOWE;
CHARLIE LOYA, JR.; NICKIE N. LUCAS; BRUCE D. MACLACHLAN; EULISS D.
MADREN; WILLIAM W. MANDULAK; DARRELL G. MCCORMICK; TERESA A. D.
MCCULLOUGH; SAMUEL B. MCLAMB, III; JAMES M. MCMANUS, JR.; JOHN W.
MCQUAID; GEORGE R. MODE; JOHN V. MOON; DENNIS K. MOORE; KENNETH
N. MOORE, JR.; WARREN S. MOORING; ELIJAH T. MORTON; DANIEL J.
NIFONG; SADIE R. NIFONG; ROBERT B. NOWELL, JR.; ELBERT W. OWENS,
JR.; WYATT E. PARCEL; VAN B. PARRISH; JAMES H. PARROTT; BRYAN C.
PATE; ALEXANDRA S. PEYTON; HUNTER L. PEYTON; JEFFREY P.
PICKERING; ROBERT R. RICE, II; ROBERT T. RICE; ORICE A. RITCH, JR.;
MARK A. RUFFIN; PEARCE RUFFIN; ERIC J. SATO; SEAN P. SCULLY; LENNY
T. SMATHERS; CARROLL W. SPENCER; JOHN R. SPRUILL; DAVID M.
SUMMERS; JOHN B. TAGGART; JESSE H. WASHBURN, II; ANDREW J.
WEBSTER; MELISSA N. WILLIAMS; VANDEXTER WILLIAMS; DONALD A.
WILLIS, JR.; A. REXFORD WILLIS, III; JAN L. WILLIS; PHILLIP R. WOOD; RAYE
P. WOODIN, III; JOSEPH G. YAGER, Plaintiffs,
v.
STATE OF NORTH CAROLINA, Defendant.
COASTAL CONSERVATION ASS’N V. STATE OF N.C.
2022-NCCOA-589
Opinion of the Court
Appeal by Defendant from Order entered 28 July 2021 by Judge Bryan Collins
in Wake County Superior Court. Heard in the Court of Appeals 26 April 2022.
Poyner Spruill LLP, by Keith H. Johnson, Andrew H. Erteschik, John Michael
Durnovich, and Stephanie L. Gumm, for plaintiffs-appellees.
Attorney General Joshua H. Stein, by Assistant Attorney General Scott A.
Conklin and Special Deputy Attorney General Marc Bernstein, for defendant-
appellant.
Southern Environmental Law Center, by Alex J. Hardee and Derb S. Carter,
Jr., for Amicus Curiae North Carolina Wildlife Federation and Sound Rivers.
John J. Korzen for Amicus Curiae Professor Joseph J. Kalo.
HAMPSON, Judge.
Factual and Procedural Background
¶1 The State of North Carolina (the State) appeals from the trial court’s Order
denying its Motion to Dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the
North Carolina Rules of Civil Procedure. The Record before us—including the factual
allegations made in Plaintiffs’ Complaint, which we treat as true solely for purposes
of this appeal—reflects the following:
¶2 On 10 November 2020, Coastal Conservation Association, d/b/a CCA North
Carolina, Inc., and the other named individuals who are citizens and residents of
North Carolina, (collectively, Plaintiffs) filed a Complaint against the State, alleging
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2022-NCCOA-589
Opinion of the Court
breach of trust under the public trust doctrine, N.C. Const. art. I, § 38, and N.C.
Const. art. XIV, § 5. Specifically, Plaintiffs alleged:
The public-trust doctrine imposes a fiduciary duty on the State to
manage and regulate the harvest of [coastal finfish and shellfish]
in a way that protects the right of current and future generations
of the public to use public waters to fish. As a result, the State
may not allow the harvest of finfish or shellfish in public waters
in quantities or by methods that cause unnecessary waste or
impair the sustainability of fish stocks, which in turn threaten
the right of current and future generations of the public to use
such public waters to fish.
Plaintiffs alleged the State had breached this duty by permitting for-profit harvesting
of finfish or shellfish in quantities or through methods that cause overexploitation or
undue wastage to North Carolina’s coastal fisheries resources. According to
Plaintiffs’ Complaint, the State:
has continued to allow—and even facilitated—several commercial
fishing practices that result in substantial wastage of coastal fish
stocks or their prey species, or result in critical habitat
destruction. Those commercial fishing practices include trawling
in estuarine waters with significant populations of juvenile
finfish, and using “unattended” gillnets. . . . As a result, stocks of
multiple fish species . . . have declined precipitously—84 to 98
percent—since the last major fisheries management reform
legislation was enacted in North Carolina in 1997.1
1 Plaintiffs’ Complaint contains over 100 pages of allegations including data supporting Plaintiff’s
claim regarding the causal connection between these two commercial fishing practices and the decline
in fish populations.
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Opinion of the Court
Plaintiffs requested that the Court: declare that the State breached its obligation
under the public-trust doctrine, Article I, Section 38 of the North Carolina
Constitution, and Article XIV, Section 5 of the North Carolina Constitution; enjoin
the State from committing further breaches of its obligations and retain jurisdiction
to enforce the State’s compliance with that injunctive relief; tax the costs of the action
to the State; and assign a Resident Superior Court Judge pursuant to Rule 2.2 of the
Local Rules for Civil Superior Court of the Tenth Judicial District to preside over this
action.
¶3 The State responded to Plaintiffs’ Complaint by filing a Motion to Dismiss
pursuant to Rules 12(b)(1), (2), and (6) of the Rules of Civil Procedure. Specifically,
the State alleged:
1. The plaintiffs have not pleaded facts that show that the State
has waived its sovereign immunity, and the State has not in fact
or law waived its sovereign immunity. The Complaint should be
dismissed under Rule 12(b)(1), (2) and (6).
2. The plaintiffs lack standing to make a claim under the public
trust doctrine because only the State can enforce the public trust
doctrine. The claim should be dismissed under Rule 12(b)(1) and
(6).
3. The Complaint does not state a claim upon which relief can be
granted because the public trust doctrine does not create the type
of fiduciary obligations upon which the plaintiffs rely. The
Complaint should be dismissed under Rule 12(b)(6).
4. The Complaint does not state a claim upon which relief can be
granted because the remedy requested would violate the
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Opinion of the Court
constitutional provision requiring the separation of powers. N.C.
Const, art. I, § 6. The Complaint should be dismissed under Rule
12 (b)(6).
5. To the extent that the plaintiffs are alleging an independent
claim under article I, section 38 of the North Carolina
Constitution, the Complaint does not state a claim upon which
relief can be granted under that provision because the Complaint
does not allege facts that show that the State has abridged any of
the plaintiffs’ rights that are protected by article I, section 38.
Any such claim should therefore be dismissed under Rule
12(b)(6).
6. To the extent that the plaintiffs are alleging an independent
claim under article XIV, section 5 of the North Carolina
Constitution, the Complaint does not state a claim upon which
relief can be granted under that provision because article XIV,
section 5 does not articulate any enforceable individual right but
instead clarifies state policies and functions regarding
environmental protection and creates a land conservation
program. Any such claim should therefore be dismissed under
Rule 12(b)(6).
¶4 On 9 June 2021 the trial court held a hearing on the State’s Motion to Dismiss,
and on 28 July 2021 the trial court entered an Order Denying Motion to Dismiss. The
State filed written Notice of Appeal on 26 August 2021.
Appellate Jurisdiction
¶5 As an initial matter, we must first address whether we have appellate
jurisdiction to review the trial court’s Order. As the State acknowledges, the trial
court’s denial of the State’s Motion to Dismiss is an interlocutory order. Generally,
“a party has no right to immediate appellate review of an interlocutory order.” Veazey
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v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). “An interlocutory order is
one made during the pendency of an action, which does not dispose of the case, but
leaves it for further action by the trial court in order to settle and determine the entire
controversy.” Id. However, N.C. Gen. Stat. § 1-277 (2021) allows a party to
immediately appeal an order that either (1) affects a substantial right or (2)
constitutes an adverse ruling as to personal jurisdiction.
¶6 Here, the State moved to dismiss Plaintiffs’ causes of action pursuant to Rules
12(b)(1), (2), and (6) of the North Carolina Rules of Civil Procedure, based on the
defense of sovereign immunity. “Our Courts generally recognize immunity as a
defense that can be raised under Rules 12(b)(1), 12(b)(2), or 12(b)(6).” Suarez v. Am.
Ramp Co. (ARC), 266 N.C. App. 604, 610, 831 S.E.2d 885, 890 (2019).
Although the federal courts have tended to minimize the
importance of the designation of a sovereign immunity defense as
either a Rule 12(b)(1) motion regarding subject matter
jurisdiction or a Rule 12(b)(2) motion regarding jurisdiction over
the person, the distinction becomes crucial in North Carolina
because G.S. 1-277(b) allows the immediate appeal of a denial of
a Rule 12(b)(2) motion but not the immediate appeal of a denial
of a Rule 12(b)(1) motion.
Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327-328, 293 S.E.2d 182, 184 (1982). See
also Davis v. Dibartolo, 176 N.C. App. 142, 144–45, 625 S.E.2d 877, 880 (2006)
(declining to review interlocutory appeal of denial of motion to dismiss for lack of
subject matter jurisdiction due to sovereign immunity under Rule 12(b)(1), but
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reviewing denial of Rule 12(b)(6) motion based upon governmental immunity); Data
Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 100, 545 S.E.2d 243, 245–46 (2001)
(declining to review interlocutory appeal of denial of motion to dismiss due to
sovereign immunity under Rule 12(b)(1), but reviewing denial of Rule 12(b)(2) motion
for lack of personal jurisdiction based upon governmental immunity). Thus, for the
purposes of this appeal, we only review the trial court’s denial of the State’s Rule
12(b)(2) and 12(b)(6) motions.
¶7 Our Court has held a “denial of a Rule 12(b)(2) motion premised on sovereign
immunity constitutes an adverse ruling on personal jurisdiction and is therefore
immediately appealable under section 1-277(b).” Can Am South, LLC v. State, 234
N.C. App. 119, 124, 759 S.E.2d 304, 308 (2014). Likewise, “a denial of a Rule 12(b)(6)
motion to dismiss on the basis of sovereign immunity affects a substantial right and
is immediately appealable.” Green v. Kearney, 203 N.C. App. 260, 266, 690 S.E.2d
755, 761 (2010). Thus, the Order is immediately appealable, and this Court may
assert appellate jurisdiction over this matter.
Issue
¶8 The dispositive issues on appeal are whether: (I) sovereign immunity bars
Plaintiffs’ claims for injunctive and declaratory relief seeking judicial review of the
State’s obligations and alleged breach of trust under the public trust doctrine; (II)
Plaintiffs’ Complaint states a claim for relief on state constitutional grounds under
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Opinion of the Court
N.C. Const. Art. XIV, Sec. 5—the Conservation of Natural Resources Clause—for
enforcement of public trust doctrine rights; and (III) Plaintiffs’ Complaint states a
claim for relief on state constitutional grounds under N.C. Const. Art. I, Sec. 38—
Right to Hunt, Fish, and Harvest Wildlife—for enforcement of public trust doctrine
rights.
Analysis
I. Public-Trust Doctrine
¶9 The State contends Plaintiffs’ Complaint is barred by the defense of sovereign
immunity. Specifically, the State asserts the public trust doctrine, as a common-law
doctrine, is subject to sovereign immunity. Therefore, the State argues Plaintiffs’
Complaint must be dismissed. “The doctrine of sovereign immunity—that the State
cannot be sued without its consent—has long been the law in North Carolina.” Smith
v. State, 289 N.C. 303, 309–310, 222 S.E.2d 412, 417 (1976). “The doctrine of
sovereign immunity is judge-made in North Carolina and was first adopted by the
North Carolina Supreme Court in Moffitt v. Asheville, 103 N.C. 237, 9 S.E. 695(1889).” Corum v. Univ. of N.C., 330 N.C. 761, 785, 413 S.E.2d 276, 291 (1992).2 Since
2 We are cognizant of the United States Supreme Court’s recent discussion summarizing its own
history of the doctrine of sovereign immunity in Franchise Tax Board of California v. Hyatt, 139 S. Ct.
1485, 1493–95, 203 L. Ed. 2d 768 (2019) and our application of its holding in Farmer v. Troy Univ.,
276 N.C. App. 53, 2021-NCCOA-36, ¶¶ 15–24, appeal dismissed, 379 N.C. 164, 863 S.E.2d 621 (2021),
and review allowed in part, denied in part, 379 N.C. 127, 863 S.E.2d 775 (2021). However, while “[t]he
Supreme Court of the United States is the final authority on federal constitutional questions[,]” the
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Moffitt, our Courts have been hesitant to disturb the doctrine of sovereign immunity.
See Steelman v. New Bern, N.C., 279 N.C. 589, 595, 184 S.E.2d 239, 243 (1971) (“It
may well be that the logic of the doctrine of sovereign immunity is unsound and that
the reasons which led to its adoption are not as forceful today as they were when it
was adopted. However, . . . we feel that any further modification or the repeal of the
doctrine of sovereign immunity should come from the General Assembly, not this
Court.”). Nevertheless, our Courts have identified instances where sovereign
immunity does not apply—including specifically where the State enters into a valid
contract and, subsequently, breaches the contract. Smith, 289 N.C. at 320, 222
S.E.2d at 423–24 (“[W]henever the State of North Carolina, through its authorized
officers and agencies, enters into a valid contract, the State implicitly consents to be
sued for damages on the contract in the event it breaches the contract.”).
¶ 10 “[T]he following policy grounds are usually offered for immunity: a need to
prevent the diversion of public funds to compensate for private purposes; a need to
North Carolina Supreme Court remains the authority on our state law issues and the final voice on
the history of the law and jurisprudence of North Carolina. State v. Elliott, 360 N.C. 400, 421, 628
S.E.2d 735, 749 (2006); see also Bulova Watch Co., Inc. v. Brand Distribs. of N. Wilkesboro, Inc., 285
N.C. 467, 474, 206 S.E.2d 141, 146 (1974) (“[I]n the construction of the provision of the State
Constitution, the meaning given by the Supreme Court of the United States to even an identical term
in the Constitution of the United States is, though highly persuasive, not binding upon this Court[.]”);
Unemployment Compensation Comm’n v. Jefferson Standard Life Ins. Co., 215 N.C. 479, 2 S.E.2d 584,
589 (1939) (“Accordingly, it would appear settled that the matter here involved is one of state law, to
be interpreted finally by this Court.”). Unless and until the North Carolina Supreme Court revisits
its earlier determination that sovereign immunity in North Carolina is “judge-made” law, we are
bound by its prior precedent. Moreover, we note this case does not involve another state’s claim of
sovereign immunity in North Carolina courts.
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avoid disruption of public service and safety; a need to prevent governmental
involvement in endless embarrassments, difficulties and losses subversive to the
public interest; and the nonprofit nature of government should be reflected in non-
liability.” Id. at 312, 222 S.E.2d at 419 (quoting The National Association of
Attorneys General, Sovereign Immunity: The Liability of Government and its
Officials, Jan. 1975, at 17).
¶ 11 Here, Plaintiffs are seeking declaratory and injunctive relief against the State
seeking a declaration the State has breached its alleged obligations under the public
trust doctrine and enjoining the State from further violations of its alleged obligations
under the public trust doctrine. “The public trust doctrine is a common law principle
providing that certain land associated with bodies of water is held in trust by the
State for the benefit of the public.” Fabrikant v. Currituck Cty., 174 N.C. App. 30, 41,
621 S.E.2d 19, 27 (2005) (citing State ex rel. Rohrer v. Credle, 322 N.C. 522, 527–28,
369 S.E.2d 825, 828 (1988)). Although the doctrine arises from the common law, it is
perhaps best understood as “an implied constitutional doctrine”—one that “springs
from a fundamental notion of how government is to operate with regard to common
heritage natural resources.” Harrison C. Dunning, The Public Trust: A fundamental
Doctrine of American Property Law, 19 Envtl. L. 515, 523 (1989). North Carolina first
recognized the public trust doctrine in the case of Shepard’s Point Land Company in
1903. There, our Supreme Court stated: the State “can no more abdicate its trust
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over property in which the whole people are interested, like navigable waters . . . than
it can abdicate its police powers in the administration of government and the
preservation of the peace.” Shepard’s Point Land Co. v. Atl. Hotel, 132 N.C. 517, 528,
44 S.E. 39, 42 (1903), overruled by Gwathmey v. State ex rel. Dep’t. of Env’t, Health,
& Nat. Res., 342 N.C. 287, 464 S.E.2d 674 (1995); see also, Stone v. Mississippi, 101
U.S. 814, 820 (1879) (“[T]he power of governing is a trust committed by the people to
the government, no part of which can be granted away.”). In the years following
Shepard’s Point, our appellate courts had multiple occasions to examine the public
trust doctrine and its application to navigable waters in North Carolina. Relevant to
the case sub judice, three key principles have emerged.
¶ 12 First, “the public trust doctrine, established by the common law of this State,
involves two concepts: (1) public trust lands, which are ‘certain land[s] associated
with bodies of water [and] held in trust by the State for the benefit of the public[;]’
and (2) public trust rights, which are ‘those rights held in trust by the State for the
use and benefit of the people of the State in common.’ ” Town of Nags Head v.
Richardson, 260 N.C. App. 325, 334, 817 S.E.2d 874, 882 (2018) (quoting Fabrikant,
174 N.C. App. at 41, 621 S.E.2d at 27). “Public trust rights attach to the [public trust
lands]” and “ ‘include, but are not limited to the right to navigate, swim, hunt, fish,
and enjoy all recreational activities’ offered by public trust lands.” Id. (quoting N.C.
Gen. Stat. § 1–45.1 (2017)).
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¶ 13 However, the right to hunt and fish does not exist in the abstract. The public
must have access to harvestable wildlife and fish to have a meaningful opportunity
to exercise these rights. See U.S. v. Washington, 853 F.3d 946, 965 (9th Cir. 2017),
aff’d, 138 S. Ct. 1832 (U.S. 2018) (per curium) (stating in the context of a Native
American treaty guaranteeing access to fisheries that a “right of access to . . . fishing
places would be worthless without harvestable fish.”). Indeed, “the State’s wildlife
population is a natural resource of the State held by it in trust for its citizens.” State
v. Steward, 40 N.C. App. 693, 695, 253 S.E.2d 638, 640 (1979) (emphasis added). See
also, Shepard’s Point Land Co., 132 N.C. at 526, 44 S.E. at 41 (emphasis added) (“The
principle has long been settled the States own the tidewaters themselves, and the fish
in them, so far as they are capable of ownership while running . . . [but] [i]t is a title
held in trust for the people of the State.”); State ex. rel. Rohrer v. Credle, 322 N.C.
522, 534, 369 S.E.2d 825, 826 (1988) (emphasis added) (“History and the law bestow
the title of these submerged land and their oysters upon the State to hold in trust for
the people.”); N.C. Gen. Stat. § 113–131(a) (2021) (“The marine and estuarine and
wildlife resources of the State belong to the people of the State as a whole.”).
¶ 14 Second, there is a definite distinction between the State’s interest in public
trust lands and the State claiming title to property against a private party, as might
give rise to an action under N.C. Gen. Stat. § 41–10.1. See N.C. Gen. Stat. § 41–10.1
(2021) (“Whenever the State of North Carolina . . . asserts a claim of title to land . . .
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[the land owner] may bring an action in the superior court of the county in which the
land lies against the State . . . .”); see also, State v. Taylor, 322 N.C. 433, 435, 368
S.E.2d 601, 602 (1988) (holding the scope of the waiver of sovereign immunity in N.C.
Gen. Stat. § 41–10.1 should be strictly construed). This principle is illustrated by
Fabrikant v. Currituck County. There, the plaintiffs, who owned oceanfront property
in Currituck County, brought suit against various defendants including the State,
seeking a declaratory judgment that they had exclusive right of the portion of the
beach between the high tide mark and the vegetation line, identified as the dry sand
beach. 174 N.C. App. at 32, 621 S.E.2d at 22. Plaintiffs also sought injunctive relief
to prevent the general public from trespassing over the dry sand beach areas
surrounding their homes. Id.¶ 15 The State filed a motion to dismiss based inter alia on sovereign immunity. Id.In response, the plaintiffs alleged since the public trust doctrine allowed the public
access to their dry sand beaches, the State had effectively laid a claim of title to the
land. Id. at 41, 621 S.E.2d at 27. Therefore, the plaintiffs contended their complaint’s
allegations fell within the scope of N.C. Gen. Stat. § 41–10.1, thereby establishing a
waiver of sovereign immunity. Id. at 39, 621 S.E.2d at 26.
¶ 16 This Court stated “the public trust doctrine cannot give rise to an assertion of
ownership that would be available to any ‘private litigants in like circumstances.’ ”
Id. at 42, 621 S.E.2d at 27 (quoting Williams v. N.C. State Bd. of Educ., 266 N.C. 761,
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765, 147 S.E.2d 381, 383 (1966). “Any party, public or private, can assert title to land
on the strength of a deed, but only the State, acting in its sovereign capacity, may
assert rights in land by means of the public trust doctrine.” Id. (citing Neuse River
Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 118, 574 S.E.2d 48, 54
(2002)). This Court concluded the State’s interest in public trust lands does not
amount to a claim of title to land under N.C. Gen. Stat. § 41–10.1. Id. at 43, 621
S.E.2d at 25 (“Since the General Assembly chose to limit the waiver to an assertion
of ‘claim of title to land,’ rather than use the broader ‘interest in real property,’ we
must construe that language strictly and hold that a ‘claim of title to land’ requires
more than just an interest in real property.”). As such, because the plaintiffs’ claims
did not fall under the scope of N.C. Gen. Stat. § 41–10.1, that statute could also not
be relied upon as a waiver of sovereign immunity. Id. Thus, this Court held the State
had not waived sovereign immunity to plaintiffs’ claims for declaratory and injunctive
relief seeking exclusive rights to the property at issue. Id. Therefore, N.C. Gen. Stat.
§ 41–10.1 does not constitute an express waiver of sovereign immunity as a defense
to a claim by a private citizen asserting rights of ownership or exclusive access to
public trust lands under the public trust doctrine. See Id.¶ 17 Third, only the State has standing to bring suit against a private corporation
seeking “non-individualized, or public, remedies for alleged harm to public waters”
under the public trust doctrine. Neuse River Found., 155 N.C. App. at 118, 574 S.E.2d
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at 54. This Court set out this principle in the case of Neuse River Foundation, Inc. v.
Smithfield Foods, Inc. There, the plaintiffs filed suit against three hog farming
companies alleging defendants improperly handled hog waste, resulting in massive
pollution and contamination of the Neuse, New, and Cape Fear Rivers, and those
rivers’ tributaries and estuaries. Id. at 112, 574 S.E.2d at 50. The plaintiffs’ claims
were based in part on the public trust doctrine. Id. This Court held the plaintiffs did
not have standing to bring a claim under the public trust doctrine against a private
corporation as “only the [S]tate, through the Attorney General, is authorized to bring
in a representative capacity for and on behalf of the using and consuming public of
this State actions deemed to be advisable in the public interest.” Id. at 117, 574
S.E.2d at 53 (citing Idaho v. Coeur D’Alene Tribe, 521 U.S. 261, 284, 138 L. Ed. 2d
438, 457 (1997)).3
¶ 18 Applying these three key principles to the case sub judice provides more
context for Plaintiffs’ claims. First, as Plaintiffs allege, protecting fisheries falls
within the purview of the public trust doctrine,4 and “the State can no more abdicate
this duty than it can abdicate its police powers in the administration of government
3 The public trust doctrine “uniquely implicate[s] sovereign interests[,]” and the Court will not
interfere when the relief requested “would divest the State of its sovereign control over submerged
lands, lands with a unique status in the law and infused with a public trust the State itself is bound
to respect.” Coeur D’Alene Tribe, 521 U.S. at 284, 138 L. Ed. 2d at 457.
4 See Steward, 40 N.C. App. at 695, 253 S.E.2d at 640; Shepard’s Point Land Co., 132 N.C. at 526, 44
S.E. at 41.
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and the preservation of the peace.” Shepard’s Point Land Co., 132 N.C. at 528, 44
S.E. at 42. Second, Plaintiffs here are not asserting rights of ownership or exclusive
access to public trust lands. To the contrary, Plaintiffs’ claims are broadly premised
on the State’s dominion over public trust property and obligation to enforce the public
trust. Thus, the claims asserted here are distinguishable from the claims of property
rights in Fabrikant. Third, and concomitantly, Plaintiffs are not attempting to
enforce public trust rights against a private party—i.e. suing commercial fishermen
for their role in the depletion of fish populations. Instead, Plaintiffs are bringing an
action directly against the State for an alleged breach of its obligation to manage and
protect fisheries for the benefit of the general public. Therefore, this case does not
implicate the holding in Neuse River Company. Given this particular context, it does
not appear that our Courts have had opportunity to directly address whether
sovereign immunity bars the type of claim brought by Plaintiffs seeking to compel the
State to enforce alleged obligations under the public trust doctrine. Our review of the
development of North Carolina law applicable to both sovereign immunity and the
public trust doctrine leads us to conclude sovereign immunity does not bar Plaintiffs’
claim implicating the public trust doctrine in this case.
¶ 19 In Gwathmey v. State ex rel. Department of Environment, Health, & Natural
Resources, our Supreme Court recognized the State may sometimes act contrary to
the public interest and stated “the ‘public trust’ doctrine [is] a tool for judicial review
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of state action affecting State-owned submerged land underlying navigable waters,
including estuarine marshland . . . .” 342 N.C. at 293, 464 S.E.2d at 677. Indeed,
even though Gwathmey, in part overruled Shepard’s Point5—the original case
adopting the public trust doctrine—the essential principle remains the same: the
State owns tidal lands and waters for the benefit of the public, subject to “concomitant
restraints.” Credle, 322 N.C. at 525, 369 S.E.2d at 827.
¶ 20 Application of sovereign immunity in this case, however, would effectively
reduce the public trust doctrine to nothing more than a “fanciful gesture” and prevent
judicial review—contemplated by Gwathmey—as a plaintiff would never have the
“opportunity to enter the courthouse doors and present his claims.” Craig v. New
Hanover Cty. Bd. of Educ., 363 N.C. 334, 340–41, 678 S.E.2d 351, 355 (2009).
Moreover, the policy reasons usually offered for sovereign immunity such as the need
to prevent the diversion of public funds to compensate for private purposes are
inapplicable in this case. Plaintiffs are not requesting the State compensate a private
individual/corporation for alleged damages but are seeking an injunction preventing
the State from committing breaches of its alleged obligations under the public trust
doctrine.
5 “We reject . . . Shepard’s Point Land Co. to the extent that it implies that the public trust doctrine
completely prohibits the General Assembly from conveying lands beneath navigable waters to private
parties without reserving public trust rights. That position is without authority in either our statutes
or our Constitution.” Gwathmey, 342 N.C. at 302, 464 S.E.2d at 683.
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¶ 21 Thus, because of the nature of the public trust doctrine as a tool for judicial
review of the State’s actions as trustee of fisheries, we conclude sovereign immunity
does not apply in this case. Therefore, Plaintiffs’ claims for declaratory and injunctive
relief against the State for breach of its alleged duties under the public trust doctrine
are not barred by sovereign immunity.
II. Conservation of Natural Resources Clause
¶ 22 Alternatively, presuming arguendo a public trust doctrine claim is otherwise
barred by sovereign immunity, Plaintiffs’ Complaint also presents sufficient
allegations of a claim arising directly under Article XIV, § 5 of our State Constitution.
¶ 23 Generally, sovereign immunity bars an action against the State unless the
State has waived immunity or consented to the suit. Taylor, 322 N.C. at 435, 368
S.E.2d at 602. However, the doctrine of sovereign immunity will not stand as a
barrier to North Carolina citizens who seek to remedy violations of their rights
guaranteed under the North Carolina Constitution. Corum, 330 N.C. at 785–86, 413
S.E.2d at 291. Thus, a direct constitutional claim will survive a Rule 12(b)(6) motion
to dismiss, notwithstanding the doctrine of sovereign or governmental immunity.
Craig, 363 N.C. at 340–41, 678 S.E.2d at 355–56.
¶ 24 Our Supreme Court has developed a three-part test to determine whether a
plaintiff’s complaint has sufficiently alleged a claim for relief under our State
Constitution. “First, to allege a cause of action under the North Carolina
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Constitution, a state actor must have violated an individual’s constitutional rights.”
Deminski v. State Bd. of Educ., 377 N.C. 406, 2021-NCSC-58, ¶ 16.
¶ 25 “Second, the claim must be colorable.” Id. “A ‘colorable claim’ is ‘[a] plausible
claim that may reasonably be asserted, given the facts presented and the current law
(or a reasonable and logical extension or modification of the current law).” Id. at ¶
17 (quoting Colorable, Black’s Law Dictionary (11th ed. 2019)). “In other words, the
claim must present facts sufficient to support an alleged violation of a right protected
by the State Constitution.” Id.¶ 26 “Lastly, there must be no adequate state remedy.” Id. at ¶ 18. “No adequate
state remedy exists when ‘state law [does] not provide for the type of remedy sought
by the plaintiff.’ ” Id. (quoting Craig, 363 N.C. at 340, 678 S.E.2d at 356). “[A] claim
that is barred by sovereign or governmental immunity is not an adequate remedy.”
Id. “To be considered adequate in redressing a constitutional wrong, a plaintiff must
have at least the opportunity to enter the courthouse doors and present his claim.”
Id. (quoting Craig, 363 N.C. at 340–41, 678 S.E.2d at 355).
¶ 27 Here, Plaintiffs alleged the State, acting through two administrative
agencies—the North Carolina Division of Marine Fisheries and the North Carolina
Marine Fisheries Commission—failed to protect Plaintiffs’ constitutionally
guaranteed right to harvest fish under Art. XIV, § 5.
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¶ 28 Next, Plaintiffs have alleged a colorable constitutional claim. Article XIV, § 5
was added to our State Constitution in 1972 and states: “[i]t shall be the policy of this
State to conserve and protect its lands and waters for the benefit of all its citizenry .
. . .” N.C. Const. art. XIV, § 5. Our Court interpreted this amendment in Town of
Nags Head v. Richardson as tasking the State with a constitutional duty to not only
protect the public lands, but also the public trust rights attached thereto. 260 N.C.
App. 325, 334, 817 S.E.2d 874, 883 (2017) (“The State is tasked with protecting these
rights pursuant to the North Carolina Constitution[.]”). See also Credle, 322 N.C. at
532, 369 S.E.2d at 831 (Art. XIV, § 5 “mandates the conservation and protection of
public lands and waters for the benefit of the public.”).
¶ 29 Plaintiffs alleged the State breached this constitutional duty by “mismanaging
North Carolina’s coastal fisheries resources.” Specifically, Plaintiffs alleged the State
has mismanaged the fisheries by “permitting, sanctioning, and even protecting two
methods of harvesting coastal finfish and shrimp in State public waters”—shrimp
trawling and “unattended” gillnetting—“that result in enormous resource wastage[;]”
“refusing to address and remedy chronic overfishing of several species of fish[;]” and,
“tolerating a lack of reporting of any harvest by the majority of commercial fishing
license holders for more than a decade.” Plaintiffs alleged “the State’s
mismanagement of coastal fisheries resources . . . has eliminated or, at a minimum,
severely curtailed the public’s right to fish for [popular fish species].” Indeed,
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Plaintiffs’ Complaint contains extensive data points documenting the stock status
and the stock population trends of certain fish species. Thus, the alleged facts here
support Plaintiffs’ contention the State did not protect the harvestable fish population
“for the benefit of all its citizenry.” N.C. Const. art. XIV, § 5. As such, Plaintiffs have
alleged a colorable constitutional claim.
¶ 30 Finally, looking at whether an adequate state remedy exists, Plaintiffs seek
declaratory and injunctive relief to remedy the State’s breach of trust. Assuming
arguendo the public trust doctrine claim is barred by sovereign immunity, this
remedy cannot be redressed through other means, as an adequate “state law remedy
[does] not apply to the facts alleged” by Plaintiffs. Craig, 363 N.C. at 342, 678 S.E.2d
at 356. Thus, alternatively, Plaintiffs have alleged a colorable constitutional claim
for which no other adequate state law remedy exists. Therefore, sovereign or
governmental immunity cannot bar Plaintiffs’ claim.
III. Right to Hunt, Fish, and Harvest Wildlife Clause
¶ 31 Alternatively, Plaintiffs’ Complaint also alleges a claim arising directly under
Article I, § 38 of our state Constitution that the State has failed to protect Plaintiffs’
constitutionally protected right to harvest fish.
¶ 32 To determine whether Plaintiffs’ Complaint presents sufficient allegations of a
claim arising directly under Article I, we employ the same three-part test set forth in
the preceding section of this Opinion. “First, a state actor must have violated an
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individual’s constitutional rights.” Deminski, 2021-NCSC-58, ¶ 16. “Second, the
claim must be colorable.” Id. “Lastly, there must be no ‘adequate state remedy.’ ” Id.
¶ 33 Section 38 was added to Article I of our State Constitution in 2018 by
amendment proposed by legislative initiation and adopted by popular vote. See N.C.
Const. Art. XIII, Sec. 4 (providing for constitutional amendment by legislative
initiation). It states:
The right of the people to hunt, fish, and harvest wildlife is a
valued part of the State’s heritage and shall be forever preserved
for the public good. The people have a right, including the right
to use traditional methods, to hunt, fish, and harvest wildlife,
subject only to laws enacted by the General Assembly and rules
adopted pursuant to authority granted by the General Assembly
to (i) promote wildlife conservation and management and (ii)
preserve the future of hunting and fishing. Public hunting and
fishing shall be a preferred means of managing and controlling
wildlife. Nothing herein shall be construed to modify any
provision of law relating to trespass, property rights, or eminent
domain.
N.C. Const. Art. I, § 38.
¶ 34 The State contends the language of this provision places no affirmative
constitutional mandate on the State to preserve the right of the people to hunt, fish,
and harvest wildlife for the public good. We disagree. “In interpreting our
Constitution—as in interpreting a statute—where the meaning is clear from the
words used, we will not search for a meaning elsewhere.” State v. Webb, 358 N.C. 92,
97, 591 S.E.2d 505, 510 (2004). “The plain meaning of words may be construed by
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reference to ‘standard, nonlegal dictionaries.’ ” Id. (quoting C.D. Spangler Constr.
Co. v. Indus. Crankshaft & Eng’g Co., 326 N.C. 133, 152, 388 S.E.2d 557, 568 (1990)).
¶ 35 It is first significant that this provision is found in Article I of our Constitution
titled “Declaration of Rights.” N.C. Const. art. I. In general, Article I recognizes and
establishes “essential principles of liberty and free government.” N.C. Const. art. I,
preamble. “The fundamental purpose for its adoption was to provide citizens with
protection from the State’s encroachment upon these rights.” Corum, 330 N.C. at
782, 413 S.E.2d at 290. “Encroachment by the State is, of course, accomplished by
the acts of individuals who are clothed with the authority of the State.” Id. “[I]t is
the judiciary’s responsibility to guard and protect those rights.” Id. at 785, 413 S.E.2d
at 291.
¶ 36 The first sentence of Section 38 makes clear the right to fish belongs to the
people. Moreover, its inclusion in Article I indicates the General Assembly intended
for this right to be protected against encroachment by the State. Indeed, this right is
“subject only to laws . . . and rules . . . to (i) promote wildlife conservation and
management and (ii) preserve the future of . . . fishing.” N.C. Const. art. I, § 38.
¶ 37 The plain meaning of the next phrase in the first sentence “shall be forever
preserved” places an affirmative duty on the State to protect the people’s right to fish.
“Shall” means “has a duty to” or “must” and imposes “imperative or mandatory”
obligations on the party to which “shall” applies. Shall, Black’s Law Dictionary (11th
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ed. 2019); Internet E., Inc. v. Duro Commc’ns, Inc., 146 N.C. App. 401, 405–06, 553
S.E.2d 84, 87 (2001). Forever, means “for a limitless time.” Forever, Merriam-
Webster’s Collegiate Dictionary 328 (7th ed. 1970). “Preserve” means “to keep safe
from injury, harm or destruction.” Preserve, Merriam-Webster at 673. Thus, the
plain meaning of this phrase indicates the General Assembly, when drafting the
proposed amendment, intended to create an affirmative duty on the State to preserve
the right of the people to fish and harvest fish. However, the right to fish and harvest
fish would be rendered meaningless without access to fish. See Washington, 853 F.3d
at 965; Steward, 40 N.C. App. at 695, 253 S.E.2d at 640. Therefore, the State’s duty
necessarily includes some concomitant duty to keep fisheries safe from injury, harm,
or destruction for all time.
¶ 38 The history of Section 38 supports this conclusion. Section 38 was initiated by
the North Carolina General Assembly after the National Rifle Association (NRA)
“spearhead[ed] [a] campaign for Right to Hunt and Fish state constitutional
amendments.” Why does NRA support Right to Hunt and Fish (RTHF) state
constitutional amendments?, NRA-ILA (last visited June 14, 2022),
https://www.nraila.org/get-the-facts/hunting-and-conservation/why-does-nra-
support-right-to-hunt-and-fish-rthf-state-constitutional-amendments). As part of
this campaign, the NRA released a model amendment, which closely resembles North
Carolina’s amendment in Article I, § 38. However, the NRA model amendment does
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not include the phrase “shall be forever preserved.” See Id. In drafting the proposed
amendment, which eventually became Section 38, the General Assembly could have
used the NRA’s model language, but instead it specifically chose to add an additional
phrase imposing a mandatory duty on the State. “Under well-settled canons of
statutory canons of statutory construction, we must conclude that this change had
meaning.” Wells Fargo Bank, N.A., v. Am. Nat’l Bank and Trust Co., 250 N.C. App.
280, 281, 791 S.E.2d 906, 908 (2016); see also N.C. Dep’t of Revenue v. Hudson, 196
N.C. App. 765, 768, 675 S.E.2d 709, 711 (2009) (quoting Rodriguez v. United States,
480 U.S. 522, 525 (1987)) (“[w]hen a legislative body ‘includes particular language . .
. it is generally presumed that [the legislative body] acts intentionally and purposely
in the disparate inclusion”); Emerson v. Cape Fear Country Club, Inc., 259 N.C. App.
755, 761, 817 S.E.2d 402, 407 (2018) (“When the General Assembly adopts verbatim
some provisions of a model code and rejects others, we assume that the General
Assembly consciously chose to author its own alternate provisions.”).
¶ 39 In sum, both the plain language and history of Article I, § 38 support the
conclusion this provision imposes an affirmative duty on the State to preserve the
people’s right to fish and harvest fish. This includes some duty to preserve fisheries
for the benefit of the public. In this case, Plaintiffs’ have alleged facts, which if
proven, may tend to show the State did not properly manage the fisheries so as to
forever preserve the fish populations for the benefit of the public. See N.C. Const.
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art. I, § 38. As such, Plaintiffs have alleged a colorable constitutional claim under
Article I, § 38.
¶ 40 Finally, looking at whether an adequate state remedy exists, here again,
Plaintiffs seek declaratory and injunctive relief to remedy the State’s breach of their
duty to protect the right to fish and harvest fish. Again, presuming arguendo the
public trust doctrine claim was to be barred by sovereign immunity, Plaintiffs’ alleged
wrong cannot be redressed through other means, as an adequate “state law remedy
[does] not apply to the facts alleged” by Plaintiffs. Craig, 363 N.C. at 342, 678 S.E.2d
at 356. Thus, Plaintiffs have alleged a colorable constitutional claim for which no
other adequate state law remedy exists. Therefore, sovereign or governmental
immunity cannot bar Plaintiffs’ claim. Consequently, the trial court did not err in
denying the State’s Motion to Dismiss pursuant to Rules 12(b) (2) and (6) on the basis
of sovereign immunity.
Conclusion
¶ 41 Accordingly, for the foregoing reasons, we affirm the trial court’s Order
Denying the State’s Motion to Dismiss. “In so ruling, we express no opinion on the
ultimate merits, if any, of plaintiffs’ allegations and claims.” Locklear v. Lanuti, 176
N.C. App. 380, 387, 626 S.E.2d 711, 716 (2006) (holding the allegations in the
complaint were sufficient to survive a 12(b)(6) motion to dismiss).
AFFIRMED.
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Judges MURPHY and WOOD concur.