Chapter 113.

Conservation and Development.

SUBCHAPTER I. GENERAL PROVISIONS.

Article 1.

Powers and Duties of Department of Environmental Quality Generally.

§ 113-1.  Meaning of terms.

In this Article, unless the context otherwise requires, the expression "Department" means the Department of Environmental Quality; "Secretary" means the Secretary of Environmental Quality.  (1925, c. 122, s. 3; 1973, c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1989, c. 727, s. 218(47); 1997-443, s. 11A.119(a); 2015-241, ss. 14.30(u), (v).)

 

§ 113-2.  Repealed by Session Laws 1973, c. 1262, s. 28.

 

§ 113-3.  Duties of the Department.

(a)        It shall be the duty of the Department, by investigation, recommendation and publication, to aid:

(1)        In the promotion of the conservation and development of the natural resources of the State;

(2)        In promoting a more profitable use of lands and forests;

(3)        Repealed by Session Laws 1977, c. 198, s. 15; c. 771, s. 7;

(4)        In coordinating existing scientific investigations and other  related agencies in formulating and promoting sound policies of conservation and development; and

(5)        Repealed by Session Laws 1977, c. 771, s. 7.

(b)        Repealed by Session Laws 1959, c. 779, s. 3. (1925, c. 122, s. 4; 1957, c. 753, s. 3; c. 1424, s. 1; 1959, c. 779, s. 3; 1977, c. 198, s. 15; c. 771, s. 7.)

 

§§ 113-4 through 113-7.  Repealed by Session Laws 1973, c. 1262, s. 28.

 

§ 113-8.  Powers and duties of the Department.

The Department shall make investigations of the natural resources of the State, and take such measures as it may deem best suited to promote the conservation and development of such resources.

It shall have the protection of lands and water supplies; it shall also have the care of recreational areas now owned or to be acquired by the State, including the lakes referred to in G.S. 146-7.

It shall make such examination, survey and mapping of the geology, mineralogy and topography of the State, including their industrial and economic utilization, as it may consider necessary; make investigations of water supplies and water powers, prepare and maintain a general inventory of the water resources of the State, and take such measures as it may consider necessary to promote their development.

It shall have the duty of enforcing all laws relating to the conservation of marine and estuarine resources.

The Department may take such other measures as it may deem advisable to obtain and make public a more complete knowledge of the State and its resources, and it is authorized to cooperate with other departments and agencies of the State in obtaining and making public such information.

The Department may acquire such real and personal property as may be found desirable and necessary for the performance of the duties and functions of the Department and pay for same out of any funds appropriated for the Department or available unappropriated revenues of the Department, when such acquisition is approved by the Governor and Council of State. The title to any real estate acquired shall be in the name of the State of North Carolina for the use and benefit of the Department.  (1925, c. 122, s. 9; 1927, c. 57; 1947, c. 118; 1957, c. 753, s. 4; c. 1424, s. 2; 1965, c. 957, s. 11; 1973, c. 1262, ss. 28, 86; 1977, c. 198, ss. 16, 17; c. 771, s. 4; 1989, c. 727, s. 33; 2011-145, s. 13.25(j); 2015-241, s. 14.30(nn).)

 

§ 113-8.01.  Pollution Prevention Pays Programs.

There is established within the Department a non-regulatory technical assistance program to be known as the Pollution Prevention Pays Program.  The purpose of this program is to encourage voluntary waste and pollution reduction efforts through research and by providing information, technical assistance, and matching grants to businesses and industries interested in establishing or enhancing activities to prevent, reduce, or recycle waste.  The Pollution Prevention Pays Program shall coordinate its activities with the appropriate regulatory agencies. (1989, c. 168, s. 7; 1993, c. 501, s. 10.)

 

§ 113-8.1.  Repealed by Session Laws 1959, c. 779, s. 3.

 

§§ 113-9 through 113-13.  Repealed by Session Laws 1973, c. 1262, s. 28.

 

§ 113-14.  Recodified as § 143B-435 by Session Laws 1977, c. 198, s. 26.

 

§ 113-14.1.  Promotion of seashore industry and recreation.

(a)        Repealed by Session Laws 1973, c. 1262, s. 28.

(b)        The following powers are hereby granted to the Secretary and may be delegated to the administrative head of an existing or new division of the Department as herein authorized:

(1)        through (3) Repealed by Session Laws 1977, c. 198, s. 18.

(4)        Study the development of the seacoast areas and implement policies which will promote the development of the coastal area, with particular emphasis upon the development of the scenic and recreational resources of the seacoast;

(5)        Advise and confer with various interested individuals, organizations and State, federal and local agencies which are interested in development of the seacoast area and use its facilities and efforts in planning, developing and carrying out overall programs for the development of the area as a whole;

(6)        Act as liaison between agencies of the State, local government, and agencies of the federal government concerned with development of the seacoast region;

(7)        Repealed by Session Laws 1973, c. 1262, s. 28;

(8)        Make such reports to the Governor as he may request;

(9)        File such recommendations or suggestions as it may deem proper with other agencies of the State, local or federal governments.

Provided, however, that the provisions of this section and G.S. 113-14.2 shall not be construed as affecting the authority of the Environmental Management Commission concerning shore-erosion control or prevention, beach protection, or hurricane protection under G.S. 143-355 or any other provision of law. (1969, c. 1143, ss. 2, 3; 1973, c. 1262, s. 28; 1977, c. 198, s. 18, c. 771, s. 4; 1989, c. 727, s. 34.)

 

§ 113-14.2.  Repealed by Session Laws 1971, c. 882, s. 8.

 

§ 113-14.3.  Publications.

The Department shall publish, from time to time, reports and statements, with illustrations, maps, and other descriptions, which shall adequately set forth the natural and material resources of the State for the purpose of furnishing information to educate the people about the natural and material resources of the State. (1977, c. 771, s. 5; 1989, c. 727, s. 35.)

 

§ 113-15.  Recodified as § 143B-436 by Session Laws 1977, c. 198, s. 26.

 

§ 113-15.1.  Repealed by Session Laws 1969, c. 1145, s. 4.

 

§ 113-15.2.  Recodified as § 143B-437 by Session Laws 1977, c. 198, s. 26.

 

§ 113-16.  Cooperation with agencies of the federal government.

The Department is authorized to arrange for and accept such aid and cooperation from the several United States government bureaus and other sources as may assist in completing topographic surveys and in carrying out the other objects of the Department.

The Department is further authorized and directed to cooperate with the Federal Power Commission in carrying out the rules adopted by that Commission; and to act in behalf of the State in carrying out any rules that may be adopted relating to water powers in this State other than those related to making and regulating rates.  The provisions of this section are extended to apply to cooperation with authorized agencies of other states. (1925, c. 122, s. 18; 1929, c. 297, s. 2; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1989, c. 727, s. 36.)

 

§ 113-17.  Agreements, negotiations and conferences with federal government.

The Department is delegated as the State agency to represent North Carolina in any agreements, negotiations, or conferences with authorized agencies of adjoining or other states, or agencies of the federal government, relating to the joint administration or control over the surface or underground waters passing or flowing from one state to another under the provisions of this section. (1929, c. 297, s. 1; 1973, c. 476, s. 128; c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 37.)

 

§ 113-18.  Department authorized to receive funds from Federal Power Commission.

All sums payable to the State of North Carolina by the Treasurer of the United States of America under the provisions of section 17 and other sections of the Federal Water Power Act shall be paid to the account of the Department as the authorized agent of the State for receipt of said payments.  Such sums shall be used by the Department in prosecuting investigations for the utilization and development of the water resources of the State. (1929, c. 288; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 38.)

 

§ 113-19.  Cooperation with other State departments.

The Department is authorized to cooperate with the North Carolina Utilities Commission in investigating the waterpowers in the State, and to furnish the Utilities Commission such information as is possible regarding the location of the waterpower sites, developed waterpowers, and such other information as may be desired in regard to waterpower in the State; the Department shall also cooperate as far as possible with the Department of Labor, the State Department of Agriculture and Consumer Services, and other departments and institutions of the State in collecting information in regard to the resources of the State and in preparing the same for publication in such manner as may best advance the welfare and improvement of the State. (1925, c. 122, s. 16; 1927, c. 57, s. 1; 1931, c. 312; 1933, c. 134, s. 8; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1989, c. 727, s. 39; 1997-261, s. 109.)

 

§ 113-20.  Cooperation with counties and municipal corporations.

The Department is authorized to cooperate with the counties of the State in any surveys to ascertain the natural resources of the county; and with the governing bodies of cities and towns, with boards of trade and other like civic organizations, in examining and locating water supplies and in advising and recommending plans for other municipal improvements and enterprises.  Such cooperation is to be conducted upon such terms as the Department may direct. (1925, c. 122, s. 17; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1989, c. 727, s. 40.)

 

§ 113-21.  Cooperation of counties with State in making water resource survey.

The board of county commissioners of any county of North Carolina is authorized and empowered, in their discretion, to cooperate with the Department or other association, organization, or corporation in making surveys of any of the natural resources of their county, and to appropriate and pay out of the funds under their control such proportional part of the cost of such survey as they may deem proper and just. (1921, c. 208; 1925, c. 122, s. 4; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 41.)

 

§ 113-22: Repealed by Session Laws 2011-145, s. 13.25(k), effective July 1, 2011.

 

§ 113-23: Recodified as G.S. 143B-135.43 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-24.  Repealed by Session Laws 1979, c. 830, s. 5.

 

§ 113-25.  Notice to Department before beginning business of manufacturing products from mineral resources of State.

Every person, firm or corporation engaging in the manufacture or production of any product from any natural resources, classified as mineral products, shall before beginning such operation, or if already engaged in such business, within 90 days after March 9, 1927, notify the Department of its intention to begin or continue such business, and also notify said Department of the product or products it intends to produce.

Every person, firm or corporation now engaged or hereafter engaging in the manufacture or production of any product from any natural resources of the State classified as mineral products, shall notify the Department when such person, firm or corporation shall discontinue such manufacture or production.

Any person, firm or corporation failing to comply with the provisions of this section shall be guilty of a Class 3 misdemeanor, and upon conviction shall only be fined not more than twenty-five dollars ($25.00) and not less than five dollars ($5.00), in the discretion of the court. (1927, c. 258; 1993, c. 539, s. 828; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-26.  Repealed by Session Laws 1959, c. 683, s. 6.

 

§ 113-26.1.  Bureau of Mines; mineral museum.

The Governor and the Council of State are hereby authorized, in their discretion and at such times as the development of the mineral resources and the expansion of mining operations in the State justify and make reasonably necessary, to create and establish as a part of the Department a Bureau of Mines, or a mineral museum in cooperation with the National Park Service, to be located in the western part of the State, with a view to rendering such aid and assistance to mining developments in this State as may be helpful in this expanding industry, and to allocate from the Contingency and Emergency Fund such funds as may reasonably be necessary for the establishment and operation of such Bureau of Mines or mineral museum.

The Department may adopt rules governing the operation of a Bureau of Mines or mineral museum established under this section. (1943, c. 612; 1953, c. 1104, ss. 1-3; 1973, c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1987, c. 827, s. 89; 1989, c. 727, s. 44.)

 

§ 113-27.  Repealed by Session Laws 1959, c. 779, s. 3.

 

§ 113-28: Repealed by Session Laws 2010-96, s. 12, effective July 20, 2010.

 

 

Article 1A.

Special Peace Officers.

§ 113-28.1.  Designated employees commissioned special peace officers by Governor.

Upon application by either the Secretary of Natural and Cultural Resources or the Secretary of Environmental Quality, the Governor is hereby authorized and empowered to commission as special peace officers such of the employees of the Departments as the Secretary may designate for the purpose of enforcing the laws and rules enacted or adopted for the protection, preservation and government of State parks, lakes, reservations and other lands or waters under the control or supervision of the respective Departments.  (1947, c. 577; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1987, c. 783, s. 5; 1989, c. 727, s. 46; 1997-443, s. 11A.119(a); 2015-241, s. 14.30(oo).)

 

§ 113-28.2.  Powers of arrest.

Any employee of either the Department of Natural and Cultural Resources or the Department of Environmental Quality commissioned as a special peace officer shall have the right to arrest with warrant any person violating any law or rule on or relating to the State parks, lakes, reservations and other lands or waters under the control or supervision of the employee's respective Department, and shall have the power to pursue and arrest without warrant any person violating in his presence any law or rule on or relating to said parks, lakes, reservations and other lands or waters under the control or supervision of the employee's respective Department.  (1947, c. 577; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 47; 1997-443, s. 11A.119(a); 2015-241, s. 14.30(pp).)

 

§ 113-28.2A.  Cooperation between law enforcement agencies.

Special peace officers employed by either the Department of Natural and Cultural Resources or the Department of Environmental Quality are officers of a "law enforcement agency" for purposes of G.S. 160A-288, and each Department shall have the same authority as a city or county governing body to approve cooperation between law enforcement agencies under that section.  (2002-111, s. 1; 2015-241, s. 14.30(qq).)

 

§ 113-28.3: Repealed by Session Laws 1989, c.  485, s. 1.

 

§ 113-28.4.  Oaths required.

Before any employee of either the Department of Natural and Cultural Resources or the Department of Environmental Quality commissioned as a special peace officer shall exercise any power of arrest under this Article, the employee shall take the oaths required of public officers before an officer authorized to administer oaths.  (1947, c. 577; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 218(48); 1997-443, s. 11A.119(a); 2015-241, s. 14.30(rr).)

 

 

Article 1B.

Aviation.

§§ 113-28.5 through 113-28.12.  Recodified as §§ 63-65 to 63-72 by Session Laws 1979, c. 148, s. 5.

 

 

Article 1C.

Commission on International Cooperation.

§§ 113-28.13 through 113-28.20: Repealed by Session Laws 1973, c.  1262, s. 86.

 

 

Article 1D.

Community Action Partnership Act.

§§ 113-28.21 through 113-28.26:  Recodified as §§ 108B-21 through 108B-26 by Session Laws 1989 (Reg. Sess., 1990), c. 1004, s. 34 (c).

 

 

SUBCHAPTER II. STATE PARKS.

Article 2.

Acquisition and Control of State Parks.

§ 113-29: Recodified as G.S. 143B-135.10 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-29.1: Repealed by Session Laws 2011-145, s. 13.25(n), effective July 1, 2011.

 

§ 113-30: Repealed by Session Laws 2011-145, s. 13.25(n), effective July 1, 2011.

 

§ 113-31: Repealed by Session Laws 2011-145, s. 13.25(n), effective July 1, 2011.

 

§ 113-32: Repealed by Session Laws 2011-145, s. 13.25(n), effective July 1, 2011.

 

§ 113-33: Repealed by Session Laws 2011-145, s. 13.25(n), effective July 1, 2011.

 

§ 113-34: Recodified as G.S. 143B-135.12 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-34.1: Recodified as G.S. 143B-135.14 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-35: Recodified as G.S. 143B-135.16 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-35.1:  Repealed by Session Laws 2009-484, s. 5, effective August 26, 2009.

 

§ 113-36: Repealed by Session Laws 2011-145, s. 13.25(n), effective July 1, 2011.

 

§ 113-37: Recodified as G.S. 143B-135.18 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-38: Repealed by Session Laws 2011-145, s. 13.25(n), effective July 1, 2011.

 

§ 113-39: Recodified as G.S. 143B-135.20 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-40: Recodified as G.S. 143B-135.22 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-41: Recodified as G.S. 143B-135.24 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-42: Recodified as G.S. 143B-135.26 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-43: Recodified as G.S. 143B-135.28 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44: Recodified as G.S. 143B-135.30 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

 

Article 2A.

Forestry Advisory Committee.

§§ 113-44.1 through 113-44.2.  Repealed by Session Laws 1973, c. 1262, s. 28.

 

 

Article 2B.

Forestry Study Act.

§§ 113-44.3 through 113-44.6:  Repealed by Session Laws 1995 (Reg.  Sess., 1996), c. 653, s. 4.

 

 

Article 2C.

State Parks Act.

§ 113-44.7: Recodified as G.S. 143B-135.40 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.8: Recodified as G.S. 143B-135.42 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.9: Recodified as G.S. 143B-135.44 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.10: Recodified as G.S. 143B-135.46 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.11: Recodified as G.S. 143B-135.48 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.12: Recodified as G.S. 143B-135.50 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.13: Recodified as G.S. 143B-135.52 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.14: Recodified as G.S. 143B-135.54 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

§ 113-44.15: Recodified as G.S. 143B-135.56 by Session Laws 2015-241, s. 14.30(e), effective July 1, 2015.

 

 

Article 3.

Private Lands Designated as State Forests.

§§ 113-45 through 113-50:  Repealed by Session Laws 1975, c.  253.

 

 

Article 4.

Protection and Development of Forests; Fire Control.

§§ 113-51 through 113-60.3: Recodified as Article 75 of Chapter 106, G.S. 106-895 through G.S. 106-910, by Session Laws 2011-145, s. 13.25(p), effective July 1, 2011.

 

 

Article 4A.

Protection of Forest Against Insect Infestation and Disease.

§§ 113-60.4 through 113-60.10: Recodified as Article 76 of Chapter 106, G.S. 106-920 through G.S. 106-926, by Session Laws 2011-145, s. 13.25(r), effective July 1, 2011.

 

 

Article 4B.

Southeastern Interstate Forest Fire Protection Compact.

§§ 113-60.11 through 113-60.15: Recodified as Article 77 of Chapter 106, G.S. 106-930 through 106-934, by Session Laws 2011-145, s. 13.25(t), effective July 1, 2011.

 

§ 113-60.16: Reserved for future codification purposes.

 

§ 113-60.17: Reserved for future codification purposes.

 

§ 113-60.18: Reserved for future codification purposes.

 

§ 113-60.19: Reserved for future codification purposes.

 

§ 113-60.20: Reserved for future codification purposes.

 

 

Article 4C.

Regulation of Open Fires.

§§ 113-60.21 through 113-60.31: Recodified as Article 78 of Chapter 106, G.S. 106-940 through G.S. 106-950, by Session Laws 2011-145, s. 13.25(w), effective July 1, 2011.

 

 

Article 4D.

Fire Fighters on Standby Duty.

§§ 113-60.32, 113-60.33: Recodified as Article 79 of Chapter 106, G.S. 106-955 and G.S. 106-956, by Session Laws 2011-145, s. 13.25(y), effective July 1, 2011.

 

§§ 113-60.34 through 113-60.39.  Reserved for future codification purposes.

 

 

Article 4E.

North Carolina Prescribed Burning Act.

§§ 113-60.40 through 113-60.45: Recodified as Article 80 of Chapter 106, G.S. 106-965 through G.S. 106-970, by Session Laws 2011-145, s. 13.25(aa), effective July 1, 2011.

 

 

Article 5.

Corporations for Protection and Development of Forests.

§§ 113-61 through 113-77: Recodified as Article 81 of Chapter 106, G.S. 106-980 through G.S. 106-996, by Session Laws 2011-145, s. 13.25(cc), effective July 1, 2011.

 

§ 113-77.1: Reserved for future codification purposes.

 

§ 113-77.2: Reserved for future codification purposes.

 

§ 113-77.3: Reserved for future codification purposes.

 

§ 113-77.4: Reserved for future codification purposes.

 

§ 113-77.5: Reserved for future codification purposes.

 

 

Article 5A.

Natural Heritage Trust Program.

§§ 113-77.6 through 113-77.9: Repealed by Session Laws 2013-360, s. 14.3(b), effective August 1, 2013.

 

 

Article 6.

Fishing Generally.

§ 113-78:  Repealed by Session Laws 1979, c.  830, s. 1.

 

§§ 113-79 through 113-81:  Repealed by Session Laws 1947, c.  422, ss. 1, 9.

 

 

Article 6A.

Forestry Services and Advice for Owners and Operators of Forestland.

§§ 113-81.1 through 113-81.3: Recodified as Article 82 of Chapter 106, G.S. 106-1001 through G.S. 106-1003, by Session Laws 2011-145, s. 13.25(ee), effective July 1, 2011.

 

 

SUBCHAPTER IIA. DISTRIBUTION AND SALE OF HUNTING, FISHING AND TRAPPING LICENSES.

Article 6B.

License Agents.

§§ 113-81.4 through 113-81.13:  Repealed by Session Laws 1979, c.  830, s. 1.

 

 

SUBCHAPTER III. GAME LAWS.

Article 7.

North Carolina Game Law of 1935.

§§ 113-82 through 113-99:  Repealed by Session Laws 1979, c.  830, s. 1.

 

§ 113-99.1.  Recodified as § 113-270.2A.

 

§§ 113-100 through 113-109.  Repealed by Session Laws 1979, c. 830, s. 1.

 

§§ 113-109.1 through 113-109.5.  Reserved for future codification purposes.

 

 

Article 7A.

Safe Distances for Hunting Migratory Wild Waterfowl.

§§ 113-109.6 through 113-109.8.  Repealed by Session Laws 1979, c. 830, s. 1.

 

 

Article 8.

Fox-Hunting Regulations.

§ 113-110.  Repealed by Session Laws 1945, c. 217.

 

§§ 113-110.1 through 113-112.  Repealed by Session Laws 1979, c. 830, s. 1.

 

 

Article 9.

Federal Regulations on Federal Lands.

§§ 113-113 through 113-113.5:  Repealed by Session Laws 1979, c. 830, s. 1.

 

 

Article 9A.

Regulation of Trapping.

§§ 113-113.6 through 113-113.19:  Repealed by Session Laws 1979, c. 830, s. 1.

 

 

Article 9B.

Regulation of Beaver Taking.

§§ 113-113.20 through 113-113.23.  Repealed by Session Laws 1979, c. 830, s. 1.

 

 

Article 10.

Regulation of Fur Dealers; Licenses.

§§ 113-114 through 113-120.  Repealed by Session Laws 1979, c. 830, s. 1.

 

 

Article 10A.

Trespassing upon "Posted" Property to Hunt, Fish or Trap.

§§ 113-120.1 through 113-120.4.  Transferred to §§ 14-159.6 to 14-159.9 by Session Laws 1979, c. 830, s. 11.

 

 

Article 10B.

Liability of Landowners to Authorized Users.

§§ 113-120.5 through 113-120.7.  Repealed by Session Laws 1980, c. 830, s. 1.

 

 

Article 11.

Miscellaneous Provisions.

§§ 113-121 through 113-126.1.  Repealed by Session Laws 1979, c. 830, s. 1.

 

§ 113-126.2:  Not set out.

 

 

SUBCHAPTER IV.  CONSERVATION OF MARINE AND ESTUARINE AND WILDLIFE RESOURCES.

Article 12.

General Definitions.

§ 113-127.  Application of Article.

Unless the context clearly requires otherwise, the definitions in this Article apply throughout this Subchapter. (1965, c. 957, s. 2.)

 

§ 113-128.  Definitions relating to agencies and their powers.

The following definitions and their cognates apply to powers and administration of agencies charged with the conservation of marine and estuarine and wildlife resources:

(1),      (2) Repealed by Session Laws 1979, c. 830, s. 1.

(3)       Department. - The Department of Environmental Quality.

(4)       Executive Director. - Executive Director, North Carolina Wildlife Resources Commission.

(4a)     Fisheries Director. - Director, North Carolina Division of Marine Fisheries of the Department of Environmental Quality who shall be qualified for the office by education or experience.

(5)       Inspector. - Marine fisheries inspector.

(5a)     Marine Fisheries Commission. - The Marine Fisheries Commission of the Department as established by Part 5D of Article 7 of Chapter 143B of the General Statutes.

(5b)     Marine Fisheries Inspector. - An employee of the Department, other than a wildlife protector, sworn in as an officer and assigned duties which include exercise of law enforcement powers under this Subchapter. All references in statutes, regulations, contracts, and other legal and official documents to commercial fisheries inspectors and to commercial and sports fisheries inspectors apply to marine fisheries inspectors.

(6)       Notice; Notify. - Where it is required that notice be given an agency of a situation within a given number of days, this places the burden on the person giving notice to make sure that the information is received in writing by a responsible member of the agency within the time limit.

(7)       Protector. - Wildlife protector.

(8)       Secretary. - Secretary of Environmental Quality.

(9)       Wildlife Protector. - An employee of the North Carolina Wildlife Resources Commission sworn in as an officer and assigned to duties which include exercise of law-enforcement powers.

(10)     Wildlife Resources Commission. - The North Carolina Wildlife Resources Commission as established by Article 24 of Chapter 143 of the General Statutes and Part 3 of Article 7 of Chapter 143B of the General Statutes.  (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1977, c. 512, s. 5; c. 771, s. 4; 1979, c. 388, s. 1; c. 830, s. 1; 1987, c. 641, s. 4; 1989, c. 727, s. 218(57); 1997-443, s. 11A.119(a); 1998-225, s. 1.1; 2015-241, s. 14.30(u), (v).)

 

§ 113-129.  Definitions relating to resources.

The following definitions and their cognates apply in the description of the various marine and estuarine and wildlife resources:

(1)       Repealed by Session Laws 1979, c. 830, s. 1.

(1a)     Animals. - Wild animals, except when the context clearly indicates a contrary interpretation.

(1b)     Big Game. - Bear, wild turkey, and white-tailed deer.

(1c)     Birds. - Wild birds, except when the context clearly indicates a contrary interpretation.

(1d)     Boating and Fishing Access Area. - An area of land providing access to public waters and which is owned, leased, controlled, or managed by the Wildlife Resources Commission.

(1e)     Bushel. - A dry measure containing 2,150.42 cubic inches.

(1f)     Cervid or Cervidae. - All animals in the Family Cervidae (elk and deer).

(2)       Coastal Fisheries. - Any and every aspect of cultivating, taking, possessing, transporting, processing, selling, utilizing, and disposing of fish taken in coastal fishing waters, whatever the manner or purpose of taking, except for the regulation of inland game fish in coastal fishing waters which is vested in the Wildlife Resources Commission; and all such dealings with fish, wherever taken or found, by a person primarily concerned with fish taken in coastal fishing waters so as to be placed under the administrative supervision of the Department. Provided, that the Department is given no authority over the taking of fish in inland fishing waters. Except as provisions in this Subchapter or in regulations of the Marine Fisheries Commission authorized under this Subchapter may make such reference inapplicable, all references in statutes, regulations, contracts, and other legal or official documents to commercial fisheries apply to coastal fisheries.

(3)       Coastal Fishing. - All fishing in coastal fishing waters. Except as provisions in this Subchapter or in regulations of the Marine Fisheries Commission authorized under this Subchapter may make such references inapplicable, all references in statutes, regulations, contracts, and other legal or official documents to commercial fishing apply to coastal fishing.

(4)       Coastal Fishing Waters. - The Atlantic Ocean; the various coastal sounds; and estuarine waters up to the dividing line between coastal fishing waters and inland fishing waters agreed upon by the Marine Fisheries Commission and the Wildlife Resources Commission. Except as provisions in this Subchapter or changes in the agreement between the Marine Fisheries Commission and the Wildlife Resources Commission may make such reference inapplicable, all references in statutes, regulations, contracts, and other legal or official documents to commercial fishing waters apply to coastal fishing waters.

(5)       Crustaceans. - Crustacea, specifically including crabs, lobster, and shrimp.

(5a)     Deer. - White-tailed deer (Odocoileus virginianus), except when otherwise specified in this Chapter.

(5b)     Farmed Cervid. - Any member of the Cervidae family, other than white-tailed deer, elk, mule deer, or black-tailed deer, that is bought and sold for commercial purposes.

(5c)     Feral Swine. - Free-ranging mammals of the species Sus scrofa.

(6)       Fisheries Resources. - Marine and estuarine resources and such wildlife resources as relate to fish.

(7)       Fish; Fishes. - All finfish; all shellfish; and all crustaceans.

(7a)     Fur-bearing Animals. - Beaver, mink, muskrat, nutria, otter, skunk, and weasel; bobcat, opossum, and raccoon when lawfully taken with traps.

(7b)     Game. - Game animals and game birds.

(7c)     Game Animals. - Bear, fox, rabbit, squirrel, white-tailed deer, and, except when trapped in accordance with provisions relating to fur-bearing animals, bobcat, opossum, and raccoon.

(7d)     Game Birds. - Migratory game birds and upland game birds.

(8)       Game Fish. - Inland game fish and such other game fish in coastal fishing waters as may be regulated by the Department.

(8a)     Game Lands. - Lands owned, leased, controlled, or cooperatively managed by the Wildlife Resources Commission for public hunting, trapping, or fishing.

(9)       Inland Fishing Waters. - All inland waters except private ponds; and all waters connecting with or tributary to coastal sounds or the ocean extending inland or upstream from:

a.         The dividing line between coastal fishing waters and inland fishing waters agreed upon by the Marine Fisheries Commission and the Wildlife Resources Commission; or

b.         North Carolina's boundary with another state.

(10)     Inland Game Fish. - Those species of freshwater fish, wherever found, and migratory saltwater fish, when found in inland fishing waters, as to which there is an important element of sport in taking and which are denominated as game fish in the regulations of the Wildlife Resources Commission. No species of fish of commercial importance not classified as a game fish in commercial fishing waters as of January 1, 1965, may be classified as an inland game fish in coastal fishing waters without the concurrence of the Marine Fisheries Commission.

(10a)   Joint Fishing Waters. - Those coastal fishing waters in which are found a significant number of freshwater fish, as agreed upon by the Marine Fisheries Commission and the Wildlife Resources Commission in accordance with G.S. 113-132(e).

(11)     Marine and Estuarine Resources. - All fish, except inland game fish, found in the Atlantic Ocean and in coastal fishing waters; all fisheries based upon such fish; all uncultivated or undomesticated plant and animal life, other than wildlife resources, inhabiting or dependent upon coastal fishing waters; and the entire ecology supporting such fish, fisheries, and plant and animal life.

(11a)   Migratory Birds. - All birds, whether or not raised in captivity, included in the terms of conventions between the United States and any foreign country for the protection of migratory birds and the Migratory Bird Treaty Act, as defined and listed in Part 10 of Title 50 of the Code of Federal Regulations.

(11b)  Migratory Game Birds. - Those migratory birds for which open seasons are prescribed by the United States Department of the Interior and belonging to the following families:

a.         Anatidae (wild ducks, geese, brant, and swans);

b.         Columbidae (wild doves and pigeons);

c.         Gruidae (little brown cranes);

d.         Rallidae (rails, coots, and gallinules); and

e.         Scolopacidae (woodcock and snipe).

The Wildlife Resources Commission is authorized to modify this definition from time to time by regulations only as necessary to keep it in conformity with governing federal laws and regulations pertaining to migratory game birds.

(11c)   Migratory Waterfowl; Waterfowl. - Those migratory birds for which open seasons are prescribed by the United States Department of the Interior and belonging to the Family Anatidae (wild ducks, geese, brant, and swans).

(11d)  Nongame Animals. - All wild animals except game and fur-bearing animals.

(11e)   Nongame Birds. - All wild birds except game birds.

(12)     Nongame Fish. - All fish found in inland fishing waters other than inland game fish.

(12a)   Repealed by Session Laws 2004-160, s. 1, effective August 2, 2004.

(12b)  Repealed by Session Laws 2004-160, s. 1, effective August 2, 2004.

(12c)   Overfished. - The condition of a fishery that occurs when the spawning stock biomass of the fishery is below the level that is adequate for the recruitment class of a fishery to replace the spawning class of the fishery.

(12d)  Overfishing. - Fishing that causes a level of mortality that prevents a fishery from producing a sustainable harvest.

(13)     Private Pond. - A body of water arising within and lying wholly upon a single tract of privately owned land, from which fish cannot escape and into which fish cannot enter from public fishing waters at any time, except that all publicly owned ponds and lakes are classified as public fishing waters. In addition, the private owners of abutting tracts of land on which a pond not exceeding 10 acres is or has been established may by written agreement cooperate to maintain that pond as a private pond if it otherwise meets the requirements of this definition. If a copy of the agreement has been filed with the Wildlife Resources Commission and the pond in fact meets the requirements of this definition, it attains the status of private pond either 60 days after the agreement has been filed or upon the Commission's approving it as private, whichever occurs first.

(13a)   Public Fishing Waters; Public Waters. - Coastal fishing waters, inland fishing waters, or both.

(13b)  Public Hunting Grounds. - Privately owned lands open to the public for hunting under the terms of a cooperative agreement between the owner and the Wildlife Resources Commission.

(13c)   Raptor. - A migratory bird of prey authorized under federal law and regulations for the taking of quarry by falconry.

(14)     Shellfish. - Mollusca, specifically including oysters, clams, mussels, and scallops.

(14a)   Sustainable harvest. - The amount of fish that can be taken from a fishery on a continuing basis without reducing the stock biomass of the fishery or causing the fishery to become overfished.

(14b)  Upland Game Birds. - Grouse, pheasant, quail, and wild turkey.

(15)     Wild Animals. - Game animals; fur-bearing animals; feral swine; and all other wild mammals except marine mammals found in coastal fishing waters. In addition, this definition includes members of the following groups which are on the federal list of endangered or threatened species: wild amphibians, wild reptiles except sea turtles inhabiting and depending upon coastal fishing waters, and wild invertebrates except invertebrates declared to be pests under the Structural Pest Control Act of North Carolina of 1955 or the North Carolina Pesticide Law of 1971. Nothing in this definition is intended to abrogate G.S. 113-132(c), confer jurisdiction upon the Wildlife Resources Commission as to any subject exclusively regulated by any other agency, or to authorize the Wildlife Resources Commission by its regulations to supersede valid provision of law or regulation administered by any other agency.

(15a)   Wild Birds. - Migratory game birds; upland game birds; and all undomesticated feathered vertebrates. The Wildlife Resources Commission may by regulation list specific birds or classes of birds excluded from the definition of wild birds based upon the need for protection or regulation in the interests of conservation of wildlife resources.

(15b)  Repealed by Session Laws 2011-369, s. 2, effective October 1, 2011.

(16)     Wildlife. - Wild animals; wild birds; all fish found in inland fishing waters; and inland game fish. Unless the context clearly requires otherwise, the definitions of wildlife, wildlife resources, wild animals, wild birds, fish, and the like are deemed to include species normally wild, or indistinguishable from wild species, which are raised or kept in captivity. Nothing in this definition is intended to abrogate the exclusive authority given the Department of Agriculture and Consumer Services to regulate the production and sale of pen-raised quail for food purposes.

(16a)   Wildlife Refuge. - An area of land or waters owned, leased, controlled, or cooperatively managed by the Wildlife Resources Commission which is closed to the taking of some or all species of wildlife.

(17)     Wildlife Resources. - All wild birds; all wild mammals other than marine mammals found in coastal fishing waters; all fish found in inland fishing waters, including migratory saltwater fish; all inland game fish; all uncultivated or undomesticated plant and animal life inhabiting or depending upon inland fishing waters; waterfowl food plants wherever found, except that to the extent such plants in coastal fishing waters affect the conservation of marine and estuarine resources the Department is given concurrent jurisdiction as to such plants; all undomesticated terrestrial creatures; and the entire ecology supporting such birds, mammals, fish, plant and animal life, and creatures.  (1965, c. 957, s. 2; 1973, c. 1262, ss. 18, 28; 1977, c. 771, s. 4; 1979, c. 830, s. 1; 1979, 2nd Sess., c. 1285; 1987, c. 641, ss. 5, 6; 1991, c. 317, ss. 2, 3; c. 761, ss. 38, 39; 1993, c. 515, s. 6; 1997-142, ss. 2, 3; 1997-261, s. 80; 1997-400, s. 3.5; 1999-339, ss. 1-3; 2003-344, ss. 1-4; 2004-160, ss. 1, 2; 2009-89, s. 2; 2011-369, s. 2; 2013-413, s. 37(a).)

 

§ 113-130.  Definitions relating to activities of public.

The following definitions and their cognates apply to activities of the public in regard to marine and estuarine and wildlife resources:

(1)       Repealed by Session Laws 1979, c. 830, s. 1.

(1a)     Falconry. - The sport of taking quarry by means of a trained raptor.

(1b)     Individual. - A human being.

(1c)     Landholder. - Any individual, resident or nonresident, owning land in this State or, when he is the one principally engaged in cultivating the land, leasing land in this State for agricultural purposes.

(2)       Owner; Ownership. - As for personal property, refers to persons having beneficial ownership and not to those holding legal title for security; as for real property, refers to persons having the present right of control, possession, and enjoyment, whether as life tenant, fee holder, beneficiary of a trust, or otherwise. Provided, that this definition does not include lessees of property except where the lease arrangement is a security device to facilitate what is in substance a sale of the property to the lessee.

(3)       Person. - Any individual; or any partnership, firm, association, corporation, or other group of individuals capable of suing or being sued as an entity.

(4)       Resident. - In the case of:

a.         Individuals. - One who at the time in question has resided in North Carolina for the preceding six months or has been domiciled in North Carolina for the preceding 60 days. When domicile in the State for a period of 60 days up to six months is the basis for establishing residence, the individual must sign a certificate on a form supplied by the Department or the Wildlife Resources Commission, as the case may be, stating the necessary facts and the intent to establish domicile here.

b.         Corporations. - A corporation which is chartered under the laws of North Carolina and has its principal office within the State.

c.         Partnerships. - A partnership in which all partners are residents of North Carolina and which has its principal office in the State.

d.         Other Associations and Groups Fitting the Definition of Person. - An association or group principally composed of individual residents of North Carolina, with its principal office, if any, in the State, and organized for a purpose that contemplates more involvement or contact with this State than any other state.

e.         Military Personnel and Their Dependents. - A member of the Armed Forces of the United States stationed at a military facility in North Carolina, the member's spouse, and any dependent under 18 years of age residing with the member are deemed residents of the State, of the county in which they live, and also, if different, of any county in which the military facility is located. A member of the Armed Forces of the United States on active duty outside the State of North Carolina shall be deemed an individual resident of the State for purposes of all the following licenses:

1.         Coastal Recreational Fishing Licenses issued pursuant to G.S. 113-174.2(c)(1) and (c)(4).

2.         Combination Hunting and Inland Fishing Licenses issued pursuant to G.S. 113-270.1C(b)(1).

3.         Sportsman Licenses issued pursuant to G.S. 113-270.1D(a).

4.         Hunting Licenses issued pursuant to G.S. 113-270.2(c)(1) and (c)(5).

5.         Special Activity Licenses issued pursuant to G.S. 113-270.3(b)(1).

6.         Trapping Licenses issued pursuant to G.S. 113-270.5(b)(1).

7.         Hook-and-Line Licenses issued pursuant to G.S. 113-271(d)(1), (d)(2), and (d)(6)a.

8.         Unified Hunting and Fishing Licenses issued pursuant to G.S. 113-351(c)(1) and (c)(2).

f.          Students. - Nonresident students attending a university, college, or community college in the State.

(4a)     To Buy; Purchase. - Includes a purchase or exchange of property, or an offer or attempt to purchase or exchange, for money or any other valuable consideration.

(5)       To Fish. - To take fish.

(5a)     To Hunt. - To take wild animals or wild birds.

(6)       To Sell; Sale. - Includes a sale or exchange of property, or an offer or attempt to sell or exchange - for money or any other valuable consideration.

(7)       To Take. - All operations during, immediately preparatory, and immediately subsequent to an attempt, whether successful or not, to capture, kill, pursue, hunt, or otherwise harm or reduce to possession any fisheries resources or wildlife resources.

(7a)     To Trap. - To take wild animals or wild birds by trapping.

(8)       Vessel. - Every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water.  (1965, c. 957, s. 2; 1971, c. 705, s. 3; 1973, c. 1262, s. 18; 1979, c. 830, s. 1; 2005-455, s. 1.21; 2011-183, s. 76; 2013-191, s. 1.)

 

 

Article 13.

Jurisdiction of Conservation Agencies.

§ 113-131.  Resources belong to public; stewardship of conservation agencies; grant and delegation of powers; injunctive relief.

(a)        The marine and estuarine and wildlife resources of the State belong to the people of the State as a whole. The Department and the Wildlife Resources Commission are charged with stewardship of these resources.

(b)        The following powers are hereby granted to the Department and the Wildlife Resources Commission and may be delegated to the Fisheries Director and the Executive Director:

(1)       Comment on and object to permit applications submitted to State agencies which may affect the public trust resources in the land and water areas subject to their respective management duties so as to conserve and protect the public trust rights in such land and water areas;

(2)       Investigate alleged encroachments upon, usurpations of, or other actions in violation of the public trust rights of the people of the State; and

(3)       Initiate contested case proceedings under Chapter 150B for review of permit decisions by State agencies which will adversely affect the public trust rights of the people of the State or initiate civil actions to remove or restrain any unlawful or unauthorized encroachment upon, usurpation of, or any other violation of the public trust rights of the people of the State or legal rights of access to such public trust areas.

(c)        Whenever there exists reasonable cause to believe that any person or other legal entity has unlawfully encroached upon, usurped, or otherwise violated the public trust rights of the people of the State or legal rights of access to such public trust areas, a civil action may be instituted by the responsible agency for injunctive relief to restrain the violation and for a mandatory preliminary injunction to restore the resources to an undisturbed condition. The action shall be brought in the superior court of the county in which the violation occurred. The institution of an action for injunctive relief under this section shall not relieve any party to such proceeding from any civil or criminal penalty otherwise prescribed for the violation.

(d)       The Attorney General shall act as the attorney for the agencies and shall initiate actions in the name of and at the request of the Department or the Wildlife Resources Commission.

(e)        In this section, the term "public trust resources" means land and water areas, both public and private, subject to public trust rights as that term is defined in G.S. 1-45.1.

(f)        Notwithstanding the provisions of this section, a county or city may adopt and enforce ordinances as provided in G.S. 153A-145.3 or G.S. 160A-205, respectively.  (1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1987, c. 641, s. 14; 2013-384, s. 4(b); 2015-70, s. 2.)

 

§ 113-132.  Jurisdiction of fisheries agencies.

(a)        The Marine Fisheries Commission has jurisdiction over the conservation of marine and estuarine resources. Except as may be otherwise provided by law, it has jurisdiction over all activities connected with the conservation and regulation of marine and estuarine resources, including the regulation of aquaculture facilities as defined in G.S. 106-758 which cultivate or rear marine and estuarine resources.

(b)        The Wildlife Resources Commission has jurisdiction over the conservation of wildlife resources. Except as may be otherwise provided by law, it has jurisdiction over all activities connected with the conservation and regulation of wildlife resources.

(c)        Notwithstanding the provisions of this Article, this Subchapter does not give the Marine Fisheries Commission or the Wildlife Resources Commission jurisdiction over matters clearly within the jurisdiction vested in the Department of Agriculture and Consumer Services, the North Carolina Pesticide Board, the Commission for Public Health, the Environmental Management Commission, or other division of the Department regulating air or water pollution.

(d)       To the extent that the grant of jurisdiction to the Marine Fisheries Commission and the Wildlife Resources Commission may overlap, the Marine Fisheries Commission and the Wildlife Resources Commission are granted concurrent jurisdiction. In cases of conflict between actions taken or regulations promulgated by either agency, as respects the activities of the other, pursuant to the dominant purpose of such jurisdiction, the Marine Fisheries Commission and the Wildlife Resources Commission are empowered to make agreements concerning the harmonious settlement of such conflict in the best interests of the conservation of the marine and estuarine and wildlife resources of the State. In the event the Marine Fisheries Commission and the Wildlife Resources Commission cannot agree, the Governor is empowered to resolve the differences.

(e)        Those coastal fishing waters in which are found a significant number of freshwater fish, as agreed upon by the Marine Fisheries Commission and the Wildlife Resources Commission, may be denominated joint fishing waters. These waters are deemed coastal fishing waters from the standpoint of laws and regulations administered by the Department and are deemed inland fishing waters from the standpoint of laws and regulations administered by the Wildlife Resources Commission. The Marine Fisheries Commission and the Wildlife Resources Commission may make joint regulations governing the responsibilities of each agency and modifying the applicability of licensing and other regulatory provisions as may be necessary for rational and compatible management of the marine and estuarine and wildlife resources in joint fishing waters.

(f)        The granting of jurisdiction in this section pertains to the power of agencies to enact regulations and ordinances. Nothing in this section or in G.S. 113-138 is designed to prohibit law-enforcement officers who would otherwise have jurisdiction from making arrests or in any manner enforcing the provisions of this Subchapter. (1965, c. 957, s. 2; 1973, c. 476, s. 128; c. 1262, ss. 18, 28, 38; 1977, c. 771, s. 4; 1979, c. 830, s. 1; 1987, c. 641, s. 5; 1989, c. 281, s. 3; 1997-261, s. 109; 2007-182, s. 2.)

 

§ 113-133.  Abolition of local coastal fishing laws.

The enjoyment of the marine and estuarine resources of the State belongs to the people of the State as a whole and is not properly the subject of local regulation. As the Department is charged with administering the governing statutes and adopting rules in a manner to reconcile as equitably as may be the various competing interests of the people as regards these resources, considering the interests of those whose livelihood depends upon full and wise use of renewable and nonrenewable resources and also the interests of the many whose approach is recreational, all special, local, and private acts and ordinances regulating the conservation of marine and estuarine resources are repealed. Nothing in this section is intended to invalidate local legislation or local ordinances which exercise valid powers over subjects other than the conservation of marine and estuarine resources, even though an incidental effect may consist of an overlapping or conflict of jurisdiction as to some particular provision not essential to the conservation objectives set out in this Subchapter. (1965, c. 957, s. 2; 1987, c. 827, s. 96.)

 

§ 113-133.1.  Limitations upon local regulation of wildlife resources; certain local acts retained.

(a)        The enjoyment of the wildlife resources of the State belongs to all of the people of the State.

(b)        The Wildlife Resources Commission is charged with administering the governing statutes in a manner to serve as equitably as may be the various competing interests of the people regarding wildlife resources, considering the interests of those whose livelihood depends upon full and wise use of renewable resources and the interests of the many whose approach is recreational. Thus, except as provided in subsection (e), all special, local, and private acts and ordinances enacted prior to the ratification date of the act creating this section regulating the conservation of wildlife resources are repealed. Nothing in this section is intended to invalidate local legislation or local ordinances which exercise valid powers over subjects other than the conservation of wildlife resources, even though an incidental effect may consist of an overlapping or conflict of jurisdiction as to some particular provision not essential to the conservation objectives set out in this Subchapter. In particular, this section does not repeal local acts which restrict hunting primarily for the purpose of protecting travelers on the highway, landowners, or other persons who may be endangered or affected by hunters' weapons or ammunition or whose property may be damaged.

(c)        This Subchapter is intended to express State policy relating to the conservation of wildlife resources. Nothing in this section is intended to repeal or prevent the enactment of any city or county ordinance otherwise validly authorized which has only a minor and incidental impact on the conservation of marine and estuarine and wildlife resources. This section does not repeal G.S. 153A-127, G.S. 153A-131, G.S. 160A-182, G.S. 160A-187, and G.S. 160A-188, nor any local act establishing bird sanctuaries, except that local authorities operating bird sanctuaries may not regulate the taking of game or otherwise abrogate valid laws and regulations pertaining to the conservation of wildlife resources.

(d)       Nothing in this Subchapter is intended to repeal or abridge the regulatory authority of the Game Commission of Currituck County or the Dare County Game and Wildlife Commission.

(e)        Because of strong community interest expressed in their retention, the local acts or portions of local acts listed in this section are not repealed. The following local acts are retained to the extent they apply to the county for which listed:

Alleghany: Session Laws 1951, Chapter 665; Session Laws 1977, Chapter 526; Session Laws 1979, Chapter 556.

Anson: Former G.S. 113-111, as amended by Session Laws 1955, Chapter 286.

Ashe: Former G.S. 113-111; Session Laws 1951, Chapter 665.

Avery: Former G.S. 113-122.

Beaufort: Session Laws 1947, Chapter 466, as amended by Session Laws 1979, Chapter 219; Session Laws 1957, Chapter 1364; Session Laws 1971, Chapter 173.

Bertie: Session Laws 1955, Chapter 1376; Session Laws 1975, Chapter 287.

Bladen: Public-Local Laws 1933, Chapter 550, Section 2 (as it pertains to fox season); Session Laws 1961, Chapter 348 (as it applies to Bladen residents fishing in Robeson County); Session Laws 1961, Chapter 1023; Session Laws 1971, Chapter 384.

Brunswick: Session Laws 1975, Chapter 218.

Buncombe: Public-Local Laws 1933, Chapter 308.

Burke: Public-Local Laws 1921, Chapter 454; Public-Local Laws 1921 (Extra Session), Chapter 213, Section 3 (with respect to fox seasons); Public-Local Laws 1933, Chapter 422, Section 3; Session Laws 1977, Chapter 636.

Caldwell: Former G.S. 113-122; Session Laws 1977, Chapter 636; Session Laws 1979, Chapter 507.

Camden: Session Laws 1955, Chapter 362 (to the extent it applies to inland fishing waters); Session Laws 1967, Chapter 441.

Carteret: Session Laws 1955, Chapter 1036; Session Laws 1977, Chapter 695.

Caswell: Public-Local Laws 1933, Chapter 311; Public-Local Laws 1937, Chapter 411.

Catawba: Former G.S. 113-111, as amended by Session Laws 1955, Chapter 1037.

Chatham: Public-Local Laws 1937 Chapter 236; Session Laws 1963, Chapter 271.

Chowan: Session Laws 1979, Chapter 184; Session Laws 1979, Chapter 582.

Cleveland: Public Laws 1907, Chapter 388; Session Laws 1951, Chapter 1101; Session Laws 1979, Chapter 587.

Columbus: Session Laws 1951, Chapter 492, as amended by Session Laws 1955, Chapter 506.

Craven: Session Laws 1971, Chapter 273, as amended by Session Laws 1971, Chapter 629.

Cumberland: Session Laws 1975, Chapter 748; Session Laws 1977, Chapter 471.

Dare: Session Laws 1973, Chapter 259.

Davie: Former G.S. 113-111, as amended by Session Laws 1947, Chapter 333.

Duplin: Session Laws 1965, Chapter 774; Session Laws 1973 (Second Session 1974), Chapter 1266; Session Laws 1979, Chapter 466.

Edgecombe: Session Laws 1961, Chapter 408.

Gates: Session Laws 1959, Chapter 298; Session Laws 1975, Chapter 269; Session Laws 1975, Chapter 748.

Granville: Session Laws 1963, Chapter 670.

(See Editor's note) Greene: Session Laws 1975, Chapter 219; Session Laws 1979, Chapter 360.

Halifax: Public-Local Laws 1925, Chapter 571, Section 3 (with respect to fox-hunting seasons); Session Laws 1947, Chapter 954; Session Laws 1955, Chapter 1376.

Haywood: Former G.S. 113-111, as modified by Session Laws 1963, Chapter 322.

Henderson: Former G.S. 113-111.

Hertford: Session Laws 1959, Chapter 298; Session Laws 1975, Chapter 269; Session Laws 1975, Chapter 748; Session Laws 1977, Chapter 67.

Hoke: Session Laws 1963, Chapter 267.

Hyde: Public-Local Laws 1929, Chapter 354, Section 1 (as it relates to foxes); Session Laws 1951, Chapter 932.

Iredell: Session Laws 1979, Chapter 577.

Jackson: Session Laws 1965, Chapter 765.

Johnston: Session Laws 1975, Chapter 342.

Jones: Session Laws 1979, Chapter 441.

Lee: Session Laws 1963, Chapter 271; Session Laws 1977, Chapter 636.

Lenoir: Session Laws 1979, Chapter 441.

Lincoln: Public-Local Laws 1925, Chapter 449, Sections 1 and 2; Session Laws 1955, Chapter 878.

Madison: Public-Local Laws 1925, Chapter 418, Section 4; Session Laws 1951, Chapter 1040.

Martin: Session Laws 1955, Chapter 1376; Session Laws 1977, Chapter 636.

Montgomery: Session Laws 1977 (Second Session 1978), Chapter 1142.

Nash: Session Laws 1961, Chapter 408.

New Hanover: Session Laws 1971, Chapter 559; Session Laws 1975, Chapter 95.

Northampton: Session Laws 1955, Chapter 1376; Session Laws 1975, Chapter 269; Session Laws 1975, Chapter 748; Session Laws 1977, Chapter 67; Session Laws 1979, Chapter 548.

Orange: Public-Local Laws 1913, Chapter 547.

Pamlico: Session Laws 1977, Chapter 636.

Pender: Session Laws 1961, Chapter 333; Session Laws 1967, Chapter 229; Session Laws 1969, Chapter 258, as amended by Session Laws 1973, Chapter 420; Session Laws 1977, Chapter 585, as amended by Session Laws 1985, Chapter 421; Session Laws 1977, Chapter 805; Session Laws 1979, Chapter 546.

Perquimans: Former G.S. 113-111; Session Laws 1973, Chapter 160; Session Laws 1973, Chapter 264.

Polk: Session Laws 1975, Chapter 269, as amended by Session Laws 1977, Chapter 167.

Randolph: Public-Local Laws 1941, Chapter 246; Session Laws 1947, Chapter 920.

Robeson: Public-Local Laws 1924 (Extra Session), Chapter 92; Session Laws 1961, Chapter 348.

Rockingham: Former G.S. 113-111; Public-Local Laws 1933, Chapter 310.

Rowan: Session Laws 1975, Chapter 269, as amended by Session Laws 1977, Chapter 106, and Session Laws 1977, Chapter 500; Session Laws 1979, Chapter 556.

Rutherford: Session Laws 1973, Chapter 114.

Sampson: Session Laws 1979, Chapter 373.

Scotland: Session Laws 1959, Chapter 1143; Session Laws 1977, Chapter 436.

Stokes: Former G.S. 113-111; Public-Local Laws 1933, Chapter 310; Session Laws 1979, Chapter 556.

Surry: Public-Local Laws 1925, Chapter 474, Section 6 (as it pertains to fox seasons); Session Laws 1975, Chapter 269, as amended by Session Laws 1977, Chapter 167.

Swain: Public-Local Laws 1935, Chapter 52; Session Laws 1953, Chapter 270; Session Laws 1965, Chapter 765.

Transylvania: Public Laws 1935, Chapter 107, Section 2, as amended by Public Laws 1935, Chapter 238.

Tyrrell: Former G.S. 113-111; Session Laws 1953, Chapter 685.

Wake: Session Laws 1973 (Second Session 1974), Chapter 1382.

Washington: Session Laws 1947, Chapter 620.

Wayne: Session Laws 1975, Chapter 269; Session Laws 1975, Chapter 342, as amended by Session Laws 1977, Chapter 43; Session Laws 1975, Chapter 343, as amended by Session Laws 1977, Chapter 45; Session Laws 1977, Chapter 695.

Wilkes: Former G.S. 113-111, as amended by Session Laws 1971, Chapter 385; Session Laws 1951, Chapter 665; Session Laws 1973, Chapter 106; Session Laws 1979, Chapter 507.

Yadkin: Former G.S. 113-111, as amended by Session Laws 1953, Chapter 199; Session Laws 1979, Chapter 507.

Yancey: Session Laws 1965, Chapter 522.

(f)        The Wildlife Resources Commission is directed to review periodically all local acts affecting conservation of wildlife resources and notify local authorities and the General Assembly as to those that:

(1)       Substantially duplicate provisions of this Subchapter.

(2)       Seriously conflict with conservation policies set out in this Subchapter.

(3)       Seriously conflict with conservation policies developed for the people of this State as a whole by the Wildlife Resources Commission.

(g)        Notwithstanding G.S. 113-133.1(b), Chapter 565 of the Session Laws of 1977 is retained in effect. The following local conservation acts which specify that they must be specifically repealed are so repealed: Chapters 434 and 441 of the Session Laws of 1977. To provide for their retention or repeal in accordance with provisions applying to all other local wildlife acts, the following acts are amended to repeal the cited sections: Section 11, Chapter 258, Session Laws of 1969; and Section 4, Chapter 585, Session Laws of 1977.  (1979, c. 830, ss. 1, 14; 1979, 2nd Sess., c. 1285, ss. 2, 11; c. 1324, s. 2; 1981, c. 249, s. 2; c. 250, s. 2; 1983, c. 109, s. 2; c. 487, s. 2; 1985, c. 112, s. 1; c. 302, s. 1; c. 689, s. 27; 1986, c. 893, s. 4; 1987, c. 33, s. 4; c. 131, ss. 4, 5; c. 245, s. 2; c. 282, s. 16; 1987 (Reg. Sess., 1988), c. 955, s. 4; 1989, c. 80, s. 2; 1989 (Reg. Sess., 1990), c. 837, s. 2; 1993, c. 65, s. 1; c. 221, s. 3; 1995, c. 509, s. 55; 1997-456, s. 26; 1997-496, s. 18; 2006-21, s. 2; 2006-226, s. 20; 2009-89, s. 1; 2014-115, s. 8.)

 

§ 113-134.  Rules.

The Marine Fisheries Commission and the Wildlife Resources Commission may, within their jurisdictional limitations imposed by this Article, adopt rules implementing this Subchapter. (1915, c. 84, s. 21; 1917, c. 290, s. 7; C.S., 1878; 1925, c. 168, s. 2; 1935, c. 35; 1945, c. 776; 1953, cc. 774, 1251; 1963, c. 1097, s. 1; 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1987, c. 827, s. 97.)

 

§ 113-134.1.  Jurisdiction over marine fisheries resources in Atlantic Ocean.

The Marine Fisheries Commission is directed to exercise all regulatory authority over the conservation of marine fisheries resources in the Atlantic Ocean to the seaward extent of the State jurisdiction over the resources as now or hereafter defined. Marine fisheries inspectors may enforce these regulations and all other provisions of law applicable under the authority granted in this section in the same manner and with the same powers elsewhere granted them as enforcement officers. (1973, c. 1315; 1977, c. 771, s. 4; 1979, c. 830, s. 1; 1987, c. 641, ss. 5, 8.)

 

§ 113-135.  General penalties for violating Subchapter or rules; increased penalty for prior convictions; interpretive provisions.

(a)        Any person who violates any provision of this Subchapter or any rule adopted by the Marine Fisheries Commission or the Wildlife Resources Commission, as appropriate, pursuant to the authority of this Subchapter, is guilty of a misdemeanor except that punishment for violation of the rules of the Wildlife Resources Commission is limited as set forth in G.S. 113-135.1. Fishing without a license in violation of G.S. 113-174.1(a) or G.S. 113-270.1B(a) is punishable as an infraction. Otherwise, unless a different level of punishment is elsewhere set out, anyone convicted of a misdemeanor under this section is punishable as follows:

(1)       For a first conviction, as a Class 3 misdemeanor.

(2)       For a second or subsequent conviction within three years, as a Class 2 misdemeanor.

(b)        In interpreting this section, provisions elsewhere in this Subchapter making an offense a misdemeanor "punishable in the discretion of the court" must be considered to set a different level of punishment, to be interpreted in the light of G.S. 14-3 or any equivalent or successor statute. Noncriminal sanctions, however, such as license revocation or suspension, and exercise of powers auxiliary to criminal prosecution, such as seizure of property involved in the commission of an offense, do not constitute different levels of punishment so as to oust criminal liability. Any previous conviction of an offense under this Subchapter, or under rules authorized by it, serves to increase the punishment under subsection (a) even though for a different offense than the second or subsequent one.

(c)        For the purposes of this Subchapter, violations of laws or rules administered by the Wildlife Resources Commission under any former general or local law replaced by the present provisions of this Subchapter are deemed to be violations of laws or rules under this Subchapter.  (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1979, c. 830, s. 1; 1987, c. 827, s. 98; 1991, c. 176, s. 1; c. 761, s. 50.5; 1993, c. 539, s. 836; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 209, s. 3; 2013-360, s. 18B.14(m); 2013-385, s. 6.)

 

§ 113-135.1.  Limitation upon penalty for offense created by rules of Wildlife Resources Commission in certain instances.

(a)        To prevent unsuspecting members of the public from being subject to harsh criminal penalties for offenses created by rules of the Wildlife Resources Commission, the penalty for an offense that is solely a violation of rules of the Wildlife Resources Commission is limited to a fine of twenty-five dollars ($25.00) except as follows:

(1)       Offenses set out in subsection (b) of this section are punishable as set forth in G.S. 113-135 or other sections of the General Statutes.

(2)       A person who parks a vehicle in violation of a rule regulating the parking of vehicles at boating access or boating launch areas is responsible for an infraction and shall pay a fine of fifty dollars ($50.00).

(b)        The limitation upon penalty does not apply to any rule violation:

(1)       Punishable under G.S. 113-294 or otherwise involving aggravating elements that result in a greater punishment than provided by G.S. 113-135;

(2)       That involves a defendant subject to the collection-license provisions of G.S. 113-272.4 or who is a dealer as defined in G.S. 113-273; or

(3)       Relating to seasons, bag limits, creel limits, taking fish other than with hook and line, buying or selling wildlife, possessing or transporting live wildlife, taking wildlife at night or with the aid of a conveyance, or falconry.  (1979, c. 830, s. 1; 1987, c. 827, s. 98; 2005-164, s. 1; 2012-200, s. 19.)

 

§ 113-136.  Enforcement authority of inspectors and protectors; refusal to obey or allow inspection by inspectors and protectors.

(a)        Inspectors and protectors are granted the powers of peace officers anywhere in this State, and beyond its boundaries to the extent provided by law, in enforcing all matters within their respective subject-matter jurisdiction as set out in this section.

(b)        The jurisdiction of inspectors extends to all matters within the jurisdiction of the Department set out in this Subchapter, Part 5D of Article 7 of Chapter 143B of the General Statutes, Article 5 of Chapter 76 of the General Statutes, and Article 2 of Chapter 77 of the General Statutes, and to all other matters within the jurisdiction of the Department which it directs inspectors to enforce. In addition, inspectors have jurisdiction over all offenses involving property of or leased to or managed by the Department in connection with the conservation of marine and estuarine resources.

(c)        The jurisdiction of protectors extends to all matters within the jurisdiction of the Wildlife Resources Commission, whether set out in this Chapter, Chapter 75A, Chapter 143, Chapter 143B, or elsewhere. The Wildlife Resources Commission is specifically granted jurisdiction over all aspects of:

(1)       Boating and water safety;

(2)       Hunting and trapping;

(3)       Fishing, exclusive of fishing under the jurisdiction of the Marine Fisheries Commission; and

(4)       Activities in woodlands and on inland waters governed by G.S. 106-908 to G.S. 106-910.

In addition, protectors have jurisdiction over all offenses involving property of or leased by the Wildlife Resources Commission or occurring on wildlife refuges, game lands, or boating and fishing access areas managed by the Wildlife Resources Commission. The authority of protectors over offenses on public hunting grounds is governed by the jurisdiction granted the Commission in G.S. 113-264(c).

(d)       Inspectors and protectors are additionally authorized to arrest without warrant under the terms of G.S. 15A-401(b) for felonies, for breaches of the peace, for assaults upon them or in their presence, and for other offenses evincing a flouting of their authority as enforcement officers or constituting a threat to public peace and order which would tend to subvert the authority of the State if ignored. In particular, they are authorized, subject to the direction of the administrative superiors, to arrest for violations of G.S. 14-223, 14-225, 14-269, and 14-277.

(d1)     In addition to law enforcement authority granted elsewhere, a protector has the authority to enforce criminal laws under the following circumstances:

(1)       When the protector has probable cause to believe that a person committed a criminal offense in his presence and at the time of the violation the protector is engaged in the enforcement of laws otherwise within his jurisdiction; or

(2)       When the protector is asked to provide temporary assistance by the head of a State or local law enforcement agency or his designee and the request is within the scope of the agency's subject matter jurisdiction.

While acting pursuant to this subsection, a protector shall have the same powers invested in law enforcement officers by statute or common law. When acting pursuant to (2) of this subsection a protector shall not be considered an officer, employee, or agent for the state or local law enforcement agency or designee asking for temporary assistance. Nothing in this subsection shall be construed to expand the authority of protectors to initiate or conduct an independent investigation into violations of criminal laws outside the scope of their subject matter or territorial jurisdiction.

(e)        Inspectors and protectors may serve arrest warrants, search warrants, orders for arrest, criminal summonses, subpoenas, and all other process connected with any cases within their subject-matter jurisdiction. In the exercise of their law enforcement powers, inspectors are subject to provisions relating to police officers in general set out in Chapter 15, Chapter 15A, and elsewhere.

(f)        Inspectors and protectors are authorized to stop temporarily any persons they reasonably believe to be engaging in activity regulated by their respective agencies to determine whether such activity is being conducted within the requirements of the law, including license requirements. If the person stopped is in a motor vehicle being driven at the time and the inspector or protector in question is also in a motor vehicle, the inspector or protector is required to sound a siren or activate a special light, bell, horn, or exhaust whistle approved for law-enforcement vehicles under the provisions of G.S. 20-125(b) or 20-125(c).

(g)        Protectors may not temporarily stop or inspect vehicles proceeding along primary highways of the State without clear evidence that someone within the vehicle is or has recently been engaged in an activity regulated by the Wildlife Resources Commission. Inspectors may temporarily stop vehicles, boats, airplanes, and other conveyances upon reasonable grounds to believe that they are transporting seafood products; they are authorized to inspect any seafood products being transported to determine whether they were taken in accordance with law and to require exhibition of any applicable license, receipts, permits, bills of lading, or other identification required to accompany such seafood products.

(h),       (i) Repealed by Session Laws 1979, c. 830, s. 1.

(j)         The refusal of any person to stop in obedience to the directions of an inspector or protector acting under the authority of this section is unlawful. A violation of this subsection is a Class 3 misdemeanor and may include a fine of not less than fifty dollars ($50.00).

(k)        It is unlawful to refuse to exhibit upon request by any inspector, protector, or other law enforcement officer any item required to be carried by any law or rule as to which inspectors or protectors have enforcement jurisdiction. The items that must be exhibited include boating safety or other equipment or any license, permit, tax receipt, certificate, or identification. It is unlawful to refuse to allow inspectors, protectors, or other law enforcement officers to inspect weapons or equipment if the officer reasonably believes them to be possessed incident to an activity regulated by any law or rule as to which inspectors and protectors have enforcement jurisdiction and the officer has a reasonable suspicion that a violation has been committed, except that an officer may inspect a shotgun to confirm whether it is plugged or unplugged without a reasonable suspicion that a violation has been committed. It is unlawful to refuse to allow inspectors, protectors, or other law enforcement officers to inspect fish or wildlife for the purpose of ensuring compliance with bag limits and size limits. Except as authorized by G.S. 113-137, nothing in this section gives an inspector, protector, or other law enforcement officer the authority to inspect, in the absence of a person in apparent control of the item to be inspected, any of the following:

(1)       Weapons.

(2)       Equipment, except for equipment left unattended in the normal operation of the equipment, including, but not limited to, traps, trot lines, crab pots, and fox pens.

(3)       Fish.

(4)       Wildlife.

(l)         Nothing in this section authorizes searches within the curtilage of a dwelling or of the living quarters of a vessel in contravention of constitutional prohibitions against unreasonable searches and seizures.  (1915, c. 84, s. 6; 1917, c. 290, s. 2; C.S., s. 1885; 1935, c. 118; 1957, c. 1423, s. 2; 1965, c. 957, s. 2; 1973, c. 1262, ss. 18, 28, 86; c. 1286, s. 17; c. 1297; 1977, c. 771, s. 4; 1979, c. 830, s. 1; 1987, c. 641, ss. 20, 22; c. 827, s. 98; 1991, c. 730, s. 1; 1997-80, s. 5; 1998-225, ss. 3.1, 3.2; 2011-145, s. 13.25(xx); 2015-263, s. 35(a).)

 

§ 113-137.  Search on arrest; seizure and confiscation of property; disposition of confiscated property.

(a)        Every inspector or protector who arrests a person for an offense as to which he has enforcement jurisdiction is authorized to search the person arrested and the surrounding area for weapons and for fruits, instrumentalities, and evidence of any crime for which the person arrested is or might have been arrested.

(b)        Every inspector or protector who issues a citation instead of arresting a person, in cases in which the inspector or protector is authorized to arrest, may seize all lawfully discovered evidence, fruits, and instrumentalities of any crime as to which he has arrest jurisdiction and probable cause.  When live fish are returned to public fishing bottoms or public waters, the inspector or protector shall state on the citation the quantity returned.

(c)        Every inspector or protector who in the lawful pursuit of his duties has probable cause for believing he has discovered a violation of the law over which he has jurisdiction may seize in connection therewith any fish, wildlife, weapons, equipment, vessels, or other evidence, fruits, or instrumentalities of the crime, notwithstanding the absence of any person in the immediate area subject to arrest or the failure or inability of the inspector or protector to capture or otherwise take custody of the person guilty of the violation in question.  Where the owner of such property satisfies the Secretary or the Executive Director, as the case may be, of his ownership and that he had no knowledge or culpability in regard to the offense involving the use of his property, such property must be returned to the owner.  If after due diligence on the part of employees of the Department or the Wildlife Resources Commission, as the case may be, the identity or whereabouts of the violator or of the owner of the property seized cannot be determined, such property may be sold by the Department or the Wildlife Resources Commission in accordance with the provisions of this section.

(d)       The Marine Fisheries Commission and the Wildlife Resources Commission may provide by rule for summary disposition of live or perishable fish or wildlife seized by an inspector or protector.  If the property seized consists of live fish which may again be placed to the benefit of the public on public fishing bottoms or in public waters, the inspector or protector may require the person in possession of the seized live fish to transport it the distance necessary to effect placement on appropriate bottoms or waters.  In the event of refusal by the person in question to transport the fish, the inspector or protector must take appropriate steps to effect the transportation.  The steps may include seizure of any conveyance or vessel of the person refusing to transport the fish if the conveyance or vessel was one on which the fish were located or was used to take or transport the fish.  When a conveyance or vessel is seized, it is to be safeguarded by the inspector or protector seizing it pending trial and it becomes subject to the orders of the court.  Transportation costs borne by the Department or by the Wildlife Resources Commission, as the case may be, may be collected by the agency from the proceeds of the sale of any other property of the defendant seized and sold in accordance with the provisions of this section.

Except as provided in subsection (g), when the seizure consists of edible fish or wildlife which is not alive, may not live, or may not otherwise benefit conservation objectives if again placed on open lands, on public fishing bottoms, or in public fishing waters, the inspector or protector must dispose of the property in a charitable or noncommercial manner in accordance with the directions of his administrative superiors.

(e)        Except as otherwise specifically provided in this section, all property seized must be safeguarded pending trial by the inspector or protector initiating the prosecution.  Upon a conviction the property seized in connection with the offense in question is subject to the disposition ordered by the court.  Upon an acquittal, property seized must be returned to the defendant or established owner, except:

(1)       Where the property was summarily disposed of in accordance with subsection (d);

(2)       Where possession of the property by the person to whom it otherwise would be returned would constitute a crime; and

(3)       Where the property seized has been sold in accordance with subsection (g).  In this event the net proceeds of the sale must be returned to the defendant or established owner, as the case may be.

Where property seized summarily under subsection (d) is not available for return, an acquitted defendant or established owner is entitled to no compensation where there was probable cause for the action taken.  Within 20 days of the final court adjudication of a citation, the Department or the Wildlife Resources Commission shall notify any acquitted defendant or established owner of its duly established procedures whereby reimbursement may be sought for live fish seized summarily under subsection (d) that is not available for return.  Any action or proceeding to recover compensation must be begun within 30 days after receipt of the notice of applicable procedures.  After the expiration of this period of limitation, no right or action or claim for compensation shall be asserted.

In safeguarding property seized pending trial, an inspector or protector is authorized in his discretion, subject to orders of his administrative superiors, to make his own provisions for storage or safekeeping or to deposit the property with the sheriff of the county in which the trial is to be held for custody pending trial.  In the event the mode of safekeeping reasonably selected by the inspector or protector entails a storage or handling charge, such charge is to be paid as follows:

(1)       By the defendant if he is convicted but the court nevertheless orders the return of the property to the defendant;

(2)       From the proceeds of the sale of the property if the property is sold under court order or in accordance with the provisions of this section; or

(3)       By the Department or by the Wildlife Resources Commission, as the case may be, if no other provision for payment exists.

(f)        Subject to orders of his administrative superiors, an inspector or protector in his discretion may leave property which he is authorized to seize in the possession of the defendant with the understanding that such property will be subject to the orders of the court upon disposition of the case.  Willful failure or inexcusable neglect of the defendant to keep such property subject to the orders of the court is a Class 1 misdemeanor.  In exercising his discretion, the inspector or protector should not permit property to be retained by the defendant if there is any substantial risk of its being used by the defendant in further unlawful activity.

(g)        Where a prosecution involving seized saleable fish is pending and such fish are perishable or seasonal, the inspector or protector may apply to the court in which the trial is pending for an order permitting sale prior to trial.  As used in this subsection, seasonal fish are those which command a higher price at one season than at another so that economic loss may occur if there is a delay in the time of sale.  When ordered by the court, such sale prior to trial must be conducted in accordance with the order of the court or in accordance with the provisions of this section.  The net proceeds of such sale are to be deposited with the court and are subject to the same disposition as would have been applicable to other types of property seized.  Where sale is not lawful for public health reasons or otherwise not practicable or where prosecution is not pending, disposal of the fish is in accordance with subsection (d).

(h)        Pending trial, the defendant or the established owner of any nonperishable and nonconsumable property seized may apply to the court designated to try the offense for return of the property.  The property must be returned pending trial if:

(1)       The court is satisfied that return of the property will not facilitate further violations of the law; and

(2)       The claimant posts a bond for return of the property at trial in an amount double the value of the property as assessed by the court.

(i)         Upon conviction of any defendant for a violation of the laws or rules administered by the Department or the Wildlife Resources Commission under the authority of this Subchapter, the court in its discretion may order the confiscation of all weapons, equipment, vessels, conveyances, fish, wildlife, and other evidence, fruits, and instrumentalities of the offense in question, whether or not seized or made subject to the orders of the court pending trial.  If the confiscated property is lawfully saleable, it must be sold; otherwise it must be disposed of in a manner authorized in this section.  Unless otherwise specified in the order of the court, sales are to be held by the Department or the Wildlife Resources Commission, as the case may be.

The Department and the Wildlife Resources Commission may administratively provide for an orderly public sale procedure of property which it may sell under this section.  The procedure may include turning the property to be sold over to some other agency for sale, provided that the provisions of subsection (j) are complied with and there is proper accounting for the net proceeds of the sale.  In the case of property that cannot lawfully be sold or is unlikely to sell for a sufficient amount to offset the costs of sale, the Department and the Wildlife Resources Commission may provide either for destruction of the property or legitimate utilization of the property by some public agency.

(j)         Except as provided in subsection (d), if property is seized under subsection (c) or it appears that a person not a defendant has an interest in any property to be sold, destroyed, or otherwise disposed of, the Department and the Wildlife Resources Commission must provide for public notice of the description of the property and the circumstances of its seizure for a sufficient period prior to the time set for sale or other disposition to allow innocent owners or lienholders to assert their claims.  The validity of claims are to be determined by the trial court in the event there is or has been a prosecution in connection with the seizure of the property.  If there has been no prosecution and none is pending, the validity of claims must be determined by the Secretary or by the Executive Director, as the case may be.  When there has been a sale under subsection (g), the provisions of this subsection apply to the net proceeds of the sale.

(k)        Except as provided in subsection (j) and in subdivision (3) of the first paragraph of subsection (e), the net proceeds of all sales made pursuant to this section must be deposited in the school fund of the county in which the property was seized. (1915, c. 84, s. 6; 1917, c. 290, s. 2; C.S., s. 1885; 1935, c. 118; 1953, c. 1134; 1957, c. 1423, s. 2; 1961, c. 1189, s. 4; 1965, c. 957, s. 2; 1973, c. 1262, ss. 18, 28; 1979, c. 830, s. 1; 1983 (Reg. Sess., 1984), c. 1083, ss. 1-3; 1987, c. 827, s. 98; 1993, c. 539, s. 837; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-138.  Enforcement jurisdiction of special conservation officers.

(a)        The Wildlife Resources Commission by rule may confer law-enforcement powers over matters within its jurisdiction with respect to wildlife resources conservation laws and rules within its jurisdiction upon the employees of the United States Fish and Wildlife Service, and the Marine Fisheries Commission may confer law-enforcement powers over matters within its jurisdiction with respect to marine and estuarine resources conservation laws and rules upon the employees of the National Marine Fisheries Service, who:

(1)       Possess special law-enforcement jurisdiction that would not otherwise extend to the subject matter of this Subchapter;

(2)       Are assigned during the duration of such appointment to duty stations within North Carolina; and

(3)       Take the oath required of public officers before an officer authorized to administer oaths.

These conferred powers do not constitute an appointment of any officer to an additional office.

(b)        The Marine Fisheries Commission and Wildlife Resources Commission shall limit the exercise of this authority to situations when:

(1)       The best interests of the conservation of marine and estuarine and wildlife resources managed by the respective State and federal agencies are being adversely affected by restrictions upon jurisdictional subject matter that limit law-enforcement authority; and

(2)       The best interests of the conservation of marine and estuarine and wildlife resources managed by the adopting Commission will benefit by conferring law-enforcement authority on the employees of the United States Fish and Wildlife Service or the National Marine Fisheries Service.

(c)        The enabling rule shall specify the particular officers or class of officers upon whom the law-enforcement powers are conferred and the geographic areas within which the special enforcement officers can exercise the law-enforcement powers over matters within the jurisdiction of the adopting Commission. The conferred powers may be used only during the scope of employment of the special conservation officers.

(d)       Unless otherwise provided by the enabling rule, such special enforcement officers shall have the same jurisdiction and powers with respect to resource conservation and the same rights, privileges and immunities (including those relating to the defense of civil actions and payment of judgments) as the State officers in addition to those the federal officer normally possesses. (1965, c. 957, s. 2; 1973, c. 1262, ss. 18, 28; 1977, c. 771, s. 4; 1983, c. 484; 1987, c. 827, s. 98; 1991 (Reg. Sess., 1992), c. 890, s. 5.)

 

§ 113-139.  Repealed by Session Laws 1979, c. 830, s. 1.

 

§ 113-140.  Warning tickets.

(a)        In enforcing the laws and rules within their subject matter jurisdiction, wildlife protectors and marine fisheries inspectors may, in accordance with the criteria of this section, issue warning tickets to offenders instead of initiating criminal prosecutions.

(b)        To secure uniformity of enforcement, the Executive Director and the Director of the Division of Marine Fisheries may administratively promulgate standards consistent with subsection (c) providing that warning tickets may or may not be issued with respect to particular offenses, classes of offenses, or ways of committing offenses.

(c)        A protector or inspector may issue a warning ticket only if all of the following conditions are met:

(1)       The protector or inspector is convinced that the offense was not intentional.

(2)       The offense is not of a kind or committed in a manner as to which warning tickets have been prohibited by the Executive Director or the Director of the Division of Marine Fisheries.

(3)       The conduct of the offender was not calculated to result in any significant destruction of wildlife or fisheries resources.

(4)       The conduct of the offender did not constitute a hazard to the public.

A warning ticket may not be issued if the offender has previously been charged with or issued a warning ticket for a similar offense.

(d)       If any law-enforcement officer with jurisdiction over the offense or if any employee of the Wildlife Resources Commission or the Department learns that under the criteria of this section a warning ticket was inappropriately issued to an offender, he must take action to secure initiation of prosecution for the appropriate charge or charges unless barred by the statute of limitations or unless prosecution is not otherwise feasible because of unavailability of evidence or necessary witnesses.

(e)        Before any warning tickets are issued, the Executive Director or the Director of the Division of Marine Fisheries must institute a procedure to ensure an accurate accounting for and recording of all warning tickets issued.  This procedure may include use of prenumbered tickets and immediate notation of issuance of the warning ticket on each appropriate license or permit issued by the Wildlife Resources Commission or Department held by the offender.  The Executive Director or the Director of the Division of Marine Fisheries may also provide for issuance of new, replacement, or renewal licenses and permits bearing the notation.  The licenses covered by this subsection include certificates of number for motorboats.

(f)        This section does not entitle any person who has committed an offense with the right to be issued a warning ticket.  That issuance of a warning ticket may be appropriate under the criteria of this section does not restrict in any manner the powers of a wildlife protector or marine fisheries inspector or any other law-enforcement officer under G.S. 113-136, 113-137, and other provisions of law in dealing with hunters, fishermen, operators of vessels, and other offenders and suspected offenders.

(g)        Issuance of a warning ticket does not constitute evidence of the commission of an offense, but may be used to prevent issuance of a subsequent warning ticket to the same person for a similar offense. (1981, c. 252, s. 1; 1987, c. 827, s. 98; 1989, c. 308.)

 

§§ 113-141 through 113-145.  Reserved for future codification purposes.

 

 

Article 13A.

Clean Water Management Trust Fund.

§§ 113-145.1 through 113-145.8: Recodified as §§ 113A-251 through 113A-259 by Session Laws 2003-340, s. 1.3, effective July 27, 2003.

 

§§ 113-145.9 through 113-150.  Reserved for future codification purposes.

 

 

Article 14.

Commercial and Sports Fisheries Licenses.

§§ 113-151 through 113-167.  Repealed by Session Laws 1997-400, s. 5.4, effective July 1, 1999.

 

 

Article 14A.

Coastal and Estuarine Commercial Fishing Licenses.

§ 113-168.  Definitions.

As used in this Article:

(1)       "Commercial fishing operation" means any activity preparatory to, during, or subsequent to the taking of any fish, the taking of which is subject to regulation by the Commission, either with the use of commercial fishing equipment or gear, or by any means if the purpose of the taking is to obtain fish for sale. Commercial fishing operation does not include (i) the taking of fish as part of a recreational fishing tournament, unless commercial fishing equipment or gear is used, (ii) the taking of fish under a RCGL, or (iii) the taking of fish as provided in G.S. 113-261.

(2)       "Commission" means the Marine Fisheries Commission.

(3)       "Division" means the Division of Marine Fisheries in the Department of Environmental Quality.

(3a)     "Immediate family" means the mother, father, brothers, sisters, spouse, children, stepparents, stepbrothers, stepsisters, and stepchildren of a person.

(4)       "License year" means the period beginning 1 July of a year and ending on 30 June of the following year.

(5)       "North Carolina resident" means a person who is a resident within the meaning of G.S. 113-130(4).

(6)       "RCGL" means Recreational Commercial Gear License.

(7)       "RSCFL" means Retired Standard Commercial Fishing License.

(8)       "SCFL" means Standard Commercial Fishing License.  (1997-400, s. 5.1; 1997-443, s. 11A.119(b); 1998-225, s. 4.9; 2001-213, s. 2; 2004-187, s. 6; 2015-241, s. 14.30(u).)

 

§ 113-168.1.  General provisions governing licenses and endorsements.

(a)        Duration, Fees. - Except as provided in G.S. 113-173(f), all licenses and endorsements issued under this Article expire on the last day of the license year. An applicant for any license or endorsement shall pay the full annual fee at the time the applicant applies for the license or endorsement regardless of when application is made.

(b)        Licenses Required to Engage in Commercial Fishing. - It is unlawful for any person to engage in a commercial fishing operation without holding a license and any endorsements required by this Article. It is unlawful for anyone to command a vessel engaged in a commercial fishing operation without complying with the provisions of this Article and rules adopted by the Commission under this Article.

(c)        Licenses, Assignments, and Endorsements Available for Inspection. - It is unlawful for any person to engage in a commercial fishing operation in the State without having ready at hand for inspection all valid licenses, assignments, and endorsements required under this Article. To comply with this subsection, a person must have any required endorsements and either a currently valid (i) license issued in the person's true name and bearing the person's current address or (ii) SCFL and an assignment of the SCFL authorized under this Article. It is unlawful for a person to refuse to exhibit any license, assignment, or endorsement required by this Article upon the request of an inspector or other law enforcement officer authorized to enforce federal or State laws, regulations, or rules relating to marine fisheries.

(d)       No Dual Residency. - It is unlawful for any person to hold any currently valid license issued under this Article to the person as a North Carolina resident if that person holds any currently valid commercial or recreational fishing license issued by another state to the person as a resident of that state.

(e)        License Format. - Licenses issued under this Article shall be issued in the name of the applicant. Each license shall show the type of license and any endorsements; the name, mailing address, physical or residence address, and date of birth of the licensee; the date on which the license is issued; the date on which the license expires; and any other information that the Commission or the Division determines to be necessary to accomplish the purposes of this Subchapter.

(f)        License Issuance and Renewal. - Except as provided in G.S. 113-173(d), the Division shall issue licenses and endorsements under this Article to eligible applicants at any office of the Division or by mail from the Morehead City office of the Division. A license or endorsement may be renewed in person at any office of the Division or by mail to the Morehead City office of the Division. Eligibility to renew an expired SCFL shall end one year after the date of expiration of the SCFL.

(g)        Limitations on Eligibility. - A person is not eligible to obtain or renew a license or endorsement under this Article if, at the time the person applies for the license or endorsement, any other license or endorsement issued to the person under this Article is suspended or revoked. A person is not eligible to obtain a license or endorsement under this Article if, within the three years prior to the date of application, the person has been determined to be responsible for four or more violations of state laws, regulations, or rules governing the management of marine and estuarine resources. An applicant shall certify that the applicant has not been determined to be responsible for four or more violations of state laws, regulations, or rules governing the management of marine and estuarine resources during the previous three years. The Division may also consider violations of federal law and regulations governing the management of marine and estuarine resources in determining whether an applicant is eligible for a license.

(h)        Replacement Licenses and Endorsements. - The Division shall issue a replacement license, including any endorsements, to a licensee for a license that has not been suspended or revoked. A licensee may apply for a replacement license for a license that has been lost, stolen, or destroyed and shall apply for a replacement license within 30 days of a change in the licensee's name or address. A licensee may apply for a replacement license in person at any office of the Division or by mail to the Morehead City office of the Division. A licensee may use a copy of the application for a replacement license that has been filed with the Division as a temporary license until the licensee receives the replacement license. The Commission may establish a fee for each type of replacement license, not to exceed twelve dollars and fifty cents ($12.50), that compensates the Division for the administrative costs associated with issuing the replacement license.

(i)         Cancellation. - The Division may cancel a license or endorsement issued on the basis of an application that contains false information supplied by the applicant. A cancelled license or endorsement is void from the date of issuance. A person in possession of a cancelled license or endorsement shall surrender the cancelled license or endorsement to the Division. It is unlawful to refuse to surrender a cancelled license or endorsement upon demand of any authorized agent of the Division.

(j)         Advance Sale of Licenses, License Revenue. - To ensure an orderly transition from one license year to the next, the Division may issue a license or endorsement prior to 1 July of the license year for which the license or endorsement is valid. Revenue that the Division receives for the issuance of a license or endorsement prior to the beginning of a license year shall not revert at the end of the fiscal year in which the revenue is received and shall be credited and available to the Division only for the license year in which the license or endorsement is valid. Any license revenue carried forward from one fiscal year to the next under this subsection that remains unencumbered and unexpended at the end of the fiscal year in which the license or endorsement is valid shall revert to the General Fund.  (1997-400, s. 5.1; 1998-225, s. 4.10; 1999-209, s. 6; 2001-213, s. 2; 2013-360, s. 14.8(a); 2014-100, s. 14.10.)

 

§ 113-168.2.  Standard Commercial Fishing License.

(a)        Requirement. - Except as otherwise provided in this Article, it is unlawful for any person to engage in a commercial fishing operation in the coastal fishing waters without holding a SCFL issued by the Division. A person who works as a member of the crew of a vessel engaged in a commercial fishing operation under the direction of a person who holds a valid SCFL is not required to hold a SCFL. A person who holds a SCFL is not authorized to take shellfish unless the SCFL is endorsed as provided in G.S. 113-168.5.

(a1)      Use of Vessels. - The holder of a SCFL is authorized to use only one vessel in a commercial fishing operation at any given time. The Commission may adopt a rule to exempt from this requirement a person in command of a vessel that is auxiliary to a vessel engaged in a pound net operation, long-haul operation, or beach seine operation. A person who works as a member of the crew of a vessel engaged in a mechanical shellfish operation under the direction of a person who holds a valid SCFL with a shellfish endorsement is not required to hold a shellfish license.

(b)        through (d) Repealed by Session Laws 1998-225, s. 4.11, effective July 1, 1999.

(e)        Fees. - The annual SCFL fee for a resident of this State shall be four hundred dollars ($400.00). The annual SCFL fee for a person who is not a resident of this State shall be the amount charged to a resident of this State in the nonresident's state. In no event, however, may the fee be less than four hundred dollars ($400.00). For purposes of this subsection, a "resident of this State" is a person who is a resident within the meaning of:

(1)       Sub-subdivisions a. through d. of G.S. 113-130(4) and who filed a State income tax return as a resident of North Carolina for the previous calendar or tax year, or

(2)       G.S. 113-130(4)e.

(f)        Assignment. - The holder of a SCFL may assign the SCFL to any individual who is eligible to hold a SCFL under this Article. It is unlawful for the holder of an SCFL to assign a shellfish endorsement of an SCFL to any individual who is not a resident of this State. The assignment shall be in writing on a form provided by the Division and shall include the name of the licensee, the license number, any endorsements, the assignee's name, mailing address, physical or residence address, and the duration of the assignment. If a notarized copy of an assignment is not filed with the Morehead City office of the Division within five days of the date of the assignment, the assignment shall expire. It is unlawful for the assignee of a SCFL to assign the SCFL. The assignment shall terminate:

(1)       Upon written notification by the assignor to the assignee and the Division that the assignment has been terminated.

(2)       Upon written notification by the estate of the assignor to the assignee and the Division that the assignment has been terminated.

(3)       If the Division determines that the assignee is operating in violation of the terms and conditions applicable to the assignment.

(4)       If the assignee becomes ineligible to hold a license under this Article.

(5)       Upon the death of the assignee.

(6)       If the Division suspends or revokes the assigned SCFL.

(7)       At the end of the license year.

(g)        Transfer. - A SCFL may be transferred only by the Division. A SCFL may be transferred pursuant to rules adopted by the Commission or upon the request of:

(1)       A licensee, from the licensee to a member of the licensee's immediate family who is eligible to hold a SCFL under this Article.

(2)       The administrator or executor of the estate of a deceased licensee, to the administrator or executor of the estate if a surviving member of the deceased licensee's immediate family is eligible to hold a SCFL under this Article. The administrator or executor must request a transfer under this subdivision within six months after the administrator or executor qualifies under Chapter 28A of the General Statutes. An administrator or executor who holds a SCFL under this subdivision may, for the benefit of the estate of the deceased licensee:

a.         Engage in a commercial fishing operation under the SCFL if the administrator or executor is eligible to hold a SCFL under this Article.

b.         Assign the SCFL as provided in subsection (f) of this section.

c.         Renew the SCFL as provided in G.S. 113-168.1.

(3)       An administrator or executor to whom a SCFL was transferred pursuant to subdivision (2) of this subsection, to a surviving member of the deceased licensee's immediate family who is eligible to hold a SCFL under this Article.

(4)       The surviving member of the deceased licensee's immediate family to whom a SCFL was transferred pursuant to subdivision (3) of this subsection, to a third-party purchaser of the deceased licensee's fishing vessel.

(5)       A licensee who is retiring from commercial fishing, to a third-party purchaser of the licensee's fishing vessel.

(h)        Identification as Commercial Fisherman. - The receipt of a current and valid SCFL or shellfish license issued by the Division shall serve as proper identification of the licensee as a commercial fisherman.

(i)         Record-Keeping Requirements. - The fish dealer shall record each transaction at the time and place of landing on a form provided by the Division. The transaction form shall include the information on the SCFL or shellfish license, the quantity of the fish, the identity of the fish dealer, and other information as the Division deems necessary to accomplish the purposes of this Subchapter. The person who records the transaction shall provide a completed copy of the transaction form to the Division and to the other party of the transaction. The Division's copy of each transaction form shall be transmitted to the Division by the fish dealer on or before the tenth day of the month following the transaction.  (1997-400, s. 5.1; 1998-225, s. 4.11; 2001-213, s. 2; 2013-360, s. 14.8(b); 2013-384, s. 2(c); 2014-100, s. 14.9(b).)

 

§ 113-168.3.  Retired Standard Commercial Fishing License.

(a)        SCFL Provisions Applicable. - Except as provided in this section, the provisions set forth in this Article concerning the SCFL shall apply to the RSCFL.

(b)        Eligibility; Fees. - Any individual who is 65 years of age or older and who is eligible for a SCFL under G.S. 113-168.2 may apply for either a SCFL or RSCFL. An applicant for a RSCFL shall provide proof of age at the time the application is made. The annual fee for a RSCFL for a resident of this State shall be two hundred dollars ($200.00). The annual fee for a RSCFL for a person who is not a resident of this State shall be two hundred sixty dollars ($260.00). For purposes of this subsection, a "resident of this State" is a person who is a resident within the meaning of:

(1)       Sub-subdivisions a. through d. of G.S. 113-130(4) and who filed a State income tax return as a resident of North Carolina for the previous calendar or tax year, or

(2)       G.S. 113-130(4)e.

(c)        Transfer. - The holder of a RSCFL may transfer the RSCFL as provided in G.S. 113-168.2.

(1)       If the transferee is less than 65 years of age, the transferee holds a SCFL. When the transferee renews the SCFL, the transferee shall pay the fee set out in G.S. 113-168.2.

(2)       If the transferee is 65 years of age or older, the transferee may elect to hold either a SCFL or RSCFL. If the transferee elects to hold a SCFL, the transferee shall pay the fee set out in G.S. 113-168.2. If the transferee elects to hold a RSCFL, the transferee shall pay the fee set out in this section.

(d)       Assignment. - The RSCFL shall not be assignable.  (1997-400, s. 5.1; 1998-225, s. 4.12; 2001-213, s. 2; 2013-360, s. 14.8(c); 2014-100, s. 14.9(c).)

 

§ 113-168.4.  Sale of fish.

(a)        Except as otherwise provided in this section, it is unlawful for any person who takes or lands any species of fish under the authority of the Commission from coastal fishing waters by any means whatever, including mariculture operations, to sell, offer for sale, barter or exchange these fish for anything of value without holding a license required to sell the type of fish being offered.

(b)        Except as otherwise provided in this section, it is unlawful for any person licensed under this Article to sell fish taken outside the territorial waters of the State or to sell fish taken from coastal fishing waters. A person licensed under this Article may sell fish taken outside the territorial waters of the State or sell fish taken from coastal fishing waters under any of the following circumstances:

(1)       The sale is to a fish dealer licensed under G.S. 113-169.3.

(2)       The sale is to the public and the seller is a licensed fish dealer under G.S. 113-169.3.

(3)       The sale is of oysters or clams from a hatchery or aquaculture operation to the holder of an Aquaculture Operation Permit, an Under Dock Culture Permit, or a shellfish cultivation lease for further grow out.

(c)        A person who organizes a recreational fishing tournament may sell fish taken in connection with the tournament pursuant to a recreational fishing tournament license to sell fish. A person who organizes a recreational fishing tournament may obtain a recreational fishing tournament license to sell fish upon application to the Division and payment of a fee of one hundred twenty-five dollars ($125.00). It is unlawful for any person licensed under this subsection to sell fish to any person other than a fish dealer licensed under G.S. 113-169.3 unless the seller is also a licensed fish dealer. A recreational fishing tournament is an organized fishing competition occurring within a specified time period not to exceed one week and that is not a commercial fishing operation. Gross proceeds from the sale of fish may be used only for charitable, religious, educational, civic, or conservation purposes and shall not be used to pay tournament expenses.  (1997-400, s. 5.1; 1998-225, s. 4.13; 2001-213, s. 2; 2009-433, s. 1; 2013-360, s. 14.8(d).)

 

§ 113-168.5.  License endorsements for Standard Commercial Fishing License.

(a),       (b) Repealed by Session Laws 1998-225, s. 4.14, effective July 1, 1999.

(c)        Repealed by Session Laws 2013-384, s. 2(a), effective August 23, 2013.

(d)       Shellfish Endorsement for North Carolina Residents. - The Division shall issue a shellfish endorsement of a SCFL to a North Carolina resident at no charge. The holder of a SCFL with a shellfish endorsement is authorized to take and sell shellfish.  (1997-400, s. 5.1; 1998-225, s. 4.14; 2001-213, s. 2; 2013-384, s. 2(a).)

 

§ 113-168.6.  Commercial fishing vessel registration.

(a)        As used in this subsection, a North Carolina vessel is a vessel that has its primary situs in the State. A vessel has its primary situs in the State if:

(1)       A certificate of number has been issued for the vessel under Article 1 of Chapter 75A of the General Statutes;

(2)       A certificate of title has been issued for the vessel under Article 4 of Chapter 75A of the General Statutes; or

(3)       A certification of documentation has been issued for the vessel that lists a home port in the State under 46 U.S.C. § 12101, et seq., as amended.

(b)        The owner of a vessel used in a commercial fishing operation in the coastal fishing waters of the State or a North Carolina vessel used to land or sell fish in the State shall register the vessel with the Division. It is unlawful to use a vessel that is not registered with the Division in a commercial fishing operation in the coastal fishing waters of the State. It is unlawful to use a North Carolina vessel that is not registered with the Division to land or sell fish in the State. No registration is required for a vessel of any length that does not have a motor if the vessel is used only in connection with another vessel that is properly registered.

(b1)      The vessel owner at the time of application for registration under subsection (b) of this section shall obtain either a commercial vessel endorsement if the vessel is intended to be used primarily for the harvest of fish for sale, a for-hire endorsement if the vessel is intended to be used primarily for for-hire activities, or both endorsements if the vessel is intended to be engaged in both activities. The owner of a vessel applying for a commercial fishing vessel registration with a for-hire endorsement must affirm liability coverage and knowledge of applicable United States Coast Guard safety requirements.

(c)        The annual fee for a commercial fishing vessel registration shall be determined by the length of the vessel and shall be in addition to the fee for other licenses issued under this Article. The length of a vessel shall be determined by measuring the distance between the ends of the vessel along the deck and through the cabin, excluding the sheer. The annual fee for a commercial fishing vessel registration is:

(1)       One dollar and twenty-five cents ($1.25) per foot for a vessel not over 18 feet in length.

(2)       One dollar and ninety cents ($1.90) per foot for a vessel over 18 feet but not over 38 feet in length.

(3)       Three dollars and seventy-five cents ($3.75) per foot for a vessel over 38 feet but not over 50 feet in length.

(4)       Seven dollars and fifty cents ($7.50) per foot for a vessel over 50 feet in length.

(d)       A vessel may be registered at any office of the Division. A commercial fishing vessel registration expires on the last day of the license year.

(e)        Within 30 days of the date on which the owner of a registered vessel transfers ownership of the vessel, the new owner of the vessel shall notify the Division of the change in ownership and apply for a replacement commercial fishing vessel registration. An application for a replacement commercial fishing vessel registration shall be accompanied by proof of the transfer of the vessel. The provisions of G.S. 113-168.1(h) apply to a replacement commercial fishing vessel registration.  (1998-225, s. 4.15; 2001-213, s. 3; 2013-360, s. 14.8(e).)

 

§ 113-169: Repealed by Session Laws 2013-384, s. 2(b), effective August 23, 2013.

 

§ 113-169.1.  Permits for gear, equipment, and other specialized activities authorized.

(a)        The Commission may adopt rules to establish permits for gear, equipment, and specialized activities, including commercial fishing operations that do not involve the use of a vessel and transplanting oysters or clams. The Commission may establish a fee for each permit established pursuant to this subsection in an amount that compensates the Division for the administrative costs associated with the permit but that does not exceed one hundred dollars ($100.00) per permit.

(b)        The Commission may adopt rules to establish gear specific permits to take striped bass from the Atlantic Ocean and to limit the number and type of these permits that may be issued to a person. The Commission may establish a fee for each permit established pursuant to this subsection in an amount that compensates the Division for the administrative costs associated with the permit but that does not exceed thirty dollars ($30.00) per permit.

(c)        To ensure an orderly transition from one permit year to the next, the Division may issue a permit prior to July 1 of the permit year for which the permit is valid. Revenue that the Division receives for the issuance of a permit prior to the beginning of a permit year shall not revert at the end of the fiscal year in which the revenue is received and shall be credited and available to the Division for the permit year in which the permit is valid.  (1997-400, s. 5.1; 2000-172, s. 6.1; 2001-213, s. 2; 2006-254, s. 1; 2013-360, s. 14.8(f).)

 

§ 113-169.2.  Shellfish license for North Carolina residents without a SCFL.

(a)        License or Endorsement Necessary to Take or Sell Shellfish Taken by Hand Methods. - It is unlawful for an individual to take shellfish from the public or private grounds of the State as part of a commercial fishing operation by hand methods without holding either a shellfish license or a shellfish endorsement of a SCFL. A North Carolina resident who seeks only to take shellfish by hand methods and sell such shellfish shall be eligible to obtain a shellfish license without holding a SCFL. The shellfish license authorizes the licensee to sell shellfish.

(a1)      License Necessary to Take or Sell Shellfish Taken by Mechanical Means. - Except as provided in subsection (i) of this section, an individual who takes shellfish from the public or private grounds of the State by mechanical means must obtain an SCFL under the provisions of G.S. 113-168.2.

(b)        Repealed by Session Laws 1998-225, s. 4.17, effective July 1, 1999.

(c)        Fees. - Shellfish licenses issued under this section shall be issued annually upon payment of a fee of fifty dollars ($50.00) upon proof that the license applicant is a North Carolina resident.

(d)       License Available for Inspection. - It is unlawful for any individual to take shellfish as part of a commercial fishing operation from the public or private grounds of the State without having ready at hand for inspection a current and valid shellfish license issued to the licensee personally and bearing the licensee's correct name and address. It is unlawful for any individual taking or possessing freshly taken shellfish to refuse to exhibit the individual's license upon the request of an officer authorized to enforce the fishing laws.

(e)        Repealed by Session Laws 1998-225, s. 4.17, effective July 1, 1999.

(f)        Name or Address Change. - In the event of a change in name or address or upon receipt of an erroneous shellfish license, the licensee shall, within 30 days, apply for a replacement shellfish license bearing the correct name and address. Upon a showing by the individual that the name or address change occurred within the past 30 days, the trial court or prosecutor shall dismiss any charges brought pursuant to this subsection.

(g)        Transfer Prohibited. - It is unlawful for an individual issued a shellfish license to transfer or offer to transfer the license, either temporarily or permanently, to another. It is unlawful for an individual to secure or attempt to secure a shellfish license from a source not authorized by the Commission.

(h)        Exemption. - Persons under 16 years of age are exempt from the license requirements of this section if accompanied by a parent, grandparent, or guardian who is in compliance with the requirements of this section or if in possession of a parent's, grandparent's or guardian's shellfish license.

(i)         Taking Shellfish Without a License for Personal Use or as Employee of Certain License Holders. - Shellfish may be taken without a license under the following circumstances:

(1)       For personal use in quantities established by rules of the Marine Fisheries Commission.

(2)       When the taking is from an area leased for the cultivation of shellfish under Article 16 of this Chapter by a person who is an employee of a leaseholder holding a valid SCFL issued under the provisions of G.S. 113-168.2, and the person provides an authorization letter with the leaseholder's SCFL number and signature.  (1997-400, s. 5.1; 1998-225, s. 4.17; 2001-213, s. 2; 2004-187, s. 3; 2005-455, s. 1.18; 2009-433, s. 2; 2013-360, s. 14.8(g); 2014-100, s. 14.9(d); 2015-241, s. 14.10B.)

 

§ 113-169.3.  Licenses for fish dealers.

(a)        Eligibility. - A fish dealer license shall be issued to a North Carolina resident upon receipt of a proper application at any office of the Division together with all license fees including the total number of dealer categories set forth in this section. The license shall be issued in the name of the applicant and shall include all dealer categories on the license.

(b)        Application for License. - Applications shall not be accepted from persons ineligible to hold a license issued by the Division, including any applicant whose license is suspended or revoked on the date of the application. The applicant shall be provided with a copy of the application marked received. The copy shall serve as the fish dealer's license until the license issued by the Division is received, or the Division determines that the applicant is ineligible to hold a license. Where an applicant does not have an established location for transacting the fisheries business within the State, the license application shall be denied unless the applicant satisfies the Secretary that his residence, or some other office or address within the State, is a suitable substitute for an established location and that records kept in connection with licensing, sale, and purchase requirements will be available for inspection when necessary. Fish dealers' licenses are issued on a fiscal year basis upon payment of a fee as set forth herein upon proof, satisfactory to the Secretary, that the license applicant is a North Carolina resident.

(c)        License Requirement. - Any person subject to the licensing requirements of this section is a fish dealer. Any person subject to the licensing requirements of this section shall obtain a separate license for each physical location conducting activities required to be licensed under this section. Except as otherwise provided in this section, it is unlawful for any person not licensed pursuant to this Article:

(1)       To buy fish for resale from any person involved in a commercial fishing operation that takes any species of fish from coastal fishing waters. For purposes of this subdivision, a retailer who purchases fish from a fish dealer shall not be liable if the fish dealer has not complied with the licensing requirements of this section;

(2)       To sell fish to the public; or

(3)       To sell to the public any species of fish under the authority of the Commission taken from coastal fishing waters.

(d)       Exceptions to License Requirements. - The Commission may adopt rules to implement this subsection including rules to clarify the status of the listed classes of exempted persons, require submission of statistical data, and require that records be kept in order to establish compliance with this section. Any person not licensed pursuant to this section is exempt from the licensing requirements of this section if all fish handled within any particular licensing category meet one or more of the following requirements:

(1)       The fish are sold by persons whose dealings in fish are primarily educational, scientific, or official, and who have been issued a permit by the Division that authorizes the educational, scientific, or official agency to sell fish taken or processed in connection with research or demonstration projects;

(2)       The fish are sold by individual employees of fish dealers when transacting the business of their duly licensed employer;

(3)       The fish are shipped to a person by a dealer from without the State;

(4)       The fish are of a kind the sale of which is regulated exclusively by the Wildlife Resources Commission; or

(5)       The fish are purchased from a licensed dealer.

(e)        Application Fee for New Fish Dealers. - An applicant for a new fish dealer license shall pay a nonrefundable application fee of one hundred dollars ($100.00) in addition to the license category fees set forth in this section.

(f)        License Category Fees. - Every fish dealer subject to licensing requirements shall secure an annual license at each established location for each of the following activities transacted there, upon payment of the fee set out:

(1)       Dealing in oysters: $100.00.

(2)       Dealing in scallops: $100.00.

(3)       Dealing in clams: $100.00.

(4)       Dealing in hard or soft crabs: $100.00.

(5)       Dealing in shrimp, including bait: $100.00.

(6)       Dealing in finfish, including bait: $100.00.

(7)       Operating menhaden or other fish-dehydrating or oil-extracting processing plants: $100.00.

(8)       Consolidated license (all categories): $600.00.

(f1)      Other License Categories. - Any person subject to fish dealer licensing requirements who deals in fish not included in the categories listed in subsection (f) of this section shall secure a finfish dealer license. The Commission may adopt rules implementing and clarifying the dealer categories of this section. Bait operations shall be licensed under either the finfish or shrimp dealer license categories.

(g)        Repealed by Session Laws 1998-225, s. 4.18, effective July 1, 1999.

(h)        Replacement License. - If the licensee fails to comply with the requirements of G.S. 113-168.1(h), the license is revoked.

(i)         Unlawful Purchase and Sale of Fish. - It is unlawful for a fish dealer to purchase, possess, or sell fish taken from coastal fishing waters in violation of this Subchapter or the rules adopted by the Commission implementing this Subchapter. It is unlawful for a fish dealer to buy or accept fish unless, at the time of the transaction:

(1)       The seller or donor presents a current and valid license to sell the type of fish being offered;

(2)       The seller or donor presents the commercial fishing vessel registration of the vessel that was used to take the fish being offered; and

(3)       The dealer records the transaction consistent with the record-keeping requirements of G.S. 113-168.2(i).

(j)         Transfer Prohibited. - Any fish dealer license issued under this section is nontransferable. It is unlawful to use a fish dealer license issued to another person in the sale or attempted sale of fish or for a licensee to lend or transfer a fish dealer license for the purpose of circumventing the requirements of this section.  (1997-400, s. 5.1; 1998-225, s. 4.18; 2001-213, s. 2; 2013-360, ss. 14.8(h), (i); 2014-100, s. 14.9(e).)

 

§ 113-169.4.  Licensing of ocean fishing piers; fees.

(a)        The owner or operator of an ocean fishing pier within the coastal fishing waters who charges the public a fee to fish in any manner from the pier shall secure a current and valid pier license from the Division. An application for a pier license shall disclose the names of all parties involved in the pier operations, including the owner of the property, owner of the pier if different, and all leasehold or other corporate arrangements, and all persons with a substantial financial interest in the pier.

(b)        Within 30 days following a change of ownership of a pier, or a change as to the manager, the manager or new manager shall secure a replacement pier license as provided in G.S. 113-168.1(h).

(c)        Pier licenses are issued upon payment of four dollars and fifty cents ($4.50) per linear foot, to the nearest foot, that the pier extends into coastal fishing waters beyond the mean high waterline. The length of the pier shall be measured to include all extensions of the pier.

(d)       The manager who secures the pier license shall be the individual with the duty of executive-level supervision of pier operations.

(e)        The pier license issued under this section authorizes any individual who does not hold a Coastal Recreational Fishing License under Article 14B or Article 25A of this Chapter to engage in recreational fishing while on the pier.  (1997-400, s. 5.1; 1998-225, s. 4.19; 2001-213, s. 2; 2013-360, s. 14.8(j).)

 

§ 113-169.5.  Land or sell license; vessels fishing beyond territorial waters.

(a)        Persons aboard vessels not having their primary situs in the State that are carrying a cargo of fish taken outside the waters of the State may land or sell their catch in the State by purchasing a land or sell license as set forth in this section with respect to the vessel in question. The Commission may by rule modify the land or sell licensing procedure in order to devise an efficient and convenient procedure for licensing out-of-state vessels to only land, or after landing to permit sale of cargo.

(b)        The fee for a land or sell license for a vessel not having its primary situs in North Carolina is four hundred dollars ($400.00), or an amount equal to the nonresident fee charged by the nonresident's state, whichever is greater. Persons aboard vessels having a primary situs in a jurisdiction that would allow North Carolina vessels without restriction to land or sell their catch, taken outside the jurisdiction, may land or sell their catch in the State without complying with this section if the persons are in possession of a valid license from their state of residence.  (1997-400, s. 5.1; 2001-213, s. 2; 2013-360, s. 14.8(k); 2014-100, s. 14.9(f).)

 

§ 113-170.  Exportation and importation of fish and equipment.

The Commission may adopt rules governing the importation and exportation of fish, and equipment that may be used in taking or processing fish, as necessary to enhance the conservation of marine and estuarine resources of the State. These rules may regulate, license, prohibit, or restrict importation into the State and exportation from the State of any and all species of fish that are native to coastal fishing waters or may thrive if introduced into these waters. (1997-400, s. 5.1; 2001-213, s. 2.)

 

§ 113-170.1.  Nonresidents reciprocal agreements.

Persons who are not North Carolina residents are not eligible to obtain licenses under the provisions of this Article except as provided in this section. Residents of jurisdictions that sell commercial fishing licenses to North Carolina residents are eligible to hold North Carolina commercial fishing licenses under the provisions of G.S. 113-168.2. Licenses may be restricted in terms of area, gear, and fishery by the Commission so that the nonresidents are licensed to engage in North Carolina fisheries on the same or similar terms that North Carolina residents can be licensed to engage in the fisheries of other jurisdictions. The Secretary may enter into reciprocal agreements with other jurisdictions as necessary to allow nonresidents to obtain commercial fishing licenses in the State subject to the foregoing provisions. (1997-400, s. 5.1; 1998-225, s. 4.20; 2001-213, s. 2.)

 

§ 113-170.2.  Fraud or deception as to licenses, permits, or records.

(a)        It is unlawful for any person to give any false information or willfully to omit giving required information to the Division or any license agent when the information is material to the securing of any license or permit under this Article. It is unlawful to falsify, fraudulently alter, or counterfeit any license, permit, identification, or record to which this Article applies or otherwise practice any fraud or deception designed to evade the provisions of this Article or reasonable administrative directives made under the authority of this Article.

(b)        A violation of this section is punishable by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00). (1997-400, s. 5.1; 2001-213, s. 2.)

 

§ 113-170.3.  Record-keeping requirements.

(a)        The Commission may require all licensees under this Article to keep and to exhibit upon the request of an authorized agent of the Department records and accounts as may be necessary to the equitable and efficient administration and enforcement of this Article. In addition, licensees may be required to keep additional information of a statistical nature or relating to location of catch as may be needed to determine conservation policy. Records and accounts required to be kept must be preserved for inspection for not less than three years.

(b)        It is unlawful for any licensee to refuse or to neglect without justifiable excuse to keep records and accounts as may be reasonably required. The Department may distribute forms to licensees to aid in securing compliance with its requirements, or it may inform licensees of requirements in other effective ways such as distributing memoranda and sending agents of the Department to consult with licensees who have been remiss. Detailed forms or descriptions of records, accounts, collection and inspection procedures, and the like that reasonably implement the objectives of this Article need not be embodied in rules of the Commission in order to be validly required.

(c)        The following records collected and compiled by the Department shall not be considered public records within the meaning of Chapter 132 of the General Statutes, but shall be confidential and shall be used only for the equitable and efficient administration and enforcement of this Article or for determining conservation policy, and shall not be disclosed except when required by the order of a court of competent jurisdiction: all records, accounts, and reports that licensees are required by the Commission to make, keep, and exhibit pursuant to the provisions of this section, and all records, accounts, and memoranda compiled by the Department from records, accounts, and reports of licensees and from investigations and inspections, containing data and information concerning the business and operations of licensees reflecting their assets, liabilities, inventories, revenues, and profits; the number, capacity, capability, and type of fishing vessels owned and operated; the type and quantity of fishing gear used; the catch of fish or other seafood by species in numbers, size, weight, quality, and value; the areas in which fishing was engaged in; the location of catch; the time of fishing, number of hauls, and the disposition of the fish and other seafood. The Department may compile statistical information in any aggregate or summary form that does not directly or indirectly disclose the identity of any licensee who is a source of the information, and any compilation of statistical information by the Department shall be a public record open to inspection and examination by any person, and may be disseminated to the public by the Department. (1997-400, s. 5.1; 2001-213, s. 2.)

 

§ 113-170.4.  Rules as to possession, transportation, and disposition of fisheries resources.

The Commission may adopt rules governing possession, transportation, and disposition of fisheries resources by all persons, including those not subject to fish dealer licensing requirements, in order that inspectors may adequately distinguish regulated coastal fisheries resources from those not so regulated and enforce the provisions of this Article equitably and efficiently. These rules may include requirements as to giving notice, filing declarations, securing permits, marking packages, and the like. (1997-400, s. 5.1; 2001-213, s. 2.)

 

§ 113-170.5.  Violations with respect to coastal fisheries resources.

It is unlawful to take, possess, transport, process, sell, buy, or in any way deal in coastal fisheries resources without conforming with the provisions of this Article or of rules adopted under the authority of this Article. (1997-400, s. 5.1; 2001-213, s. 2.)

 

§ 113-171.  Suspension, revocation, and reissuance of licenses.

(a)        Upon receipt of reliable notice that a person licensed under this Article, Article 14B, or Article 25A of Chapter 113 of the General Statutes to take resources under the jurisdiction of the Marine Fisheries Commission has had imposed against the person a conviction of a criminal offense within the jurisdiction of the Department under the provisions of this Subchapter or of rules of the Commission adopted under the authority of this Subchapter, the Secretary must suspend, revoke, and reissue all licenses held by the person in accordance with the terms of this section and rules adopted by the Commission. Reliable notice includes information furnished the Secretary in prosecution or other reports from inspectors. As used in this section, a conviction includes a plea of guilty or nolo contendere, any other termination of a criminal prosecution unfavorably to the defendant after jeopardy has attached, or any substitute for criminal prosecution whereby the defendant expressly or impliedly confesses the defendant's guilt. In particular, procedures whereby bond forfeitures are accepted in lieu of proceeding to trial and cases indefinitely continued upon arrest of judgment or prayer for judgment continued are deemed convictions. The Secretary may act to suspend or revoke licenses upon the basis of any conviction in which:

(1)       No notice of appeal has been given;

(2)       The time for appeal has expired without an appeal having been perfected; or

(3)       The conviction is sustained on appeal. Where there is a new trial, finality of any subsequent conviction will be determined in the manner set out above.

(b)        The Secretary must initiate an administrative procedure designed to give the Secretary systematic notice of all convictions of criminal offenses by licensees covered by subsection (a) of this section above and keep a file of all convictions reported.

(c),       (d) Repealed by Session Laws 2010-145, s. 2, effective October 1, 2012.

(e)        A licensee served with a notice of suspension or revocation may obtain an administrative review of the suspension or revocation by filing a petition for a contested case under G.S. 150B-23 within 20 days after receiving the notice. The only issue in the hearing shall be whether the licensee was convicted of a criminal offense for which a license must be suspended or revoked. A license remains suspended or revoked pending the final decision.

(f)        If the Secretary refuses to reissue the license of or issue an additional license to an applicant whose license was revoked, the applicant may contest the decision by filing a petition for a contested case under G.S. 150B-23 within 20 days after the Secretary makes the decision. The Commission shall make the final agency decision in a contested case under this subsection. An applicant whose license is denied under this subsection may not reapply for the same license for at least six months.

(g)        The Commission may adopt rules to provide for the disclosure of the identity of any individual or individuals in responsible positions of control respecting operations of any licensee that is not an individual. For the purposes of this section, individuals in responsible positions of control are deemed to be individual licensees and subject to suspension and revocation requirements in regard to any applications for license they may make − either as individuals or as persons in responsible positions of control in any corporation, partnership, or association. In the case of individual licensees, the individual applying for a license or licensed under this Article, Article 14B, or Article 25A of Chapter 113 of the General Statutes to take resources under the jurisdiction of the Marine Fisheries Commission must be the real party in interest.

(h)        In determining whether a conviction is a second or subsequent offense under the provisions of this section, the Secretary may not consider convictions for:

(1)       Offenses that occurred three years prior to the effective date of this Article; or

(2)       Offenses that occurred more than three years prior to the time of the latest offense the conviction for which is in issue as a subsequent conviction. (1997-400, s. 5.1; 2001-213, s. 2; 2010-145, s. 2; 2011-398, s. 34.)

 

§ 113-171.1.  Use of spotter planes in commercial fishing operations regulated.

(a)        Spotter Plane Defined. - A "spotter plane" is an aircraft used for aerial identification of the location of fish in coastal fishing waters so that a vessel may be directed to the fish.

(b)        License. - Before an aircraft is used as a spotter plane in a commercial fishing operation, the owner or operator of the aircraft must obtain a license for the aircraft from the Division. The fee for a license for a spotter plane is one hundred twenty-five dollars ($125.00). An applicant for a license for a spotter plane shall include in the application the identity, either by boat or by company, of the specific commercial fishing operations in which the spotter plane will be used during the license year. If, during the course of the license year, the aircraft is used as a spotter plane in a commercial fishing operation that is not identified in the original license application, the owner or operator of the aircraft shall amend the license application to add the identity of the additional commercial fishing operation.

(c)        Unlawful Activity. - It shall be unlawful to:

(1)       Use a spotter plane directed at food fish, except in connection with a purse seine operation authorized by a rule of the Commission.

(2)       Use or permit the use of an unlicensed spotter plane or a licensed spotter plane whose license application does not identify the specific commercial fishing operation involved.

(3)       Participate knowingly in a commercial fishing operation that uses an unlicensed spotter plane or a licensed spotter plane whose license application does not identify the specific commercial fishing operation involved.

(d)       Violation a Misdemeanor. - A violation of subsection (c) of this section is a Class 1 misdemeanor.  (1997-400, s. 5.1; 2001-213, s. 2; 2013-360, s. 14.8(l).)

 

§ 113-172.  License agents.

(a)        The Secretary shall designate license agents for the Department. The Division and license agents designated by the Secretary under this section shall issue licenses authorized under this Article in accordance with this Article and the rules of the Commission. The Secretary may require license agents to enter into a contract that provides for their duties and compensation, post a bond, and submit to reasonable inspections and audits. If a license agent violates any provision of this Article, the rules of the Commission, or the terms of the contract, the Secretary may initiate proceedings for the forfeiture of the license agent's bond and may summarily suspend, revoke, or refuse to renew a designation as a license agent and may impound or require the return of all licenses, moneys, record books, reports, license forms and other documents, ledgers, and materials pertinent or apparently pertinent to the license agency. The Secretary shall report evidence or misuse of State property, including license fees, by a license agent to the State Bureau of Investigation as provided by G.S. 143B-920.

(b)        License agents shall be compensated by adding a surcharge of one dollar ($1.00) to each license sold and retaining the surcharge. If more than one license is listed on a consolidated license form, the license agent shall be compensated as if a single license were sold. It is unlawful for a license agent to add more than the surcharge authorized by this section to the fee for each license sold.  (1997-400, s. 5.1; 1999-209, s. 3; 2001-213, s. 2; 2013-384, s. 1; 2014-100, s. 17.1(qq).)

 

§ 113-173.  Recreational Commercial Gear License.

(a)        License Required. - Except as provided in subsection (j) of this section, it is unlawful for any person to take or attempt to take fish for recreational purposes by means of commercial fishing equipment or gear in coastal fishing waters without holding a RCGL. As used in this section, fish are taken for recreational purposes if the fish are not taken for the purpose of sale. The RCGL entitles the licensee to use authorized commercial gear to take fish for personal use subject to recreational possession limits. It is unlawful for any person licensed under this section or fishing under a RCGL to possess fish in excess of recreational possession limits.

(b)        Sale of Fish Prohibited. - It is unlawful for the holder of a RCGL or for a person who is exempt under subsection (j) of this section to sell fish taken under the RCGL or pursuant to the exemption.

(c)        Authorized Commercial Gear. -

(1)       The Commission shall adopt rules authorizing the use of a limited amount of commercial fishing equipment or gear for recreational fishing under a RCGL. The Commission may authorize the limited use of commercial gear on a uniform basis in all coastal fishing waters or may vary the limited use of commercial gear within specified areas of the coastal fishing waters. The Commission shall periodically evaluate and revise the authorized use of commercial gear for recreational fishing. Authorized commercial gear shall be identified by visible colored tags or other means specified by the Commission in order to distinguish between commercial gear used in a commercial operation and commercial gear used for recreational purposes.

(2)       A person who holds a RCGL may use up to 100 yards of gill net to take fish for recreational purposes. Two persons who each hold a RCGL and who are fishing from a single vessel may use up to a combined 200 yards of gill net to take fish for recreational purposes. No more than 200 yards of gill net may be used to take fish for recreational purposes from a single vessel regardless of the number of persons aboard the vessel who hold a RCGL.

(d)       Purchase; Renewal. - A RCGL may be purchased at designated offices of the Division and from a license agent authorized under G.S. 113-172. A RCGL may be renewed by mail.

(e)        Replacement RCGL. - The provisions of G.S. 113-168.1(h) apply to this section.

(f)        Duration; Fees. - The RCGL shall be valid from the date of issue for a period of 12 months as defined by G.S. 113-270.1B(b) and G.S. 113-270.1B(c). The fee for a RCGL for a North Carolina resident shall be seventy dollars ($70.00). The fee for a RCGL for an individual who is not a North Carolina resident shall be five hundred dollars ($500.00).

(g)        RCGL Available for Inspection. - It is unlawful for any person to engage in recreational fishing by means of restricted commercial gear in the State without having ready at hand for inspection a valid RCGL. A holder of a RCGL shall not refuse to exhibit the RCGL upon the request of an inspector or any other law enforcement officer authorized to enforce federal or State laws, regulations, or rules relating to marine fisheries.

(h)        Assignment and Transfer Prohibited. - A RCGL is not transferable. Except as provided in subsection (j) of this section, it is unlawful to buy, sell, lend, borrow, assign, or otherwise transfer a RCGL, or to attempt to buy, sell, lend, borrow, assign, or otherwise transfer a RCGL.

(i)         Reporting Requirements. - The holder of a RCGL shall comply with the biological data sampling and survey programs of the Commission and the Division.

(j)         Exemptions. -

(1)       A person who is under 16 years of age may take fish for recreational purposes by means of authorized commercial gear without holding a RCGL if the person is accompanied by a parent, grandparent, or guardian who holds a valid RCGL or if the person has in the person's possession a valid RCGL issued to the person's parent, grandparent, or guardian.

(2)       A person may take crabs for recreational purposes by means of one or more crab pots attached to the shore along privately owned land or to a privately owned pier without holding a RCGL provided that the crab pots are attached with the permission of the owner of the land or pier.

(3)       A person who is on a vessel may take fish for recreational purposes by means of authorized commercial gear without holding a RCGL if there is another person on the vessel who holds a valid RCGL. This exemption does not authorize the use of commercial gear in excess of that authorized for use by the person who holds the valid RCGL or, if more than one person on the vessel holds a RCGL, in excess of that authorized for use by those persons.

(4)       A person using nonmechanical means may take shellfish for personal use within the limits specified in G.S. 113-169.2(i) without holding a RCGL.

(5)       A person may take fish for recreational purposes by means of a gig without holding a RCGL.  (1997-400, s. 5.1; 1997-456, s. 55.7; 1998-225, s. 4.21; 1999-209, s. 9; 2000-139, s. 1; 2001-213, s. 2; 2003-340, s. 1.2; 2004-187, s. 4; 2005-455, s. 1.18; 2013-360, s. 14.8(m); 2014-100, ss. 14.9(g), 14.25(c).)

 

§ 113-173.1.  North Carolina Commercial Fishing Resource Fund.

(a)        Establishment. - There is hereby established the North Carolina Commercial Fishing Resources Fund (Fund) as a nonreverting special revenue fund in the office of the State Treasurer. The purpose of the Fund is to provide funding for the development of sustainable commercial fishing in the State. The principal of the Fund shall consist of all of the following:

(1)       Two hundred dollars ($200.00) from each Standard Commercial Fishing License issued pursuant to G.S. 113-168.2.

(2)       One hundred dollars ($100.00) from each Retired Standard Commercial Fishing License issued pursuant to G.S. 113-168.3.

(3)       Twenty-five dollars ($25.00) from each shellfish license issued pursuant to G.S. 113-169.2.

(4)       Fifty dollars ($50.00) from each fish dealer license issued pursuant to G.S. 113-169.3.

(5)       Two hundred dollars ($200.00) from each land or sell license issued pursuant to G.S. 113-169.5.

(6)       Thirty-five dollars ($35.00) from each Recreational Commercial Gear License issued pursuant to G.S. 113-173.

The State Treasurer shall hold the Fund separate and apart from all other moneys, funds, and accounts. The State Treasurer shall invest the assets of the Fund in accordance with the provisions of G.S. 147-69.2, except that interest and other income received on the fund balance shall be treated as set forth in G.S. 147-69.1(d).

(b)        Use of Funds. - The North Carolina Commercial Fishing Resource Fund created by this section shall be used only for the following purposes, in order of priority:

(1)       First, the Fund shall fully fund the State's incidental take permits for the commercial fishing industry under the federal Endangered Species Act of 1973 (Public Law 93-205) or the federal Marine Mammal Protection Act of 1972 (Public Law 92-522).

(2)       After the priority set forth in subdivision (1) of this section has been fully funded, the Fund may be used for other projects to develop and support sustainable commercial fishing in the State.

(c)        Procedure for Fund Disbursements. - With respect to funds used pursuant to subdivision (b)(1) of this section, the State Treasurer shall disburse the principal of the Fund only upon the written direction of the Director of the Division. With respect to funds used pursuant to subdivision (b)(2) of this section, the State Treasurer shall disburse the principal of the Fund only upon the written direction of both the Marine Fisheries Commission and the Funding Committee established by subsection (d) of this section following the procedures set forth in the memorandum of understanding developed under subsection (f) of this section. In the event of a disagreement between the Commission and the Committee, the Secretary of Environmental Quality shall decide between the directions proposed by the Commission and by the Committee.

(d)       Funding Committee. - The Funding Committee for the North Carolina Commercial Fishing Resource Fund (Committee) is established and shall consist of six members who shall serve staggered terms. Each of the following commercial fishing organizations shall appoint one member for an initial term as indicated and provide notice of that appointment in the manner set forth in G.S. 143-47.6:

(1)       North Carolina Fisheries Association, Inc., for a term of three years.

(2)       North Carolina Watermen United, Inc., for a term of two years.

(3)       Ocracoke Working Watermen's Association, for a term of one year.

(4)       Brunswick County Fishermen's Association, for a term of three years.

(5)       Carteret County Fishermen's Association, for a term of two years.

(6)       Albemarle Fishermen's Association, for a term of one year.

Upon the expiration of the terms of the initial Committee members, each member shall be appointed by the appointing organizations designated in subdivisions (1) through (6) of this subsection for a three-year term and shall serve until a successor is appointed and qualified. Members may be reappointed, but no member may serve more than two consecutive full terms. The Committee shall elect annually a chair and other officers as it deems necessary to carry out the purposes of this section, who shall serve a term of one year corresponding to the calendar year.

(e)        Vacancies, Meetings, Quorum. - Vacancies in the Committee shall be filled in the same manner as the original appointment. The Committee may meet at any time upon the call of the chair. A quorum of the group shall consist of four members.

(f)        Memorandum of Understanding. - The Marine Fisheries Commission and the Committee shall develop and implement a memorandum of understanding setting forth the procedures for agreeing to and authorizing the disbursements from the Fund created in this section for the purposes described by subdivision (b)(2) of this section.

(g)        Ethics. - Members of the Committee are public servants as defined in sub-subdivision i. of subdivision (70) of G.S. 163A-152.  (2014-100, s. 14.9(i); 2015-241, s. 14.30(y); 2017-6, s. 3.)

 

 

Article 14B.

Coastal Recreational Fishing Licenses.

§ 113-174.  Definitions.

As used in this Article:

(1)       Repealed by Session Laws 2005-455, s. 1.2, effective January 1, 2007.

(1a)     "CRFL" means Coastal Recreational Fishing License.

(2)       "Division" means the Division of Marine Fisheries in the Department of Environmental Quality.

(2a)     "For Hire Vessel" means a charter boat, head boat, dive boat, or other vessel hired to allow individuals to engage in recreational fishing.

(3)       "North Carolina resident" means an individual who is a resident within the meaning of G.S. 113-130(4).

(4)       "Recreational fishing" means any activity preparatory to, during, or subsequent to the taking of any finfish, the taking of which is subject to regulation by the Marine Fisheries Commission, by any means if the purpose of the taking is to obtain finfish that are not to be sold. "Recreational fishing" does not include the taking of finfish:

a.         By a commercial fishing operation as defined in G.S. 113-168.

b.         For scientific purposes pursuant to G.S. 113-261.

c.         Under a RCGL issued pursuant to G.S. 113-173.

(5)       Repealed by Session Laws 2005-455, s. 1.2, effective January 1, 2007.  (2004-187, s. 2; 2005-455, ss. 1.2, 1.19; 2013-360, s. 14.8(n); 2015-241, s. 14.30(u).)

 

§ 113-174.1.  License required; general provisions governing licenses.

(a)        License Required to Engage in Recreational Fishing. - It is unlawful for any individual to engage in recreational fishing in:

(1)       Coastal fishing waters that are not joint fishing waters without holding a current license issued under this Article or under Article 25A of this Chapter that authorizes the individual to engage in recreational fishing in coastal fishing waters.

(2)       Joint fishing waters without holding a current license issued under this Article or under Article 21 or Article 25A of this Chapter that authorizes the individual to engage in recreational fishing in joint fishing waters.

(a1)      Compliance With Applicable Laws. - It is unlawful for any individual to engage in recreational fishing without complying with applicable requirements of this Article and Articles 21 and 25A of this Chapter and with applicable rules adopted by the Marine Fisheries Commission and the Wildlife Resources Commission.

(a2)      Fourth of July Free Fishing Day. - The fourth day of July of each year is declared a free fishing day to promote the sport of fishing, and no license issued under this Article or Article 25A of this Chapter is required to fish in any of the public waters of the State on that day. All other laws and rules pertaining to recreational fishing apply.

(b)        Sale of Fish Prohibited. - A license issued under this Article or Article 25A of this Chapter does not authorize an individual who takes or lands any species of fish under the authority of the Marine Fisheries Commission to sell, offer for sale, barter, or exchange the fish for anything of value. Except as provided in G.S. 113-168.4, it is unlawful for any individual who takes or lands any species of fish under the authority of the Marine Fisheries Commission by any means to sell, offer for sale, barter, or exchange these fish for anything of value.

(c)        Assignment and Transfer Prohibited. - It is unlawful to buy, sell, lend, borrow, assign, or otherwise transfer a license issued under this Article or Article 25A of this Chapter or to attempt to buy, sell, lend, borrow, assign, or otherwise transfer a license issued under this Article or Article 25A of this Chapter.

(d),      (e) Repealed by Session Laws 2005-455, s. 1.3, effective January 1, 2007.

(f)        Cancellation of Fraudulent License; Penalties. - The Wildlife Resources Commission may cancel a license issued by the Commission under this Article or Article 25A of this Chapter if the license was issued on the basis of false information supplied by the license applicant. The Division may cancel a For Hire Blanket License issued under G.S. 113-174.3 if the license was issued on the basis of false information supplied by the license applicant. A cancelled license is void from the date of issuance. It is a Class 1 misdemeanor for an individual to knowingly do any of the following:

(1)       Engage in any activity regulated under this Article with an improper, false, or altered license.

(2)       Make any false, fraudulent, or misleading statement in applying for a license issued under this Article or Article 25A of this Chapter.

(3)       Counterfeit, alter, or falsify any application or license issued under this Article or Article 25A of this Chapter.

(g)        Reporting Requirements. - A person licensed under this Article or Article 25A of this Chapter shall comply with the biological data sampling and survey programs of the Marine Fisheries Commission and the Division.

(h)        Replacement Licenses. - Upon receipt of a proper application together with a fee of five dollars ($5.00), the Wildlife Resources Commission or the Division may issue a new license to replace one issued by the respective agency that has been lost or destroyed before its expiration. The application must be on a form of the Wildlife Resources Commission or the Division setting forth information in sufficient detail to allow ready identification of the lost or destroyed license and ascertainment of the applicant's continued entitlement to it.  (2004-187, s. 2; 2005-455, ss. 1.3, 1.19; 2016-94, s. 14.8.)

 

§ 113-174.2.  Coastal Recreational Fishing License.

(a)        Repealed by Session Laws 2005-455, s. 1.4, effective January 1, 2007.

(a1)      Authorization to Fish in Coastal and Joint Fishing Waters. - A CRFL issued under this section authorizes the licensee to engage in recreational fishing in coastal fishing waters, including joint fishing waters. A CRFL issued under this section does not authorize the licensee to fish in inland fishing waters.

(b)        Repealed by Session Laws 2005-455, s. 1.4, effective January 1, 2007.

(c)        Types of CRFLs; Fees; Duration. - The Wildlife Resources Commission shall issue the following CRFLs:

(1)       Annual Resident CRFL. - $15.00. This license is valid from the date of issue for a period of 12 months as defined by G.S. 113-270.1B(b) and G.S. 113-270.1B(c). This license shall be issued only to an individual who is a resident of the State.

(1a)     Annual Nonresident CRFL. - $30.00. This license is valid from the date of issue for a period of 12 months as defined by G.S. 113-270.1B(b) and G.S. 113-270.1B(c). This license shall be issued only to an individual who is not a resident of the State.

(2)       Repealed by Session Laws 2005-455, s. 1.4, effective January 1, 2007.

(3)       Repealed by Session Laws 2005-455, s. 1.4, effective January 1, 2007.

(4)       Ten-Day Resident CRFL. - $5.00. This license is valid for a period of 10 consecutive days, as indicated on the license. This license shall be issued only to an individual who is a resident of the State.

(4a)     Ten-Day Nonresident CRFL. - $10.00. This license is valid for a period of 10 consecutive days, as indicated on the license. This license shall be issued only to an individual who is not a resident of the State.

(5)       Repealed by Session Laws 2005-455, s. 1.4, effective January 1, 2007.

(6)       Lifetime CRFLs. - Except as provided in sub-subdivision j. of this subdivision, CRFLs issued under this subdivision are valid for the lifetime of the licensee.

a. -d.    Repealed by Session Laws 2005-455, s. 1.4, effective January 1, 2007.

e.         Infant Lifetime CRFL. - $100.00. This license shall be issued only to an individual younger than one year of age.

f.          Youth Lifetime CRFL. - $150.00. This license shall be issued only to an individual who is one year of age or older but younger than 12 years of age.

g.         Resident Adult Lifetime CRFL. - $250.00. This license shall be issued only to an individual who is 12 years of age or older but younger than 70 years of age and who is a resident of the State.

h.         Nonresident Adult Lifetime CRFL. - $500.00. This license shall be issued only to an individual who is 12 years of age or older and who is not a resident of the State.

i.          Resident Age 70 Lifetime CRFL. - $15.00. This license shall be issued only to an individual who is 70 years of age or older and who is a resident of the State.

j.          Resident Disabled Veteran CRFL. - $10.00. This license shall be issued only to an individual who is a resident of the State and who is a fifty percent (50%) or more disabled veteran as determined by the United States Department of Veterans Affairs or as established by G.S. 113-351(c)(3)(f). This license remains valid for the lifetime of the licensee so long as the licensee remains fifty percent (50%) or more disabled.

k.         Resident Totally Disabled CRFL. - $10.00. This license shall be issued only to an individual who is a resident of the State and who is totally and permanently disabled as determined by the Social Security Administration or as established by G.S. 113-351(c)(3)(g).

(d)       Exemptions. - An individual is exempt from the license requirements of G.S. 113-174.1(a) if the individual either:

(1)       Is under 16 years of age.

(2)       Holds any of the following licenses that were purchased prior to January 1, 2006:

a.         Infant Lifetime Sportsman License issued under G.S. 113-270.1D(b)(1).

b.         Youth Lifetime Sportsman License issued under G.S. 113-270.1D(b)(2).

c.         Adult Resident Lifetime Sportsman License issued under G.S. 113-270.1D(b)(3).

d.         Nonresident Lifetime Sportsman License issued under G.S. 113-270.1D(b)(4).

e.         Age 70 Resident Lifetime Sportsman License issued under G.S. 113-270.1D(b)(5).

f.          Lifetime Resident Comprehensive Fishing License issued under G.S. 113-271(d)(3).

g.         Lifetime Combination Hunting and Fishing License for Disabled Residents issued under G.S. 113-270.1C(b)(4).

h.         Disabled Resident Sportsman License issued under G.S. 113-270.1D(b)(6).

(3)       Holds any of the following licenses:

a.         Lifetime Fishing License for the Legally Blind issued under G.S. 113-271(d)(7).

b.         Adult Care Home Resident Fishing License issued under G.S. 113-271(d)(8).  (2004-187, s. 2; 2005-455, ss. 1.4, 1.19; 2006-79, s. 1; 2013-283, s. 11; 2014-100, s. 14.25(b).)

 

§ 113-174.3.  For-Hire Licenses.

(a),       (b) Repealed by Session Laws 2013-360, s. 14.8(o), effective August 1, 2013.

(c)        License. - It is unlawful for a person to engage in a for-hire operation without having obtained one of the following licenses issued by the Division:

(1)       Blanket For-Hire Captain's CRFL. - This license allows individuals properly licensed by the United States Coast Guard to carry passengers on any vessel with a commercial vessel registration with a for-hire endorsement. A Blanket For-Hire Captain's CRFL authorizes all individuals on the for-hire vessel who do not hold a license issued under this Article or Article 25A of this Chapter to engage in recreational fishing in coastal fishing waters that are not joint fishing waters. The resident fees for a Blanket For-Hire Captain's CRFL are two hundred fifty dollars ($250.00) for a vessel carrying six or fewer passengers and three hundred fifty dollars ($350.00) for a vessel carrying more than six passengers. The nonresident fees for a Blanket For-Hire Captain's CRFL are three hundred twelve dollars and fifty cents ($312.50) for a vessel carrying six or fewer passengers and four hundred thirty-seven dollars and fifty cents ($437.50) for a vessel carrying more than six passengers. Any vessel whose operator is licensed under this subdivision and that is engaged in for-hire fishing must obtain a Commercial Fishing Vessel Registration with a for-hire endorsement.

(2)       Blanket For-Hire Vessel CRFL. - This license allows any United States Coast Guard licensed operator to carry passengers aboard the licensed vessel. A Blanket For-Hire Vessel CRFL authorizes all individuals on the for-hire vessel who do not hold a license issued under this Article or Article 25A of this Chapter to engage in recreational fishing in coastal fishing waters that are not joint fishing waters. The resident fees for a Blanket For-Hire Vessel CRFL are two hundred fifty dollars ($250.00) for a vessel carrying six or fewer passengers and three hundred fifty dollars ($350.00) for a vessel carrying more than six passengers. The nonresident fees for a Blanket For-Hire Vessel CRFL are three hundred twelve dollars and fifty cents ($312.50) for a vessel carrying six or fewer passengers and four hundred thirty-seven dollars and fifty cents ($437.50) for a vessel carrying more than six passengers. Any vessel whose operator is licensed under this subdivision and that is engaged in for-hire fishing is not required to obtain a Commercial Fishing Vessel Registration with a for-hire endorsement.

(3)       Non-Blanket For-Hire Vessel License. - This license allows any United States Coast Guard licensed operator to carry passengers aboard the licensed vessel. This license does not authorize individuals aboard the vessel to engage in recreational fishing unless they hold an individual CRFL issued under this Article or Article 25A of this Chapter. The fee for the Non-Blanket For-Hire Vessel License is twenty-five dollars ($25.00) for a vessel operated by a resident operator and thirty-seven dollars and fifty cents ($37.50) for a vessel operated by a nonresident operator. Any vessel whose operator is licensed under this subdivision and that is engaged in for-hire fishing is not required to obtain a Commercial Fishing Vessel Registration with a for-hire endorsement.

(d)       A license issued under this section does not authorize individuals to engage in recreational fishing in joint fishing waters or inland fishing waters. All for-hire licenses expire on the last day of the license year.

(e)        Repealed by Session Laws 2015-201, s. 1, effective August 5, 2015.  (2005-455, s. 1.5; 2006-255, s. 7; 2006-259, s. 20.5; 2013-360, s. 14.8(o); 2015-201, s. 1.)

 

§ 113-174.4: Repealed by Session Laws 2013-360, s. 14.8(p), effective August 1, 2013.

 

§ 113-174.5.  Blocks of 10 Ten-Day Coastal Recreational Fishing Licenses.

(a)        The owner of a vessel that is 23 feet or more in length and that is either documented with the United States Coast Guard or registered with the Wildlife Resources Commission pursuant to G.S. 75A-4 may purchase a block of 10 Ten-Day CRFLs issued by the Division. A vessel owner who wishes to obtain a block of 10 Ten-Day CRFLs shall provide the Division with all information required by the Division, including information identifying the vessel on which the Ten-Day CRFLs will be used. Each individual Ten-Day CRFL shall identify the vessel for which the block of 10 Ten-Day CRFLs is issued. An individual Ten-Day CRFL issued as part of a block of 10 Ten-Day CRFLs may only be used on the vessel for which it was issued. An individual Ten-Day CRFL issued as part of a block of 10 Ten-Day CRFLs may not be used on a for hire vessel. A block of 10 Ten-Day CRFLs shall expire two years from the date of purchase.

(b)        The fee for a block of 10 Ten-Day CRFLs is one hundred fifty dollars ($150.00). An individual Ten-Day CRFL issued as part of a block of 10 Ten-Day CRFLs is valid for a period of 10 consecutive days beginning on the date that the license information is recorded as provided by subsection (c) of this section.

(c)        Prior to any recreational fishing occurring under the authority of an individual Ten-Day CRFL issued as part of a block of 10 Ten-Day CRFLs, the vessel owner who purchased the block of 10 Ten-Day CRFLs shall record the date fishing activity will begin and the name, address, telephone number, and date of birth of the individual who will be fishing under the authority of the individual Ten-Day CRFL.

(d)       A vessel owner who purchases a block of 10 Ten-Day CRFLs shall comply with all data and information reporting requirements of the Division.

(e)        A vessel owner who fails to comply with any of the requirements governing the issuance, use, recording, or reporting of blocks of 10 Ten-Day CRFLs will be ineligible to purchase any additional blocks of 10 Ten-Day CRFLs for a period of two years from the date of noncompliance.  (2008-141, s. 1; 2013-360, s. 14.8(q).)

 

 

Article 14C.

Marine Resources Fund and Marine Resources Endowment Fund.

§ 113-175.  Definitions.

As used in this Article:

(1)        Repealed by Session Laws 2005-455, s. 2.2, effective January 1, 2006.

(1a)      "Endowment Fund" means the North Carolina Marine Resources Endowment Fund.

(1b)      "Endowment investment income" means interest and other income earned from the investment of the principal of the Endowment Fund.

(1c)      "Endowment license revenues" means the net proceeds from the sale of licenses issued under G.S. 113-174.2(c)(6) and a portion of the net proceeds from the sale of licenses issued under G.S. 113-351(c)(3) and (4). The apportionment of the net proceeds from the sale of licenses issued under G.S. 113-351(c)(3) and (4) shall be jointly determined by the Division of Marine Fisheries and the Wildlife Resources Commission. In the event that the Division of Marine Fisheries and the Wildlife Resources Commission cannot agree on the apportionment, the Governor is authorized to determine the apportionment.

(2)        "Marine Resources Fund" means the North Carolina Marine Resources Fund.

(3)        "Marine resources investment income" means interest earned from the investment of the principal of the Marine Resources Fund.

(4)        "Marine resources license revenues" means the net proceeds from the sale of licenses issued under Article 14B of this Chapter and a portion of the net proceeds from the sale of licenses issued under Article 25A of this Chapter, excluding endowment license revenues. The apportionment of the net proceeds from the sale of licenses issued under Article 25A of this Chapter shall be jointly determined by the Division of Marine Fisheries and the Wildlife Resources Commission. In the event that the Division of Marine Fisheries and the Wildlife Resources Commission cannot agree on the apportionment, the Governor is authorized to determine the apportionment. (2004-187, s. 1; 2005-455, s. 2.2.)

 

§ 113-175.1.  North Carolina Marine Resources Fund.

(a)        There is hereby established the North Carolina Marine Resources Fund as a nonreverting special revenue fund in the office of the State Treasurer. The purpose of the Marine Resources Fund is to enhance the marine resources of the State. The principal of the Marine Resources Fund shall consist of:

(1)       Marine resources license revenues.

(2)       Proceeds of any gifts, grants, and contributions to the State that are specifically designated for inclusion in the Marine Resources Fund.

(3)       Funds realized from the sale, lease, rental, or other grant of rights to real or personal property acquired or produced from funds disbursed from the Marine Resources Fund.

(4)       Federal aid project reimbursements to the extent that funds disbursed from the Marine Resources Fund originally funded the project for which the reimbursement is made.

(b)        The State Treasurer shall hold the Marine Resources Fund separate and apart from all other moneys, funds, and accounts. The State Treasurer shall invest the assets of the Marine Resources Fund in accordance with the provisions of G.S. 147-69.2 and G.S. 147-69.3, and all marine resources investment income shall be deposited to the credit of the Marine Resources Fund. The State Treasurer shall disburse the principal of the Marine Resources Fund and marine resources investment income only upon the written direction of the Division of Marine Fisheries of the Department of Environmental Quality.

(c)        The Division of Marine Fisheries of the Department of Environmental Quality may authorize the disbursement of the principal of the Marine Resources Fund and marine resources investment income only to manage, protect, restore, develop, cultivate, conserve, and enhance the marine resources of the State. The Division of Marine Fisheries may not authorize the disbursement of the principal of the Marine Resources Fund and marine resources investment income to establish positions without specific authorization from the General Assembly. Prior to authorizing disbursements from the Marine Resources Fund, the Division of Marine Fisheries shall consult with the Wildlife Resources Commission about these proposals. Expenditure of the assets of the Marine Resources Fund shall be made through the State budget accounts of the Division of Marine Fisheries in accordance with the provisions of the Executive Budget Act. The Marine Resources Fund is subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes.

(d)       To enhance fishing opportunities, the Marine Resources Fund may be used to construct artificial reefs in the estuarine and ocean waters of the State and federal waters up to 20 nautical miles from land.  (2004-187, s. 1; 2005-455, s. 2.3; 2011-145, s. 13.18; 2013-360, s. 14.9(a), (b); 2017-57, ss. 13.15(c), 13.16.)

 

§§ 113-175.2 through 113-175.4: Repealed by Session Laws 2005-455, ss. 2.4 through 2.6, effective January 1, 2006.

 

§ 113-175.5.  North Carolina Marine Resources Endowment Fund.

(a)        There is hereby established the North Carolina Marine Resources Endowment Fund as a nonreverting special revenue fund in the office of the State Treasurer. The purpose of the Endowment Fund is to provide the citizens and residents of the State with the opportunity to invest in the future of the marine resources of the State. The principal of the Endowment Fund shall consist of:

(1)       Endowment license revenues.

(2)       Proceeds of any gifts, grants, or contributions to the State that are specifically designated for inclusion in the Endowment Fund.

(3)       Proceeds of any gifts, grants, or contributions to the Marine Fisheries Commission or the Division of Marine Fisheries that are not specifically designated for another purpose.

(4)       Funds realized from the sale, lease, rental, or other grant of rights to real or personal property acquired or produced from endowment investment income.

(5)       Federal aid project reimbursements to the extent that endowment investment income originally funded the project for which the reimbursement is made.

(6)       Transfers to the Endowment Fund.

(7)       Any endowment investment income or marine resources license revenue that is credited to the Endowment Fund for the purpose of increasing the principal of the Endowment Fund.

(b)        The State Treasurer shall hold the Endowment Fund separate and apart from all other moneys, funds, and accounts. The State Treasurer shall invest the assets of the Endowment Fund in accordance with the provisions of G.S. 147-69.2 and G.S. 147-69.3. The State Treasurer shall disburse the endowment investment income only upon the written direction of the Division of Marine Fisheries of the Department of Environmental Quality.

(c)        Subject to the limitations set out in subsection (d) of this section, the Division of Marine Fisheries of the Department of Environmental Quality may authorize the disbursement of endowment investment income only to manage, protect, restore, develop, cultivate, conserve, and enhance the marine resources of the State. The Division of Marine Fisheries may not authorize the disbursement of endowment investment income to establish positions without specific authorization from the General Assembly. Prior to authorizing disbursements from the Marine Resources Endowment Fund, the Division of Marine Fisheries shall consult with the Wildlife Resources Commission about funding requests.

(d)       The Endowment Fund is declared to constitute a special trust derived from a contractual relationship between the State and the members of the public whose investments contribute to the Endowment Fund. In recognition of this special trust, all of the following limitations are placed on disbursement of funds held in the Endowment Fund:

(1)       Any restrictions specified by the donors on the uses of income derived from gifts, grants, and voluntary contributions shall be respected but shall not be binding.

(2)       No disbursements of the endowment investment income derived from the endowment license revenues generated by the sale of Infant Lifetime CRFLs under G.S. 113-174.2(c)(6)e., Youth Lifetime CRFLs under G.S. 113-174.2(c)(6)f., Infant Lifetime Unified Sportsman/Coastal Recreational Fishing Licenses under G.S. 113-351(c)(3)a., or Youth Lifetime Unified Sportsman/Coastal Recreational Fishing Licenses under G.S. 113-351(c)(3)b. shall be made for any purpose until the respective licensees attain the age of 16 years. The State Treasurer shall periodically make an actuarial determination as to the amount of endowment investment income within the Endowment Fund that remains encumbered by the restriction of this subdivision and the amount that is free of the restriction. The Executive Director of the Wildlife Resources Commission shall provide the State Treasurer with the information necessary to make this determination.

(3)       No disbursement shall be made from the principal of the Endowment Fund except as otherwise provided by law.

(e)        Expenditure of the endowment investment income shall be made through the State budget accounts of the Division of Marine Fisheries in accordance with the provisions of the Executive Budget Act. The Endowment Fund is subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes.  (2005-455, s. 2.7; 2013-360, s. 14.9(c), (d); 2017-57, s. 13.15(d).)

 

§ 113-175.6: Repealed by Session Laws 2015-286, s. 4.12(a), effective October 22, 2015.

 

§ 113-176.  Reserved for future codification purposes.

 

§ 113-177.  Reserved for future codification purposes.

 

§ 113-178.  Reserved for future codification purposes.

 

§ 113-179.  Reserved for future codification purposes.

 

§ 113-180.  Reserved for future codification purposes.

 

 

Article 15.

Regulation of Coastal Fisheries.

§ 113-181.  Duties and powers of Department.

(a)        It is the duty of the Department to administer and enforce the provisions of this Subchapter pertaining to the conservation of marine and estuarine resources. In execution of this duty, the Department may collect such statistics, market information, and research data as is necessary or useful to the promotion of sports and commercial fisheries in North Carolina and the conservation of marine and estuarine resources generally; conduct or contract for research programs or research and development programs applicable to resources generally and to methods of cultivating, harvesting, marketing, or processing fish as may be beneficial in achieving the objectives of this Subchapter; enter into reciprocal agreements with other jurisdictions with regard to the conservation of marine and estuarine resources; and regulate placement of nets and other sports or commercial fishing apparatus in coastal fishing waters with regard to navigational and recreational safety as well as from a conservation standpoint.

(b)        The Department is directed to make every reasonable effort to carry out the duties imposed in this Subchapter. (1915, c. 84, s. 5; 1917, c. 290, s. 10; C.S., s. 1883; 1953, c. 1086; 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1987, c. 827, s. 101.)

 

§ 113-182.  Regulation of fishing and fisheries.

(a)        The Marine Fisheries Commission is authorized to authorize, license, regulate, prohibit, prescribe, or restrict all forms of marine and estuarine resources in coastal fishing waters with respect to:

(1)        Time, place, character, or dimensions of any methods or equipment that may be employed in taking fish;

(2)        Seasons for taking fish;

(3)        Size limits on and maximum quantities of fish that may be taken, possessed, bailed to another, transported, bought, sold, or given away.

(b)        The Marine Fisheries Commission is authorized to authorize, regulate, prohibit, prescribe, or restrict and the Department is authorized to license:

(1)        The opening and closing of coastal fishing waters, except as to inland game fish, whether entirely or only as to the taking of particular classes of fish, use of particular equipment, or as to other activities within the jurisdiction of the Department; and

(2)        The possession, cultivation, transportation, importation, exportation, sale, purchase, acquisition, and disposition of all marine and estuarine resources and all related equipment, implements, vessels, and conveyances as necessary to implement the work of the Department in carrying out its duties.

(3)        The possession, transportation, importation, exportation, sale, purchase, acquisition, and disposition of all fish taken in the Atlantic Ocean out to a distance of 200 miles from the State's mean low watermark, consistent with the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq., as amended. (1915, c. 84, s. 21; 1917, c. 290, s. 7; C.S., s. 1878; 1925, c. 168, s. 2; 1935, c. 35; 1945, c. 776; 1953, cc. 774, 1251; 1961, c. 1189, s. 1; 1963, c. 1097, s. 1; 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1995, c. 507, s. 26.5(c); 1997-400, s. 6.6.)

 

§ 113-182.1.  Fishery Management Plans.

(a)        The Department shall prepare proposed Fishery Management Plans for adoption by the Marine Fisheries Commission for all commercially or recreationally significant species or fisheries that comprise State marine or estuarine resources. Proposed Fishery Management Plans shall be developed in accordance with the Priority List, Schedule, and guidance criteria established by the Marine Fisheries Commission under G.S. 143B-289.52.

(b)        The goal of the plans shall be to ensure the long-term viability of the State's commercially and recreationally significant species or fisheries. Each plan shall be designed to reflect fishing practices so that one plan may apply to a specific fishery, while other plans may be based on gear or geographic areas. Each plan shall:

(1)       Contain necessary information pertaining to the fishery or fisheries, including management goals and objectives, status of relevant fish stocks, stock assessments for multiyear species, fishery habitat and water quality considerations consistent with Coastal Habitat Protection Plans adopted pursuant to G.S. 143B-279.8, social and economic impact of the fishery to the State, and user conflicts.

(2)       Recommend management actions pertaining to the fishery or fisheries.

(3)       Include conservation and management measures that will provide the greatest overall benefit to the State, particularly with respect to food production, recreational opportunities, and the protection of marine ecosystems, and that will produce a sustainable harvest.

(4)       Repealed by Session Laws 2010-13, s. 1, effective June 23, 2010.

(5)       Specify a time period, not to exceed two years from the date of the adoption of the plan, to end overfishing. This subdivision shall not apply if the Fisheries Director determines that the biology of the fish, environmental conditions, or lack of sufficient data make implementing the requirements of this subdivision incompatible with professional standards for fisheries management.

(6)       Specify a time period, not to exceed 10 years from the date of the adoption of the plan, for achieving a sustainable harvest. This subdivision shall not apply if the Fisheries Director determines that the biology of the fish, environmental conditions, or lack of sufficient data make implementing the requirements of this subdivision incompatible with professional standards for fisheries management.

(7)       Include a standard of at least fifty percent (50%) probability of achieving sustainable harvest for the fishery or fisheries. This subdivision shall not apply if the Fisheries Director determines that the biology of the fish, environmental conditions, or lack of sufficient data make implementing the requirements of this subdivision incompatible with professional standards for fisheries management.

(c)        To assist in the development of each Fishery Management Plan, the Chair of the Marine Fisheries Commission shall appoint a fishery management plan advisory committee. Each fishery management plan advisory committee shall be composed of commercial fishermen, recreational fishermen, and scientists, all with expertise in the fishery for which the Fishery Management Plan is being developed.

(c1)      The Department shall consult with the regional advisory committees established pursuant to G.S. 143B-289.57(e) regarding the preparation of each Fishery Management Plan. Before submission of a plan for review by the Joint Legislative Commission on Governmental Operations, the Department shall review any comment or recommendation regarding the plan that a regional advisory committee submits to the Department within the time limits established in the Schedule for the development and adoption of Fishery Management Plans established by G.S. 143B-289.52. Before the Commission adopts a management measure to implement a plan, the Commission shall review any comment or recommendation regarding the management measure that a regional advisory committee submits to the Commission.

(d)       Each Fishery Management Plan shall be reviewed at least once every five years. The Marine Fisheries Commission may revise the Priority List and guidance criteria whenever it determines that a revision of the Priority List or guidance criteria will facilitate or improve the development of Fishery Management Plans or is necessary to restore, conserve, or protect the marine and estuarine resources of the State. The Marine Fisheries Commission may not revise the Schedule for the development of a Fishery Management Plan, once adopted, without the approval of the Secretary of Environmental Quality.

(e)        The Secretary of Environmental Quality shall monitor progress in the development and adoption of Fishery Management Plans in relation to the Schedule for development and adoption of the plans established by the Marine Fisheries Commission. The Secretary of Environmental Quality shall report to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources and the Fiscal Research Division within 30 days of the completion or substantial revision of each proposed Fishery Management Plan. The Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources shall review each proposed Fishery Management Plan within 30 days of the date the proposed Plan is submitted by the Secretary. The Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources may submit comments and recommendations on the proposed Plan to the Secretary within 30 days of the date the proposed Plan is submitted by the Secretary.

(e1)      If the Secretary determines that it is in the interest of the long-term viability of a fishery, the Secretary may authorize the Commission to develop temporary management measures to supplement an existing Fishery Management Plan pursuant to this subsection. Development of temporary management measures pursuant to this subsection is exempt from subsections (c), (c1), and (e) of this section and the Priority List, Schedule, and guidance criteria established by the Marine Fisheries Commission under G.S. 143B-289.52. During the next review period for a Fishery Management Plan supplemented pursuant to this subsection, the Commission shall either incorporate the temporary management measures into the revised Fishery Management Plan or the temporary management measures shall expire on the date the revised Fishery Management Plan is adopted.

(f)        The Marine Fisheries Commission shall adopt rules to implement Fishery Management Plans in accordance with Chapter 150B of the General Statutes.

(g)        To achieve sustainable harvest under a Fishery Management Plan, the Marine Fisheries Commission may include in the Plan a recommendation that the General Assembly limit the number of fishermen authorized to participate in the fishery. The Commission may recommend that the General Assembly limit participation in a fishery only if the Commission determines that sustainable harvest cannot otherwise be achieved. In determining whether to recommend that the General Assembly limit participation in a fishery, the Commission shall consider all of the following factors:

(1)       Current participation in and dependence on the fishery.

(2)       Past fishing practices in the fishery.

(3)       Economics of the fishery.

(4)       Capability of fishing vessels used in the fishery to engage in other fisheries.

(5)       Cultural and social factors relevant to the fishery and any affected fishing communities.

(6)       Capacity of the fishery to support biological parameters.

(7)       Equitable resolution of competing social and economic interests.

(8)       Any other relevant considerations.  (1997-400, s. 3.4; 1997-443, s. 11A.119(b); 1998-212, s. 14.3; 1998-225, s. 2.1; 2001-213, s. 1; 2001-452, s. 2.1; 2004-160, ss. 3, 4; 2007-495, ss. 6, 7; 2010-13, s. 1; 2010-15, s. 1; 2011-291, ss. 2.27, 2.28; 2012-201, s. 1; 2013-360, s. 14.8(r); 2015-241, s. 14.30(v); 2015-286, s. 4.12(b); 2017-57, s. 14.1(d).)

 

§ 113-183.  Unlawful possession, transportation and sale of fish.

(a)        It is unlawful to possess, transport, offer to transport, sell, offer to sell, receive, buy, or attempt to buy any fish regulated by the Department with knowledge or reason to believe that such fish are illicit.

(b)        Fish are illicit when taken, possessed, or dealt with unlawfully, or when there has occurred at any time with respect to such fish a substantial failure of compliance with the applicable provisions of this Subchapter or of rules made under the authority of this Subchapter. (1961, c. 1189, s. 2; 1965, c. 957, s. 2; 1987, c. 827, s. 98.)

 

§ 113-184.  Possession and transportation of prohibited oyster equipment.

(a)        It is unlawful to carry aboard any vessel subject to licensing requirements under Article 14A under way or at anchor in coastal fishing waters during the regular closed oyster season any scoops, scrapes, dredges, or winders such as are usually or can be used for taking oysters. Provided that when such vessels are engaged in lawfully permitted oyster harvesting operations on any privately held shellfish bottom lease under G.S. 113-202 or G.S. 113-205, the vessel shall be exempt from this requirement.

(b)        If any vessel has recently been under way or at anchor in coastal fishing waters engaged in activity similar in manner to that in which oysters are taken with scoops, scrapes, or dredges and at a time or place in which the taking of oysters is prohibited, the presence on board of the vessel of wet oysters or scoops, scrapes, dredges, lines, or deck wet, indicating the taking of oysters, constitutes prima facie evidence that the vessel was engaged in taking oysters unlawfully with scoops, scrapes, or dredges at the time or place prohibited.

(c)        Repealed by Session Laws 1991, c. 86, s. 1. (1903, c. 516, ss. 13-15, 28; Rev., ss. 2385, 2397; C.S., s. 1926; 1963, c. 452; 1965, c. 957, s. 2; 1991, c. 86, s. 1; 1991 (Reg. Sess., 1992), c. 788, s. 1; 1998-225, s. 3.3.)

 

§ 113-185.  Fishing near ocean piers; trash or scrap fishing.

(a)        It is unlawful to fish in the ocean from vessels or with a net within 750 feet of an ocean pier licensed in accordance with G.S. 113-169.4. The prohibition shall be effective when:

(1)        Buoys or beach markers, placed at the owner's expense in accordance with the rules adopted by the Marine Fisheries Commission, indicate clearly to fishermen in vessels and on the beach the requisite distance of 750 feet from the pier, and

(2)        The public is allowed to fish from the pier for a reasonable fee.

The prohibition shall not apply to littoral proprietors whose property is within 750 feet of a duly licensed ocean pier.

(b)        It is unlawful to engage in any fishing operations known as trash fishing or scrap fishing. "Trash fishing" or "scrap fishing" consists of taking the young of edible fish before they are of sufficient size to be of value as individual food fish:

(1)        For commercial disposition as bait; or

(2)        For sale to any dehydrating or nonfood processing plant; or

(3)        For sale or commercial disposition in any manner.

The Marine Fisheries Commission may by rule authorize the disposition of the young of edible fish taken in connection with the legitimate commercial fishing operations, provided that the quantity of such fish that may be disposed of is sufficiently limited, or the taking and disposition is otherwise so regulated, as to discourage any practice of trash or scrap fishing for its own sake. (1965, c. 957, s. 2; 1973, c. 1262, ss. 28, 86; 1985, c. 452, ss. 1-4; 1987, c. 641, s. 5; c. 827, s. 98; 1991, c. 86, s. 2; 1998-225, s. 3.4.)

 

§ 113-186.  Measures for fish scrap and oil.

All persons buying or selling menhaden for the purpose of manufacturing fish scrap and oil within the State must buy or sell according to the measure prescribed in this section: 22,000 cubic inches for every 1,000 fish. Each day of failure to use the prescribed measure constitutes a separate offense. (1911, c. 101; C.S., s. 1963;  1965, c. 957, s. 2.)

 

§ 113-187.  Penalties for violations of Subchapter and rules.

(a)        Any person who participates in a commercial fishing operation conducted in violation of any provision of this Subchapter and its implementing rules or in an operation in connection with which any vessel is used in violation of any provision of this Subchapter and its implementing rules is guilty of a Class A1 misdemeanor.

(b)        Any owner of a vessel who knowingly permits it to be used in violation of any provision of this Subchapter and its implementing rules is guilty of a Class A1 misdemeanor.

(c)        Any person in charge of a commercial fishing operation conducted in violation of any provision of this Subchapter and its implementing rules or in charge of any vessel used in violation of any provision of this Subchapter and its implementing rules is guilty of a Class A1 misdemeanor.

(d)       Any person in charge of a commercial fishing operation conducted in violation of the following provisions of this Subchapter or the following rules of the Marine Fisheries Commission; and any person in charge of any vessel used in violation of the following provisions of the Subchapter or the following rules, shall be guilty of a Class A1 misdemeanor. The violations of the statute or the rules for which the penalty is mandatory are:

(1)       Taking or attempting to take, possess, sell, or offer for sale any oysters, mussels, or clams taken from areas closed by statute, rule, or proclamation because of suspected pollution.

(2)       Taking or attempting to take or have in possession aboard a vessel, shrimp taken by the use of a trawl net, in areas not opened to shrimping, pulled by a vessel not showing lights required by G.S. 75A-6 after sunset and before sunrise.

(3)       Using a trawl net in any coastal fishing waters closed by proclamation or rule to trawl nets.

(4)       Violating the provisions of a special permit or gear license issued by the Department.

(5)       Using or attempting to use any trawl net, long haul seine, swipe net, mechanical methods for oyster or clam harvest or dredge in designated primary nursery areas.

(e)        Any person who takes menhaden or Atlantic thread herring by the use of a purse seine net deployed by a mother ship and one or more runner boats in coastal fishing waters is guilty of a Class A1 misdemeanor.  (1965, c. 957, s. 2; 1973, c. 1102; c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1979, c. 388, s. 5; 1987, c. 641, s. 6; c. 827, s. 98; 1989, c. 275, s. 2; 1993, c. 539, s. 839; 1994, Ex. Sess., c. 24, s. 14(c); 1997-400, s. 4.1; 2012-190, s. 3(a).)

 

§ 113-188.  Additional restrictions authorized.

The setting out of particular offenses or requirements with regard to specific species of fish or with regard to certain types of equipment does not affect the authority of the Marine Fisheries Commission to make similar additional restrictions not in conflict with the provisions of this Article under authority granted in this Chapter. (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1987, c. 827, s. 102.)

 

§ 113-189.  Protection of sea turtles, marine mammals, migratory birds, and finfish.

(a)        It is unlawful to willfully take, harm, disturb or destroy any sea turtles protected under the federal Endangered Species Act of 1973 (Public Law 93-205), as it may be subsequently amended, including green, hawksbill, loggerhead, Kemp's ridley, and leatherback turtles, or their nests or eggs.

(b)        It shall be unlawful willfully to take, harm, disturb, or destroy marine mammals protected under the federal Marine Mammal Protection Act of 1972 (Public Law 92-522), as it may be subsequently amended.

(c)        It shall be unlawful willfully to take, harm, disturb, or destroy migratory birds protected under the federal Migratory Bird Treaty Act of 1918 (16 U.S.C. §§ 703 through 712), as it may be subsequently amended, unless such action is permitted by regulations.

(d)       It shall be unlawful willfully to take, harm, disturb, or destroy finfish protected under the federal Endangered Species Act of 1973 (Public Law 93-205), as it may be subsequently amended.  (1967, cc. 198, 1225; 1981, c. 873; 1991, c. 86, s. 3; 2013-413, s. 37(b).)

 

§ 113-190:  Recodified as § 113-200 by Session Laws 1997-400, s.  6.7.

 

§ 113-191.  Unlawful sale or purchase of fish; criminal and civil penalties.

(a)        Any person who sells fish in violation of G.S. 113-168.4 or a rule of the Marine Fisheries Commission to implement that section is guilty of a Class A1 misdemeanor.

(b)        Any person who purchases fish in violation of G.S. 113-169.3 or a rule of the Marine Fisheries Commission to implement that section is guilty of a Class A1 misdemeanor.

(c)        A civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the Secretary against any person who sells fish in violation of G.S. 113-168.4 or purchases fish in violation of G.S. 113-169.3.

(d)       In determining the amount of the penalty, the Secretary shall consider the factors set out in G.S. 143B-289.53(b). The procedures set out in G.S. 143B-289.53 shall apply to civil penalty assessments that are presented to the Commission for final agency decision.

(e)        The Secretary shall notify any person assessed a civil penalty of the assessment and the specific reasons therefor by registered or certified mail or by any means authorized by G.S. 1A-1, Rule 4. Contested case petitions shall be filed pursuant to G.S. 150B-23 within 30 days of receipt of the notice of assessment.

(f)        Requests for remission of civil penalties shall be filed with the Secretary. Remission requests shall not be considered unless filed within 30 days of receipt of the notice of assessment. Remission requests must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B of the General Statutes and a stipulation of the facts on which the assessment was based. Consistent with the limitations in G.S. 143B-289.53(c), remission requests may be resolved by the Secretary and the violator. If the Secretary and the violator are unable to resolve the request, the Secretary shall deliver remission requests and his recommended action to the Committee on Civil Penalty Remissions of the Marine Fisheries Commission appointed pursuant to G.S. 143B-289.53(c).

(g)        If any civil penalty has not been paid within 30 days after notice of assessment has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the superior court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment, unless the violator contests the assessment as provided in subsection (e) of this section, or requests remission of the assessment in whole or in part as provided in subsection (f) of this section. If any civil penalty has not been paid within 30 days after the final agency decision or court order has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the superior court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment. Civil actions must be filed within three years of the date the final agency decision or court order was served on the violator. (1997-400, ss. 4.2, 4.5; 1998-225, ss. 3.5, 3.6.)

 

§§ 113-192 through 113-199.  Reserved for future codification purposes.

 

§ 113-200: Repealed by Session Laws 2013-360, s. 14.7(a), effective July 1, 2013.

 

 

Article 16.

Cultivation of Shellfish.

§ 113-201.  Legislative findings and declaration of policy; authority of Marine Fisheries Commission.

(a)        The General Assembly finds that shellfish cultivation provides increased seafood production and long-term economic and employment opportunities. The General Assembly also finds that shellfish cultivation provides increased ecological benefits to the estuarine environment by promoting natural water filtration and increased fishery habitats. The General Assembly declares that it is the policy of the State to encourage the development of private, commercial shellfish cultivation in ways that are compatible with other public uses of marine and estuarine resources such as navigation, fishing, and recreation.

(b)        The Marine Fisheries Commission is empowered to make rules and take all steps necessary to develop and improve the cultivation, harvesting, and marketing of shellfish in North Carolina both from public grounds and private beds. In order to assure the public that some waters will remain open and free from shellfish cultivation activities, the Marine Fisheries Commission may limit the number of acres in any area that may be granted as shellfish cultivation leases.

(c)        The Marine Fisheries Commission shall adopt rules to establish training requirements for persons applying for new shellfish cultivation leases and for persons acquiring shellfish cultivation leases by lawful transfer. These training requirements shall be designed to encourage the productive use of shellfish cultivation leases. Training requirements established pursuant to this subsection shall not apply to either:

(1)        An applicant who applies for a new shellfish cultivation lease if, at the time of the application, the applicant holds one or more shellfish cultivation leases and all of the leases meet the shellfish production requirements established by the Marine Fisheries Commission.

(2)        A person who receives a shellfish cultivation lease by lawful transfer if, at the time of the transfer, the person holds one or more shellfish cultivation leases and all of the leases meet the shellfish production requirements established by the Marine Fisheries Commission.  (1921, c. 132, s. 1; C.S., s. 1959(a); 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1983, c. 621, s. 2; 1987, c. 827, s. 98; 2004-150, s. 1; 2009-433, s. 3.)

 

§ 113-201.1.  Definitions.

As used in this Article:

(1)       "Natural shellfish bed" means an area of public bottom where oysters, clams, scallops, mussels or other shellfish are found to be growing in sufficient quantities to be valuable to the public.

(2)       "Riparian owner" means the holder(s) of the fee title to land that is bordered by waters of an arm of the sea or any other navigable body of water.

(3)       "Shellfish" means oysters, clams, scallops, mussels or any other species of mollusks that the Marine Fisheries Commission determines suitable for cultivation, harvesting, and marketing from public grounds and private beds.

(4)       "Single family unit" means the husband and wife and any unemancipated children in the household.

(5)       "Water column" means the vertical extent of water, including the surface, above a designated area of submerged bottom land.  (1983, c. 621, s. 3; 1987, c. 641, s. 15; 2015-241, s. 14.10C(a).)

 

§ 113-202.  New and renewal leases for shellfish cultivation; termination of leases issued prior to January 1, 1966.

(a)        To increase the use of suitable areas underlying coastal fishing waters for the production of shellfish, the Secretary may grant shellfish cultivation leases to persons who reside in North Carolina under the terms of this section when the Secretary determines, in accordance with his duty to conserve the marine and estuarine resources of the State, that the public interest will benefit from issuance of the lease. Suitable areas for the production of shellfish shall meet the following minimum standards:

(1)       The area leased must be suitable for the cultivation and harvesting of shellfish in commercial quantities.

(2)       The area leased must not contain a natural shellfish bed.

(3)       Cultivation of shellfish in the leased area will be compatible with lawful utilization by the public of other marine and estuarine resources. Other public uses which may be considered include, but are not limited to, navigation, fishing and recreation.

(4)       Cultivation of shellfish in the leased area will not impinge upon the rights of riparian owners.

(5)       The area leased must not include an area designated for inclusion in the Department's Shellfish Management Program.

(6)       The area leased must not include an area which the State Health Director has recommended be closed to shellfish harvest by reason of pollution.

(b)        The Secretary may delete any part of an area proposed for lease or may condition a lease to protect the public interest with respect to the factors enumerated in subsection (a) of this section. The Secretary may not grant a new lease in an area heavily used for recreational purposes. Except as prohibited by federal law, the Secretary shall not exclude any area from leasing solely on the basis that the area contains submerged aquatic vegetation and shall make specific findings based on the standards set forth in subsection (a) of this section prior to reaching a decision not to grant or renew a lease for shellfish cultivation for any area containing submerged aquatic vegetation.

(c)        No person, including a corporate entity, or single family unit may acquire and hold by lease, lease renewal, or purchase more than 50 acres of public bottoms under shellfish cultivation leases. For purposes of this subsection, the number of acres of leases held by a person includes acres held by a corporation in which the person holds an interest. The Marine Fisheries Commission may adopt rules to require the submission of information necessary to ensure compliance with this subsection.

(d)       Any person desiring to apply for a lease must make written application to the Secretary on forms prepared by the Department containing such information as deemed necessary to determine the desirability of granting or not granting the lease requested. Except in the case of renewal leases, the application must be accompanied by a map or diagram made at the expense of the applicant, showing the area proposed to be leased.

(d1)     The map or diagram must conform to standards prescribed by the Secretary concerning accuracy of map or diagram and the amount of detail that must be shown. If on the basis of the application information and map or diagram the Secretary deems that granting the lease would benefit the shellfish culture of North Carolina, the Secretary, in the case of initial lease applications, must order an investigation of the bottom proposed to be leased. The investigation is to be made by the Secretary or his authorized agent to determine whether the area proposed to be leased is consistent with the standards in subsection (a) of this section and any other applicable standards under this Article and the rules of the Marine Fisheries Commission. In the event the Secretary finds the application inconsistent with the applicable standards, the Secretary shall deny the application or propose that a conditional lease be issued that is consistent with the applicable standards. In the event the Secretary authorizes amendment of the application, the applicant must furnish a new map or diagram meeting requisite standards showing the area proposed to be leased under the amended application. At the time of making application for an initial lease, the applicant must pay a filing fee of two hundred dollars ($200.00).

(e)        The area of bottom applied for in the case of an initial lease or amended initial lease must be as compact as possible, taking into consideration the shape of the body of water, the consistency of the bottom, and the desirability of separating the boundaries of a leasehold by a sufficient distance from any known natural shellfish bed to prevent the likelihood of disputes arising between the leaseholder and members of the public taking shellfish from the natural bed.

(f)        Within a reasonable time after receipt of an application that complies with subsection (d), the Secretary shall notify the applicant of the intended action on the lease application. If the intended action is approval of the application as submitted or approval with a modification to which the applicant agrees, the Secretary shall conduct a public hearing in the county where the proposed leasehold lies. The Secretary must publish at least two notices of the intention to lease in a newspaper of general circulation in the county in which the proposed leasehold lies. The first publication must precede the public hearing by more than 20 days; the second publication must follow the first by seven to 11 days. The notice of intention to lease must contain a sufficient description of the area of the proposed leasehold that its boundaries may be established with reasonable ease and certainty and must also contain the date, hour and place of the hearing.

(g)        After consideration of the public comment received and any additional investigations the Secretary orders to evaluate the comments, the Secretary shall notify the applicant in person or by certified or registered mail of the decision on the lease application. The Secretary shall also notify persons who submitted comments at the public hearing and requested notice of the lease decision. An applicant who is dissatisfied with the Secretary's decision or another person aggrieved by the decision may commence a contested case by filing a petition under G.S. 150B-23 within 20 days after receiving notice of the Secretary's decision. In the event the Secretary's decision is a modification to which the applicant agrees, the lease applicant must furnish an amended map or diagram before the lease can be issued by the Secretary.

(h)        Repealed by Session Laws 1993, c. 466, s. 1.

(i)         After a lease application is approved by the Secretary, the applicant shall submit to the Secretary information sufficient to define the bounds of the area approved for leasing with markers in accordance with the rules of the Commission. The information shall conform to standards prescribed by the Secretary concerning accuracy and the amount of detail to be shown. When information is submitted, the boundaries are marked and all fees and rents due in advance are paid, the Secretary shall execute the lease on forms approved by the Attorney General. The Secretary is authorized, with the approval of the lessee, to amend an existing lease by reducing the area under lease or by combining contiguous leases without increasing the total area leased. The information required by this subsection may be based on coordinate information produced using a device equipped to receive global positioning system data.

(j)         Initial leases begin upon the issuance of the lease by the Secretary and expire at noon on the first day of July following the tenth anniversary of the granting of the lease. Renewal leases are issued for a period of 10 years from the time of expiration of the previous lease. At the time of making application for renewal of a lease, the applicant must pay a filing fee of one hundred dollars ($100.00). The rental for initial leases is one dollar ($1.00) per acre until noon on the first day of July following the first anniversary of the lease. Thereafter, for initial leases and from the beginning for renewals of leases entered into after that date, the rental is ten dollars ($10.00) per acre per year. Rental must be paid annually in advance prior to the first day of July each year. Upon initial granting of a lease, the pro rata amount for the portion of the year left until the first day of July must be paid in advance at the rate of one dollar ($1.00) per acre per year; then, on or before the first day of July next, the lessee must pay the rental for the next full year.

(k)        Except as restricted by this Subchapter, leaseholds granted under this section are to be treated as if they were real property and are subject to all laws relating to taxation, sale, devise, inheritance, gift, seizure and sale under execution or other legal process, and the like. Leases properly acknowledged and probated are eligible for recordation in the same manner as instruments conveying an estate in real property. Within 30 days after transfer of beneficial ownership of all or any portion of or interest in a leasehold to another, the new owner must notify the Secretary of such fact. Such transfer is not valid until notice is furnished the Secretary. In the event such transferee is a nonresident, the Secretary must initiate proceedings to terminate the lease.

(l)         Upon receipt of notice by the Secretary of any of the following occurrences, he must commence action to terminate the leasehold:

(1)       Failure to pay the annual rent in advance.

(2)       Failure to file information required by the Secretary upon annual remittance of rental or filing false information on the form required to accompany the annual remittance of rental.

(3)       Failure by new owner to report a transfer of beneficial ownership of all or any portion of or interest in the leasehold.

(4)       Failure to mark the boundaries in the leasehold and to keep them marked as required in the rules of the Marine Fisheries Commission.

(5)       Failure to utilize the leasehold on a continuing basis for the commercial production of shellfish.

(6)       Transfer of all or part of the beneficial ownership of a leasehold to a nonresident.

(7)       Substantial breach of compliance with the provisions of this Article or of rules of the Marine Fisheries Commission governing use of the leasehold.

(8)       Failure to comply with the training requirements established by the Marine Fisheries Commission pursuant to G.S. 113-201(c).

(l1)       The Marine Fisheries Commission is authorized to make rules defining commercial production of shellfish, based upon the productive potential of particular areas climatic or biological conditions at particular areas or particular times, availability of seed shellfish, availability for purchase by lessees of shells or other material to which oyster spat may attach, and the like. Commercial production may be defined in terms of planting effort made as well as in terms of quantities of shellfish harvested. Provided, however, that if a lessee has made a diligent effort to effectively and efficiently manage his lease according to accepted standards and practices in such management, and because of reasons beyond his control, such as acts of God, such lessee has not and cannot meet the requirements set out by the Marine Fisheries Commission under the provisions of this subsection, his leasehold shall not be terminated under subdivision (5) of subsection (l) of this section.

(m)       In the event the leaseholder takes steps within 30 days to remedy the situation upon which the notice of intention to terminate was based and the Secretary is satisfied that continuation of the lease is in the best interests of the shellfish culture of the State, the Secretary may discontinue termination procedures. Where there is no discontinuance of termination procedures, the leaseholder may initiate a contested case by filing a petition under G.S. 150B-23 within 30 days of receipt of notice of intention to terminate. Where the leaseholder does not initiate a contested case, or the final decision upholds termination, the Secretary must send a final letter of termination to the leaseholder. The final letter of termination may not be mailed sooner than 30 days after receipt by the leaseholder of the Secretary's notice of intention to terminate, or of the final agency decision, as appropriate. The lease is terminated effective at midnight on the day the final notice of termination is served on the leaseholder. The final notice of termination may not be issued pending hearing of a contested case initiated by the leaseholder.

Service of any notice required in this subsection may be accomplished by certified mail, return receipt requested; personal service by any law-enforcement officer; or upon the failure of these two methods, publication. Service by publication shall be accomplished by publishing such notices in a newspaper of general circulation within the county where the lease is located for at least once a week for three successive weeks. The format for notice by publication shall be approved by the Attorney General.

(n)        Upon final termination of any leasehold, the bottom in question is thrown open to the public for use in accordance with laws and rules governing use of public grounds generally. Within 30 days of final termination of the leasehold, the former leaseholder shall remove all abandoned markers denominating the area of the leasehold as a private bottom. The State may, after 10 days' notice to the owner of the abandoned markers thereof, remove the abandoned structure and have the area cleaned up. The cost of such removal and cleanup shall be payable by the owner of the abandoned markers and the State may bring suit to recover the costs thereof.

(o)        Every year between January 1 and February 15 the Secretary must mail to all leaseholders a notice of the annual rental due and include forms designed by him for determining the amount of shellfish or shells planted on the leasehold during the preceding calendar year, and the amount of harvest gathered. Such forms may contain other pertinent questions relating to the utilization of the leasehold in the best interests of the shellfish culture of the State, and must be executed and returned by the leaseholder with the payment of his rental. Any leaseholder or his agent executing such forms for him who knowingly makes a false statement on such forms is guilty of a Class 1 misdemeanor.

(p)        All leases and renewal leases granted after the effective date of this Article are made subject to this Article and to reasonable amendment of governing statutes, rules of the Marine Fisheries Commission, and requirements imposed by the Secretary or his agents in regulating the use of the leasehold or in processing applications of rentals. This includes such statutory increase in rentals as may be necessitated by changing conditions and refusal to renew lease after expiration, in the discretion of the Secretary. No increase in rentals, however, may be given retroactive effect.

The General Assembly declares it to be contrary to public policy to the oyster and clam bottoms which were leased prior to January 1, 1966, and which are not being used to produce oysters and clams in commercial quantities to continue to be held by private individuals, thus depriving the public of a resource which belongs to all the people of the State. Therefore, when the Secretary determines, after due notice to the lessee, and after opportunity for the lessee to be heard, that oysters or clams are not being produced in commercial quantities, due to the lessee's failure to make diligent effort to produce oysters and clams in commercial quantities, the Secretary may decline to renew, at the end of the current term, any oyster or clam bottom lease which was executed prior to January 1, 1966. The lessee may appeal the denial of the Secretary to renew the lease by initiating a contested case pursuant to G.S. 150B-23. In such contested cases, the burden of proof, by the greater weight of the evidence, shall be on the lessee.

(q)        Repealed by Session Laws 1983, c. 621, s. 16.

(r)        A lease under this section shall include the right to place devices or equipment related to the cultivation or harvesting of marine resources on or within 18 inches of the leased bottom. Devices or equipment not resting on the bottom or extending more than 18 inches above the bottom will require a water column lease under G.S. 113-202.1.  (1893, c. 287, s. 1; Rev., s. 2371; 1909, c. 871, ss. 1-9; 1919, c. 333, s. 6; C.S., ss. 1902-1911; Ex. Sess. 1921, c. 46, s. 1; 1933, c. 346; 1953, cc. 842, 1139; 1963, c. 1260, ss. 1-3; 1965, c. 957, s. 2; 1967, c. 24, s. 16; c. 88; c. 876, s. 1; 1971, c. 447; 1973, c. 476, s. 128; c. 1262, ss. 28, 86; 1983, c. 601, ss. 1-3; c. 621, ss. 4-16; 1985, c. 275, ss. 1-3; 1987, c. 641, s. 16; c. 773, s. 11; c. 827, s. 98; 1989, c. 423, s. 2; c. 727, s. 99; 1991 (Reg. Sess., 1992), c. 788, s. 2; 1993, c. 466, s. 1; c. 539, s. 840; 1994, Ex. Sess., c. 24, s. 14(c); 2004-150, ss. 2, 3, 4; 2009-433, ss. 4, 5; 2011-398, s. 35; 2015-241, ss. 14.10(a), (b), 14.10C(b); 2015-263, s. 11(a); 2016-94, s. 14.11(a).)

 

§ 113-202.1.  Water column leases for aquaculture.

(a)        To increase the productivity of leases for shellfish culture issued under G.S. 113-202, the Secretary may amend shellfish cultivation leases to authorize use of the water column superjacent to the leased bottom under the terms of this section when he determines the public interest will benefit from amendment of the leases. Leases with water column amendments must produce shellfish in commercial quantities at four times the minimum production rate of leases issued under G.S. 113-202, or any higher quantity required by the Marine Fisheries Commission through duly adopted rules.

(b)        Suitable areas for the authorization of water column use shall meet the following minimum standards:

(1)       Aquaculture use of the leased area must not significantly impair navigation;

(2)       The leased area must not be within a navigation channel marked or maintained by a state or federal agency;

(3)       The leased area must not be within an area traditionally used and available for fishing or hunting activities incompatible with the activities proposed by the leaseholder, such as trawling or seining;

(4)       Aquaculture use of the leased area must not significantly interfere with the exercise of riparian rights by adjacent property owners including access to navigation channels from piers or other means of access; and

(5)       Any additional standards, established by the Commission in duly adopted rules, to protect the public interest in coastal fishing waters.

(c)        The Secretary shall not amend shellfish cultivation leases to authorize uses of the water column involving devices or equipment not resting on the bottom or that extend more than 18 inches above the bottom unless:

(1)       The leaseholder submits an application, accompanied by a nonrefundable application fee of one hundred dollars ($100.00), which conforms to the standards for lease applications in G.S. 113-202(d) and the duly adopted rules of the Commission;

(2)       The proposed amendment has been noticed consistent with G.S. 113-202(f);

(3)       Public hearings have been conducted consistent with G.S. 113-202(g);

(4)       The aspects of the proposals which require use and dedication of the water column have been documented and are recognized by the Secretary as commercially feasible forms of aquaculture which will enhance shellfish production on the leased area;

(5)       It is not feasible to undertake the aquaculture activity outside of coastal fishing waters; and

(6)       The authorized water column use has the least disruptive effect on other public trust uses of the waters of any available technology to produce the shellfish identified in the proposal.

(d)       Amendments of shellfish cultivation leases to authorize use of the water column are issued for a period of 10 years or the remainder of the term of the lease, whichever is shorter. The annual rental for a new or renewal water column amendment is one hundred dollars ($100.00) an acre. If a water column amendment is issued for less than a 12-month period, the rental shall be prorated based on the number of months remaining in the year. The annual rental for an amendment is payable at the beginning of the year. The rental is in addition to that required in G.S. 113-202.

(e)        Amendments of shellfish cultivation leases to authorize use of the water column are subject to termination in accordance with the procedures established in G.S. 113-202 for the termination of shellfish cultivation leases. Additionally, such amendments may be terminated for unauthorized or unlawful interference with the exercise of public trust rights by the leaseholder, agents and employees of the leaseholder.

(f)        Amendments of shellfish cultivation leases to authorize use of the water column may be transferred only with the superincumbent bottom lease for the remainder of the term of the amendment at the same rental rate and term as set forth in subsection (d) of this section and so long as notice of the transfer is provided to the Secretary as required by G.S. 113-202(k).

(g)        After public notice and hearing consistent with subsection (c) of this section, the Secretary may renew an amendment, in whole or in part, when the leaseholder has produced commercial quantities of shellfish and has otherwise complied with the rules of the Commission. Renewals may be denied or reduced in scope when the public interest so requires. Appeal of renewal decisions shall be conducted in accordance with G.S. 113-202(p). Renewals are subject to the lease terms and rates established in subsection (d) of this section.

(h)        The procedures and requirements of G.S. 113-202 shall apply to proposed amendments or amendments of shellfish cultivation leases considered under this section except more specific provisions of this section control conflicts between the two sections.

(i)         To the extent required by demonstration or research aquaculture development projects, the Secretary may amend existing leases and issue leases that authorize use of the bottom and the water column. Demonstration or research aquaculture development projects may be authorized for five years with no more than one renewal and when the project is proposed or formally sponsored by an educational institution which conducts research or demonstration of aquaculture. Production of shellfish with a sales value in excess of five thousand dollars ($5,000) per acre per year shall constitute commercial production. Demonstration or research aquaculture development projects shall be exempt for the rental rate in subsection (d) of this section unless commercial production occurs as a result of the project.  (1989, c. 423, s. 1; 1989 (Reg. Sess., 1990), c. 1004, s. 4; c. 1024, s. 22; 1993, c. 322, s. 1; c. 466, s. 2; 2004-150, s. 5; 2015-241, s. 14.10C(c); 2015-268, s. 5.6; 2016-94, s. 14.11(b); 2016-123, s. 6.1(a); 2017-102, s. 33.4(a).)

 

§ 113-202.2.  Water column leases for aquaculture for perpetual franchises.

(a)        To increase the productivity of shellfish grants and perpetual franchises for shellfish culture recognized under G.S. 113-206, the Secretary may lease the water column superjacent to such grants or perpetual franchises (hereinafter "perpetual franchises") under the terms of this section when it determines the public interest will benefit from the lease. Perpetual franchises with water column leases must produce shellfish in commercial quantities at four times the minimum production rate of leases issued under G.S. 113-202, or any higher quantity required by the Marine Fisheries Commission by rule.

(b)        Suitable areas for the authorization of water column use shall meet the following minimum standards:

(1)       Aquaculture use of the leased water column area must not significantly impair navigation;

(2)       The leased water column area must not be within a navigation channel marked or maintained by a State or federal agency;

(3)       The leased water column area must not be within an area traditionally used and available for fishing or hunting activities incompatible with the activities proposed by the perpetual franchise holder, such as trawling or seining;

(4)       Aquaculture use of the leased water column area must not significantly interfere with the exercise of riparian rights by adjacent property owners including access to navigation channels from piers or other means of access;

(5)       The leased water column area may not exceed 10 acres for grants or perpetual franchises recognized pursuant to G.S. 113-206;

(6)       The leased water column area must not extend more than one-third of the distance across any body of water or into the channel third of any body of water for grants or perpetual franchises recognized pursuant to G.S. 113-206; and

(7)       Any additional rules to protect the public interest in coastal fishing waters adopted by the Commission.

(c)        The Secretary shall not lease the water column superjacent to oyster or other shellfish grants or perpetual franchises unless:

(1)       The perpetual franchise holder submits an application, accompanied by a nonrefundable application fee of one hundred dollars ($100.00), which conforms to the standards for lease applications in G.S. 113-202(d) and rules adopted by the Commission;

(2)       Notice of the proposed lease has been given consistent with G.S. 113-202(f);

(3)       Public hearings have been conducted consistent with G.S. 113-202(g);

(4)       The aspects of the proposals which require use and dedication of the water column have been documented and are recognized by the Secretary as commercially feasible forms of aquaculture which will enhance shellfish production;

(5)       It is not feasible to undertake the aquaculture activity outside of coastal fishing waters; and

(6)       The authorized water column use has the least disruptive effect on other public trust uses of the waters of any available technology to produce the shellfish identified in the proposal.

(d)       Water column leases to perpetual franchises shall be issued for a period of 10 years and may be renewed pursuant to subsection (g) of this section. The rental for an initial water column lease issued under this section is the same as the rental set in G.S. 113-202.1 for an initial water column amendment issued under that section, and the rental for a renewed water column lease issued under this section is the same as the rental set in G.S. 113-202.1 for a renewed water column amendment issued under that section.

(e)        Water column leases to perpetual franchises may be terminated for unauthorized or unlawful interference with the exercise of public trust rights by the leaseholder or his agents or employees.

(f)        Water column leases to perpetual franchises may be transferred only with the superincumbent perpetual franchise for the remainder of the term of the lease at the same rental rate and term as set forth in subsection (d) of this section and so long as notice of the transfer is provided to the Secretary as required by G.S. 113-202(k).

(g)        After public notice and hearing consistent with G.S. 113-202(f) and (g), the Secretary may renew a water column lease, in whole or in part, if the leaseholder has produced commercial quantities of shellfish and has otherwise complied with this section and the rules of the Commission. Renewals may be denied or reduced in scope when the public interest so requires. Appeal of renewal decisions shall be conducted in accordance with G.S. 113-202(p). Renewals are subject to the lease terms and rates set out in subsection (d) of this section.

(h)        The procedures and requirements of G.S. 113-202 shall apply to proposed water column leases or water column leases to perpetual franchises considered under this section except that more specific provisions of this section control conflicts between the two sections.

(i)         Demonstration or research aquaculture development projects may be authorized for five years with no more than one renewal and when the project is proposed or formally sponsored by an educational institution which conducts aquaculture research or demonstration projects. Production of shellfish with a sales value in excess of five thousand dollars ($5,000) per acre per year shall constitute commercial production. Demonstration or research aquaculture development projects shall be exempt from the rental rate in subsection (d) of this section unless commercial production occurs as a result of the project.  (1989 (Reg. Sess., 1990), c. 958, s. 1; 1993, c. 322, s. 2; c. 466, s. 3; 2016-94, s. 14.11(c); 2016-123, s. 6.1(b); 2017-102, s. 33.4(b).)

 

§ 113-203.  Transplanting of oysters and clams.

(a)        Repealed by Session Laws 2009-433, s. 6, effective August 7, 2009 (subdivision (a)(2)), and by Session Laws 2014-120, s. 26, effective September 18, 2014 (remainder of subsection (a)).

(a1)      Repealed by Session Laws 2014-120, s. 26, effective September 18, 2014.

(a2)      It is unlawful to do any of the following:

(1)       Transplant oysters or clams taken from public grounds to private beds except when lawfully taken during open season and transported directly to a private bed in accordance with rules of the Marine Fisheries Commission.

(2)       Transplant oysters or clams taken from permitted aquaculture operations to private beds except from waters in the approved classification.

(3)       Transplant oysters or clams from public grounds or permitted aquaculture operations utilizing waters in the restricted or conditionally approved classification to private beds except when the transplanting is done in accordance with the provisions of this section and implementing rules.

(a3)      It is lawful to transplant seed oysters or seed clams taken from permitted aquaculture operations that use waters in the restricted or conditionally approved classification to private beds pursuant to an Aquaculture Seed Transplant Permit issued by the Secretary that sets times during which transplant is permissible and other reasonable restrictions imposed by the Secretary under either of the following circumstances:

(1)       When transplanting seed clams less than 12 millimeters in their largest dimension.

(2)       When transplanting seed oysters less than 25 millimeters in their largest dimension.

(a4)      It is unlawful to conduct a seed transplanting operation pursuant to subsection (a3) of this section if the seed transplanting operation is not conducted in compliance with its Aquaculture Seed Transplant Permit.

(b)        It is lawful to transplant from public bottoms to private beds oysters or clams taken from waters in the restricted or conditionally approved classifications with a permit from the Secretary setting out the waters from which the oysters or clams may be taken, the quantities which may be taken, the times during which the taking is permissible, and other reasonable restrictions imposed by the Secretary for the regulation of transplanting operations. Any transplanting operation which does not substantially comply with the restrictions of the permit issued is unlawful.

(c)        Repealed by Session Laws 2009-433, s. 6, effective August 7, 2009.

(d)       It is lawful to transplant to private beds in North Carolina oysters taken from natural or managed public beds designated by the Marine Fisheries Commission as seed oyster management areas. The Secretary shall issue permits to all qualified individuals who are residents of North Carolina without regard to county of residence to transplant seed oysters from said designated seed oyster management areas, setting out the quantity which may be taken, the times which the taking is permissible and other reasonable restrictions imposed to aid the Secretary in the Secretary's duty of regulating such transplanting operations. Persons taking such seed oysters may, in the discretion of the Marine Fisheries Commission, be required to pay to the Department for oysters taken an amount to reimburse the Department in full or in part for the costs of seed oyster management operations. Any transplanting operation which does not substantially comply with the restrictions of the permit issued is unlawful.

(e)        The Marine Fisheries Commission may implement the provisions of this section by rules governing sale, possession, transportation, storage, handling, planting, and harvesting of oysters and clams and setting out any system of marking oysters and clams or of permits or receipts relating to them generally, from both public and private beds, as necessary to regulate the lawful transplanting of seed oysters and oysters or clams taken from or placed on public or private beds.

(f)        The Commission may establish a fee for each permit established pursuant to this subsection in an amount that compensates the Division for the administrative costs associated with the permit but that does not exceed one hundred dollars ($100.00) per permit.

(g)        Advance Sale of Permits; Permit Revenue. - To ensure an orderly transition from one permit year to the next, the Division may issue a permit prior to July 1 of the permit year for which the permit is valid. Revenue that the Division receives for the issuance of a permit prior to the beginning of a permit year shall not revert at the end of the fiscal year in which the revenue is received and shall be credited and available to the Division for the permit year in which the permit is valid.  (1921, c. 132, s. 2; C.S., s. 1959(b); 1961, c. 1189, s. 1; 1965, c. 957, s. 2; 1967, c. 878; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1987, c. 641, s. 6; c. 827, s. 98; 1989, c. 727, s. 100; 1997-400, s. 5.7; 2007-495, s. 3; 2009-433, s. 6; 2013-360, s. 14.8(s); 2014-120, s. 26.)

 

§ 113-204.  Propagation of shellfish.

The Department is authorized to close areas of public bottoms under coastal fishing waters for such time as may be necessary in any program of propagation of shellfish.  The Department is authorized to expend State funds planting such areas and to manage them in ways beneficial to the overall productivity of the shellfish industry in North Carolina.  The Department in its discretion in accordance with desirable conservation objectives may make shellfish produced by it available to commercial fishermen generally, to those in possession of private shellfish beds, or to selected individuals cooperating with the Department in demonstration projects concerned with the cultivation, harvesting, or processing of shellfish. (1921, c. 132, s. 1; C.S., s. 1959(a); 1961, c. 1189, s. 1; 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1989, c. 727, s. 101.)

 

§ 113-205.  Registration of grants in navigable waters; exercise of private fishery rights.

(a)        Every person claiming to any part of the bed lying under navigable waters of any coastal county of North Carolina or any  right of fishery in navigable waters of any coastal county superior to that of the general public must register the grant, charter, or other authorization under which he claims with the Secretary. Such registration must be accompanied by a survey of the claimed area, meeting criteria established by the Secretary for surveys of oyster and clam leases. All rights and titles not registered in accordance with this section on or before January 1, 1970, are hereby declared null and void. The Secretary must give notice of this section at least once each calendar year for three years by publication in a newspaper or newspapers of general circulation throughout all coastal counties of the State. For the purpose of this subsection, "coastal county" shall mean all the following counties: Beaufort, Bertie, Bladen, Brunswick, Camden, Carteret, Chowan, Columbus, Craven, Currituck, Dare, Gates, Halifax, Hertford, Hyde, Martin, New Hanover, Northampton, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Tyrrell, and Washington. The provisions of this section shall not apply to the land lying under any private fish pond or irrigation pond.

(b)        The Marine Fisheries Commission may make reasonable rules governing utilization of private fisheries and may require grantees or others with private rights to mark their fishery areas or private beds in navigable waters as a precondition to the right of excluding the public from exercising the private rights claimed to be secured to them. Nothing in this section is to be deemed to confer upon any grantee or other person with private rights the power to impede navigation upon or hinder any other appropriate use of the surface of navigable waters of North Carolina. (1965, c. 957, s. 2; 1971, c. 346, s. 1; 1973, c. 1262, s. 28; 1987, c. 827, s. 98.)

 

§ 113-206.  Chart of grants, leases and fishery rights; overlapping leases and rights; contest or condemnation of claims; damages for taking of property.

(a)        The Secretary must commence to prepare as expeditiously as possible charts of the waters of North Carolina containing the locations of all oyster and clam leaseholds made by the Department under the provisions of this Article and of all existing leaseholds as they are renewed under the provisions of this Article, the locations of all claims of grant of title to portions of the bed under navigable waters registered with him, and the locations of all areas in navigable waters to which a right of private fishery is claimed and registered with him. Charting or registering any claim by the Secretary in no way implies recognition by the State of the validity of the claim.

(a1)      If a claim is based on an oyster or other shellfish grantor a perpetual franchise for shellfish cultivation, the Secretary may, to resolve the claim, grant a shellfish lease to the claimant for part or all of the area claimed. If a claim of exclusive shellfishing rights was registered based upon a conveyance by the Literary Fund, the North Carolina Literary Board or the State Board of Education, and the claimant shows that the area had been cultivated by the claimant or his predecessor in title for the seven-year period prior to registration of the claim, the Secretary may, to resolve the claim, grant a shellfish lease to the claimant for all or part of the area claimed, not to exceed ten acres. A shellfish lease granted under this subsection is subject to the restrictions imposed on shellfish leases in G.S. 113-202, except the prohibition against leasing an area that contains a natural shellfish bed in G.S. 113-202(a)(2). This restriction is waived because, due to the cultivation efforts of the claimant, the area is likely to contain a natural shellfish bed.

(b)        In the event of any overlapping of areas leased by the Department, the Secretary shall recommend modification of the areas leased as he deems equitable to all parties. Appeal from the recommendation of the Secretary lies for either party in the same manner as for a lease applicant as to which there is a recommendation of denial or modification of lease. If there is no appeal, or upon settlement of the issue upon appeal, the modified leases must be approved by the Marine Fisheries Commission and reissued by the Secretary in the same manner as initial or renewal leases. Leaseholders must furnish the Secretary surveys of the modified leasehold areas, meeting the requisite criteria for surveys established by the Secretary.

(c)        In the event of any overlapping of areas leased by the Department and of areas in which title or conflicting private right of fishery is claimed and registered under the provisions of this Article, the Secretary must give preference to the leaseholder engaged in the production of oysters or clams in commercial quantities who received the lease with no notice of the existence of any claimed grant or right of fishery. To this end, the Secretary shall cause a modification of the claim registered with him and its accompanying survey to exclude the leasehold area. Such modification effected by the Secretary has the effect of voiding the grant of title or right of fishing to the extent indicated.

(d)       In the interest of conservation of the marine and estuarine resources of North Carolina, the Department may institute an action in the superior court to contest the claim of title or claimed right of fishery in any navigable waters of North Carolina registered with the Secretary. In such proceeding, the burden of showing title or right of fishery, by the preponderance of the evidence, shall be upon the claiming title or right holder. In the event the claiming title or right holder prevails, the trier of fact shall fix the monetary worth of the claim. The Department may elect to condemn the claim upon payment of the established owners or right holders their pro rata shares of the amount so fixed. The Department may make such payments from such funds as may be available to it. An appeal lies to the appellate division by either party both as to the validity of the claim and as to the fairness of the amount fixed. The Department in such actions may be represented by the Attorney General. In determining the availability of funds to the Department to underwrite the costs of litigation or make condemnation payments, the use which the Department proposes to make of the area in question may be considered; such payments are to be deemed necessary expenses in the course of operations attending such use or of developing or attempting to develop the area in the proposed manner.

(e)        A person who claims that the application of G.S. 113-205 or this section has deprived him of his private property rights in land under navigable waters or his right of fishery in navigable waters without just compensation may file a complaint in the superior court of the county in which the property is located to contest the application of G.S. 113-205 or this section. If the plaintiff prevails, the trier of fact shall fix the monetary worth of the claim, and the Department may condemn the claim upon payment of this amount to him if the Secretary considers condemnation appropriate and necessary to conserve the marine and estuarine resources of the State. The Department may pay for a condemned claim from available funds. An action under this subsection is considered a condemnation action and is therefore subject to G.S. 7A-248.

The limitation period for an action brought under this subsection is three years. This period is tolled during the disability of the plaintiff. No action, however, may be instituted under this subsection after December 31, 2006.

(f)        In evaluating claims registered pursuant to G.S. 113-205, the Secretary shall favor public ownership of submerged lands and public trust rights. The Secretary's action does not alter or affect in any way the rights of a claimant or the State. (1965, c. 957, s. 2; 1969, c. 44, s. 69; c. 541, s. 11; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1985, c. 279; c. 762; 1989, c. 423, s. 3; c. 727, s. 102; 1989 (Reg. Sess., 1990), c. 869, ss. 1, 2; 1993 (Reg. Sess., 1994), c. 717, ss. 1-3; 1998-179, s. 1; 2006-79, s. 11.)

 

§ 113-207.  Taking shellfish from certain areas forbidden; penalty.

(a),       (b) Repealed by Session Laws 2009-433, s. 7, effective August 7, 2009.

(c)        It is unlawful for any person to take shellfish within 150 feet of any part of a publicly owned pier beneath which the Division of Marine Fisheries has deposited cultch material.

(d)       A person who violates this section is guilty of a Class 3 misdemeanor.  (1977, c. 515, s. 1; c. 771, s. 4; 1989, c. 727, s. 103; 1993, c. 539, s. 841; 1994, Ex. Sess., c. 24, s. 14(c); 1999-143, s. 1; 2009-433, s. 7.)

 

§ 113-208.  Protection of private shellfish rights.

(a)        It is unlawful for any person, other than the holder of private shellfish rights, to take or attempt to take shellfish from any privately leased, franchised, or deeded shellfish bottom area without written authorization of the holder and with actual knowledge it is a private shellfish bottom area. Actual knowledge will be presumed when the shellfish are taken or attempted to be taken:

(1)        From within the confines of posted boundaries of the area as identified by signs, whether the whole or any part of the area is posted, or

(2)        When the area has been regularly posted and identified and the person knew the area to be the subject of private shellfish rights.

A violation of this section shall constitute a Class A1 misdemeanor, which may include a fine of not more than five thousand dollars ($5,000). The written authorization shall include the lease number or deed reference, name and address of authorized person, date of issuance, and date of expiration, and it must be signed by the holder of the private shellfish right. Identification signs shall include the lease number or deed reference and the name of the holder.

(b)        The prosecutor shall dismiss any case brought for a violation of this section if the defendant produces a notarized written authorization in conformance with subsection (a) which states that the defendant had permission to take oysters or clams from the leased area at the time of the alleged violation; except the prosecutor may refuse to dismiss the case if he has reason to believe that the written authorization is fraudulent. (1979, c. 537; 1987, c. 463; 1989, c. 281, s. 2; 1993, c. 539, s. 842; 1994, Ex. Sess., c. 24, s. 14(c); 1998-225, s. 3.7.)

 

§ 113-209.  Taking polluted shellfish at night or with prior conviction forbidden; penalty.

(a)        It is unlawful for any person between sunset and sunrise to willfully take or attempt to take shellfish from areas closed to harvest by statute, rule, or proclamation because of suspected pollution.

(b)        It is unlawful for any person to willfully possess, sell or offer for sale shellfish taken between sunset and sunrise from areas closed to harvest by statute, rule, or proclamation because of suspected pollution.

(c)        It is unlawful for any person who has been convicted of an offense under this Chapter within the preceding two years involving shellfish taken from areas closed because of suspected pollution to willfully take, attempt to take, possess, sell or offer for sale shellfish from areas closed to harvest by statute, rule, or proclamation because of suspected pollution.

(d)       Any person violating any provisions of this section shall be guilty of a Class I felony which may include a fine no less than two thousand five hundred dollars ($2,500).  Upon conviction of any person for a violation of this section, the court shall order the confiscation of all weapons, equipment, vessels, vehicles, conveyances, fish, and other evidence, fruit, and instrumentalities of the offense.  The confiscated property shall be disposed of in accordance with G.S. 113-137. (1989, c. 275, s. 1; 1993, c. 539, s. 1301; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-210.  Under Dock Oyster Culture.

(a)        Under Dock Oyster Culture Permit. - An Under Dock Oyster Culture Permit authorizes the holder of the permit to attach up to 90 square feet of oyster cultivation containers to a dock or pier owned by the permit holder.

(b)        Application. - The owner of a dock or pier who wishes to obtain an Under Dock Oyster Culture Permit shall apply to the Director of the Division of Marine Fisheries.

(c)        Issuance. - The Director of the Division of Marine Fisheries shall issue an Under Dock Oyster Culture Permit only if the Director determines all of the following:

(1)       That the dock or pier is not located in an area that the State Health Director has recommended be closed to shellfish harvest due to pollution or that has been closed to harvest by statute, rule, or proclamation due to suspected pollution.

(2)       That the owner of the dock or pier has satisfied the training requirements established by the Marine Fisheries Commission pursuant to subsection (j) of this section.

(3)       That the attachment of the oyster cultivation containers to the dock or pier will be compatible with all lawful uses by the public of other marine and estuarine resources. Other lawful public uses include, but are not limited to, navigation, fishing, and recreation.

(d)       Duration. - An Under Dock Oyster Culture Permit is valid for a one-year period from the date of issuance.

(e)        Renewal. - The Director of the Division of Marine Fisheries shall renew an Under Dock Oyster Culture Permit only if the Director determines the requirements of subsection (c) of this section continue to be satisfied and the holder of the permit is attempting to utilize the permit to cultivate oysters on a continuing basis.

(f)        Reporting Requirements. - The holder of an Under Dock Oyster Culture Permit shall comply with the biological data sampling and survey programs of the Marine Fisheries Commission and the Division of Marine Fisheries.

(g)        Posting of Signs. - The holder of an Under Dock Oyster Culture Permit shall post signs that indicate the presence of the oyster cultivation containers and that the oyster cultivation containers and their contents are private property.

(h)        Sale of Oysters Prohibited. - It is unlawful for the holder of an Under Dock Oyster Culture Permit to sell oysters cultivated pursuant to the permit.

(i)         Assignment and Transfer Prohibited. - An Under Dock Oyster Culture Permit is not assignable or transferable.

(j)         Oyster Cultivation Training Requirements. - The Marine Fisheries Commission, in consultation with the Sea Grant College Program at The University of North Carolina, shall develop and adopt rules for the training of individuals who cultivate oysters pursuant to this section.

(k)        Revocation of Permit. - If the Director of the Division of Marine Fisheries determines that the holder of an Under Dock Oyster Culture Permit has failed to comply with any provision of this section, the Director shall revoke the Permit. The owner of the dock or pier shall remove the oyster cultivation containers that were authorized by the revoked permit within 15 days of revocation.

(l)         Repealed by Session Laws 2014-100, s. 14.9(h), effective July 1, 2014.

(m)       Repealed by Session Laws 2014-120, s. 33(a), effective July 1, 2014.  (2004-124, s. 12.7B; 2013-360, s. 14.8(t); 2014-100, s. 14.9(h); 2014-120, s. 33(a).)

 

§§ 113-211 through 113-220:  Reserved for future codification purposes.

 

 

Article 16A.

Marine Aquaculture.

§ 113-215.  Definitions.

In addition to the definitions in G.S. 113-128 and G.S. 113-129, the following definitions shall apply in this Article:

(1)       Marine aquaculture. - The propagation and rearing of marine aquatic species in controlled or selected environments, including, but not limited to, ocean ranching, marine hatcheries, and other deep water fish farming operations in the coastal fishing waters of the State and, to the extent not inconsistent with federal law, to the limits of the United States exclusive economic zone, as that term is defined in the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq.

(2)       Marine aquaculture lease. - A lease of the public bottom and superjacent water column granted by the Secretary for marine aquaculture.

(3)       Marine aquatic species. - Any species of finfish, mollusk, crustacean, or other aquatic invertebrate, amphibian, reptile, or aquatic plant, and including, but not limited to, "fish" and "fishes," as defined in G.S. 113-129(7), found exclusively or for part of its life cycle in coastal fishing waters.  (2017-190, s. 1.)

 

§ 113-216.  Legislative findings and declaration of policy.

The General Assembly finds that development of a marine aquaculture industry in the State provides increased seafood production and long-term economic and employment opportunities. The General Assembly declares that it is the policy of the State to encourage the development of private, commercial marine aquaculture in ways that are compatible with other public uses of marine and estuarine resources such as navigation, fishing, and recreation.  (2017-190, s. 1.)

 

§ 113-217.  New leases for marine aquaculture.

(a)        To increase the use of suitable areas underlying coastal fishing waters for establishment of marine aquaculture, the Secretary may grant marine aquaculture leases under the terms of this section when the Secretary determines, in accordance with the Secretary's duty to conserve the marine and estuarine resources of the State, that the public interest will benefit from issuance of the lease. Suitable areas for marine aquaculture shall meet the following minimum standards:

(1)       The area leased must not contain a natural commercially significant shellfish bed.

(2)       The marine aquaculture operation in the leased area will not unreasonably interfere with lawful utilization by the public of other marine and estuarine resources. Other public uses which may be considered include, but are not limited to, navigation, fishing, and recreation.

(3)       The operation of a marine aquaculture operation in the leased area will not unreasonably interfere upon the rights of riparian owners.

(4)       The area leased must not include an area designated for inclusion in the Department's Shellfish Management Program.

(5)       The area leased must not include an area that the State Health Director has recommended be closed to shellfish harvest by reason of pollution.

(6)       The marine aquaculture operation would not unreasonably interfere with public access and use of waters of the State, taking into account the potential economic impact of the operation.

(7)       Aquaculture use of the leased area must not significantly impair navigation.

(8)       The leased area must not be within a navigation channel marked or maintained by a State or federal agency.

(9)       The leased area must not be within an area traditionally used and available for significant levels of fishing or hunting activities incompatible with the activities proposed by the leaseholder, such as trawling or seining.

(10)     Aquaculture use of the leased area must not significantly interfere with the exercise of riparian rights by adjacent property owners, including access to navigation channels from piers or other means of access.

(b)        The Secretary may delete any part of an area proposed for lease or may condition a lease to protect the public interest with respect to the factors enumerated in subsection (a) of this section. The Secretary shall enter into memoranda of agreement with the United States Army Corps of Engineers or any other appropriate State or federal regulatory agencies to provide for appropriate standards and markings for marine aquaculture structures to avoid impairment of navigation.

(c)        No person, including a corporate entity or single family unit, may acquire and hold by lease, lease renewal, or purchase more than 1,500 acres under marine aquaculture leases. No individual lease may exceed 100 acres. For purposes of this subsection, the number of acres of leases held by a person includes acres held by a corporation in which the person holds an interest.

(d)       Any person desiring to apply for a lease must make written application to the Secretary on forms prepared by the Department containing such information as deemed necessary to determine the desirability of granting or not granting the lease requested. Except in the case of renewal leases, the application must be accompanied by a map or diagram made at the expense of the applicant, showing the area proposed to be leased.

(e)        The map or diagram must conform to standards prescribed by the Secretary concerning accuracy of map or diagram and the amount of detail that must be shown. If, on the basis of the application information and map or diagram, the Secretary deems that granting the lease would benefit the marine aquaculture industry of North Carolina, the Secretary must order an investigation of the area proposed to be leased. The investigation is to be made by the Secretary or the Secretary's authorized agent to determine whether the area proposed to be leased is consistent with the standards in subsection (a) of this section. In the event the Secretary finds the application inconsistent with the applicable standards, the Secretary shall deny the application or propose that a conditional lease be issued that is consistent with the applicable standards. In the event the Secretary authorizes amendment of the application, the applicant must furnish a new map or diagram meeting requisite standards showing the area proposed to be leased under the amended application. At the time of making an application for an initial lease, the applicant must pay a filing fee of two hundred dollars ($200.00).

(f)        The area proposed to be leased must be as compact as possible, taking into consideration the shape of the body of water, the consistency of the bottom, and the desirability of separating the boundaries of a leasehold by a sufficient distance from any other marine aquaculture operations or shellfish leases.

(g)        Within 60 days after receipt of an application that complies with subsection (e) of this section, the Secretary shall notify the applicant of the intended action on the lease application. If the intended action is approval of the application as submitted, or approval with a modification to which the applicant agrees, the Secretary shall conduct a public hearing in the county where the proposed leasehold lies. The Secretary must publish at least two notices of the intention to lease in a newspaper of general circulation in the county in which the proposed leasehold lies. The first publication must precede the public hearing by more than 20 days; the second publication must follow the first by seven to 11 days. The notice of intention to lease must contain a description of the area of the proposed leasehold sufficient to establish its boundaries with reasonable ease and certainty and must also contain the date, hour, and place of the hearing.

(h)        After consideration of the public comment received and any additional investigations the Secretary orders to evaluate the comments, the Secretary shall notify the applicant in person or by certified or registered mail of the decision on the lease application. The Secretary shall also notify persons who submitted comments at the public hearing and requested notice of the lease decision. An applicant who is dissatisfied with the Secretary's decision or another person aggrieved by the decision may commence a contested case by filing a petition under G.S. 150B-23 within 20 days after receiving notice of the Secretary's decision. In the event the Secretary's decision is a modification to which the applicant agrees, the lease applicant must furnish an amended map or diagram before the lease can be issued by the Secretary.

(i)         After a lease application is approved by the Secretary, the applicant shall submit to the Secretary information sufficient to define the bounds of the area approved for leasing with markers in accordance with the rules of the Commission. The information shall conform to standards prescribed by the Secretary concerning accuracy of survey and the amount of detail to be shown. When information is submitted, the boundaries are marked and all fees and rents due in advance are paid, the Secretary shall execute the lease on forms approved by the Attorney General. The Secretary is authorized, with the approval of the lessee, to amend an existing lease by reducing the area under lease or by combining contiguous leases without increasing the total area leased.

(j)         Initial leases begin upon the issuance of the lease by the Secretary and expire at noon on the first day of July following the twentieth anniversary of the granting of the lease. Renewal leases are issued for a period of 20 years from the time of expiration of the previous lease. At the time of making application for renewal of a lease, the applicant must pay a filing fee of one hundred dollars ($100.00). The rental for initial leases and renewed leases is two hundred ten dollars ($210.00) per acre, per year. Rental must be paid annually in advance prior to the first day of April each year. Upon initial granting of a lease, the pro rata amount for the portion of the year left until the first day of July must be paid in advance at the rate of two hundred ten dollars ($210.00) per acre, per year; then, on or before the first day of April next, the lessee must pay the rental for the next full year.

(k)        Except as otherwise restricted by this Article, leaseholds granted under this section are to be treated as if they were real property and are subject to all laws relating to taxation, sale, devise, inheritance, gift, seizure and sale under execution or other legal process, and the like. Leases properly acknowledged and probated are eligible for recordation in the same manner as instruments conveying an estate in real property. Within 30 days after transfer of beneficial ownership of all or any portion of or interest in a leasehold to another, the new owner must notify the Secretary of such fact. Such transfer is not valid until notice is furnished to the Secretary.

(l)         Upon receipt of notice by the Secretary of any of the following occurrences, the Secretary must commence action to terminate the leasehold:

(1)       Failure to pay the annual rent in advance.

(2)       Failure to file information required by the Secretary upon annual remittance of rental or filing false information on the form required to accompany the annual remittance of rental.

(3)       Failure by new owner to report a transfer of beneficial ownership of all, or any portion of, or interest in the leasehold.

(4)       Failure to mark the boundaries in the leasehold and to keep them marked as required in the rules of the Marine Fisheries Commission.

(5)       Failure to utilize the leasehold on a continuing basis for marine aquaculture purposes, except if marine aquaculture activities under the lease are suspended as a part of a disease or biosecurity plan.

(m)       In the event the leaseholder takes steps within 30 days to remedy the situation upon which the notice of intention to terminate was based, and the Secretary is satisfied that continuation of the lease is in the best interests of the shellfish culture of the State, the Secretary may discontinue termination procedures. Where there is no discontinuance of termination procedures, the leaseholder may initiate a contested case by filing a petition under G.S. 150B-23 within 30 days of receipt of notice of intention to terminate. Where the leaseholder does not initiate a contested case, or the final decision upholds termination, the Secretary must send a final letter of termination to the leaseholder. The final letter of termination may not be mailed sooner than 30 days after receipt by the leaseholder of the Secretary's notice of intention to terminate, or of the final agency decision, as appropriate. The lease is terminated effective at midnight on the day the final notice of termination is served on the leaseholder. The final notice of termination may not be issued pending hearing of a contested case initiated by the leaseholder.

Service of any notice required in this subsection may be accomplished by certified mail, return receipt requested; personal service by any law enforcement officer; or upon the failure of these two methods, publication. Service by publication shall be accomplished by publishing such notices in a newspaper of general circulation within the county where the lease is located for at least once a week for three successive weeks and by posting the notices on the Commission's Web site. The format for notice by publication shall be approved by the Attorney General.

(n)        Upon final termination of any leasehold, the leased area in question is thrown open to the public for use in accordance with laws and rules governing use of public grounds generally. Within 30 days of final termination of the leasehold, the former leaseholder shall remove all abandoned markers denominating the area of the leasehold. The State may, after 10 days' notice to the owner of the abandoned markers thereof, remove the abandoned structure and have the area cleaned up. The cost of such removal and cleanup shall be payable by the owner of the abandoned markers and the State may bring suit to recover the costs thereof.

(o)        Every year between January 1 and February 15, the Secretary must mail to all leaseholders a notice of the annual rental due and include forms designed by the Secretary for determining the amount of harvest gathered. Such forms may contain other pertinent questions relating to the utilization of the leasehold in the best interests of the aquaculture industry of the State and must be executed and returned by the leaseholder with the payment of the leaseholder's rental. Any leaseholder or the leaseholder's agent executing such forms for the leaseholder who knowingly makes a false statement on such forms is guilty of a Class 1 misdemeanor.  (2017-190, s. 1.)

 

§ 113-218.  Protection of private marine aquaculture rights.

It is unlawful for any person, other than the holder of a lease issued under this Article, to take or attempt to take marine species being produced under the license and associated lease from any privately leased, franchised, or deeded marine aquaculture operation without written authorization of the holder and with actual knowledge it is a marine aquaculture leased area. Actual knowledge will be presumed when the marine species are taken or attempted to be taken under the following circumstances:

(1)       From within the confines of posted boundaries of the area as identified by signs, whether the whole or any part of the area is posted; or

(2)       When the area has been regularly posted and identified and the person knew the area to be the subject of private marine aquaculture rights.

A violation of this subsection shall constitute a Class A1 misdemeanor, which may include a fine of not more than five thousand dollars ($5,000). The written authorization shall include the lease number or deed reference, name and address of authorized person, date of issuance, and date of expiration, and it must be signed by the holder of the marine aquaculture rights. Identification signs shall include the lease number or deed reference and the name of the holder.  (2017-190, s. 1.)

 

§ 113-219: Reserved for future codification purposes.

 

§ 113-220: Reserved for future codification purposes.

 

 

Article 17.

Administrative Provisions; Regulatory Authority of Marine Fisheries Commission and Department.

§ 113-221.  Rules.

(a)        Chapter 150B of the General Statutes governs the adoption of rules under this Article.

(b)        Upon purchasing a license, each licensee shall be provided access to a copy of the rules concerning the activities authorized by the license. The copy may be in written or electronic form, including by file download over the Internet. A written copy of the rules shall be provided to a licensee upon request.

(c)        The Fisheries Director shall notify licensees of a new rule or change to a rule by sending each licensee either a newsletter containing the text of the rule or change or an updated codification of the rules of the Marine Fisheries Commission that contains the new rule or change. The Director may elect to use electronic means rather than mail to notify licensees if electronic means would be more timely and cost-effective. A written copy of any notification produced in accordance with this section shall be provided to a licensee upon request.

(d)       Unless there are overriding policy considerations involved, any rule of the Marine Fisheries Commission that will result in severe curtailment of the usefulness or value of equipment in which fishermen have any substantial investment shall be given a future effective date so as to minimize undue potential economic loss to fishermen. Whether or not any rule will result in severe curtailment of the usefulness or value of equipment in which fishermen have any substantial investment and whether or not a future effective date should be set is a matter within the sole discretion of the Marine Fisheries Commission. This subsection does not require the Marine Fisheries Commission to establish an effective date that is more than two years later than the date on which the rule is adopted.

(e)        Repealed by Session Laws 2003-154, s. 1, effective July 1, 2003.

(e1)      Repealed by Session Laws 2003-154, s. 1, effective July 1, 2003.

(f)        All persons who may be affected by rules adopted by the Marine Fisheries Commission are under a duty to keep themselves informed of the current rules. It is no defense in any criminal prosecution for the defendant to show that the defendant in fact received no notice of a particular rule. In any prosecution for violation of a rule, or in which proof of matter contained in a rule is involved, the Department is deemed to have complied with publication procedures and the burden is on the defendant to show by the greater weight of the evidence substantial failure of compliance by the Department with the required publication procedures.

(g)        Every court shall take judicial notice of any codification of rules issued by the Fisheries Director within two years preceding the date of the offense charged or transaction in issue. In the absence of any indication to the contrary, the codifications are to be deemed accurate and current statements of the text of the rules in question and it is incumbent upon any person asserting that a relevant portion of the codified text is inaccurate, or has been amended or deleted, to satisfy the court as to the text of the rules that is in fact properly applicable.

(h)        Repealed by Session Laws 1983, c. 221, s. 1.  (1915, c. 84, s. 21; 1917, c. 290, s. 7; C.S., s. 1878; 1925, c. 168, s. 2; 1935, c. 35; 1945, c. 776; 1953, cc. 774, 1134, 1251; 1963, c. 1097, s. 1; 1965, c. 957, s. 2; 1973, c. 1262, ss. 28, 86; c. 1331, s. 3; 1975, 2nd Sess., c. 983, s. 70; 1979, c. 388, s. 6; 1983, cc. 221, 619, 620; 1987, c. 641, ss. 7, 19; c. 827, s. 7; 1997-400, s. 4.3; 1998-225, s. 3.8; 2000-189, s. 9; 2003-154, s. 1; 2014-100, s. 14.13.)

 

§ 113-221.1.  Proclamations; emergency review.

(a)        Chapter 150B of the General Statutes does not apply to proclamations issued under this Article.

(b)        The Marine Fisheries Commission may delegate to the Fisheries Director the authority to issue proclamations suspending or implementing, in whole or in part, particular rules of the Commission that may be affected by variable conditions. These proclamations shall be issued by the Fisheries Director or by a person designated by the Fisheries Director. Except as provided in this subsection, all proclamations shall state the hour and date upon which they become effective and shall be issued at least 48 hours in advance of the effective date and time. A proclamation that prohibits the taking of certain fisheries resources for reasons of public health or that governs a quota-managed fishery may be made effective immediately upon issuance. A proclamation to reopen the taking of certain fisheries resources closed for reasons of public health shall be issued at least 12 hours in advance of the effective date and time of the reopening. A person who violates a proclamation that is made effective immediately upon issuance shall not be charged with a criminal offense for the violation if the violation occurred between the time of issuance and 48 hours after the issuance and the person did not have actual notice of the issuance of the proclamation. Fisheries resources taken or possessed by any person in violation of any proclamation may be seized regardless of whether the person had actual notice of the proclamation. A permanent file of the text of all proclamations shall be maintained in the office of the Fisheries Director. Certified copies of proclamations are entitled to judicial notice in any civil or criminal proceeding. The Fisheries Director shall make every reasonable effort to give actual notice of the terms of any proclamation to persons who may be affected by the proclamation. Reasonable effort includes a press release to communications media, posting of a notice at docks and other places where persons affected may gather, personal communication by inspectors and other agents of the Fisheries Director, and other measures designed to reach the persons who may be affected. It is a defense to an enforcement action for a violation of a proclamation that a person was prevented from receiving notice of the proclamation due to a natural disaster or other act of God occasioned exclusively by violence of nature without interference of any human agency and that could not have been prevented or avoided by the exercise of due care or foresight.

(c)        All persons who may be affected by proclamations issued by the Fisheries Director are under a duty to keep themselves informed of current proclamations. It is no defense in any criminal prosecution for the defendant to show that the defendant in fact received no notice of a particular proclamation. In any prosecution for violation of a proclamation, or in which proof of matter contained in a proclamation is involved, the Department is deemed to have complied with publication procedures; and the burden is on the defendant to show, by the greater weight of the evidence, substantial failure of compliance by the Department with the required publication procedures.

(d)       Pursuant to the request of five or more members of the Marine Fisheries Commission, the Chair of the Marine Fisheries Commission may call an emergency meeting of the Commission to review an issuance or proposed issuance of proclamations under the authority delegated to the Fisheries Director pursuant to subsection (b) of this section or to review the desirability of directing the Fisheries Director to issue a proclamation to prohibit or allow the taking of certain fisheries resources. At least 48 hours prior to any emergency meeting called pursuant to this subsection, a public announcement of the meeting shall be issued that describes the action requested by the members of the Marine Fisheries Commission. The Department shall make every reasonable effort to give actual notice of the meeting to persons who may be affected. After its review is complete, the Marine Fisheries Commission, consistent with its duty to protect, preserve, and enhance the commercial and sports fisheries resources of the State, may approve, cancel, or modify the previously issued or proposed proclamation under review or may direct the Fisheries Director to issue a proclamation that prohibits or allows the taking of certain fisheries resources. An emergency meeting called pursuant to this subsection and any resulting orders issued by the Marine Fisheries Commission are exempt from the provisions of Article 2A of Chapter 150B of the General Statutes. The decisions of the Marine Fisheries Commission shall be the final decision of the State and shall not be set aside on judicial review unless found to be arbitrary and capricious. (1915, c. 84, s. 21; 1917, c. 290, s. 7; C.S., s. 1878; 1925, c. 168, s. 2; 1935, c. 35; 1945, c. 776; 1953, cc. 774, 1134, 1251; 1963, c. 1097, s. 1; 1965, c. 957, s. 2; 1973, c. 1262, ss. 28, 86; c. 1331, s. 3; 1975, 2nd Sess., c. 983, s. 70; 1979, c. 388, s. 6; 1983, cc. 221, 619, 620; 1987, c. 641, ss. 7, 19; c. 827, s. 7; 1997-400, s. 4.3; 1998-225, s. 3.8; 2000-189, s. 9; 2003-154, s. 2.)

 

§ 113-221.2.  Additional rules to establish sanitation requirements for scallops, shellfish, and crustacea; permits and permit fees authorized.

(a)        Authority to Adopt Certain Rules and Establish Permits. - For the protection of the public health, the Marine Fisheries Commission shall adopt rules establishing sanitation requirements for the harvesting, processing and handling of scallops, shellfish, and crustacea of in-State origin. The rules of the Marine Fisheries Commission may also regulate scallops, shellfish, and crustacea shipped into North Carolina. The Department is authorized to enforce the rules and may issue and revoke permits according to the rules. The Department is authorized to establish a fee for each permit not to exceed one hundred dollars ($100.00).

(b)        Advance Sale of Permits; Permit Revenue. - To ensure an orderly transition from one permit year to the next, the Division may issue a permit prior to July 1 of the permit year for which the permit is valid. Revenue that the Division receives for the issuance of a permit prior to the beginning of a permit year shall not revert at the end of the fiscal year in which the revenue is received and shall be credited and available to the Division for the permit year in which the permit is valid.  (1965, c. 783, s. 1; 1967, c. 1005, s. 1; 1973, c. 476, s. 128; 1983, c. 891, s. 2; 2011-145, s. 13.3(ppp), (qqq); 2013-360, s. 14.8(u).)

 

§ 113-221.3.  Monitoring program for State coastal fishing and recreation waters; removal or destruction of warning signs.

(a)        For the protection of the public health of swimmers and others who use the State's coastal fishing waters for recreational activities, the Department shall develop and implement a program to monitor the State's coastal fishing waters for contaminants. The monitoring program shall cover all coastal fishing waters up to the point where those waters are classified as inland fishing waters.

(b)        The Marine Fisheries Commission shall adopt rules to provide for a water quality monitoring program for the coastal recreation waters of the State and to allow the Department to implement the federal Beaches Environmental Assessment and Coastal Health Act of 2000 (Pub. L. No. 106-284; 114 Stat. 870, 875; 33 U.S.C. §§ 1313, 1362). The rules shall address, but are not limited to, definitions, surveys, sampling, action standards, and posting of information on the water quality of coastal recreation waters.

(c)        No person shall remove, destroy, damage, deface, mutilate, or otherwise interfere with any sign posted by the Department pursuant to subsection (b) of this section. No person, without just cause or excuse, shall have in his or her possession any sign posted by the Department pursuant to subsection (b) of this section. Any person who violates this section is guilty of a Class 2 misdemeanor.

(d)       As used in this section, coastal recreation waters has the same meaning as in 33 U.S.C. § 1362.  (1997-443, s. 15.17(a); 2003-149, s. 1; 2011-145, s. 13.3(rrr), (sss).)

 

§ 113-221.4.  Embargo.

(a)        If the Secretary of Environmental Quality or a local health director has probable cause to believe that any scallops, shellfish, or crustacea is adulterated or misbranded, the Secretary of Environmental Quality or a local health director may detain or embargo the article by affixing a tag to it and warning all persons not to remove or dispose of the article until permission for removal or disposal is given by the official by whom it was detained or embargoed or by the court. It shall be unlawful for any person to remove or dispose of the detained or embargoed article without that permission.

(b)        The official by whom the scallops, shellfish, or crustacea was detained or embargoed shall petition a judge of the district or superior court in whose jurisdiction the article is detained or embargoed for an order for condemnation of the article. If the court finds that the article is adulterated or misbranded, that article shall be destroyed under the supervision of the petitioner. All court costs and fees, storage and other expense shall be taxed against the claimant of the article. If, the article, by proper labelling can be properly branded, the court, after the payment of all costs, fees, expenses, and an adequate bond, may order that the article be delivered to the claimant for proper labelling under the supervision of the petitioner. The bond shall be returned to the claimant after the petitioner represents to the court that the article is no longer mislabelled and that the expenses of supervision have been paid.  (1983, c. 891, s. 2; 1997-261, s. 109; 1997-443, s. 11A.63A; 2006-80, s. 1; 2007-7, s. 1; 2011-145, ss. 13.3(ttt), (uuu); 2015-241, s. 14.30(v).)

 

§ 113-221.5.  Right of entry to enforce certain sanitation requirements.

The Secretary of Environmental Quality and a local health director shall each have the delegable right of entry upon the premises of any place where entry is necessary to enforce the provisions of G.S. 113-221.2(a) or the rules adopted by the Marine Fisheries Commission or a local board of health. If consent for entry is not obtained, an administrative search and inspection warrant shall be obtained pursuant to G.S. 15-27.2. However, if an imminent hazard exists, no warrant is required for entry upon the premises.  (2016-94, s. 14.15.)

 

§ 113-222.  Arrest, service of process and witness fees of inspectors.

All arrest fees and other fees that may be charged in any bill of costs for service of process by inspectors must be paid to the county in which the trial is held.  No witness fee may be taxed in any bill of costs by virtue of the appearance of an inspector as a witness in a criminal case within his enforcement jurisdiction.  Acceptance by any inspector of any arrest fee, witness fee, or any other fee to which he is not entitled is a Class 1 misdemeanor. (1965, c. 957, s. 2; 1993, c. 539, s. 843; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-223.  Reciprocal agreements by Department generally.

Subject to the specific provisions of G.S. 113-169.5 and G.S. 113-170.1 relating to reciprocal provisions as to landing and selling catch and as to licenses, the Department is empowered to make reciprocal agreements with other jurisdictions respecting any of the matters governed in this Subchapter. Pursuant to such agreements the Department may modify provisions of this Subchapter in order to effectuate the purposes of such agreements, in the overall best interests of the conservation of marine and estuarine resources. (1915, c. 84, s. 5; 1917, c. 290, s. 10; C.S., s. 1883; 1953, c. 1086; 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1989, c. 727, s. 104; 1998-225, s. 4.22.)

 

§ 113-224.  Cooperative agreements by Department.

(a)        Except as otherwise provided in this section, the Department is empowered to enter into cooperative agreements with public and private agencies and individuals respecting the matters governed in this Subchapter. Pursuant to such agreements the Department may expend funds, assign employees to additional duties within or without the State, assume additional responsibilities, and take other actions that may be required by virtue of such agreements, in the overall best interests of the conservation of marine and estuarine resources.

(b)        The Fisheries Director or a designee of the Fisheries Director shall not enter into an agreement with the National Marine Fisheries Service of the United States Department of Commerce allowing Division of Marine Fisheries inspectors to accept delegation of law enforcement powers over matters within the jurisdiction of the National Marine Fisheries Service.  (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1989, c. 727, s. 105; 2014-100, s. 14.11(a); 2015-201, s. 3(a).)

 

§ 113-225.  Inspectors not to have financial interest in fisheries.

Except as provided in this Subchapter respecting operations of demonstration and research projects by employees of the Department as part of their employment, no inspector may be financially interested in any fishing industry in the State of North Carolina. (1965, c. 957, s. 2.)

 

§ 113-226.  Administrative authority of Department; administration of funds; delegation of powers.

(a)        In the overall best interests of the conservation of marine and estuarine resources, the Department may lease or purchase lands, equipment, and other property; accept gifts and grants on behalf of the State; establish boating and fishing access areas; establish fisheries, fishery processing or storage plants, planted seafood beds, fish farms, and other enterprises related to the conservation of marine and estuarine resources as research or demonstration projects either alone or in cooperation with some individual or agency; sell the catch or processed fish or other marine and estuarine resources resulting from research fishing operations or demonstration projects; provide matching funds for entering into projects with some other governmental agency or with some scientific, educational, or charitable foundation or institution; condemn lands in accordance with the provisions of Chapter 40A of the General Statutes and other governing provisions of law; and sell, lease, or give away property acquired by it. Provided, that any private person selected to receive gifts or benefits by the Department be selected:

(1)        With regard to the overall public interest that may result, and

(2)        From a defined class upon such a rational basis open to all within the class as to prevent constitutional infirmity with respect to requirements of equal protection of the laws or prohibitions against granting exclusive privileges or emoluments.

(b)        All money credited to, held by, or to be received by the Department in respect of the conservation of marine and estuarine resources must be deposited with the Department. In administering such funds and recommending expenditures, the Department must give attention to the sources of the revenues received so as to encourage disbursements to be made on an equitable basis; nevertheless, except as provided in this section, separate funds may not be established and particular projects and programs deemed to be of sufficient importance in the conservation of marine and estuarine resources may receive proportional shares of Department expenditures that are greater than the proportional shares of license and other revenues produced by such projects or programs for the Department.

(c)        If as a precondition of receiving funds under any cooperative program there must be a separation of license revenues received from certain classes of licensees and utilization of such revenues for limited purposes, the Department is directed to make such arrangements for separate accounting or for separate funding as may be necessary to insure the use of the revenues for the required purposes and eligibility for the cooperative funds. In such instance, if required, such revenues may be retained by the Department until expended upon the limited purposes in question. This subsection applies whether the cooperative program is with a public or private agency and whether the Department acts alone on behalf of the State or in conjunction with the Wildlife Resources Commission or some other State agency.

(d)       Repealed by Session Laws 1973, c. 1262, s. 28. (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1987, c. 827, s. 103; 1989, c. 727, s. 106.)

 

§ 113-227.  Repealed by Session Laws 1973, c. 1262, s. 28.

 

§ 113-228.  Adoption of federal regulations.

To the extent that the Department is granted authority in this Subchapter over subject matter as to which there is concurrent federal jurisdiction, the Marine Fisheries Commission in its discretion may by reference in its rules adopt relevant provisions of federal laws and regulations as State rules. To prevent confusion or conflict of jurisdiction in enforcement, the Marine Fisheries Commission is exempt from any conflicting limitations in G.S. 150B-21.6 so that it may provide for automatic incorporation by reference into its rules of future changes within any particular set of federal laws or regulations relating to some subject clearly within the jurisdiction of the Department. (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1987, c. 641, s. 11; c. 827, s. 104; 1991 (Reg. Sess., 1992), c. 890, s. 7.)

 

§ 113-229.  Permits to dredge or fill in or about estuarine waters or State-owned lakes.

(a)        Except as hereinafter provided before any excavation or filling project is begun in any estuarine waters, tidelands, marshlands, or State-owned lakes, the party or parties desiring to do such shall first obtain a permit from the Department. Granting of the State permit shall not relieve any party from the necessity of obtaining a permit from the United States Army Corps of Engineers for work in navigable waters, if the same is required. The Department shall continue to coordinate projects pertaining to navigation with the United States Army Corps of Engineers.

(b)        All applications for such permits shall include a plat of the areas in which the proposed work will take place, indicating the location, width, depth and length of any proposed channel, the disposal area, and a copy of the deed or other instrument under which the applicant claims title to the property adjoining the waters in question, (or any land covered by waters), tidelands, or marshlands, or if the applicant is not the owner, then a copy of the deed or other instrument under which the owner claims title plus written permission from the owner to carry out the project on his land.

(c)        In lieu of a deed or other instrument referred to in subsection (b) of this section, the agency authorized to issue such permits may accept some other reasonable evidence of ownership of the property in question or other lawful authority to make use of the property.

(c1)      The Coastal Resources Commission may, by rule, designate certain classes of major and minor development for which a general or blanket permit may be issued. In developing these rules, the Commission shall consider all of the following:

(1)       The size of the development.

(2)       The impact of the development on areas of environmental concern.

(3)       How often the class of development is carried out.

(4)       The need for on-site oversight of the development.

(5)       The need for public review and comment on individual development projects.

(c2)      General permits may be issued by the Commission as rules under the provisions of G.S. 113A-118.1. Individual development carried out under the provisions of general permits shall not be subject to the mandatory notice provisions of this section. The Commission may impose reasonable notice provisions and other appropriate conditions and safeguards on any general permit it issues. The variance, appeals, and enforcement provisions of this Article shall apply to any individual development projects undertaken under a general permit.

(d)       An applicant for a permit, other than an emergency permit, shall notify the owner of each tract of riparian property that adjoins that of the applicant. An applicant may satisfy the required notification of adjoining riparian property owners by either (i) obtaining from each adjoining riparian property owner a signed statement that the adjoining riparian property owner has no objection to the proposed project or (ii) providing a copy of the applicant's permit application to each adjoining riparian property owner by certified mail. If the owner's address is unknown and cannot be ascertained with due diligence or if a diligent but unsuccessful effort has been made to serve the copy by certified mail, publication in accordance with the rules of the Commission shall serve to satisfy the notification requirement. An owner may file written objections to the permit with the Department for 30 days after the owner is served with a copy of the application by certified mail. In the case of a special emergency dredge or fill permit the applicant must certify that the applicant took all reasonable steps to notify adjacent riparian owners of the application for a special emergency dredge and fill permit prior to submission of the application. Upon receipt of this certification, the Secretary shall issue or deny the permit within the time period specified in subsection (e) of this section, upon the express understanding from the applicant that the applicant will be entirely liable and hold the State harmless for all damage to adjacent riparian landowners directly and proximately caused by the dredging or filling for which approval may be given.

(e)        Applications for permits except special emergency permit applications shall be circulated by the Department among all State agencies and, in the discretion of the Secretary, appropriate federal agencies having jurisdiction over the subject matter which might be affected by the project so that such agencies will have an opportunity to raise any objections they might have. The Department may deny an application for a dredge or fill permit upon finding: (1) that there will be significant adverse effect of the proposed dredging and filling on the use of the water by the public; or (2) that there will be significant adverse effect on the value and enjoyment of the property of any riparian owners; or (3) that there will be significant adverse effect on public health, safety, and welfare; or (4) that there will be significant adverse effect on the conservation of public and private water supplies; or (5) that there will be significant adverse effect on wildlife or fresh water, estuarine or marine fisheries. In the absence of such findings, a permit shall be granted. Such permit may be conditioned upon the applicant amending his proposal to take whatever measures are reasonably necessary to protect the public interest with respect to the factors enumerated in this subsection. Permits may allow for projects granted a permit the right to maintain such project for a period of up to 10 years. The right to maintain such project shall be granted subject to such conditions as may be reasonably necessary to protect the public interest. The Coastal Resources Commission shall coordinate the issuance of permits under this section and G.S. 113A-118 and the granting of variances under this section and G.S. 113A-120.1 to avoid duplication and to create a single, expedited permitting process. The Coastal Resources Commission may adopt rules interpreting and applying the provisions of this section and rules specifying the procedures for obtaining a permit under this section. Maintenance work as defined in this subsection shall be limited to such activities as are required to maintain the project dimensions as found in the permit granted. The Department shall act on an application for permit within 75 days after the completed application is filed, provided the Department may extend such deadline by not more than an additional 75 days if necessary properly to consider the application, except for applications for a special emergency permit, in which case the Department shall act within two working days after an application is filed, and failure to so act shall automatically approve the application.

(e1)      The Secretary is empowered to issue special emergency dredge or fill permits upon application. Emergency permits may be issued only when life or structural property is in imminent danger as a result of rapid recent erosion or sudden failure of a man-made structure. The Coastal Resources Commission may elaborate by rule upon what conditions the Secretary may issue a special emergency dredge or fill permit. The Secretary may condition the emergency permit upon any reasonable conditions, consistent with the emergency situation, he feels are necessary to reasonably protect the public interest. Where an application for a special emergency permit includes work beyond which the Secretary, in his discretion, feels necessary to reduce imminent dangers to life or property he shall issue the emergency permit only for that part of the proposed work necessary to reasonably reduce the imminent danger. All further work must be applied for by application for an ordinary dredge or fill permit. The Secretary shall deny an application for a special dredge or fill permit upon a finding that the detriment to the public which would occur on issuance of the permit measured by the five factors in G.S. 113-229(e) clearly outweighs the detriment to the applicant if such permit application should be denied.

(f)        A permit applicant who is dissatisfied with a decision on his application may file a petition for a contested case hearing under G.S. 150B-23 within 20 days after the decision is made. Any other person who is dissatisfied with a decision to deny or grant a permit may file a petition for a contested case hearing only if the Coastal Resources Commission determines, in accordance with G.S. 113A-121.1(c), that a hearing is appropriate. A permit is suspended from the time a person seeks administrative review of the decision concerning the permit until the Commission determines that the person seeking the review cannot commence a contested case or the issuance of a final decision in a contested case, as appropriate, and no action may be taken during that time that would be unlawful in the absence of the permit.

(g)        G.S. 113A-122 applies to an appeal of a permit decision under subsection (f).

(h)        Repealed by Session Laws 1987, c. 827, s. 105.

(h1)      Except as provided in subsection (h2) of this section, all construction and maintenance dredgings of beach-quality sand may be placed on the affected downdrift ocean beaches or, if placed elsewhere, an equivalent quality and quantity of sand from another location shall be placed on the downdrift ocean beaches.

(h2)      Clean, beach quality material dredged from navigational channels within the active nearshore, beach or inlet shoal systems shall not be removed permanently from the active nearshore, beach or inlet shoal system. This dredged material shall be disposed of on the ocean beach or shallow active nearshore area where it is environmentally acceptable and compatible with other uses of the beach.

(i)         Subject to subsections (h1) and (h2) of this section, all materials excavated pursuant to such permit, regardless of where placed, shall be encased or entrapped in such a manner as to minimize their moving back into the affected water.

(j)         None of the provisions of this section shall relieve any riparian owner of the requirements imposed by the applicable laws and regulations of the United States.

(k)        Any person, firm, or corporation violating the provisions of this section shall be guilty of a Class 2 misdemeanor. Each day's continued operation after notice by the Department to cease shall constitute a separate offense. A notice to cease shall be served personally or by certified mail.

(l)         The Secretary may, either before or after the institution of proceedings under subsection (k) of this section, institute a civil action in the superior court in the name of the State upon the relation of the Secretary, for damages, and injunctive relief, and for such other and further relief in the premises as said court may deem proper, to prevent or recover for any damage to any lands or property which the State holds in the public trust, and to restrain any violation of this section or of any provision of a dredging or filling permit issued under this section. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this section for any violation of the same.

(m)       This section shall apply to all persons, firms, or corporations, their employees, agents, or contractors proposing excavation or filling work in the estuarine waters, tidelands, marshlands and State-owned lakes within the State, and the work to be performed by the State government or local governments. Provided, however, the provisions of this section shall not apply to the activities and functions of the Department and local health departments that are engaged in mosquito control for the protection of the health and welfare of the people of the coastal area of North Carolina as provided under G.S. 130A-346 through G.S. 130A-349. Provided, further, this section shall not impair the riparian right of ingress and egress to navigable waters.

(n)        Within the meaning of this section:

(1)       "State-owned lakes" include man-made as well as natural lakes.

(2)       "Estuarine waters" means all the waters of the Atlantic Ocean within the boundary of North Carolina and all the waters of the bays, sounds, rivers, and tributaries thereto seaward of the dividing line between coastal fishing waters and inland fishing waters agreed upon by the Department and the Wildlife Resources Commission, within the meaning of G.S. 113-129.

(3)       "Marshland" means any salt marsh or other marsh subject to regular or occasional flooding by tides, including wind tides (whether or not the tidewaters reach the marshland areas through natural or artificial watercourses), provided this shall not include hurricane or tropical storm tides. Salt marshland or other marsh shall be those areas upon which grow some, but not necessarily all, of the following salt marsh and marsh plant species: Smooth or salt water Cordgrass (Spartina alterniflora), Black Needlerush (Juncus roemerianus), Glasswort (Salicornia spp.), Salt Grass (Distichlis spicata), Sea Lavender (Limonium spp.), Bulrush (Scirpus spp.), Saw Grass (Cladium jamaicense), Cattail (Typha spp.), Salt-Meadow Grass (Spartina patens), and Salt Reed-Grass (Spartina cynosuroides).  (1969, c. 791, s. 1; 1971, c. 1159, s. 6; 1973, c. 476, s. 128; c. 1262, ss. 28, 86; c. 1331, s. 3; 1975, c. 456, ss. 1-7; 1977, c. 771, s. 4; 1979, c. 253, ss. 1, 2; 1983, c. 258, ss. 1-3; c. 442, s. 2; 1987, c. 827, s. 105; 1989, c. 727, s. 107; 1993, c. 539, s. 844; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 777, s. 6(a), (b); 1995, c. 509, s. 55.1(a)-(c); 2000-172, ss. 3.1, 3.2; 2002-126, ss. 29.2(h)-(j); 2011-398, s. 36; 2013-413, s. 55.)

 

§ 113-230.  Orders to control activities in coastal wetlands.

(a)        The Secretary, with the approval of the Coastal Resources Commission, may from time to time, for the purpose of promoting the public safety, health, and welfare, and protecting public and private property, wildlife and marine fisheries, adopt, amend, modify, or repeal orders regulating, restricting, or prohibiting dredging, filling, removing or otherwise altering coastal wetlands.  In this section, the term "coastal wetlands" shall mean any marsh as defined in G.S. 113-229(n)(3), as amended, and such contiguous land as the Secretary reasonably deems necessary to affect by any such order in carrying out the purposes of this section.

(b)        The Secretary shall, before adopting, amending, modifying or repealing any such order, hold a public hearing thereon in the county in which the coastal wetlands to be affected are located, giving notice thereof to interested State agencies and each owner or claimed owner of such wetlands by certified or registered mail at least 21 days prior thereto.

(c)        Upon adoption of any such order or any order amending, modifying or repealing the same, the Secretary shall cause a copy thereof, together with a plan of the lands affected and a list of the owners or claimed owners of such lands, to be recorded in the register of deeds office in the county where the land is located, and shall mail a copy of such order and plan to each owner or claimed owner of such lands affected thereby.

(d)       Any person, firm or corporation that violates any order issued under the provisions of this section shall be guilty of a Class 2 misdemeanor.

(e)        The superior court shall have jurisdiction in equity to restrain violations of such orders.

(f)        Any person having a recorded interest in or registered claim to land affected by any such order may, within 90 days after receiving notice thereof, petition the superior court to determine whether the petitioner is the owner of the land in question, and in case he is adjudged the owner of the subject land, whether such order so restricts the use of his property as to deprive him of the practical uses thereof and is therefore an unreasonable exercise of the police power because the order constitutes the equivalent of a taking without compensation.  If the court finds the order to be an unreasonable exercise of the police power, as aforesaid, the court shall enter a finding that such order shall not apply to the land of the petitioner; provided, however, that such finding shall not affect any other land than that of the petitioner.  The Secretary shall cause a copy of such finding to be recorded forthwith in the register of deeds office in the county where the land is located.  The method provided in this subsection for the determination of the issue of whether any such order constitutes a taking without compensation shall be exclusive, and such issue shall not be determined in any other proceeding.

(g)        After a finding has been entered that such order shall not apply to certain land as provided in the preceding subsection, the Department of Administration, upon the request of the Coastal Resources Commission, shall take the fee or any lesser interest in such land in the name of the State by eminent domain under the provisions of Chapter 146 of the General Statutes and hold the same for the purposes set forth in this section.

(h)        This section shall not repeal the powers, duties and responsibilities of the Department under the provisions of G.S. 113-229. (1971, c. 1159, s. 7; 1973, c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1979, c. 253, s. 4; 1989, c. 727, s. 108; 1993, c. 539, s. 845; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§§ 113-231 through 113-240.  Reserved for future codification purposes.

 

 

Article 18.

Commercial and Sports Fisheries Advisory Board.

§§ 113-241 through 113-250.  Repealed by Session Laws 1973, c. 1262, ss. 28, 72.

 

 

Article 19.

Atlantic States Marine Fisheries Compact and Commission.

§ 113-251.  Definition of terms.

As used in this Article:

(1)       "Commission" means the Atlantic States Marine Fisheries Commission.

(2)       "Commissioner" means a member of the Atlantic States Marine Fisheries Commission.

(3)       "Compact" means the Atlantic States Marine Fisheries Compact.

(4)       "Fisheries Director" means the Director of the Division of Marine Fisheries of the Department of Environmental Quality.  (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1977, c. 771, s. 4; 1989, c. 727, s. 109; 2003-92, s. 2; 2015-241, s. 14.30(u).)

 

§ 113-252.  Atlantic States Marine Fisheries Compact and Commission.

The Governor of this State is hereby authorized and directed to execute a compact on behalf of the State of North Carolina with any one or more of the states of Maine, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, South Carolina, Georgia, and Florida and with such other states as may enter into the compact, legally joining therein in the form substantially as follows:

 

ATLANTIC STATES MARINE FISHERIES COMPACT

 

The contracting states solemnly agree:

 

Article I

 

The purpose of this Compact is to promote the better utilization of the fisheries, marine, shell and anadromous, of the Atlantic seaboard by the development of a joint program for the promotion and protection of such fisheries, and by the prevention of the physical waste of the fisheries from any cause. It is not the purpose of this Compact to authorize the states joining herein to limit the production of fish or fish products for the purpose of establishing or fixing the price thereof, or creating and perpetuating monopoly.

 

Article II

 

This agreement shall become operative immediately as to those states executing it whenever any two or more of the states of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, South Carolina, North Carolina, Georgia and Florida have executed it in the form that is in accordance with the laws of the executing state and the Congress has given its consent. Any state contiguous with any of the aforementioned states and riparian upon waters frequented by anadromous fish, flowing into waters under the jurisdiction of any of the aforementioned states, may become a party hereto as hereinafter provided.

 

Article III

 

Each state joining herein shall appoint three representatives to a commission hereby constituted and designated as the Atlantic States Marine Fisheries Commission. One shall be the executive officer of the administrative agency of the state charged with the conservation of the fisheries resources to which this compact pertains. The second shall be a member of the legislature appointed by the Governor. The third shall be a citizen who has knowledge of and interest in marine fisheries issues, appointed by the Governor. This Commission shall be a body corporate, with the powers and duties set forth herein.

 

Article IV

 

The duty of the said Commission shall be to make inquiry and ascertain from time to time such methods, practices, circumstances and conditions as may be disclosed for bringing about the conservation and the prevention of the depletion and physical waste of the fisheries, marine, shell and anadromous, of the Atlantic seaboard. The Commission shall have power to recommend the coordination of the exercise of the police powers of the several states within their respective jurisdictions to promote the preservation of those fisheries and their protection against overfishing, waste, depletion or any abuse whatsoever and to assure a continuing yield from the fisheries resources of the aforementioned states.

To that end the Commission shall draft and, after consultation with the advisory committee hereinafter authorized, recommend to the governors and legislatures of the various signatory states legislation dealing with the conservation of the marine, shell and anadromous fisheries of the Atlantic seaboard. The Commission shall more than one month prior to any regular meeting of the legislature in any signatory state, present to the governor of the state its recommendations relating to enactments to be made by the legislature of that state in furthering the intents and purposes of this Compact.

The Commission shall consult with and advise the pertinent administrative agencies in the states party hereto with regard to problems connected with the fisheries and recommend the adoption of such regulations as it deems advisable.

The Commission shall have power to recommend to the states party hereto the stocking of the waters of such states with fish and fish eggs, or joint stocking by some or all of the states party hereto, and when two or more of the states shall jointly stock waters the Commission shall act as the coordinating agency for such stocking.

 

Article V

 

The Commission shall elect from its number a chairman and a vice-chairman and shall appoint and at its pleasure remove or discharge such officers and employees as may be required to carry the provisions of this Compact into effect, and shall fix and determine their duties, qualifications and compensation. Said Commission shall adopt rules and regulations for the conduct of its business. It may establish and maintain one or more offices for the transaction of its business and may meet at any time or place but must meet at least once a year.

 

Article VI

 

No action shall be taken by the Commission in regard to its general affairs except by the affirmative vote of a majority of the whole number of compacting states present at any meeting. No recommendation shall be made by the Commission in regard to any species of fish except by the affirmative vote of a majority of the compacting states which have an interest in such species. The Commission shall define what shall be an interest.

 

Article VII

 

The Fish and Wildlife Service of the Department of the Interior of the government of the United States shall act as the primary research agency of the Atlantic States Marine Fisheries Commission, cooperating with the research agencies in each state for that purpose. Representatives of the said Fish and Wildlife Service shall attend the meetings of the Commission.

An advisory committee to be representative of the commercial fishermen and the saltwater anglers and such other interests of each state as the Commission deems advisable shall be established by the Commission as soon as practicable for the purpose of advising the Commission upon such recommendations as it may desire to make.

 

Article VIII

 

When any state other than those named specifically in Article II of this Compact shall become a party thereto for the purpose of conserving its anadromous fish in accordance with the provisions of Article II the participation of such state in the action of the Commission shall be limited to such species of anadromous fish.

 

Article IX

 

Nothing in this Compact shall be construed to limit the powers of any signatory state or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory state imposing additional conditions and restrictions to conserve its fisheries.

 

Article X

 

Continued absence of representation or of any representative on the Commission from any state party hereto shall be brought to the attention of the governor thereof.

 

Article XI

 

The states party hereto agree to make annual appropriations to the support of the Commission in proportion to the primary market value of the products of their fisheries, exclusive of cod and haddock, as recorded in the most recently published reports of the Fish and Wildlife Service of the United States Department of the Interior, provided no state shall contribute less than two hundred dollars ($200.00) per annum and the annual contribution of each state above the minimum shall be figured to the nearest one hundred dollars ($100.00).

The compacting states agree to appropriate initially the annual amounts scheduled below, which amounts are calculated in the manner set forth herein, on the basis of the catch record of 1938. Subsequent budgets shall be recommended by a majority of the Commission and the cost thereof allocated equitably among the states in accordance with their respective interests and submitted to the compacting states.

 

Schedule of Initial Annual State Contributions

 

Maine $ 700

New Hampshire ....................................................................................................   200

Massachusetts ....................................................................................................... 2300

Rhode Island .........................................................................................................   300

Connecticut ...........................................................................................................   400

New York ............................................................................................................. 1300

New Jersey ............................................................................................................   800

Delaware ...............................................................................................................   200

Maryland ...............................................................................................................   700

Virginia ................................................................................................................. 1300

North Carolina ......................................................................................................   600

South Carolina ......................................................................................................   200

Georgia .................................................................................................................   200

Florida ................................................................................................................... 1500

 

Article XII

 

This Compact shall continue in force and remain binding upon each compacting state until renounced by it. Renunciation of this Compact must be preceded by sending six months' notice in writing of intention to withdraw from the Compact to the other states party hereto. (1949, c. 1086, s. 1; 1965, c. 957, s. 18; 2003-92, s. 3.)

 

§ 113-253.  Amendment to Compact to establish joint regulation of specific fisheries.

The Governor is authorized to execute on behalf of the State of North Carolina an amendment to the Compact set out in G.S. 113-252 with any one or more of the states of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, and Florida or such other states as may become party to that Compact for the purpose of permitting the states that ratify this amendment to establish joint regulation of specific fisheries common to those states through the Atlantic States Marine Fisheries Commission and their representatives on that body. Notice of intention to withdraw from this amendment shall be executed and transmitted by the Governor and shall be in accordance with Article XII of the Atlantic States Marine Fisheries Compact and shall be effective as to this State with those states which similarly ratify this amendment. This amendment shall take effect as to this State with respect to such other of the aforesaid states as take similar action.

 

Amendment No. 1 of the Atlantic States Marine Fisheries Compact

 

The states consenting to this amendment agree that any two or more of them may designate the Atlantic States Marine Fisheries Commission as a joint regulatory agency with such powers as they may jointly confer from time to time for the regulation of the fishing operations of the citizens and vessels of such designating states with respect to specific fisheries in which such states have a common interest. The representatives of such states on the Atlantic States Marine Fisheries Commission shall constitute a separate section of such Commission for the exercise of the additional powers so granted, provided that the states so acting shall appropriate additional funds for this purpose. The creation of such section as a joint regulatory agency shall not deprive the states participating therein of any of their privileges or powers or responsibilities in the Atlantic States Marine Fisheries Commission under the general compact. (1949, c. 1086, s. 2; 1965, c. 957, s. 18.)

 

§ 113-254.  North Carolina members of Commission.

(a)        In pursuance of Article III of the Compact, there shall be three commissioners from North Carolina. The first commissioner shall be the Fisheries Director, ex officio. The term of this commissioner shall terminate at the time the commissioner ceases to hold office as the Fisheries Director. The successor to this commissioner shall be the commissioner's successor as Fisheries Director. The second commissioner shall be a legislator appointed by the Governor. The term of this commissioner shall terminate at the time the commissioner ceases to hold legislative office. This commissioner's successor shall be appointed by the Governor. The third commissioner from the State of North Carolina shall be a citizen of the State with knowledge of and interest in marine fisheries issues appointed by the Governor. The term of this commissioner shall be three years. This commissioner may be reappointed for successive terms and shall hold office until the commissioner's successor is appointed and qualified. A vacancy occurring in the office of this commissioner for any reason or cause shall be filled by appointment by the Governor for the unexpired term.

(b)        The Fisheries Director may delegate to any deputy or other subordinate of the Fisheries Director the power to be present, participate, and vote as the Fisheries Director's representative or substitute at any meeting, hearing, or other proceeding of the Commission.

(c)        Any commissioner may be removed from office by the Governor upon charges and after a hearing. (1949, c. 1086, s. 3; 1965, c. 957, s. 18; 1973, c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1987, c. 641, s. 9; 1989, c. 727, s. 110; 2003-92, s. 4.)

 

§ 113-255.  Powers of Commission and commissioners.

There is hereby granted to the Commission and the commissioners thereof all the powers provided for in the said Compact and all the powers necessary or incidental to the carrying out of said Compact in every particular. All officers of the State of North Carolina are hereby authorized and directed to do all things falling within their respective provinces and jurisdiction necessary or incidental to the carrying out of said Compact in every particular; it being hereby declared to be the policy of the State of North Carolina to perform and carry out the said Compact and to accomplish the purposes thereof. All officers, bureaus, departments and persons of and in the State government or administration of the State of North Carolina are hereby authorized and directed at convenient times and upon request of the said Commission to furnish the said Commission with information and data possessed by them or any of them and to aid said Commission by loan of personnel or other means lying within their legal rights respectively. (1949, c. 1086, s. 4; 1965, c. 957, s. 18.)

 

§ 113-256.  Powers herein granted to Commission are supplemental.

Any powers herein granted to the Commission shall be regarded as in aid of and supplemental to and in no case a limitation upon any of the powers vested in said Commission by other laws of the State of North Carolina or by the laws of the states of Maine, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, South Carolina, Georgia and Florida or by the Congress or the terms of said Compact. (1949, c. 1086, s. 5; 1965, c. 957, s. 18.)

 

§ 113-257.  Report of Commission to Governor and legislature; recommendations for legislative action; examination of accounts and books by Auditor.

The Commission shall keep accurate accounts of all receipts and disbursements and shall report to the Governor and the legislature of the State of North Carolina on or before the tenth day of December  in each year, setting forth in detail the transactions conducted by it during the 12 months preceding December 1 of that year and shall make recommendations for any legislative action deemed by it advisable, including amendments to the statutes of the State of North Carolina which may be necessary to carry out the intent and purposes of the compact between the signatory states.

The Auditor of the State of North Carolina is hereby authorized and empowered from time to time to examine the accounts and books of the Commission, including its receipts, disbursements and such other items referring to its financial standing as such Auditor may deem proper and to report the results of such examination to the Governor of such State. (1949, c. 1086, s. 6; 1955, c. 236, s. 2; 1965, c. 957, s. 18.)

 

§ 113-258.  Commission subject to provisions of State Budget Act.

The Atlantic States Marine Fisheries Commission of the State of North Carolina shall be subject to all the terms and provisions of the State Budget Act, Chapter 143C of the General Statutes of North Carolina.(1949, c. 1086, s. 7; 1955, c. 236, s. 1; 1965, c. 957, s. 18; 2006-203, s. 27.)

 

 

Article 19A.

Fishery Management Councils.

§ 113-259.  North Carolina members of the South Atlantic Fishery Management Council.

(a)        In pursuance of Section 302 of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq., there shall be at least two members of the South Atlantic Fishery Management Council from the State of North Carolina.

(b)        The first Council member shall be the principal State official with marine fishery management responsibility and expertise in the State, which official is the Director of the Division of Marine Fisheries of the Department or his designee.

(c)        Pursuant to the enabling legislation, other members from the state of North Carolina are selected by the United States Secretary of Commerce from a list of qualified individuals submitted by the Governor of the State. The list of nominees shall be compiled by the Marine Fisheries Commission and must be comprised of individuals who are knowledgeable and experienced with regard to the management, conservation, or commercial or recreational harvest of the fishery resources in the Atlantic Ocean seaward of the states of North Carolina, South Carolina, Georgia, and Florida. Prior to submission of the list of nominees, the Governor may consult with the Commission regarding additions to the list of nominees to be submitted. Should it be necessary for the Governor to submit additional nominees, the list of nominees shall be compiled by the Marine Fisheries Commission. (1987, c. 641, s. 18; 1989, c. 727, s. 111; 1998-225, s. 4.23.)

 

§ 113-260.  North Carolina members of the Mid-Atlantic Fishery Management Council.

(a)        In pursuance of Section 302 of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq., there shall be at least two members of the Mid-Atlantic Fishery Management Council from the State of North Carolina.

(b)        The first Council member shall be the principal State official with marine fishery management responsibility and expertise in the State, which official is the Director of the Division of Marine Fisheries of the Department or his designee.

(c)        Pursuant to the enabling legislation, other members from the State of North Carolina are selected by the United States Secretary of Commerce from a list of qualified individuals submitted by the Governor of the State. The list of nominees shall be compiled by the Marine Fisheries Commission and must be comprised of individuals who are knowledgeable and experienced with regard to the management, conservation, or commercial or recreational harvest of the fishery resources in the Atlantic Ocean seaward of the states of New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, and North Carolina. Prior to submission of the list of nominees, the Governor may consult with the Commission regarding additions to the list of nominees to be submitted. Should it be necessary for the Governor to submit additional nominees, the list of nominees shall be compiled by the Marine Fisheries Commission. (1998-225, s. 4.23.)

 

§§ 113-260.1 through 113-260.5.  Reserved for future codification purposes.

 

 

Article 20.

Miscellaneous Regulatory Provisions.

§ 113-261.  Taking fish and wildlife for scientific purposes; permits to take in normally unauthorized manner; cultural and scientific operations.

(a)        The Department, the Wildlife Resources Commission, and  agencies of the United States with jurisdiction over fish and wildlife are hereby granted the right to take marine, estuarine, and wildlife resources within the State, to conduct fish cultural operations and scientific investigations in the several waters of North Carolina, to  survey fish and wildlife populations in the State, to conduct investigations to determine the status and requirements for survival of resident species of fish and wildlife, to propagate animals, birds, and fish, and to erect fish hatcheries and fish propagating plants without regard to any licensing or permit requirements of this Subchapter.

(b)        The Department with respect to fish in coastal fishing waters and the Wildlife Resources Commission with respect to wildlife may provide for the issuance of permits, on such terms as they deem just and in the best interest of conservation, authorizing persons to take  such fish or wildlife through the use of drugs, poisons, explosives, electricity, or any other generally prohibited manner. Such permits need not be restricted solely to victims of depredations or to scientific or educational institutions, but should be issued only for good cause. No permit to take wildlife other than fish by means of poison may be issued, however, unless the provisions of Article 22A are met.

(c)        The Department, the Wildlife Resources Commission, and agencies of the United States with jurisdiction over fish and wildlife may, as necessary in their legitimate operations, take fish and wildlife in a manner generally prohibited by this Subchapter or by rules made under the authority of this Subchapter. (1915, c. 84, s. 7; C.S., s. 1886; 1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1979, c. 830, s. 1; 1987, c. 827, s. 98.)

 

§ 113-262.  Taking fish or wildlife by poisons, drugs, explosives or electricity prohibited; exceptions; possession of illegally killed fish or wildlife prohibited.

(a)        Except as otherwise provided in this Subchapter, or in rules permitting use of electricity to take certain fish, it is a Class 2 misdemeanor to take any fish or wildlife through the use of poisons, drugs, explosives, or electricity.  This subsection does not apply to any person lawfully using any poison or pesticide under the Structural Pest Control Act of North Carolina of 1955, as amended, or the North Carolina Pesticide Law of 1971, as amended.

(b)        Except under a valid permit it is unlawful to possess any fish or wildlife:

(1)        Bearing evidence of having been taken in violation of subsection (a); or

(2)        With knowledge or reason to believe that the fish or wildlife was taken in violation of subsection (a). (1883, c. 290; Code, s. 1094; Rev., s. 3417; C.S., ss. 1968, 2124; 1927, c. 107; 1935, c. 486, ss. 18-20; 1939, c. 235, s. 1; 1949, c. 1205, ss. 2, 3; 1953, c. 1134; 1955, c. 104; c. 1053, ss. 1, 3, 4; 1957, c. 1056; 1959, c. 207; c. 500; 1961, c. 1182; 1963, c. 381; c. 697, ss. 1, 3 1/2; 1965, c. 904, s. 1; c. 957, s. 2; 1967, c. 728, s. 1; c. 858, s. 1; c. 1149, s. 1.5; 1969, c. 75; c. 140; 1971, c. 439, ss. 1-3; c. 449, s. 1; c. 461; c. 648, s. 1; c. 899, s. 1; 1973, c. 1096; c. 1210, ss. 1-3, 5; c. 1262, s. 18; 1975, c. 669; c. 728; 1977, c. 493; c. 794, s. 4; 1979, c. 830, s. 1; 1987, c. 827, s. 98; 1993, c. 539, s. 846; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-263.  Inspecting plans and specifications of dams.

The Department and the Wildlife Resources Commission, in addition to other agencies primarily responsible, may inspect the plans and specifications of all dams proposed to be built, in North Carolina or elsewhere within the United States, the design or proposed mode of construction of which may have an adverse effect upon fish within the State. The Department or the Wildlife Resources Commission, as the case may be, may be heard before the appropriate agency charged with approving said plans and specifications, and due consideration shall be given to said Department or Wildlife Resources Commission in the approval or disapproval of the plans and specifications of proposed dams by the agencies so charged with said duty. (1965, c. 957, s. 2; 1973, c. 1262, s. 18.)

 

§ 113-264.  Regulatory power over property of agency; public hunting grounds; scheduling of managed big game hunts.

(a)        The Department and the Wildlife Resources Commission are granted the power by rule to license, regulate, prohibit, or restrict the public as to use and enjoyment of, or harm to, any property of the Department or the Wildlife Resources Commission, and may charge the public reasonable fees for access to or use of such property. "Property" as the word is used in this section is intended to be broadly interpreted and includes lands, buildings, vessels, vehicles, equipment, markers, stakes, buoys, posted signs and other notices, trees and shrubs and artificial constructions in boating and fishing access areas, game lands, wildlife refuges, public waters, public mountain trout waters, and all other real and personal property owned, leased, controlled, or cooperatively managed by either the Department or the Wildlife Resources Commission.

(a1)      Every wildlife protector and every law enforcement officer of this State and its subdivisions shall have the authority within his or her established jurisdiction to enforce the rules promulgated pursuant to the power granted by this section regarding the willful removal of, damage to, or destruction of any property of the Department or the Wildlife Resources Commission.

(a2)      To the extent that subsection (a1) of this section conflicts with any provision of any local act, subsection (a1) of this section prevails.

(b)        Unless a different level of punishment is elsewhere set out, willful removal of, damage to, or destruction of any property of the Department or the Wildlife Resources Commission is a Class 1 misdemeanor.

(c)        The Wildlife Resources Commission may cooperate with private landowners in the establishment of public hunting grounds. It may provide for the posting of these areas and of restricted zones within them, require that authorized hunters obtain written permission from the owner to hunt, enforce general laws concerning trespass by hunters and concerning damage or injurious activities by hunters and by others carrying weapons on or discharging weapons across public hunting grounds or restricted zones.

(d)       The Wildlife Resources Commission may schedule managed hunts for any species of wildlife to be held on game lands. Participants in such hunts shall be selected at random by computer. The Wildlife Resources Commission may require by rule that an applicant 16 years of age or older have the required hunting license before the drawing for the hunt, and that an applicant less than 16 years of age apply as a member of a party that includes a properly licensed adult if the young applicant does not have the proper hunting license. When licenses are required prior to the drawing, all applications shall be screened for compliance. A nonrefundable fee of five dollars ($5.00) will be required of each applicant to defray the cost of processing the applications.

(e)        A wildlife protector or law enforcement officer of this State or its subdivisions may have a vehicle towed at a Commission-owned or operated public boating access area if the vehicle:

(1)        Is parked in an area other than one designated for parking; or

(2)        Is left by an individual for a purpose other than launching, operating, or retrieving a vessel. (1965, c. 957, s. 2; 1973, c. 1262, ss. 18, 28; 1977, c. 771, s. 4; 1979, c. 830, s. 1; 1983, c. 403; 1985 (Reg. Sess., 1986), c. 996, s. 2; 1987, c. 827, s. 98; 1989, c. 221; c. 642, s. 1; 1993, c. 539, s. 847; 1994, Ex. Sess., c. 24, s. 14(c); 2005-82, s. 1; 2005-164, s. 2.)

 

§ 113-265.  Obstructing or polluting flow of water into hatchery; throwing fish offal into waters.

(a)        No person may obstruct, pollute, or diminish the natural flow of water into or through any fish hatchery in violation of the requirements of the Environmental Management Commission.

(b)        It is unlawful for any person to throw or cause to be thrown into the channel of any navigable waters fish offal in any quantity likely to hinder or prevent the passage of fish along such channel. The Marine Fisheries Commission and the Wildlife Resources Commission may by rule impose further restrictions upon the throwing of fish offal in any coastal fishing waters or inland fishing waters respectively.

(c)        to (e) Repealed by Session Laws 1987, c. 636, s. 2. (1883, c. 137, s. 5; Code, ss. 3385, 3386, 3389, 3407, 3418; Rev., ss. 2444, 2465, 2478; C.S., ss. 1969, 1971, 1972; 1959, c. 405; 1965, c. 957, s. 2; 1971, c. 690, s. 4; 1973, c. 1262, ss. 18, 28; 1985 (Reg. Sess., 1986), c. 996, s. 3; 1987, c. 636, s. 2; c. 827, s. 98.)

 

§ 113-266.  Interference with artificial reef marking devices.

It shall be a Class 1 misdemeanor for any person to destroy, injure, relocate, or remove any navigational aids, buoys, markers, or other devices lawfully set out by the Division of Marine Fisheries in connection with the marking of any artificial reef in the coastal waters of the State and in the Atlantic Ocean to the seaward extent of the State's jurisdiction as now or hereafter defined. (1985 (Reg. Sess., 1986), c. 996, s. 1; 1993, c. 539, s. 848; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-267.  Replacement costs of marine, estuarine, and wildlife resources; rules authorized; prima facie evidence.

To provide information to the courts and other officials taking action under G.S. 15A-1343(b1)(5), under G.S. 143-215.3(a)(7), or under any other pertinent authority of law, the Marine Fisheries Commission and the Wildlife Resources Commission are authorized to adopt rules setting forth the factors that should be considered in determining the replacement costs of fish and wildlife and other marine, estuarine, and wildlife resources that have been taken, injured, removed, harmfully altered, damaged, or destroyed. The Marine Fisheries Commission and the Wildlife Resources Commission may make similar rules respecting costs of investigations required by G.S. 143-215.3(a)(7) or which are made pursuant to a court order. For common offenses resulting in the destruction of marine, estuarine, and wildlife resources the Marine Fisheries Commission and the Wildlife Resources Commission may adopt schedules of costs which reasonably state the likely replacement costs and necessary investigative costs when appropriate. Rules of the Marine Fisheries Commission and the Wildlife Resources Commission stating scheduled costs or cost factors must be treated as prima facie evidence of the actual costs, but do not prevent a court or jury from examining the reasonableness of the rules or from assessing the special factors in a case which may make the true costs either higher or lower than the amount stated in the rules. The term "replacement costs" must be broadly construed to include indirect costs of replacement through habitat improvement or restoration, establishment of sanctuaries, and other recognized conservation techniques when direct stocking or replacement is not feasible. (1979, c. 830, s. 1; 1985, c. 509, s. 7; 1987, c. 827, s. 98.)

 

§ 113-268.  Injuring, destroying, stealing, or stealing from nets, seines, buoys, pots, etc.

(a)        It is unlawful for any person without the authority of the owner of the equipment to take fish from nets, traps, pots, and other devices to catch fish which have been lawfully placed in the open waters of the State.

(b)        It is unlawful for any master or other person having the management or control of a vessel in the navigable waters of the State to willfully, wantonly, and unnecessarily do injury to any seine, net or pot which may lawfully be hauled, set, or fixed in such waters for the purpose of taking fish except that a net set across a channel may be temporarily moved to accommodate persons engaged in drift netting, provided that no fish are removed and no damage is done to the net moved.

(c)        It is unlawful for any person to willfully steal, destroy, or injure any buoys, markers, stakes, nets, pots, or other devices on property lawfully set out in the open waters of the State in connection with any fishing or fishery.

(d)       Violation of subsections (a), (b), or (c) is a Class A1 misdemeanor.

(e)        The Department may, either before or after the institution of any other action or proceeding authorized by this section, institute a civil action for injunctive relief to restrain a violation or threatened violation of subsections (a), (b), or (c) of this section pursuant to G.S. 113-131. The action shall be brought in the superior court of the county in which the violation or threatened violation is occurring or about to occur and shall be in the name of the State upon the relation of the Secretary. The court, in issuing any final order in any action brought pursuant to this subsection may, in its discretion, award costs of litigation including reasonable attorney and expert-witness fees to any party. (1987, c. 636, s. 1; 1989, c. 727, s. 112; 1993, c. 539, s. 849; 1994, Ex. Sess., c. 24, s. 14(c); 1998-225, s. 3.9.)

 

§ 113-269.  Robbing or injuring hatcheries and other aquaculture operations.

(a)        The definitions established in G.S. 106-758 are incorporated by reference into this section.  For the purposes of this section, a shellfish lease issued pursuant to G.S. 113-202 is defined as an aquaculture facility only when it has been amended pursuant to G.S. 113-202.1 to authorize use of the water column and when it is or has been regularly posted and identified in accordance with the rules of the Marine Fisheries Commission.

(b)        It is unlawful for any person without the authority of the owner of an aquaculture facility to take fish or aquatic species being cultivated or reared by the owner from an aquaculture facility.

(c)        It is unlawful for any person to receive or possess fish or aquatic species stolen from an aquaculture facility while knowing or having reasonable grounds to believe that the fish or aquatic species are stolen.

(d)       It is unlawful for any person to willfully destroy or injure an aquaculture facility or aquatic species being reared in an aquaculture facility.

(e)        Violation of subsections (b) or (c) for fish or aquatic species valued at more than four hundred dollars ($400.00) is punishable under G.S. 14-72.  Violation of subsections (b) or (c) for fish or aquatic species valued at four hundred dollars ($400.00) or less is a Class 1 misdemeanor.

(f)        Violation of subsection (d) is a Class 1 misdemeanor.

(g)        In deciding to impose any sentence other than an active prison sentence, the sentencing judge shall consider and may require, in accordance with G.S. 15A-1343, restitution to the victim for the amount of damage to the aquaculture facility or aquatic species or for the value of the stolen fish or aquatic species.

(h)        The district attorney shall dismiss any case brought pursuant to subsections (b) and (c) if defendant produces a notarized written authorization for taking fish or aquatic species from the aquaculture facility or if the fish or aquatic species taken from a shellfish lease aquaculture facility was not a shellfish authorized for cultivation on the lease. (1989, c. 281, s. 1; 1993, c. 539, ss. 850, 851; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-270.  Use of oyster shells by landscape contractors prohibited.

(a)        No landscape contractor shall use oyster shells as a ground cover.

(b)        Enforcement of the prohibition set forth in this section shall be under the jurisdiction of the Marine Fisheries Commission.

(c)        For purposes of this section, landscape contractor shall have the definition set forth in G.S. 89D-11.  (2015-241, s. 14.7(a).)

 

 

Article 21.

Licenses and Permits Issued by the Wildlife Resources Commission.

§ 113-270.1.  License agents.

(a)        The Wildlife Resources Commission may by rule provide for the appointment of persons as license agents to sell licenses and permits that the Commission is authorized to issue by this Subchapter or by any other provisions of law. To facilitate the convenience of the public, the efficiency of administration, the need to keep statistics and records affecting the conservation of wildlife resources, boating, water safety, and other matters within the jurisdiction of the Wildlife Resources Commission, and the need to issue licenses and permits containing special restrictions, the Wildlife Resources Commission may issue licenses and permits in any particular category through:

(1)       License agents.

(2)       The Wildlife Resources Commission's headquarters.

(3)       Employees of the Wildlife Resources Commission.

(4)       Two or more such sources simultaneously.

(a1)      When there are substantial reasons for differing treatment, the Wildlife Resources Commission may issue a type of license or permit by one method in one locality and by another method in another locality.

(b)        License agents may charge a fee of two dollars ($2.00) per transaction for licenses or permits issued.

(b1)      When licenses or permits are to be issued by license agents as provided by subsection (a) of this section, the Wildlife Resources Commission may adopt rules to provide for any of the following:

(1)       Qualifications of the license agents.

(2)       Duties of the license agents.

(3)       Methods and procedures to ensure accountability and security for proceeds and unissued licenses and permits.

(4)       Types and amounts of evidence that a license agent must submit to relieve the agent of responsibility for losses due to occurrences beyond the control of the agent.

(5)       Any other reasonable requirement or condition that the Wildlife Resources Commission deems necessary to expedite and control the issuance of licenses and permits by license agents.

(b2)      The Wildlife Resources Commission may adopt rules to authorize the Executive Director to take any of the following actions related to license agents:

(1)       Select and appoint license agents in areas most convenient for the sale of licenses and permits.

(2)       Limit the number of license agents in an area if necessary for efficiency of operation.

(3)       Require prompt and accurate reporting and remittance of public funds or documents by license agents.

(4)       Conduct periodic and special audits of accounts.

(5)       Suspend or terminate the authorization of any license agent found to be noncompliant with rules adopted by the Wildlife Resources Commission or when State funds or property are reasonably believed to be in jeopardy.

(6)       Require the immediate surrender of all equipment, forms, licenses, permits, records, and State funds and property, issued by or belonging to the Wildlife Resources Commission, in the event of the termination of a license agent.

(b3)      The Wildlife Resources Commission is exempt from the contested case provisions of Chapter 150B of the General Statutes with respect to determinations of whether to authorize or terminate the authority of a person to sell licenses and permits as a license agent of the Wildlife Resources Commission.

(b4)      If any check or bank account draft of any license agent for the issuance of licenses or permits shall be returned by the banking facility upon which the same is drawn for lack of funds, the license agent shall be liable to the Commission for a penalty of five percent (5%) of the amount of the check or bank account draft, but in no event shall the penalty be less than five dollars ($5.00) or more than two hundred dollars ($200.00). License agents shall be assessed a penalty of twenty-five percent (25%) of their issuing fee on all remittances to the Commission after the fifteenth day of the month immediately following the month of sale.

(c)        Repealed by Session Laws 2005-455, s. 3.2. See notes for contingent effective date.

(d)       It is a Class 1 misdemeanor for a license agent to do any of the following:

(1)       Withhold or misappropriate funds from the sale of licenses or permits.

(2)       Falsify records of licenses or permits sold.

(3)       Willfully and knowingly assist or allow a person to obtain a license or permit for which the person is ineligible.

(4)       Willfully issue a backdated license or permit.

(5)       Willfully include false information or omit material information on records, licenses, or permits regarding either:

a.         A person's entitlement to a particular license or permit.

b.         The applicability or term of a particular license or permit.

(6)       Charge or accept any additional fee, remuneration, or other item of value in association with any activity set out in subdivisions (1) through (5) of this subsection.

(e)        through (j) Repealed by Session Laws 2005-455, s. 3.2. See notes for contingent effective date.  (1961, c. 352, ss. 4, 9; 1979, c. 830, s. 1; 1985, c. 791, s. 34; 1987, c. 827, s. 98; 1993, c. 539, ss. 852, 853; 1994, Ex. Sess., c. 24, s. 14(c); 2005-455, s. 3.2; 2013-283, s. 15.)

 

§ 113-270.1A.  Hunter safety course required.

(a)        Except as provided in subsections (a1) and (d) of this section, on or after July 1, 2013, a person, regardless of age, may not procure a hunting license in this State without producing a hunter education certificate of competency or one of the following issued by the Wildlife Resources Commission:

(1)       A North Carolina hunting heritage apprentice permit.

(2)       A hunting license issued prior to July 1, 2013.

(a1)      A person who qualifies for a disabled license under G.S. 113-270.1C(b)(5) or (6), G.S. 113-270.1D(b)(7) or (8), or G.S. 113-351(c)(3)f. or g. need not comply with the requirements of subsection (a) of this section in order to receive that license, so long as the person does not make use of the license unless:

(1)       The disabled hunter is accompanied by an adult of at least 18 years of age who is licensed to hunt; and

(2)       The licensed adult maintains a proximity to the disabled hunter which enables the adult to monitor the activities of the disabled hunter by remaining within sight and hearing distance at all times without the use of electronic devices.

(b)        The Wildlife Resources Commission shall institute and coordinate a statewide course of instruction in hunter ethics, wildlife laws and regulations, and competency and safety in the handling of firearms, and in so doing, may cooperate with any political subdivision, or with any reputable organization. The course of instruction shall be conducted as follows:

(1)       The Wildlife Resources Commission shall designate those persons or agencies authorized to give the course of instruction, and this designation shall be valid until revoked by the Commission. Those designated persons shall submit to the Wildlife Resources Commission validated listings naming all persons who have successfully completed the course of instruction.

(2)       The Wildlife Resources Commission may conduct the course in hunter education, using Commission personnel or Commission-approved persons.

(3)       The Wildlife Resources Commission shall issue a certificate of competency and safety to each person who successfully completes the course of instruction, and the certificate shall be valid until revoked by the Commission.

(4)       Any similar certificate issued outside the State by a governmental agency, shall be accepted as complying with the requirements of subsection (a) above, if the privileges are reciprocal for North Carolina residents.

(5)       The Wildlife Resources Commission shall adopt rules and regulations to provide for the course of instruction and the issuance of the certificates consistent with the purpose of this section.

(c)        On or after July 1, 2013, any person who obtains a hunting license by presenting a fictitious certificate of competency or who attempts to obtain a certificate of competency or hunting license through fraud shall have his hunting privileges revoked by the Wildlife Resources Commission for a period not to exceed one year.

(d)       Notwithstanding the provisions of subsection (a) of this section, the lifetime licenses provided for in G.S. 113-270.1D(b)(1), (2), (3), (4), and (5), and 113-270.2(c)(2), and 113-351(c)(3) may be purchased by or in the name of persons who have not obtained a hunter education certificate of competency, subject to the requirements of this subsection. Pending satisfactory completion of the hunter education course, persons who possess one of the lifetime licenses specified in this subsection may exercise the privileges of the lifetime license only when accompanied by an adult of at least 18 years of age who is licensed to hunt in this State. For the purpose of this section, "accompanied" means that the licensed adult maintains a proximity that enables the adult to monitor the activities of the hunter by remaining within sight and hearing distance at all times without use of electronic devices.  (1989, c. 324, s. 1; 1991, c. 70, s. 1; 1997-365, s. 1; 1999-456, s. 27; 2005-438, s. 1; 2013-63, s. 1.)

 

§ 113-270.1B.  License required to hunt, fish, or trap; fees set by Commission.

(a)        Except as otherwise specifically provided by law, no person may hunt, fish, trap, or participate in any other activity regulated by the Wildlife Resources Commission for which a license is provided by law without having first procured a current and valid license authorizing the activity.

(b)        Except as indicated otherwise, all licenses are annual licenses valid from the date of issue for a period of 12 months.

(c)        As used in this section, the term "effective date" means the later of:

(1)       The date of purchase of a new license.

(2)       The first day after the expiration of a currently valid license of the same type held by the licensee.

(d)       For those licenses sold directly through the Commission by telephone, mail, online, or at a service counter, the Commission may charge a fee of two dollars ($2.00) per transaction. A fee may not be charged by the Commission for federal Harvest Information Program (HIP) certification, big game harvest report cards for lifetime license holders, exempt landowners, persons of less than 16 years of age, or for any other license or vessel transactions for which there is no charge.

(e)        The Wildlife Resources Commission shall adopt rules to establish fees for the hunting, fishing, trapping, and activity licenses issued and administered by the Wildlife Resources Commission. No rule to increase fees above January 1, 2015, levels may increase a fee in excess of the total increase in the Consumer Price Index for All Urban Consumers over the period of time since the last fee change.

The statutory fees for the hunting, fishing, trapping, and activity licenses issued and administered by the Wildlife Resources Commission shall expire when the rules adopted pursuant to this subsection become effective.  (1993 (Reg. Sess., 1994), c. 684, s. 1; 2012-81, s. 1; 2013-283, ss. 16, 20(b), (c); 2017-57, s. 13A.3.)

 

§ 113-270.1C.  Combination hunting and inland fishing licenses.

(a)        The combination hunting and inland fishing licenses set forth in subsection (b) of this section entitle the licensee to take, except on game lands, all wild birds and wild animals, other than big game and waterfowl, by all lawful methods and in all open seasons, and to fish with hook and line in all inland and joint fishing waters, except public mountain trout waters. A combination hunting and inland fishing license issued under this section does not entitle the licensee to engage in recreational fishing in coastal fishing waters that are not joint fishing waters.

(b)        Combination hunting and inland fishing licenses issued by the Wildlife Resources Commission are:

(1)       Resident Annual Combination Hunting and Inland Fishing License - $25.00. This license shall be issued only to an individual resident of the State.

(2),      (3) Repealed by Session Laws 1997-326, s. 2.

(4)       Repealed by Session Laws 2005-455, s. 1.6, effective January 1, 2007.

(5)       Resident Disabled Veteran Lifetime Combination Hunting and Inland Fishing License - $10.00. This license shall be issued only to an individual who is a resident of the State and who is a fifty percent (50%) or more disabled veteran as determined by the United States Department of Veterans Affairs. This license remains valid for the lifetime of the licensee so long as the licensee remains fifty percent (50%) or more disabled. This license entitles the licensee to fish in public mountain trout waters as provided in G.S. 113-272(a).

(6)       Resident Totally Disabled Lifetime Combination Hunting and Inland Fishing License - $10.00. This license shall be issued only to an individual who is a resident of the State and who is totally and permanently disabled as determined by the Social Security Administration. This license remains valid for the lifetime of the licensee. This license entitles the licensee to fish in public mountain trout waters as provided in G.S. 113-272(a).  (1993 (Reg. Sess., 1994), c. 684, s. 1; 1997-326, ss. 2, 3; 2001-91, s. 1; 2005-455, s. 1.6; 2013-283, s. 1.)

 

§ 113-270.1D.  Sportsman licenses.

(a)        Annual Sportsman License - $50.00. This license shall be issued only to an individual resident of the State and entitles the licensee to take all wild animals and wild birds, including waterfowl, by all lawful methods in all open seasons, including the use of game lands, and to fish with hook and line for all fish in all inland and joint fishing waters, including public mountain trout waters. An annual sportsman license issued under this subsection does not entitle the licensee to engage in recreational fishing in coastal fishing waters that are not joint fishing waters.

(b)        Lifetime Sportsman Licenses. Except as provided in subdivision (7) of this subsection, lifetime sportsman licenses are valid for the lifetime of the licensees. Lifetime sportsman licenses entitle the licensees to take all wild animals and wild birds by all lawful methods in all open seasons, including the use of game lands, and to fish with hook and line for all fish in all inland and joint fishing waters, including public mountain trout waters. A lifetime sportsman license issued under this subsection does not entitle the licensee to engage in recreational fishing in coastal fishing waters that are not joint fishing waters. Lifetime sportsman licenses issued by the Wildlife Resources Commission are:

(1)       Infant Lifetime Sportsman License - $200.00. This license shall be issued only to an individual under one year of age.

(2)       Youth Lifetime Sportsman License - $350.00. This license shall be issued only to an individual under 12 years of age.

(3)       Adult Resident Lifetime Sportsman License - $500.00. This license shall be issued only to an individual resident of the State who is 12 years of age or older but younger than 70 years of age.

(4)       Nonresident Lifetime Sportsman License - $1,200. This license shall be issued only to an individual nonresident of the State.

(5)       Age 70 Resident Lifetime Sportsman License - $15.00.This license shall be issued only to an individual resident of the State who is at least 70 years of age.

(6)       Repealed by Session Laws 2005-455, s. 1.7 effective January 1, 2007.

(7)       Resident Disabled Veteran Lifetime Sportsman License - $100.00. This license shall be issued only to an individual who is a resident of the State and who is a fifty percent (50%) or more disabled veteran as determined by the United States Department of Veterans Affairs or as established by rules of the Wildlife Resources Commission. This license remains valid for the lifetime of the licensee so long as the licensee remains fifty percent (50%) or more disabled.

(8)       Resident Totally Disabled Lifetime Sportsman License - $100.00. This license shall be issued only to an individual who is a resident of the State and who is totally and permanently disabled as determined by the Social Security Administration or as established by rules of the Wildlife Resources Commission.  (1993 (Reg. Sess., 1994), c. 684, s. 1; 1997-326, s. 1; 1999-339, s. 4; 2005-455, s. 1.7; 2013-283, s. 2; 2014-100, s. 14.25(e).)

 

§ 113-270.2.  Hunting licenses.

(a)        The hunting licenses set forth in subdivisions (1), (3), and (6) of subsection (c) of this section entitle the holder to take, except on game lands, wild birds and wild animals, other than big game and waterfowl, by all lawful methods and in all open seasons. The comprehensive hunting licenses of subdivisions (2) and (5) of subsection (c) of this section further entitle the holder to take big game and waterfowl and to use game lands.

(b)        Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 684, s. 2.

(c)        The hunting licenses issued by the Wildlife Resources Commission are as follows:

(1)       Resident State Hunting License - $20.00. This license shall be issued only to an individual resident of the State.

(2)       Lifetime Resident Comprehensive Hunting License - $250.00. This license shall be issued only to an individual resident of the State and is valid for the lifetime of the holder.

(3)       Repealed by Session Laws 2013-283, s. 3, effective August 1, 2014.

(4)       Controlled Hunting Preserve Hunting License - $20.00. This license shall be issued to an individual resident or nonresident to take only foxes and domestically raised game birds, other than wild turkey, only within a controlled hunting preserve licensed and operated in accordance with G.S. 113-273(g) and implementing rules of the Wildlife Resources Commission.

(5)       Resident Annual Comprehensive Hunting License - $36.00. This license shall be issued only to an individual resident of the State.

(6)       Nonresident State Hunting License. This license shall be issued only to a nonresident. The nonresident State hunting licenses issued by the Wildlife Resources Commission are:

a.         Season License - $80.00.

b.         Ten-Day License - $60.00. This license is valid for the 10 consecutive dates indicated on the license.

(d)       One dollar ($1.00) of the proceeds received from the sale of each nonresident hunting license sold pursuant to subdivision (6) of subsection (c) of this section shall be set aside by the Wildlife Resources Commission and contributed to a proper agency or agencies in the United States for expenditure in Canada for the restoration and management of migratory waterfowl.  (1935, c. 486, s. 12; 1937, c. 45, s. 1; 1945, c. 617; 1949, c. 1203, s. 1; 1957, c. 849, s. 1; 1959, c. 304; 1961, c. 384, s. 1; 1967, c. 790; 1969, c. 1030; c. 1042, ss. 1-5, 13; 1971, c. 242; c. 282, s. 1; c. 705, ss. 1, 2; 1973, c. 1262, s. 18; 1975, c. 197, ss. 1-4, 6, 8; c. 673, s. 2; 1977, c. 658; 1979, c. 830, s. 1; 1979, 2nd Sess., c. 1178, s. 1; 1981, c. 482, s. 4; 1981 (Reg. Sess., 1982), c. 1201, s. 1; 1983, c. 140, s. 1; 1987, c. 156, ss. 1, 2; 1987, c. 827, s. 98; 1989, c. 324, s. 2; c. 616, s. 2; 1989 (Reg. Sess., 1990), c. 909, s. 1; 1993 (Reg. Sess., 1994), c. 684, s. 2; 1999-339, s. 5; 2001-91, s. 2; 2013-283, s. 3.)

 

§ 113-270.2A.  Voluntary contribution to hunter education program.

(a)        A person applying for a hunting license may make a voluntary contribution to the Wildlife Resources Commission for the purpose of funding a hunter education program.

(b)        The Wildlife Resources Commission shall devise administrative procedure for the collection of all contributions donated pursuant to the provisions of this act and shall collect and use the contributions to fund and provide for a hunter education program.  (1979, c. 764, ss. 1, 2; 1987, c. 827, s. 98; 2013-63, s. 2.)

 

§ 113-270.2B.  Voluntary migratory waterfowl conservation print.

(a)        The Wildlife Resources Commission has exclusive production rights for the voluntary migratory waterfowl conservation print, and is authorized to adopt policy for the annual selection of an appropriate design for the print and to have the print produced for sale. This policy may include ownership rights of the original art selected; arrangements for the reproduction, distribution and marketing of prints; and provisions for sharing the resulting revenues.

(b)        The proceeds accruing to the Commission from its share of the voluntary migratory waterfowl conservation prints shall be used by the Commission for the benefit of migratory waterfowl management in North Carolina. (1981 (Reg. Sess., 1982), c. 1269; 1987, c. 452, s. 1; c. 827, s. 98.)

 

§ 113-270.3.  Special activity licenses; big game kill reports.

(a)        In addition to any hunting, trapping, or fishing license that may be required pursuant to G.S. 113-270.1B(a), individuals engaging in specially regulated activities must have the appropriate special activity license and stamp prescribed in this section before engaging in the regulated activity.

(b)        The special activity licenses and stamp issued by the Wildlife Resources Commission are as follows:

(1)       Resident Big Game Hunting License - $13.00. This license shall be issued only to an individual resident of the State and entitles the holder to take big game by all lawful methods and during all open seasons.

(1a)     Nonresident Bear Hunting License - $225.00. This license is valid for use only by an individual within the State and must be procured before taking any bear within the State. Notwithstanding any other provision of law, a nonresident individual may not take any bear within the State without procuring this license; provided, that those persons who have a nonresident lifetime sportsman combination license purchased prior to May 24, 1994, shall not have to purchase this license.

(1b)     Bear Management Stamp - $10.00. This electronically generated stamp must be procured before taking any bear within the State. Notwithstanding any other provision of law, a resident or nonresident individual may not take any bear within the State without procuring this stamp; provided, that those persons who have purchased a lifetime license established by G.S. 113-270.1D(b), 113-270.2(c)(2), or 113-351(c)(3) prior to July 1, 2014, and those persons exempt from the license requirements as set forth in G.S. 113-276(c), G.S. 113-276(d), and G.S. 113-276(n) shall obtain this stamp free of charge. All of the revenue generated by this stamp shall be dedicated to black bear research and management.

(2)       Nonresident Big Game Hunting License. This license shall be issued only to an individual nonresident of the State and entitles the holder to take big game by all lawful methods and during all open seasons. The nonresident big game hunting licenses issued by the Wildlife Resources Commission are:

a.         Season License - $80.00.

b.         Ten-Day License - $60.00. This license is only valid for the 10 consecutive dates indicated on the license.

(2a)     Bonus Antlerless Deer License - $10.00. This license shall be issued to an individual resident or nonresident of the State who holds a valid North Carolina big game hunting license or an individual resident who is exempt from the hunting license requirement in accordance with G.S. 113-276(c) and G.S. 113-276(d) and entitles the holder to take two antlerless deer during seasons and by methods authorized by the Wildlife Resources Commission. This license expires June 30.

(3)       Game Land License - $15.00. This license shall be issued to an individual resident or nonresident of the State and entitles the holder to hunt and trap on game lands managed by the Wildlife Resources Commission. The Wildlife Resources Commission may, pursuant to G.S. 113-264(a), designate in its rules other activities on game lands that require purchase of this license and may charge additional fees for use of specially developed facilities.

(4)       Falconry License - $10.00. This license shall be issued to an individual resident or nonresident of the State and must be procured before:

a.         Taking, importing, transporting, or possessing a raptor; or

b.         Taking wildlife by means of falconry.

The Wildlife Resources Commission may issue classes of falconry licenses necessary to participate in the federal/State permit system, require necessary examinations before issuing licenses or permits to engage in various authorized activities related to possession and maintenance of raptors and the sport of falconry, and regulate licenses as required by governing federal law and rules. To defray the costs of administering required examinations, the Wildlife Resources Commission may charge reasonable fees upon giving them. To meet minimum federal standards plus other State standards in the interests of conservation of wildlife resources, the Wildlife Resources Commission may impose all necessary controls, including those set out in the sections pertaining to collection licenses and captivity licenses, and may issue permits and require reports, but no collection license or captivity license is needed in addition to the falconry license.

(5)       Migratory Waterfowl Hunting License - $13.00. This license shall be issued to an individual resident or nonresident of the State and entitles the holder to take migratory waterfowl in accordance with applicable laws and regulations. The Wildlife Resources Commission may implement this license requirement through the sale of an official waterfowl stamp which may be a facsimile, in an appropriate size, of the waterfowl conservation print authorized by G.S. 113-270.2B. An amount not less than one-half of the annual proceeds from the sale of this license shall be used by the Commission for cooperative waterfowl habitat improvement projects through contracts with local waterfowl interests, with the remainder of the proceeds to be used by the Commission in its statewide programs for the conservation of waterfowl.

(c)        Any individual who kills any species of big game must report the kill to the Wildlife Resources Commission. The Commission may by rule prescribe the method of making the report, prescribe its contents, and require positive identification of the carcass of the kill, by tagging or otherwise. The Wildlife Resources Commission may administratively provide for the annual issuance of big game tags or other identification for big game authorized by this section to holders of lifetime sportsman licenses and lifetime comprehensive hunting licenses.

(d)       Any individual who possesses any of the lifetime sportsman licenses established by G.S. 113-270.1D(b) may engage in specially regulated activities without the licenses required by subdivisions (1), (2), (3), and (5) of subsection (b) of this section. Any individual possessing an annual sportsman license established by G.S. 113-270.1D(a) or a lifetime or annual comprehensive hunting license established by G.S.113-270.2(c)(2) or (5) may engage in specially regulated activities without the licenses required by subdivisions (1), (3), and (5) of subsection (b) of this section.

(e)        When the Wildlife Resources Commission establishes a primitive weapons season pursuant to G.S. 113-291.2(a), all of the combination hunting and fishing licenses established in G.S.113-270.1C, sportsman licenses established in G.S. 113-270.1D, and hunting licenses established in G.S. 113-270.2(c)(1), (2), (3), (5), and (6) entitle the holder to participate. For purposes of this section, "primitive weapons" include bow and arrow, muzzle-loading firearm, and any other primitive weapon specified in the rules of the Wildlife Resources Commission.  (1969, c. 1042, s. 7; 1973, c. 1097, s. 1; 1975, c. 171; c. 197, ss. 5, 7; c. 673, s. 1; 1977, c. 746, s. 1; 1979, c. 830, s. 1; 1979, 2nd Sess., c. 1178, ss. 2, 5; 1981, c. 482, s. 7; c. 620, s. 1; 1981 (Reg. Sess., 1982), c. 1201, s. 2; 1983, c. 140, ss. 2-3; 1987, c. 156, ss. 3-5; c. 452, ss. 2, 3; c. 745, s. 2; c. 827, s. 98; 1991, c. 671, s. 1; 1993 (Reg. Sess., 1994), c. 557, s. 2; 1993 (Reg. Sess., 1994), c. 684, s. 3; 1999-339, s. 6; 2001-91, s. 3; 2006-226, s. 21; 2009-214, s. 1; 2011-369, s. 3; 2013-283, s. 4; 2014-100, s. 14.25(a).)

 

§ 113-270.4.  Hunting and fishing guide license.

(a)        No one may serve for hire as a hunting or fishing guide without having first procured a current and valid hunting and fishing guide license. This license is valid only for use by an individual meeting the criteria set by the Wildlife Resources Commission for issuance of the license subject to the limitations set forth in this section. Possession of the hunting and fishing guide license does not relieve the guide from meeting other applicable license requirements.

(b)        The hunting and fishing guide licenses issued by the Wildlife Resources are:

(1)       Resident Hunting and Fishing Guide License - $15.00. This license is valid for use only by an individual resident of the State.

(2)       Nonresident Hunting and Fishing Guide License - $150.00. This license is valid for use by a nonresident individual in the State.

(c)        The Wildlife Resources Commission may by rule provide for the qualifications and duties of hunting and fishing guides. In implementing this section, the Wildlife Resources Commission may delegate to the Executive Director and his subordinates administrative responsibilities concerning the selection and supervision of hunting and fishing guides, except that provisions relating to revocation of hunting and fishing guide licenses must be substantially set out in the rules of the Wildlife Resources Commission.  (1935, c. 486, s. 12; 1937, c. 45, s. 1; 1945, c. 617; 1949, c. 1203, s. 1; 1957, c. 849, s. 1; 1959, c. 304; 1961, c. 834, s. 1; 1967, c. 790; 1969, c. 1030; c. 1042, ss. 1-5; 1971, c. 242, c. 282, s. 1; c. 705, ss. 1, 2; 1973, c. 1262, s. 18; 1975, c. 197, ss. 1-4; 1977, c. 658; 1979, c. 830, s. 1; 1981 (Reg. Sess., 1982), c. 1201, s. 3; 1983, c. 140, s. 4; 1987, c. 156, s. 6; c. 827, s. 98; 1991 (Reg. Sess., 1992), c. 989, s. 1; 1993, c. 553, s. 32.1; 2001-91, s. 4; 2013-283, s. 5.)

 

§ 113-270.5.  Trapping licenses.

(a)        Except as otherwise specifically provided by law, no one may take fur-bearing animals by trapping, or by any other authorized special method that preserves the pelt from injury, without first having procured a current and valid trapping license. When the trapping license is required, it serves in lieu of a hunting license in the taking of fur-bearing animals. If fur-bearing animals are taken as game, at the times and by the hunting methods that may be authorized, hunting license requirements apply.

(b)        The trapping licenses issued by the Wildlife Resources Commission are as follows:

(1)       Resident State Trapping License - $30.00. This license is valid only for use by an individual resident of the State.

(2)       Repealed by Session Laws 2013-283, s. 6, effective August 1, 2014.

(3)       Nonresident State Trapping License - $125.00. This license is valid for use by an individual within the State.  (1929, c. 278, s. 3; 1969, c. 1042, s. 6; 1973, c. 1262, s. 18; 1975, c. 197, ss. 9-11; 1979, c. 830, s. 1; 1981 (Reg. Sess., 1982), c. 1201, s. 4; 1983, c. 140, s. 5; 1987, c. 156, s. 7; c. 827, s. 98; 2001-91, s. 5; 2013-283, s. 6.)

 

§ 113-271.  Hook-and-line licenses in inland and joint fishing waters.

(a)        An inland hook-and-line fishing license issued under this section entitles the licensee to fish with hook and line in inland fishing waters and joint fishing waters. An inland hook-and-line fishing license issued under this section does not entitle the licensee to engage in recreational fishing in coastal fishing waters that are not joint fishing waters. An inland hook-and-line fishing license issued under subdivision (1), (3), (6a), (6b), (6c), or (9) of subsection (d) of this section entitles the licensee to fish with hook and line in public mountain trout waters.

(b)        Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 684, s. 4.

(c)        Repealed by Session Laws 1979, c. 830, s. 1.

(d)       The hook-and-line fishing licenses issued by the Wildlife Resources Commission are as follows:

(1)       Resident Annual Comprehensive Inland Fishing License - $25.00. This license shall be issued only to an individual resident of the State.

(2)       Resident State Inland Fishing License - $20.00. This license shall be issued only to an individual resident of the State.

(3)       Lifetime Resident Comprehensive Inland Fishing License - $250.00. This license shall be issued only to an individual resident of the State and is valid for the lifetime of the licensee.

(4)       Repealed by Session Laws 2013-283, s. 7, effective August 1, 2014.

(5)       Nonresident State Inland Fishing License - $36.00. This license shall be issued to an individual nonresident of the State.

(6)       Short-Term Inland Fishing Licenses. Short-term inland fishing licenses are valid only for the date or consecutive dates indicated on the licenses. Short-term inland fishing licenses issued by the Wildlife Resources Commission are:

a.         Resident 10-day Inland Fishing License - $7.00. This license shall be issued only to a resident of the State.

b.         Nonresident 10-day Inland Fishing License - $18.00. This license shall be issued only to a nonresident of the State.

c.         Repealed by Session Laws 2005-455, s. 1.8, effective January 1, 2007.

(6a)     Age 70 Resident Lifetime Inland Fishing License - $15.00. This license shall be issued only to an individual resident of the State who is at least 70 years of age.

(6b)     Resident Disabled Veteran Lifetime Inland Fishing License - $10.00. This license shall be issued only to an individual who is a resident of the State and who is a fifty percent (50%) or more disabled veteran as determined by the United States Department of Veterans Affairs or as established by rules of the Wildlife Resources Commission. This license remains valid for the lifetime of the licensee so long as the licensee remains fifty percent (50%) or more disabled.

(6c)     Resident Totally Disabled Lifetime Inland Fishing License - $10.00. This license shall be issued only to an individual who is a resident of the State and who is totally and permanently disabled as determined by the Social Security Administration or as established by rules of the Wildlife Resources Commission. This license remains valid for the lifetime of the licensee.

(7),      (8) Repealed by Session Laws 2005-455, s. 1.8, effective January 1, 2007.

(9)       Special Landholder and Guest Fishing License - $100.00. This license shall be issued only to the landholder of private property bordering inland or joint fishing waters. This license shall entitle the landholder and guests of the landholder to fish from the shore or any pier or dock originating from the property without any additional fishing license. This license is applicable only to private property and private docks and piers and is not valid for any public property, pier, or dock nor for any private property, pier, or dock operated for any commercial purpose whatsoever. This license shall not be in force unless displayed on the premises of the property and only entitles fishing without additional license to persons fishing from the licensed property and then only when fishing within the private property lines. This license is not transferable as to person or location. For purposes of this subdivision, a guest is any individual invited by the landholder to fish from the property at no charge. A charge includes any fee, assessment, dues, rent, or other consideration which must be paid, whether directly or indirectly, in order to be allowed to fish from the property, regardless of the stated reason for such charge.  (1929, c. 335, ss. 1-4; 1931, c. 351; 1933, c. 236; 1935, c. 478; 1945, c. 529, ss. 1, 2; c. 567, ss. 1-4; 1949, c. 1203, s. 2; 1953, c. 1147; 1955, c. 198, s. 1; 1957, c. 849, s. 2; 1959, c. 164; 1961, c. 312; c. 834, ss. 3-6; 1965, c. 957, s. 2; 1969, c. 761; c. 1042, s. 9; 1973, c. 476, s. 143; c. 504; 1975, c. 197, s. 15; 1979, c. 737, ss. 1, 2; c. 748, s. 6; c. 830, s. 1; 1979, 2nd Sess., c. 1178, ss. 3, 5; 1981, c. 482, s. 5; 1981 (Reg. Sess., 1982), c. 1201, s. 5; 1983, c. 140, s. 6; 1987, c. 156, ss. 8, 9; c. 827, s. 98; 1989 (Reg. Sess., 1990), c. 909, s. 2; c. 926; 1993 (Reg. Sess., 1994), c. 684, s. 4; 1995, c. 535, s. 6.1; 1997-443, s. 11A.118(a); 1999-456, s. 28.; 2005-455, s. 1.8; 2006-255, s. 8; 2013-283, s. 7.)

 

§ 113-272.  Special trout license; mountain heritage trout waters 3-day fishing license.

(a)        License Required. - Except as provided in G.S. 113-270.1D, G.S. 113-270.1C(b), and G.S. 113-271(a), no one may fish in public mountain trout waters without having first procured a current and valid special trout license in addition to a hook-and-line fishing license required in G.S. 113-271. When public mountain trout waters occur on game lands, this license entitles the holder to use game lands only for the purpose of access to public mountain trout waters to fish with hook and line.

(b)        Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 684, s. 5, effective July 1, 1995.

(c)        Definitions. - As used in this section:

(1)       City has the same meaning as in G.S. 160A-1.

(2)       Mountain heritage trout waters are those waters that have been designated as public mountain trout waters by the Wildlife Resources Commission, and that run through or are adjacent to a city that has been designated as a Mountain Heritage Trout City pursuant to G.S. 113-272.3(e).

(3)       Public mountain trout waters are those waters so designated by the Wildlife Resources Commission which are managed and regulated to sustain a mountain trout fishery.

(d)       Special Trout License: Fee. - $13.00. This license shall be issued to an individual resident or nonresident of the State and entitles the holder to fish with hook and line in public mountain trout waters.

(e)        Mountain Heritage Trout Waters 3-Day Fishing License: Fee. - $5.00. This license shall be issued to an individual resident or nonresident of the State and shall entitle the holder to fish in waters designated by the Wildlife Resources Commission as mountain heritage trout waters for the three consecutive days indicated on the license. An individual who holds a mountain heritage trout waters 3-day fishing license does not need to hold a hook-and-line fishing license issued pursuant to G.S. 113-271 in order to fish in mountain heritage trout waters.  (1953, cc. 432, 828; 1955, c. 198, s. 2; 1961, c. 834, s. 2; 1965, c. 957, s. 2; 1969, c. 1042, s. 10; 1973, c. 1262, s. 18; 1975, c. 197, s. 16; 1979, c. 748, s. 7; c. 830, s. 1; 1979, 2nd Sess., c. 1178, ss. 4, 5; 1981, c. 482, s. 6; 1981 (Reg. Sess., 1982), c. 1201, s. 6; 1983, c. 140, s. 7; 1987, c. 156, s. 10; c. 827, s. 98; 1993 (Reg. Sess., 1994), c. 684, s. 5; 2001-91, s. 6; 2007-408, ss. 1, 2; 2013-283, s. 8.)

 

§ 113-272.1.  Repealed by Session Laws 1979, c. 830, s. 1.

 

§ 113-272.2.  Special device licenses.

(a)        Except as otherwise specifically provided by law, no one may fish in inland fishing waters with any special device without having first procured a current and valid special device license. Special devices are all devices used in fishing other than hook and line.

(b)        Repealed by Session Laws 2001-91, s. 7, effective July 1, 2001.

(c)        The special device licenses issued by the Wildlife Resources Commission are as follows:

(1)       Repealed by Session Laws 2013-283, s. 9, effective August 1, 2014.

(1a)     Resident Special Device License - $75.00. Except as rules of the Wildlife Resources Commission provide for use of equipment by more than one person, this license is valid only for use by an individual resident of the State. It authorizes the taking of nongame fish from inland fishing waters with special devices authorized by the rules of the Wildlife Resources Commission for use in specified waters. The Wildlife Resources Commission may restrict the user of the license to specified registered equipment, require tagging of items of equipment, charge up to one dollar ($1.00) per tag issued, and require periodic catch data reports. Nongame fish lawfully taken under this license may be sold.

(2)       Repealed by Session Laws 2013-283, s. 9, effective August 1, 2014.

(2a)     Nonresident Special Device License - $500.00. Except as rules of the Wildlife Resources Commission provide for use of equipment by more than one person, this license is valid only for use by an individual within the State. It is otherwise subject to the terms and conditions set out in subdivision (1a) of this subsection.

(3),      (4) Repealed by Session Laws 1987, c. 156, s. 11.

(d)       Repealed by Session Laws 1995, c. 36, s. 2.  (1979, c. 830, s. 1; 1981, c. 620, s. 2; 1981 (Reg. Sess., 1982), c. 1201, s. 7; 1983, c. 140, s. 8; 1987, c. 156, ss. 11, 12; c. 827, s. 98; 1993 (Reg. Sess., 1994), c. 778, s. 1; 1995, c. 36, s. 2; 2001-91, s. 7; 2013-283, s. 9.)

 

§ 113-272.3.  Special provisions respecting fishing licenses; grabbling; taking bait fish; use of landing nets; lifetime licenses issued from Wildlife Resources Commission headquarters; personalized lifetime sportsman combination licenses.

(a)        The Wildlife Resources Commission by rule may define the meaning of "hook and line" and "special device" as applied to fishing techniques. Any technique of fishing that may be lawfully authorized which employs neither the use of any special device nor hook and line must be pursued under the appropriate hook-and-line fishing license.

(b)        In accordance with established fishing customs and the orderly conservation of wildlife resources, the Wildlife Resources Commission may by rule provide for use of nets or other special devices which it may authorize as an incident to hook-and-line fishing or for procuring bait fish without requiring a special device license. In this instance, however, the individual fishing must meet applicable hook-and-line license requirements.

(c)        Lifetime licenses are issued from the Wildlife Resources Commission headquarters. Each application for an Infant Lifetime Sportsman or Youth Lifetime Sportsman License must be accompanied by a certified copy of the birth certificate, adoption order containing the date of birth, or other proof of age satisfactory to the Commission, of the individual to be named as the licensee.

(d)       In issuing lifetime licenses, the Wildlife Resources Commission is authorized to adopt rules to establish a personalized series for certain license types and to charge a five dollar ($5.00) administrative fee, to be deposited in the Wildlife Fund, to defray the cost of issuance of the personalized license. (1979, c. 830, s. 1; 1981, c. 482, s. 8; c. 620, s. 3; 1987, c. 827, s. 98; 1993 (Reg. Sess., 1994), c. 684, s. 6.1; 2005-455, s. 1.9; 2006-255, s. 9.)

 

§ 113-272.4.  Collection licenses.

(a)        In the interest of the orderly and efficient conservation of wildlife resources, the Wildlife Resources Commission may provide for the licensing of qualified individuals to take any of the wildlife resources of the State under a collection license that may serve in lieu of any other license required in this Article. This license authorizes incidental transportation and possession of the wildlife resources necessary to implement the authorized purposes of the taking, but the Wildlife Resources Commission in its discretion may additionally impose permit requirements under subsection (d) below and G.S. 113-274.

(b)        The Wildlife Resources Commission may delegate to the Executive Director the authority to impose time limits during which the license is valid and restrictions as to what may be taken and method of taking and possession, in the interests of conservation objectives. The Executive Director through his responsible agents must determine whether a particular license applicant meets the standards and qualifications for licensees set by the Wildlife Resources Commission. Methods of taking under a collection license need not be restricted to those applicable to ordinary hunting, trapping, or fishing, but the licensee must observe the restrictions as to taking, transportation, and possession imposed by the Executive Director upon the granting of the license.

(c)        When a more limited duration period is not set by the Executive Director in implementing the rules of the Wildlife Resources Commission, collection licenses are valid from January 1 through December 31 in any year. This license is issued upon payment of five dollars ($5.00), but the Wildlife Resources Commission may provide for issuance without charge to licensees who represent educational or scientific institutions or some governmental agency.

(d)       As necessary, the Executive Director may administratively impose on licensees under this section restrictions upon individuals taking, transporting, or possessing under the license which will permit ready identification and control of those involved in the interest of efficient administration of laws pertaining to wildlife resources. Restrictions may include requirements as to record keeping, tagging, marking packages, cages, or containers and exhibition of additional limited-purpose and limited-time permits that may be issued without charge to cover particular activities and other actions that may be administratively required in the reasonable implementation of the objectives of this Subchapter.

(e)        If the Executive Director deems it administratively appropriate and convenient to do so, in the interests of simplifying the administration of licensing requirements, he may grant particular licensees under this section the privilege of utilizing assistants in  taking, transporting, or possessing wildlife resources who themselves are not licensed. Any assistants so taking, transporting, or possessing wildlife resources must have readily available for inspection a written authorization from the licensee to engage in the  activity in question. The written authorization must contain information administratively required by the Executive Director, and a copy of the authorization must be placed in the mail addressed to the  Executive Director or his designated agent before any assistant acts under the authorization. In his discretion the Executive Director may refuse to issue, refuse to renew, or revoke the privilege conferred in this subsection. If this is done, each individual engaged in taking, transporting, or possessing wildlife resources under this section must meet all applicable licensing and permit requirements. (1979, c. 830, s. 1; 1987, c. 827, s. 98.)

 

§ 113-272.5.  Captivity license.

(a)        In the interests of humane treatment of wild animals and wild birds that are lawfully taken, crippled, tame, or unfit for immediate release into their natural habitat, the Wildlife Resources Commission may license qualified individuals to hold at a specified location one or more of any particular species of wild animal or wild bird alive in captivity for scientific, educational, exhibition, or other purposes. Before issuing this license, the Executive Director must satisfy himself that issuance of the license is appropriate under the objectives of this Subchapter, and that the wild animal or wild bird was not acquired unlawfully or merely as a pet. Upon refusing to issue the captivity license, the Executive Director may either take possession of the wild animal or wild bird for appropriate disposition or issue a captivity permit under G.S. 113-274(c)(1b) for a limited period until the holder makes proper disposition of the wild animal or wild bird.

(b)        Unless a shorter time is set for a license upon its issuance under the provisions of subsection (c), captivity licenses are annual licenses issued beginning January 1 each year and running until the following December 31. This license is issued upon payment of five dollars ($5.00) to the Wildlife Resources Commission.

(c)        The Wildlife Resources Commission may require standards of caging and care and reports to and supervision by employees of the Wildlife Resources Commission as necessary to insure humane treatment and furtherance of the objectives of this Subchapter. The Executive Director in implementing the provisions of this section may administratively impose through responsible agents and employees restrictions upon the mode of captivity that he deems necessary, including prescribing methods of treatment and handling designed, if possible, to enable the wild animal or wild bird to become self-sufficient and requiring that the wild animal or wild bird be set free when self-sufficiency is attained. To this end, the Executive Director may issue the captivity license with an expiration date earlier than December 31 and may also act to terminate any captivity license earlier than the expiration date for good cause.

(d)       Any substantial deviation from reasonable requirements imposed by rule or administratively under the authority of this section renders possession of the wild animal or wild bird unlawful.

(e)        No captivity license may be issued for any cougar (Felis concolor), except to:

(1)       A bona fide publicly supported zoo.

(2)       An educational or scientific research institution.

(3)       An individual who lawfully possessed the cougar on June 29, 1977. The license may not be granted, however, for possession of a cougar within a municipality which prohibits such possession by ordinance.

(4)       An individual who holds a cougar without caging under conditions simulating a natural habitat, the development of which is in accord with plans and specifications developed by the holder and approved by the Wildlife Resources Commission.

(f)        The licensing provisions of this section apply to black bears held in captivity, but, to the extent that it differs from this section, Article 2 of Chapter 19A of the General Statutes governs the keeping of black bears in captivity.  (1979, c. 830, s. 1; 1979, 2nd Sess., c. 1285, s. 3; 1981, c. 575, s. 1; 1987, c. 827, s. 98; 2013-3, s. 1.)

 

§ 113-272.6.  Possession, Transportation, Importation, and Exportation of non-farmed cervids.

(a)        The Wildlife Resources Commission shall regulate the possession and transportation, including importation and exportation, of non-farmed cervids, including game carcasses and parts of game carcasses extracted by hunters and carcasses and parts of carcasses imported from hunt facilities as defined by USDA Standards. For purposes of this section, the term "non-farmed cervid" has the same meaning as in G.S. 106-549.97. The Commission shall follow the USDA Standards as defined in G.S. 106-549.97 and the provisions set forth in 9 C.F.R. Part 55 and 9 C.F.R. Part 81 in the implementation of this section and shall not adopt any rule or standard that is in conflict with, in lieu of, or more restrictive than the USDA Standards. The Commission shall adopt rules to implement this section, including requirements for transportation, importation, and exportation permits. Notwithstanding any other provision of law, the Commission may charge a fee of up to fifty dollars ($50.00) for the processing of applications for transportation, importation, and exportation permits, and the renewal or modification of those permits. The fees collected shall be applied to the costs of administering this section.

(b)        The Wildlife Resources Commission shall notify every applicant for a permit that any permit issued is subject to the applicant's compliance with the Department of Agriculture and Consumer Services' requirements for transportation pursuant to Article 34 of Chapter 106 of the General Statutes.

(c)        The Department of Agriculture and Consumer Services shall regulate the production, sale, and transportation, including importation and exportation, of farmed cervids for commercial purposes and the licensing of farmed cervid facilities pursuant to G.S. 106-549.97. No action taken by the Wildlife Resources Commission shall in any way limit the authority of the Department of Agriculture and Consumer Services to regulate farmed cervids.

(d),      (e) Repealed by Session Laws 2015-263, s. 14(b), effective September 30, 2015.  (2003-344, s. 5; 2014-100, s. 14.26(e); 2015-263, s. 14(b).)

 

§ 113-273.  Dealer licenses.

(a)        "Dealer" Defined; All Licenses Annual. - As used in this section, the word "dealer" includes all persons or individuals required to be licensed under the terms of this section. Except when indicated otherwise, dealer licenses are annual licenses issued beginning January 1 each year running until the following December 31.

(b)        License Required; Rules Governing Licensee. - Except as otherwise provided, no person may engage in any activity for which a dealer license is provided under this section without first having procured a current and valid dealer license for that activity. In implementing the provisions of this section, the Wildlife Resources Commission may by rule govern every aspect of the licensee's dealings in wildlife resources. Specifically, these rules may require dealers to:

(1)       Implement a system of tagging or otherwise identifying and controlling species regulated under the license and pay a reasonable fee, not to exceed two dollars and twenty-five cents ($2.25), for each tag furnished by the Wildlife Resources Commission;

(2)       Keep records and statistics in record books furnished by the Wildlife Resources Commission, and pay a reasonable charge to defray the cost of furnishing the books;

(3)       Be subject to inspection at reasonable hours and audit of wildlife resources and pertinent records and equipment;

(4)       Make periodic reports;

(5)       Post performance bonds payable to the Wildlife Resources Commission conditioned upon faithful compliance with provisions of law; and

(6)       Otherwise comply with reasonable rules and administrative requirements that may be imposed under the authority of this section.

(c)        Repealed by Session Laws 1993, c. 18, s. 3.

(d)       Repealed by Session Laws 1979, c. 830, s. 1.

(e)        Repealed by Session Laws 1993, c. 18, s. 3.

(f)        Fur-Dealer License. - Except as otherwise provided in this subsection, any individual in this State who deals in furs must obtain an appropriate fur-dealer license. For the purposes of this subsection, "dealing in furs" is engaging in the business of buying or selling fur-bearing animals or other wild animals that may lawfully be sold, the raw furs, pelts, or skins of those animals, or the furs, pelts, or skins of wild animals which may not themselves be sold but whose fur, pelt, or skin may lawfully be sold. A hunter or trapper who has lawfully taken wild animals whose fur, pelt, or skin is permitted to be sold under this subsection is not considered a fur dealer if he exclusively sells the animals or the furs, pelts, and skins, as appropriate, to licensed fur dealers. All fur-dealer licenses are annual licenses issued beginning July 1 each year running until the following June 30. Fur-dealer licenses issued by the Wildlife Resources Commission are as follows:

(1)       Resident fur-dealer license, sixty dollars ($60.00). Authorizes an individual resident of the State to deal in furs in accordance with the rules of the Wildlife Resources Commission.

(2)       Nonresident fur-dealer license, three hundred dollars ($300.00). Authorizes an individual within the State to deal in furs in accordance with the rules of the Wildlife Resources Commission.

(3)       Fur-dealer station license, one hundred twenty dollars ($120.00). Authorizes a person or individual to deal in furs at an established location where fur dealings occur under the supervision of a responsible individual manager named in the license. Individual employees of the business dealing in furs solely at the established location under the supervision of the manager need not acquire an individual license. Any employee who also deals in furs outside the established location must obtain the appropriate individual license. Individuals dealing in furs at an established location may elect to do so under their individual licenses.

            The Executive Director may administratively provide for reissuance of a station license without charge for the remainder of the year when either a business continues at an established location under a new supervising manager or the business changes to a new location. Before reissuing the license, however, the Executive Director must satisfy himself that there is a continuation of essentially the same business previously licensed and that any new supervising manager meets the qualifications imposed by rules of the Wildlife Resources Commission. The supervising manager must file the names of all employees of the business covered by a fur-dealer station license, whether temporary or permanent, including employees who process or skin the animals.

The Executive Director must furnish supervising managers and individual licensees with forms or record books for recording required information as to purchase, sale, importation, exportation, and other dealings, and make a reasonable charge to cover the costs of any record books furnished. It is unlawful for anyone dealing in furs to fail to submit reports required by rules or reasonable administrative directives.

(g)        Controlled Hunting Preserve Operator License. - The Wildlife Resources Commission is authorized by rule to set standards for and to license the operation of controlled hunting preserves operated by private persons. Controlled hunting preserves are of two types: one is an area marked with appropriate signs along the outside boundaries on which only domestically raised game birds other than wild turkeys are taken; the other is an area enclosed with a dog-proof fence on which foxes and coyotes may be hunted with dogs only. A controlled fox and coyote hunting preserve operated for private use may be of any size; a controlled hunting preserve operated for commercial purposes shall be an area of not less than 500 acres or of such size as set by regulation of the Wildlife Resources Commission, which shall take into account differences in terrain and topography, as well as the welfare of the wildlife.

Operators of controlled fox hunting preserves may purchase live foxes and coyotes from licensed trappers who live-trap foxes and coyotes during any open season for trapping them and may, at any time, take live foxes from their preserves for sale to other licensed operators. The controlled hunting preserve operator license may be purchased for a fee of fifty dollars ($50.00), and is an annual license issued beginning 1 July each year running until the following 30 June.

(h)        Game Bird Propagation License. - No person may propagate game birds in captivity or possess game birds for propagation without first procuring a license under this subsection. The Wildlife Resources Commission may by rule prescribe the activities to be covered by the propagation license, which species of game birds may be propagated, and the manner of keeping and raising the birds, in accordance with the overall objectives of conservation of wildlife resources. Except as limited by this subsection, propagated game birds may be raised and sold for purposes of propagation, stocking, food, or taking in connection with dog training as authorized in G.S. 113-291.1(d). Migratory game bird operations authorized under this subsection must also comply with any applicable provisions of federal law and rules. The Wildlife Resources Commission may impose requirements as to shipping, marking packages, banding, tagging, or wrapping the propagated birds and other restrictions designed to reduce the change of illicit game birds being disposed of under the cover of licensed operations. The Wildlife Resources Commission may make a reasonable charge for any bands, tags, or wrappers furnished propagators. The game bird propagation license is issued by the Wildlife Resources Commission upon payment of a fee of five dollars ($5.00). It authorizes a person or individual to propagate and sell game birds designated in the license, in accordance with the rules of the Wildlife Resources Commission, except:

(1)       Wild turkey and ruffed grouse may not be sold for food.

(2)       Production and sale of pen-raised quail for food purposes is under the exclusive control of the Department of Agriculture and Consumer Services. The Wildlife Resources Commission, however, may regulate the possession, propagation, and transportation of live pen-raised quail.

Wild turkey acquired or raised under a game bird propagation license shall be confined in a cage or pen approved by the Wildlife Resources Commission and no such wild turkey shall be released for any purpose or allowed to range free. It is a Class 3 misdemeanor to sell wild turkey or ruffed grouse for food purposes, to sell quail other than lawfully acquired pen-raised quail for food purposes, or to release or allow wild turkey to range free.

(i)         Furbearer Propagation License. - No person may engage in propagation in captivity or possess any species of furbearers for propagation for the purpose of selling the animals or their pelts for use as fur without first procuring a license under this subsection. The furbearer propagation license is issued by the Wildlife Resources Commission upon payment of a fee of twenty-five dollars ($25.00). It authorizes the propagation or sale of the pelts or carcasses of the species of furbearing animals named therein, including bobcats, opossums and raccoons, or red and silver foxes (Vulpes vulpes), for use as fur. The Wildlife Resources Commission may by rule prescribe the activities covered by the license, the manner of keeping and raising the animals and the manner of killing them prior to sale, in accordance with overall objectives of conservation of wildlife resources and humane treatment of wild animals raised in captivity. The Wildlife Resources Commission may require tagging of the pelts or carcasses of the animals prior to sale in accordance with the provisions of G.S. 113-276.1(5) and G.S. 113-291.4(g). It is unlawful for any person licensed under this subsection to sell any pelt or carcass of any furbearing animal or fox to any other person who is not lawfully authorized to buy and possess the same, or to sell or deliver a live specimen of any such animal to any person who is not authorized to buy or receive and to hold the animal in captivity.

(j)         [Reserved.]

(k)        Taxidermy License. - Any individual who engages in taxidermy involving wildlife for any compensation, including reimbursement for the cost of materials, must first procure a taxidermy license. This license is an annual license issued by the Wildlife Resources Commission for ten dollars ($10.00). The Wildlife Resources Commission must require a licensee to keep records concerning any wildlife taken or possessed by him; to keep records of the names and addresses of persons bringing him wildlife, the names and addresses of persons taking the wildlife if different, and other information concerning the origin of the wildlife; to inspect any applicable licenses or permits pertaining to the taking and possession of wildlife brought to him; to restrict him to taxidermy upon lawfully acquired wildlife; and to keep other pertinent records. No taxidermist subject to license requirements may sell any game or game fish in which he deals except that a taxidermist may acquire a valid possessory lien upon game or game fish under the terms of Chapter 44A of the General Statutes and, with a permit from the Executive Director, may sell the game or game fish under the procedure authorized in Chapter 44A. Wildlife acquired by a taxidermist is deemed "personal property" for the purposes of Chapter 44A. (1929, c. 333, ss. 1-7; c. 198, ss. 1, 2, 4; 1933, c. 337, ss. 1-4; c. 430, s. 1; 1935, c. 471, ss. 1-3; c. 486, ss. 4, 12, 21; 1937, c. 45, s. 1; 1945, c. 617; 1949, c. 1203, s. 1; 1957, cc. 386, 841; c. 849, s. 1; 1959, c. 304; 1961, c. 311; c. 834, s. 1; c. 1056; 1965, c. 957, s. 2; 1967, c. 790; 1969, c. 1030; c. 1042, ss. 1-5; 1971, c. 242; c. 282, s. 1; c. 515, s. 5; c. 705, ss. 1, 2; 1973, c. 1098; c. 1262, ss. 18, 86; 1975, c. 197, ss. 1-4, 13, 14; 1977, c. 658; 1979, c. 830, s. 1; 1981, c. 620, ss. 4-6; 1983, c. 140, s. 9; 1985, c. 476, s. 1; 1987, c. 133; c. 827, s. 98; 1989, c. 616, s. 3; 1993, c. 18, s. 3; c. 539, s. 854; 1994, Ex. Sess., c. 24, s. 14(c); 1997-261, s. 81; 2003-96, s. 1.)

 

§ 113-274.  Permits.

(a)        As used in this Article, the word "permit" refers to a written authorization issued without charge by an employee or agent of the Wildlife Resources Commission to an individual or a person to conduct some activity over which the Wildlife Resources Commission has jurisdiction. When sale of wildlife resources is permitted, rules or the directives of the Executive Director may require the retention of invoices or copies of invoices in lieu of a permit.

(b)        Except as otherwise specifically provided, no one may engage in any activity for which a permit is required without having first procured a current and valid permit.

(c)        The Wildlife Resources Commission may issue the following permits:

(1)       Repealed by Session Laws 1979, c. 830, s. 1.

(1a)     Depredation Permit. - Authorizes the taking, destruction, transfer, removal, transplanting, or driving away of undesirable, harmful, predatory, excess, or surplus wildlife or wildlife resources. Livestock or poultry owners shall be issued a depredation permit for coyotes upon request. The permit must state the manner of taking and the disposition of wildlife or wildlife resources authorized or required and the time for which the permit is valid, plus other restrictions that may be administratively imposed in accordance with rules of the Wildlife Resources Commission. No depredation permit or any license is needed for the owner or lessee of property to take wildlife while committing depredations upon the property. The Wildlife Resources Commission may regulate the manner of taking and the disposition of wildlife taken without permit or license, including wildlife killed accidentally by motor vehicle or in any other manner.

(1b)     Captivity Permit. - Authorizes the possession of live wildlife that may lawfully be permitted to be retained alive, in accordance with governing rules of the Wildlife Resources Commission. This permit may not substitute for any required collection license or captivity license, but may be temporarily issued for possession of wild animals or wild birds for scientific, educational, exhibition, or other purposes pending action on a captivity license or following its denial or termination. If this permit is issued for fish to be held indefinitely, the Wildlife Resources Commission may provide for periodic renewals of the permit, at least once each three years, to insure a review of the circumstances and conditions under which fish are kept. Wild animals and wild birds kept temporarily in captivity under this permit must be humanely treated and in accordance with any stipulations in the permit, but the standards of caging and care applicable to species kept under the captivity license do not apply unless specified in the permit. Any substantial deviation from reasonable requirements imposed by rule or administratively under the authority of this section renders the possession of the wildlife unlawful.

(1c)     Possession Permit. - Authorizes the possession of dead wildlife or other wildlife resources lawfully acquired. The Wildlife Resources Commission may by rule implement the issuance and supervision of this permit, in accordance with governing laws and rules respecting the possession of wildlife. Any substantial deviation from reasonable requirements imposed by rule or administratively under the authority of this section renders the possession of the wildlife unlawful.

(2)       Transportation Permit. - The Wildlife Resources Commission may require the use of transportation permits by persons required to be licensed under this Article, or by persons and individuals exempt from license requirements, while transporting wildlife resources within the State - as necessary to discourage unlawful taking or dealing in wildlife resources and to control and promote the orderly and systematic transportation of wildlife resources within, into, through, and out of the State. Transportation permits may be issued for wildlife transported either dead or alive, in accordance with restrictions that may be reasonably imposed. When convenient, rules or administrative directives may require the retention and use of an invoice or memorandum of sale, or the license or permit authorizing the taking or acquisition of the wildlife resources, as a transportation permit. When circumstances warrant, however, a separate additional transportation permit may be required. Any substantial deviation from reasonable requirements imposed by rule or administratively under the authority of this section renders the transportation of the wildlife resources unlawful.

(3)       Exportation or Importation Permit. - Authorizes the exportation or importation of wildlife resources from or into the State or from county to county. The Wildlife Resources Commission may by rule implement the issuance and supervision of this permit, in accordance with governing laws and rules respecting the exportation and importation of wildlife resources. Any substantial deviation from reasonable requirements imposed by rule or administratively under the authority of this section renders the importation or exportation of the wildlife resources unlawful.

(3a)     Trophy Wildlife Sale Permit. - Authorizes the owner of lawfully taken and possessed dead wildlife specimens or their parts that are mounted, stuffed, or otherwise permanently preserved to sell identified individual specimens that may lawfully be sold under applicable laws and rules.

(3b)     Repealed by Session Laws 1993, c. 18, s. 4.

(3c)     Hunting Heritage Apprentice Permit. - Authorizes a person who does not meet the hunter education course requirements under G.S. 113-270.1A(a) to purchase a hunting license and hunt if accompanied by an adult at least 18 years of age who is licensed to hunt in this State or if accompanied by an adult landholder or spouse exempted from the hunting license requirement as defined by G.S. 113-276(c), provided the licensee is hunting on the landholder's land. For purposes of this section, "accompanied" means that the licensed adult maintains a proximity that enables the adult to monitor the activities of the apprentice by remaining within sight and hearing distance at all times without use of electronic devices. This permit is valid only for the term of the hunting license purchased under the authority of the permit. Any person who hunts with a permit issued under this subdivision without complying with all the requirements of this subdivision is guilty of hunting without having first procured a current and valid license, in violation of G.S. 113-270.1B.

(4)       Other Permits. - In implementing the provisions of this Subchapter, the Wildlife Resources Commission may issue permits for taking, purchase, or sale of wildlife resources if the activity is lawfully authorized, if there is a need for control of the activity, and no other license or permit is applicable. In addition, if a specific statute so provides, a permit under this subdivision may be required in addition to a license when there is a need for closer control than provided by the license.  (1935, c. 486, ss. 4, 22; 1941, c. 231, s. 1; 1965, c. 957, s. 2; 1971, c. 423, s. 2; c. 809, s. 1; 1973, c. 1262, s. 18; 1977, c. 794, s. 1; 1979, c. 830, s. 1; 1987, c. 827, s. 98; 1993, c. 18, s. 4; 2010-156, s. 2; 2013-3, s. 2; 2013-63, s. 3.)

 

§ 113-275.  General provisions respecting licenses and permits.

(a)        The Wildlife Resources Commission is authorized to make agreements with other jurisdictions as to reciprocal honoring of licenses in the best interests of the conservation of wildlife resources.

(a1)      Notwithstanding the fees specified for nonresident individuals by G.S. 113-270.2, 113-270.3, 113-270.5, 113-271, 113-272, 113-272.2, and 113-273, if the Wildlife Resources Commission finds that a state has a nonresident license fee related to wildlife resources that exceeds the fee for a comparable nonresident license in North Carolina, the Wildlife Resources Commission may, by resolution in official session, increase the nonresident license fee applicable to citizens of that state to an amount equal to the fee a North Carolina resident is required to pay in that state.

The action of the Wildlife Resources Commission to increase a fee pursuant to this subsection is not subject to the provisions of Article 2A of Chapter 150B of the General Statutes. The action of the Wildlife Resources Commission to increase a fee pursuant to this subsection becomes effective on the date specified by the Wildlife Resources Commission.

(b)        Every license issued under the provisions of this Article is effective beginning upon its date of issuance unless the license expressly provides to the contrary, in accordance with rules of the Wildlife Resources Commission and such administrative authority to set future effective dates in particular types of cases as may be delegated by the Wildlife Resources Commission to responsible employees or agents.

(b1)      No hunting or fishing license issued to a resident under the provisions of G.S. 113-270.1C, 113-270.1D, 113-270.2, 113-270.3, 113-271, or 113-272 becomes invalid for use during the term for which it is issued by reason of a removal of the residence of the licensee to another state.

(c)        Every license issued under the provisions of this Article must be sold for the full prescribed amount notwithstanding that a portion of the prescribed license period may have elapsed prior to the license application.

(c1)      Upon receipt of a proper application together with a fee of five dollars ($5.00), the Wildlife Resources Commission may issue a new license or permit to replace one that has been lost or destroyed before its expiration. The application must be on a form of the Wildlife Resources Commission setting forth information in sufficient detail to allow ready identification of the lost or destroyed license or permit and ascertainment of the applicant's continued entitlement to it.

(d)       In implementing the sale and distribution of licenses issued under this Article, the Wildlife Resources Commission may require license applicants to disclose such information as necessary for determining the applicant's eligibility for a particular license. Such information as deemed desirable to assist in enforcement of license requirements may be required to be recorded on the face of any license. Fixing the form of the license may be by reasonable administrative directive, and requirements as to such form need not be embodied in rules of the Wildlife Resources Commission in order to be validly required.

(e)        Where employees of the Wildlife Resources Commission sell licenses of a type also sold through license agents, such employees must sell the licenses for the full amount and remit such full amount to the Wildlife Resources Commission without any deduction of the stipulated license agent's fee.

(f)        Except as otherwise specifically provided by statute or except as the Wildlife Resources Commission may by rule prescribe to the contrary:

(1)       All licenses and permits under this Article must be kept ready at hand by or about the person of individual licensees and permittees while engaged in the regulated operations;

(2)       All licenses and permits under this Article are nontransferable; and

(3)       All individuals engaged in operations subject to license or permit requirements must have an individual license or permit - except where such individuals are in the employ of and under the supervision of someone who has the license or permit or acceptable evidence of the same at hand and the activity is one for which a person not an individual may acquire a license.

(g)        It is unlawful to buy, sell, lend, borrow, or in any other way transfer or receive or attempt to do any such things with respect to any nontransferable license or permit for the purpose of circumventing the requirements of this Article.

(h)        It is unlawful for any person engaged in regulated operations under this Article to refuse to exhibit or display any required license, permit, or identification upon the request of any employee or agent of the Wildlife Resources Commission or of any officer authorized to enforce the provisions of this Article.

(i)         It is unlawful to refuse to comply with any provisions of this Article or of rules and administrative requirements reasonably promulgated under the authority of this Article.

(j)         It is a Class 1 misdemeanor for any person:

(1)       Knowingly to engage in any activity regulated under this Article with an improper, false, or altered license or permit;

(2)       Knowingly to make any application for a license or permit to which he is not entitled;

(3)       Knowingly to make any false, fraudulent, or misleading statement in applying for a license or permit under this Article; or

(4)       To counterfeit, alter, or falsify any application, license, or permit under this Article.

(k)        A person may use a bow and arrow to take nongame fish in inland and joint fishing waters subject to any applicable rule of the Wildlife Resources Commission regarding seasons, creel limits, type of weapon or subsidiary gear, or any other restriction necessary for the conservation of wildlife under the authority of the following licenses:

(1)       All of the combination hunting and fishing licenses issued pursuant to G.S. 113-270.1C;

(2)       All of the sportsman licenses issued pursuant to G.S. 113-270.1D;

(3)       The hunting licenses issued pursuant to G.S. 113- 270.2(c)(1), (2), (3), (5), and (6);

(4)       The hook-and-line fishing licenses issued pursuant to G.S. 113-271(d)(1), (2), (3), (4), (5), (6), (8), and (9); and

(5)       All of the special device fishing licenses issued pursuant to G.S. 113-272.2. (1929, c. 335, ss. 6, 10, 11; 1945, c. 567, ss. 5, 6; 1961, c. 329; 1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1979, c. 830, s. 1; 1981, c. 620, ss. 7, 8; 1987, c. 745, s. 1; c. 827, s. 98; 1993, c. 539, s. 855; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 684, s. 7; 1995, c. 36, s. 1; 2000-189, s. 10; 2005-455, s. 1.10.)

 

§ 113-276.  Exemptions and exceptions to license and permit requirements.

(a),       (b)  Repealed by Session Laws 1979, c. 830, s. 1.

(c)        Except as otherwise provided in this Subchapter, every landholder, his spouse, and dependents under 18 years of age residing with him may take wildlife upon the land held by the landholder without any license required by G.S. 113-270.1B or G.S. 113-270.3(a), except that such persons are not exempt from the bear management stamp established in G.S. 113-270.3(b)(1b) and the falconry license described in G.S. 113-270.3(b)(4).

(d)       Except as otherwise provided in this Subchapter, individuals under 16 years of age are exempt from the hunting and trapping license requirements of G.S. 113-270.1B(a) and G.S. 113-270.3(a), except the falconry license described in G.S. 113-270.3(b)(4). Individuals under 16 may hunt under this exemption, provided that the hunter is accompanied by an adult of at least 18 years of age who is licensed to hunt in this State. For purposes of this section, "accompanied" means that the licensed adult maintains a proximity that enables the adult to monitor the activities of the hunter by remaining within sight and hearing distance at all times without use of electronic devices. Upon successfully obtaining the hunter education certificate of competency required by G.S. 113-270.1A(a), a hunter may hunt under the license exemption until age 16 without adult accompaniment. Individuals under 16 years of age are exempt from the fishing license requirements of G.S. 113-270.1B(a), 113-272, and 113-271.

(e)        Repealed by Session Laws 2005-455, s. 1.11.

(f)        A special device license is not required when a landing net is used:

(1)       To take nongame fish in inland fishing waters; or

(2)       To assist in taking fish in inland fishing waters when the initial and primary method of taking is by the use of hook and line - so long as applicable hook-and-line fishing-license requirements are met.

As used in this subsection, a "landing net" is a net with a handle not exceeding eight feet in length and with a hoop or frame to which the net is attached not exceeding 60 inches along its outer perimeter.

(g)        Bow nets covered by a special device license may be used in waters and during the seasons authorized in the rules of the Wildlife Resources Commission by an individual other than the licensee with the permission of the licensee. The individual using another's bow net must also secure the net owner's special device license and keep it on or about his person while fishing in inland fishing waters.

(h)        Repealed by Session Laws 1979, c. 830, s. 1.

(i)         A food server may prepare edible wildlife lawfully taken and possessed by a patron for serving to the patron and any guest he may have. The Executive Director may provide for the keeping of records by the food server necessary for administrative control and supervision with respect to wildlife brought in by patrons.

(j)         A migrant farm worker who has in his possession a temporary certification of his status as such by the Rural Employment Service of the Division of Employment Security on a form provided by the Wildlife Resources Commission is entitled to the privileges of a resident of the State and of the county indicated on such certification during the term thereof for the purposes of purchasing and using the resident fishing licenses provided by G.S. 113-271(d)(2), (4), and (6)a.

(k)        A person may participate in a field trial for beagles without a hunting license if approved in advance by the Executive Director, conducted without the use or possession of firearms, and on an area of not more than 100 acres of private land which is completely and permanently enclosed with a metal fence through which rabbits may not escape or enter at any time.

(l)         The fishing license provisions of this Article do not apply upon the lands held in trust by the United States for the Eastern Band of the Cherokee Indians.

(l1)       The licensing provisions of this Article do not apply to a member of an Indian tribe recognized under Chapter 71A of the General Statutes for purposes of hunting, trapping, or fishing on tribal land. A person taking advantage of this exemption shall possess and produce proper identification confirming the person's membership in a State-recognized tribe upon request by a wildlife enforcement officer. For purposes of this section, "tribal land" means only real property owned by an Indian tribe recognized under Chapter 71A of the General Statutes.

(l2)       A resident of this State who is a member of the Armed Forces of the United States serving outside the State, or who is serving on full-time active military duty outside the State in a reserve component of the Armed Forces of the United States as defined in 10 U.S.C. 10101, is exempt from the hunting and fishing license requirements of G.S. 113-270.1B, G.S. 113-270.3(b)(1), G.S. 113-270.3(b)(3), G.S. 113-270.3(b)(5), G.S. 113-271, G.S. 113-272, G.S. 113-272.2(c)(1), and the Coastal Recreational Fishing License requirements of G.S. 113-174.2 while that person is on leave in this State for 30 days or less. In order to qualify for the exemption provided under this subsection, the person shall have on his or her person at all times during the hunting or fishing activity the person's military identification card and a copy of the official document issued by the person's service unit confirming that the person is on authorized leave from a duty station outside this State.

A person exempted from licensing requirements under this subsection is responsible for complying with any reporting requirements prescribed by rule of the Wildlife Resources Commission, complying with the hunter education requirements of G.S. 113-270.1A, purchasing any federal migratory waterfowl stamps as a result of waterfowl hunting activity, and complying with any other requirements that the holder of a North Carolina license is subject to.

(m)       The fourth day of July of each year is declared a free fishing day to promote the sport of fishing and no hook-and-line fishing license is required to fish in any of the public waters of the State on that day. All other laws and rules pertaining to hook-and-line fishing apply.

(n)        The Wildlife Resources Commission may adopt rules to exempt individuals from the hunting and fishing license requirements of G.S. 113-270.1B, 113-270.3(b)(1), 113-270.3(b)(1a), 113-270.3(b)(1b), 113-270.3(b)(2), 113-270.3(b)(3), 113-270.3(b)(5), 113-271, 113-272, and 113-272.2(c)(1) who participate in organized hunting and fishing events for the specified time and place of the event when the purpose of the event is consistent with the conservation objectives of the Commission. A person exempted from licensing requirements under this subsection is responsible for complying with any reporting requirements prescribed by rule of the Wildlife Resources Commission, purchasing any federal migratory waterfowl stamps as a result of waterfowl hunting activity, and complying with any other requirements that the holder of a North Carolina license is subject to. Those exempted persons shall comply with the hunter safety requirements of G.S. 113-270.1A or shall be accompanied by a properly licensed adult who maintains a proximity to the license exempt individual which enables the adult to monitor the activities of, and communicate with, the individual at all times.  (1929, c. 335, ss. 1, 10; 1935, c. 486, s. 12; 1937, c. 45, s. 1; 1945, c. 567, ss. 1, 6; c. 617; 1949, c. 1203, s. 1; 1951, c. 1112, s. 2; 1957, c. 849, s. 1; 1959, c. 304; 1961, cc. 312, 329; c. 834, s. 1; 1963, c. 170; 1965, c. 957, s. 2; 1967, cc. 127, 654, 790; 1969, c. 1030; c. 1042, ss. 1-5; 1971, c. 242; c. 282, s. 1; c. 705, ss. 1, 2; c. 1231, s. 1; 1973, c. 1262, s. 18; 1975, c. 197, ss. 1-4; 1977, c. 191, s. 1; c. 658; 1979, c. 830, s. 1; 1987, c. 827, s. 98; 1993 (Reg. Sess., 1994), c. 684, ss. 6, 8, 9; 1999-456, ss. 29, 30; 2005-285, s. 1; 2005-438, s. 2; 2005-455, ss. 1.11, 1.12, 1.13, 1.14; 2009-25, s. 1; 2009-248, s. 1; 2011-401, s. 3.15; 2013-63, s. 4; 2013-283, s. 14.)

 

§ 113-276.1.  Regulatory authority of Wildlife Resources Commission as to license requirements and exemptions.

In its discretion and in accordance with the best interests of the conservation of wildlife resources, the Wildlife Resources Commission may implement the provisions of this Article with rules that:

(1)       [Reserved.]

(2)       Regulate license requirements and exemptions applying to the taking of wildlife on particular waters forming or lying across a county boundary where there may be confusion as to the location of the boundary, hardship imposed as to the location of the boundary, or difficulty of administering or enforcing the law with respect to the actual boundary location.

(3)       Require persons subject to license requirements, and persons exempt from license requirements, to carry, display, or produce identification that may be necessary to substantiate the person's entitlement to a particular license or to a particular exemption from license requirements.

(4)       Require individuals aboard vessels or carrying weapons or other gear that may be used to take wildlife resources, and in an area at a time wildlife resources may be taken, to exhibit identification that includes the individual's name and current address. More than one piece of identification, including a vehicle driver license, may be required to be exhibited, if available.

(5)       Implement a system of tagging and reporting fur-bearing animals and big game. Upon the implementation of a tagging system for any species of fur-bearing animal, the Wildlife Resources Commission may charge a reasonable fee to defray its costs, not to exceed two dollars twenty-five cents ($2.25) per tag, for each tag furnished. The price of the big game hunting license includes the cost of big game tags. (1979, c. 830, s. 1; 1987, c. 827, s. 98.)

 

§ 113-276.2.  Licensees and permittees subject to administrative control; refusal to issue or reissue, suspension, and revocation of their licenses and permits; court orders of suspension.

(a)        This section applies to the administrative control of:

(1)       Persons, other than individual hunters and fishermen taking wildlife as sportsmen, holding permits under this Article;

(2)       Individuals holding special device licenses under G.S. 113-272.2(c)(1), (1a), (2), and (2a);

(3)       Individuals holding collection licenses under G.S. 113-272.4;

(4)       Individuals holding captivity licenses under G.S. 113-272.5 and G.S. 113-272.6; and

(5)       Persons holding dealer licenses under G.S. 113-273.

(b)        Before issuing any license or permit to persons subject to administrative control under this section, the Executive Director must satisfy himself that the person meets the qualifications set by statute, rule, or his administrative guidelines. If the person fails to meet the qualifications or if the Executive Director learns of some other cause for believing that issuing the license or permit would be contrary to the best interests of the conservation of wildlife resources, he must refuse to issue the license or permit.

(c)        Before reissuing any license or permit to any person subject to administrative control, the Executive Director must review all available information and apply the same standards that governed initial issuance of the license or permit before he may reissue it.

(d)       Upon refusing to issue or reissue a license or permit under this section, the Executive Director must notify the person in writing of the reasons for his action and inform him that if he is dissatisfied with the Executive Director's decision he may commence a contested case on the refusal by filing a petition under G.S. 150B-23 within 10 days of receiving the notice. The notice must be personally served by a law enforcement officer or an agent of the Wildlife Resources Commission or sent by mail with return receipt requested.

(e)        The Executive Director shall revoke a license or permit issued to a person subject to administrative control if he finds that the person does not meet the qualifications for the license or permit, has committed a substantial criminal violation of this Subchapter or a rule adopted under the Subchapter, or has seriously or persistently failed to comply with the terms and conditions upon which the license or permit was issued. Before revoking a license or permit, the Executive Director shall notify the licensee or permittee of his findings and his intention to revoke the license or permit. The notice must be personally served by a law enforcement officer or an agent of the Wildlife Resources Commission or sent by mail with return receipt requested. A licensee or permittee who disagrees with the Executive Director's findings may commence a contested case on revocation by filing a petition under G.S. 150B-23 within 10 days of receiving the notice. Revocation or suspension of a license or permit by a court under G.S. 113-277 runs concurrently with a revocation under this section.

(f)        Repealed by Session Laws 1987, c. 827, s. 8.

(g)        Upon revocation of a license or permit, the Executive Director or his agent must request return of the license or permit and all associated forms, tags, record books, inventories, invoice blanks, and other property furnished by the Wildlife Resources Commission or required to be kept by the Commission solely in connection with the license or permit. If the person needs to retain a copy of the property returned to the Wildlife Resources Commission for tax purposes or other lawful reason, the person may copy items returned if the copies are clearly marked in a manner that they could not be mistaken for the originals. In securing property to be returned or in otherwise closing out the affairs conducted under the license or permit, agents of the Wildlife Resources Commission may enter at reasonable hours the premises of the person in which wildlife resources or items of property pertaining to the license or permit are kept, or reasonably believed to be kept, to inspect, audit, inventory, remove, or take other appropriate action. Any wildlife resources in the possession of the person which he may no longer possess must be disposed of in accordance with the most nearly appropriate provision of G.S. 113-137. If a person fails to return to an agent of the Wildlife Resources Commission all wildlife resources and other property covered by this subsection; refuses to allow entry by the agent to inspect, audit, remove property, or perform other duties; or otherwise obstructs an agent of the Wildlife Resources Commission in performing his duties under this subsection, he is guilty of a Class 2 misdemeanor. Each day's violation is a separate offense.

(h)        No person refused issuance or reissuance of a license or permit under this section, or whose license or permit was revoked, is eligible to apply again for that or any similar license or permit for two years. Upon application, the Executive Director may not grant the license or permit unless the person produces clear evidence, convincing to the Executive Director, that he meets all standards and qualifications and will comply with all requirements of statutes, rules, and reasonable administrative directives pertaining to the license or permit.

(i)         The Executive Director is required to make necessary investigations and cause necessary disclosure of information by all persons subject to administrative control, and all applicants for a license or permit that would place them in this category, to determine that the real party in interest is seeking or has been issued the license or permit. Any attempt to circumvent the provisions of this section is a Class 1 misdemeanor.

(j)         If the Executive Director determines that the effective conservation of wildlife resources would be seriously impaired by continued unfettered operations or by continued possession of property by the person subject to administrative control, the Executive Director may apply to the appropriate court for an order:

(1)       Placing special reporting and inspection requirements on the person; or

(2)       Impounding some or all of the records or other property associated with the license or permit; or

(3)       Limiting the scope of operations under the license or permit; or

(4)       If there is clear evidence of a serious threat to the conservation of wildlife resources, suspending the operations of the person under the license or permit; or

(5)       Placing other appropriate restrictions, prohibitions, or requirements upon the person. (1979, c. 830, s. 1; 1987, c. 827, ss. 8, 98; 1993, c. 539, ss. 856, 857; 1994, Ex. Sess., c. 24, s. 14(c); 1999-456, s. 31; 2003-344, s. 6.)

 

§ 113-276.3.  Mandatory suspension of entitlement to license or permit for fixed period upon conviction of specified offenses.

(a)        Upon conviction of a suspension offense under this section, the defendant's entitlement to any license or permit applicable to the type of activity he was engaging in that resulted in the conviction is suspended for the period stated in subsection (d). The period of suspension begins:

(1)       Upon the surrender to an authorized agent of the Wildlife Resources Commission of all applicable licenses and permits; or

(2)       If no licenses or permits are possessed, the defendant fails or refuses to surrender all licenses or permits, or any license or permit is lost or destroyed, upon the Executive Director's placing in the mail the notification required by subsection (c).

(b)        If the defendant does not wish to appeal, the presiding judge may order surrender of all applicable licenses and permits to an agent of the Wildlife Resources Commission. If the presiding judge does not order the surrender, or if there is for any other reason a failure by the defendant to surrender all applicable licenses and permits, an authorized agent of the Wildlife Resources Commission must demand surrender. Each day's failure or refusal to surrender a license or permit upon demand, in the absence of satisfactorily accounting for the failure to do so, is a separate offense. A charge under this subsection does not affect the power of the court to institute contempt proceedings if a failure or refusal to surrender a license or permit also violates a court order. Any agent of the Wildlife Resources Commission accepting surrender of licenses and permits, in the courtroom or at a subsequent time and place, must transmit them to the Executive Director with a written notation of the date of surrender and a report of other pertinent circumstances required by the Executive Director.

(c)        The Executive Director must institute a procedure for the systematic reporting to him by protectors or other authorized agents of the Wildlife Resources Commission of all convictions of suspension offenses under this section. Upon obtaining information concerning conviction of a suspension offense and receiving any surrendered licenses and permits, the Executive Director must determine if all appropriate licenses and permits possessed by the defendant have been surrendered; if not, the Executive Director must notify the appropriate agent of the Wildlife Resources Commission to demand surrender or renew a demand for surrender under the terms of subsection (b) if it is feasible to do so. Upon satisfying himself that he has received all licenses and permits for which surrender may feasibly be obtained, if any, the Executive Director must mail the defendant a notice of the suspension of his entitlement to possess or procure any license or permit of the type applicable to the activity engaged in that resulted in conviction of the suspension offense. The notice must specify the commencement and termination dates of the period of suspension that apply under the terms of this section.

(d)       Any violation of this Subchapter or of any rule adopted by the Wildlife Resources Commission under the authority of this Subchapter which is subject to a penalty greater than the one provided in G.S. 113-135(a)(1) is a suspension offense. Conviction of any of the following suspension offenses results in a suspension for a period of two years:

(1)       A violation of G.S. 113-294(b).

(2)       A violation of G.S. 113-294(c).

(2a)     A violation of G.S. 113-294(c1).

(3)       A violation of G.S. 113-294(e).

(4)       Repealed by Session Laws 1999-120, s. 2, effective October 1, 1999.

(5)       A violation of G.S. 113-291.1A.

(6)       A third or subsequent violation of G.S. 14-159.6(a).

A conviction of any other suspension offense results in a suspension for a period of one year.

(e)        Unless otherwise provided in the judgment, any action by a court under G.S. 113-277 to suspend entitlement to a license or permit or to suspend or revoke a license or permit supersedes any suspension of entitlement to a license or permit mandated by this section. If the judgment of the court after a conviction for suspension offense does not include any suspension or revocation action, the provisions of this section apply.  (1979, c. 830, s. 1; 1981, c. 424, s. 1; 1987, c. 827, s. 98; 1999-120, s. 2; 2005-62, s. 3; 2015-144, s. 4(a).)

 

§ 113-277.  Suspension and revocation of licenses and permits in the discretion of the court; suspension of entitlement; court's power concurrent; definition of "conviction"; penalties.

(a)        Upon conviction of any licensee or permittee under this Article of a violation of any law or rule administered by the Wildlife Resources Commission under the authority of this Subchapter, the court in its discretion may order surrender of that license or permit plus any other license or permit issued by the Wildlife Resources Commission. The court may order suspension of any license or permit for some stipulated period or may order revocation of any license or permit for the remainder of the period for which it is valid. A period of suspension may extend past the expiration date of a license or permit, but no period of suspension longer than two years may be imposed. During any period of suspension or revocation, the licensee or permittee is not entitled to purchase or apply for any replacement, renewal, or additional license or permit regulating the same activity covered by the suspended or revoked license or permit. The Wildlife Resources Commission may by administrative action and by rule devise procedures designed to implement license or permit suspensions and revocations that may be ordered by the courts.

(a1)      Upon conviction of any person who is not a licensee or permittee under this Article of a violation of any law or rule administered by the Wildlife Resources Commission under the authority of this Subchapter, the court in its discretion may suspend the entitlement of the defendant to possess or procure any specified licenses and permits issued by the Wildlife Resources Commission for a period not to exceed two years.

(a2)      A suspension or revocation by a court under this section may be ordered to run concurrently or consecutively with any suspension under G.S. 113-276.3 or any action under G.S. 113-276.2. If no provision is made, G.S. 113-276.3(e) applies, but action by the Executive Director or the Wildlife Resources Commission under G.S. 113-276.2 may not be preempted.

(a3)      As used in this Article, the term "conviction" has the same meaning assigned to it in G.S. 113-171.

(a4)      The Wildlife Resources Commission shall order the surrender of any license or permit issued under this Article to a person whose licensing privileges have been forfeited under G.S. 15A-1331.1 for the period specified by the court.

(b)        It is a Class 1 misdemeanor for any person during a period of suspension or revocation under the terms of this Article:

(1)       To engage in any activity licensed in this Article without the appropriate license or permit;

(2)       Knowingly to make any application for a license or permit to which he is not entitled;

(3)       Knowingly to make any false, fraudulent, or misleading statement in applying for a license or permit under this Article;

(4)       To counterfeit, alter, or falsify any application, license, or permit under this Article;

(5)       Knowingly to retain and use any license or permit which has been ordered revoked or suspended under the terms of this Article; or

(6)       Willfully to circumvent the terms of suspension or revocation in any manner whatsoever.  (1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1979, c. 830, s. 1; 1981, c. 424, s. 2; 1987, c. 827, s. 98; 1993, c. 539, s. 858; 1994, Ex. Sess., c. 20, s. 4; c. 24, s. 14(c); 1998-225, s. 3.10; 2012-194, s. 45(d).)

 

§ 113-278.  Reserved for future codification purposes.

 

§ 113-279.  Reserved for future codification purposes.

 

§ 113-280.  Reserved for future codification purposes.

 

 

Article 21A.

Regulating Hunting and Fishing on the Registered Property of Another.

§ 113-281.  Definitions.

In addition to the definitions in Article 12 of this Chapter, the following definitions apply in this Article:

(1)        Entry Permit. - The permit described in G.S. 113-283.

(2)        Posted Property. - Registered property that is posted in substantial compliance with G.S. 113-282(d).

(3)        Registered Property. - Property that has been accepted for registration by the Wildlife Resources Commission as provided in G.S. 113-282, and has not been deleted from registration.

(4)        Registrant. - A current applicant of record for a tract of registered property. (1981, c. 854, s. 1.)

 

§ 113-282.  Registration and posting of property.

(a)        A person who controls the hunting, fishing, or hunting and fishing rights to a tract of property and wishes to register it under this Article must apply to the Wildlife Resources Commission in  accordance with this section.

(b)        The registration application must contain:

(1)        A statement under oath by the applicant that he has the right to control hunting or fishing, or both, on the tract of property to be registered. If the applicant is not a landholder, he must file a copy of his lease or other document granting him control of hunting, fishing, or hunting and fishing rights on the tract.

(2)        Three copies of a description of the tract that will allow law-enforcement officers to determine in the field, and prove in court, whether an individual is within the boundaries of the tract. This description may take the form of a map, plat, aerial photograph showing boundaries, diagram keyed to known landmarks, or any other document or description that graphically demarks the boundaries with sufficient accuracy for use by officers in court and in the field. Any amendment of the boundaries of a registered tract must be accomplished by a new registration application meeting the requirements of this subsection.

(3)        An agreement by the applicant to post the tract in accordance with the requirements of this section and to make a continuing effort to maintain posted notices for the tract.

(4)        An agreement by the applicant to issue or cause issuance of an entry permit to all individuals to whom he or his authorized agent gives permission to hunt or fish on the tract. The applicant must file the name and signature of any  agent authorized by him to issue the entry permit, and a registrant must amend his application to rescind the agent's authority and to substitute or add an authorized agent.

(5)        A fee of ten dollars ($10.00) to cover the administrative costs of processing the registration application.

(c)        The Executive Director must examine any submitted application to determine whether the requirements of subsection (b) have been fully met. If he determines that these requirements have been met and if his inquiries of persons with knowledge of the locality of the tract corroborate the truthfulness and accuracy of the information in the application, he must register the tract of property and notify the registrant of his action. Registration consists of filing the application in a central registry open to the public with an indication whether the property is registered as to hunting, fishing, or both. Upon registration, the Executive Director must send, for the  information of protectors and other law-enforcement officers, the two  duplicate copies of the description of the tract as follows: (i) to the sheriff of the county in which the tract is located, or to the chief of the county police department if such a department is the primary agency enforcing the criminal laws in a county; and (ii) to an appropriate protector stationed in the area where the tract is located. The Executive Director must also furnish officers with copies of the signatures of registrants and their authorized agents and other pertinent information for enforcement of this Article.

(d)       A registrant must post his registered property as soon as practicable after receiving notice that the tract was accepted for registration. Posted notices must measure at least 120 square inches;  contain the word "POSTED" in letters at least three inches high; state that the property is registered with the Wildlife Resources Commission and that hunting or fishing, or both, are prohibited without an entry permit; and set out the name and address and, if feasible, the telephone number of the person to contact for an entry permit. At least one notice must be conspicuously posted on the registered property not more than 200 yards apart close to and along the boundaries. In any event at least one notice must be placed on each side of the registered property, one at each corner, and one at each point of entry. A point of entry is where a roadway, trail, path, or other way likely to be used by entering sportsmen leads into the tract. If registered property is posted only with respect to fishing, it is sufficient if the notices prohibit fishing without permission, and are posted at intervals of not more than 200 yards along the stream or shoreline and at points of entry likely to be used by fishermen. Notices posted along the boundaries of a tract must face in the direction that they will be most likely seen by persons entering the tract. Notices posted along a stream or shoreline must face in the direction that they will most likely be seen by anyone intending to fish. With respect to any particular hunter or fisherman, or person who has entered to hunt or fish, there is substantial compliance with  this subsection, notwithstanding that one or more of the required notices may be absent, illegible, or improperly placed, if any notice  is or has been reasonably visible to him while he was within or approaching the registered tract.

(e)        If a registrant loses his proprietary interest or his control of the hunting, fishing, or hunting and fishing rights as to which he  has registered the property, he must within 20 days notify the Executive Director. If a new person who controls those rights wishes to continue the registration of the tract, he must make application under the terms of subsection (b), except that no copies of the tract's description need be filed if there is no change of boundaries. When the Executive Director receives the notice under this subsection, or otherwise learns that a registrant has lost his proprietary control of the applicable hunting, fishing, or hunting and fishing rights, and there is no pending application to continue registration of the tract, the Executive Director must immediately delete registration of the tract, notify the presently responsible landholder, and require him to remove any remaining posted notices.

(f)        A person who controls the hunting, fishing, or hunting and fishing rights to registered property may apply to the Wildlife Resources Commission in writing to delete the registration of the tract. If he is not the registrant, he must satisfy the Executive Director of his present right to control the applicable hunting and fishing rights. If he is the registrant, his statement that he still controls the applicable rights on the tract is sufficient unless the Executive Director has reason to require further evidence on this point. Upon determination that an application to delete is proper, the Executive Director must immediately delete registration of the tract, notify the presently responsible landholder, and require him to remove any remaining posted notices.

(g)        Any law-enforcement officer or any employee of the Wildlife Resources Commission who determines that a registrant has failed to keep registered property posted in compliance with subsection (d) must so notify the registrant or his agent. If within a reasonable time after notice the registrant fails to take steps to post or repost the tract, or if without regard to notice a registrant is inexcusably or repeatedly negligent in failing to keep the tract properly posted, the Executive Director must immediately delete registration of the tract, notify the presently responsible landholder, and require him to remove any remaining posted notices.

(h)        A landholder's failure to cause the removal of all posted signs within a reasonable time after receipt of notice that the tract has been deleted from registration is a misdemeanor punishable as provided in G.S. 113-135. (1981, c. 854, s. 1.)

 

§ 113-283.  Entry permits furnished by Wildlife Resources Commission.

(a)        Upon registration of property, the Executive Director must furnish the registrant with a reasonable number of standardized permit forms to be carried by individuals given permission to hunt or fish on the registered property. The Executive Director must establish a procedure for resupplying registrants with entry permits for their registered property as needed.

(b)        To be valid, the entry permit must be issued and dated within the previous 12 months and signed by the registrant or an authorized agent whose signature is on file with the Wildlife Resources Commission. (1981, c. 854, s. 1.)

 

§ 113-284.  Affirmative duty of sportsmen to determine if property is registered and posted.

Every individual who enters the property of another to hunt or fish without first having obtained permission from an authorized person in control of hunting and fishing rights or his agent is under  a duty to look for posted notices. In the apparent absence of such notices, the individual intending to enter is nevertheless under a duty to determine if practicable whether the property is registered under the terms of this Article. (1981, c. 854, s. 1.)

 

§ 113-285.  Hunting or fishing on registered property of another without permission.

(a)        No one may hunt or fish, or enter to hunt or fish, on the registered and posted property of another without having in possession a valid entry permit issued to him.

(b)        No one may hunt or fish, or enter to hunt or fish, on the registered property of another without having in possession a valid entry permit issued to him if he has reason to know the property had been posted.

(c)        A violation of this section is a misdemeanor punishable as provided in G.S. 113-135. (1981, c. 854, s. 1.)

 

§ 113-286.  Removal, destruction, or mutilation of posted notices.

Unauthorized removal, destruction, or mutilation of posted  notices on registered property is a Class 2 misdemeanor. (1981, c. 854, s. 1; 1993, c. 539, s. 859; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-287.  General provisions pertaining to enforcement of Article.

(a)        If property is registered, the original or a true copy of the application and all supporting items are admissible in evidence. The registrant's affidavit that he has the right to control hunting, fishing, or hunting and fishing on the registered property constitutes prima facie evidence of the facts so asserted. The description filed with the application constitutes prima facie evidence of the boundaries of the registered property.

(b)        If an individual hunts or fishes, or enters to hunt or fish, on registered property that is or had been posted, any registrant or his agent, any landholder of that property, and any protector or other law-enforcement officer may request that the individual produce a valid entry permit.

(c)        In addition to protectors, it is the duty of sheriffs and their deputies, county police officers, and other law-enforcement officers with general enforcement jurisdiction to investigate reported violations of this Article and to initiate prosecutions when they determine that violations have occurred.

(d)       Any entry permit issued to an individual does not substitute for any required hunting or fishing license. (1981, c. 854, s. 1.)

 

§ 113-288.  Reserved for future codification purposes.

 

§ 113-289.  Reserved for future codification purposes.

 

 

Article 21B.

Criminally Negligent Hunting.

§ 113-290.  Unlawful use of firearms.

It is unlawful for any person, while hunting or taking wild animals or wild birds as those terms are defined in G.S. 113-129 and G.S. 113-130, to discharge a firearm:

(1)        Carelessly and heedlessly in wanton disregard for the safety of others; or

(2)        Without due caution or circumspection, and in a manner so as to endanger any person or property;

and resulting in property damage or bodily injury. (1991, c. 748, s. 1.)

 

§ 113-290.1.  Penalties.

(a)        A person who violates the provisions of this Article is guilty of a misdemeanor punishable as follows:

(1)        If property damage only results from the unlawful activity, a Class 2 misdemeanor, and the court shall order the payment of restitution to the property owner;

(2)        If bodily injury not leading to the disfigurement or total or partial permanent disability of another person results from the unlawful activity, a Class 1 misdemeanor; if property damage also results from the unlawful activity, the court shall order the payment of restitution to the property owner;

(3)        If bodily injury leading to the disfigurement or total or partial permanent disability of another person results from the unlawful activity, a Class 1 misdemeanor; if property damage also results from the unlawful activity, the court shall order the payment of restitution to the property owner;

(4)        If death results from the unlawful activity, a Class 1 misdemeanor; if property damage also results from the unlawful activity, the court shall order the payment of restitution to the property owner.

(b)        The fact that a person was impaired at the time of a violation of this Article shall be an aggravating factor and the court shall impose an additional fine and/or imprisonment in accordance with (a)(2) above in cases not resulting in bodily injury and in accordance with (a)(4) above in cases resulting in bodily injury.  For purposes of this section, "impaired" means being under the influence of an impairing substance, or having consumed sufficient alcohol so that the person has, at any relevant time after the offense, an alcohol concentration of .10 or above.

(c)        In addition to the penalties provided in (a), upon conviction of a violation of this Article, the Wildlife Resources Commission shall suspend all hunting privileges of:

(1)        A person convicted under (a)(1) for one year;

(2)        A person convicted under (a)(2) for three years; and

(3)        A person convicted under (a)(3) or (a)(4) for five years.

(d)       A person convicted of hunting or taking wild animals or wild birds while his hunting license is suspended under this section shall be guilty of a Class 1 misdemeanor, and shall have all hunting privileges suspended for an additional five years.  The person shall not be issued another hunting license until he has satisfactorily completed the hunter safety course established in G.S. 113-270.1A.

(e)        This Article shall be enforced by law enforcement officers of the Wildlife Resources Commission, by sheriffs and deputy sheriffs, and by peace officers with general subject matter jurisdiction.

(f)        A violation of this Article resulting in the death of another person constitutes a separate and distinct offense from, and is not a lesser included offense of, the crime of involuntary manslaughter. (1991, c. 748; 1993, c. 539, ss. 860, 861; 1994, Ex. Sess., c. 24, s. 14(c).)

 

 

Article 22.

Regulation of Wildlife.

§ 113-291.  General restrictions.

Except as specifically permitted in this Subchapter or in rules made under the authority of this Subchapter, no person may take, possess, buy, sell, or transport any wildlife - whether dead or alive, in whole or in part. Nor may any person take, possess, buy, sell, or transport any nests or eggs of wild birds except as so permitted. No person may take, possess, buy, sell, or transport any wildlife resources in violation of the rules of the Wildlife Resources Commission. (1965, c. 957, s. 2; 1979, c. 830, s. 1; 1987, c. 827, s. 98.)

 

§ 113-291.1.  Manner of taking wild animals and wild birds.

(a)        Except as otherwise provided, game may only be taken between a half hour before sunrise and a half hour after sunset and only by one or a combination of the following methods:

(1)       With a rifle, except that rifles may not be used in taking wild turkeys.

(2)       With a shotgun not larger than number 10 gauge.

(3)       With a bow and arrow of a type prescribed in the rules of the Wildlife Resources Commission.

(4)       With the use of dogs.

(5)       By means of falconry.

Fur-bearing animals may be taken at any time during open trapping season with traps authorized under G.S. 113-291.6 and as otherwise authorized pursuant to this subsection, and rabbits may be box-trapped in accordance with rules of the Wildlife Resources Commission. The Wildlife Resources Commission may adopt rules prescribing the manner of taking wild birds and wild animals not classified as game. Use of pistols in taking wildlife is governed by subsection (g). The Wildlife Resources Commission may prescribe the manner of taking wild animals and wild birds on game lands and public hunting grounds.

(b)        No wild animals or wild birds may be taken:

(1)       From or with the use of any vehicle; vessel, other than one manually propelled; airplane; or other conveyance except that the use of vehicles and vessels is authorized:

a.         As hunting stands, subject to the following limitations. No wild animal or wild bird may be taken from any vessel under sail, under power, or with the engine running or while still in motion from such propulsion. No wild animal or wild bird may be taken from any vehicle if it is in motion, the engine is running, or the passenger area of the vehicle is occupied. The prohibition of occupying the passenger area of a vehicle does not apply to a disabled individual whose mobility is restricted.

b.         For transportation incidental to the taking.

(2)       With the use or aid of any artificial light, net, trap, snare, electronic or recorded animal or bird call, or fire, except as may be otherwise provided by statute[;] provided, however, that the Wildlife Resources Commission may adopt rules prescribing seasons and the manner of taking of wild animals and wild birds with the use of artificial light and electronic calls. No wild birds may be taken with the use or aid of salt, grain, fruit, or other bait. No black bear may be taken with the use or aid of any salt, salt lick, grain, fruit, honey, sugar-based material, animal parts or products, or other bait, except as provided by the rules of the Wildlife Resources Commission. However, no rule established by the Wildlife Resources Commission shall allow for the taking of a black bear with the use and aid of bear bait attractants, including scented sprays, aerosols, scent balls, and scent powders, and no rule established by the Wildlife Resources Commission shall allow for the taking of a black bear while it is consuming bait. No wild turkey may be taken from an area in which bait has been placed until the expiration of 10 days after the bait has been consumed or otherwise removed. The taking of wild animals and wild birds with poisons, drugs, explosives, and electricity is governed by G.S. 113-261, G.S. 113-262, and Article 22A of this Subchapter.

Upon finding that the placement of processed food products in areas frequented by black bears is detrimental to the health of individual black bears or is attracting and holding black bears in an area to the extent that the natural pattern of movement and distribution of black bears is disrupted and bears' vulnerability to mortality factors, including hunting, is increased to a level that causes concern for the population, the Wildlife Resources Commission may adopt rules to regulate, restrict, or prohibit the placement of those products and prescribe time limits during which hunting is prohibited in areas where those products have been placed.

Any person who is convicted of unlawfully taking bear with the use or aid of any type of bait as provided by this subsection or by rules adopted pursuant to this subsection is punishable as provided by G.S. 113-294(c1).

(c)        It is a Class 1 misdemeanor for any person taking wildlife to have in his possession any:

(1)       Repealed by Session Laws 2013-369, s. 23, effective October 1, 2013.

(2)       Weapon of mass death and destruction as defined in G.S. 14-288.8, other than a suppressor or other device designed to muffle or minimize the report of a firearm or short-barreled rifle that is lawfully possessed by a person in compliance with 26 U.S.C. Chapter 53 §§ 5801-5871.

The Wildlife Resources Commission may prohibit individuals training dogs or taking particular species from carrying axes, saws, tree-climbing equipment, and other implements that may facilitate the unlawful taking of wildlife, except tree-climbing equipment may be carried and used by persons lawfully taking raccoons and opossums during open season.

(d)       In accordance with governing rules of the Wildlife Resources Commission imposing further restrictions that may be necessary, hunters may conduct field trials with dogs in areas and at times authorized with the use of approved weapons and ammunition. The Wildlife Resources Commission may authorize organized retriever field trials, utilizing domestically raised waterfowl and game birds, to be held under its permit.

(d1)     Except in areas closed to protect sensitive wildlife populations, and subject to conditions and restrictions contained in rules of the Wildlife Resources Commission, hunters may train dogs during the closed season:

(1)       With the use of weapons and ammunition approved by the Wildlife Resources Commission;

(2)       If reasonable control is exercised to prevent the dogs from running unsupervised at large and from killing wild animals and wild birds;

(3)       On land owned or leased by the dog trainer or upon which the person has written permission to train dogs; and

(4)       Using domestically raised waterfowl and game birds, provided the birds are marked and sources are documented as required by the Wildlife Resources Commission.

(e)        Raccoons and opossum may be taken at night with dogs during seasons set by rules of the Wildlife Resources Commission with the use of artificial lights of a type designed or commonly used to aid in taking raccoon and opossum. No conveyance may be used in taking any raccoon or opossum at night, but incidental transportation of hunters and dogs to and from the site of hunting is permitted. The Wildlife Resources Commission may by rule prescribe restrictions respecting the taking of frogs, or other creatures not classified as wildlife which may be found in areas frequented by game, with the use of an artificial light, and may regulate the shining of lights at night in areas frequented by deer as provided in subsection (e1).

(e1)      After hearing sufficient evidence and finding as a fact that an area frequented by deer is subject to substantial unlawful night deer hunting or that residents in the area have been greatly inconvenienced by persons shining lights on deer, the Wildlife Resources Commission may by rule prohibit the intentional sweeping of that area with lights, or the intentional shining of lights on deer, during the period either:

(1)       From 11:00 p.m. until one-half hour before sunrise; or

(2)       From one-half hour after sunset until one-half hour before sunrise.

Before adopting this rule, the Wildlife Resources Commission must propose it at a public hearing in the area to be closed and seek the reactions of the local inhabitants. The rule must exempt necessary shining of lights by landholders, motorists engaged in normal travel on the highway, and campers and others legitimately in the area, who are not attempting to attract wildlife. This subsection does not limit the right of hunters to take raccoon and opossum with dogs lawfully at night with a light under the terms of subsection (e).

(e2)      If the Wildlife Resources Commission has enacted a rule under the authority of subsection (e1) prohibiting the shining of lights from 11:00 p.m. until one-half hour before sunrise in any county or area of a county, the Wildlife Resources Commission is authorized, without holding an additional public hearing, to extend the applicability of that rule to the period one-half hour after sunset to one-half hour before sunrise upon receipt of a resolution from the board of commissioners of the county requesting extension of the period.

(f)        To keep North Carolina provisions respecting migratory game birds in substantial conformity with applicable federal law and rules, the Wildlife Resources Commission may by rule, or as provided in subsection (f1) of this section, expand or modify provisions of this Article if necessary to achieve such conformity, including allowing the use of electronic calls. In particular, the Commission may prohibit the use of rifles, unplugged shotguns, live decoys, and sinkboxes in the taking of migratory game birds; vary shooting hours; adopt specific distances, not less than 300 yards, hunters must maintain from areas that have been baited, and fix the number of days afterwards during which it is still unlawful to take migratory game birds in the area; and adopt similar provisions with regard to the use of live decoys. In the absence of rules of the Wildlife Resources Commission to the contrary, the rules of the United States Department of the Interior prohibiting the use of rifles, unplugged shotguns, toxic shot and sinkboxes in taking migratory game birds in North Carolina shall apply, and any violation of such federal rules is unlawful.

(f1)      The Commission is authorized to issue proclamations to allow the use of electronic calls or unplugged shotguns to achieve substantial conformity with applicable federal law and rules established by the United States Department of Interior or any successor agency. The Commission may delegate this authority to the Executive Director. Each proclamation shall state the hour and date upon which it becomes effective and shall be issued at least 48 hours prior to the effective date and time. A permanent file of the text of all proclamations shall be maintained in the office of the Executive Director. Certified copies of proclamations are entitled to judicial notice in any civil or criminal proceeding.

The Executive Director shall make a reasonable effort to give notice of the terms of any proclamation to persons who may be affected by it. This effort shall include press releases to communications media, posting of notices at boating access areas and other places where persons affected may gather, personal communication by agents of the Wildlife Resources Commission, and other measures designed to reach persons who may be affected. Proclamations under this subsection shall remain in force until rescinded following the same procedure established for enactment.

(g)        If a season is open permitting such method of taking for the species in question, a hunter may take rabbits, squirrels, opossum, raccoons, fur-bearing animals, and nongame animals and birds open to hunting with a pistol. In addition, a hunter or trapper lawfully taking a wild animal or wild bird by another lawful method may use a knife, pistol, or other swift method of killing the animal or bird taken. The Wildlife Resources Commission may, however, restrict or prohibit the carrying of firearms during special seasons or in special areas reserved for the taking of wildlife with primitive weapons or other restricted methods.

(g1)      The Wildlife Resources Commission may by rule prescribe the types of handguns and handgun ammunition that may be used in taking big game animals other than wild turkey. During the regular gun seasons for taking bear, deer and wild boar these animals may be taken with types of handguns and handgun ammunition that shall be approved for such use by the rules of the Wildlife Resources Commission. The Commission shall not provide any special season for the exclusive use of handguns in taking wildlife.

(h)        In the interests of enhancing the enjoyment of sportsmen, and if consistent with conservation objectives, the Wildlife Resources Commission may by rule relax requirements of this section on controlled shooting preserves and in other highly controlled situations.

(i)         The intentional destruction or substantial impairment of wildlife nesting or breeding areas or other purposeful acts to render them unfit is unlawful. These prohibitions include cutting down den trees, shooting into nests of wild animals or birds, and despoliation of dens, nests, or rookeries.

(j)         It is unlawful to take deer swimming or in water above the knees of the deer.

(k)        If a hunter kills or wounds a big game animal during the hunting hours authorized by subsection (a) of this section, the hunter may use a portable light source and a single dog on a leash to assist the hunter in retrieving the dead or wounded big game animal, and may dispatch a wounded big game animal using only a .22-caliber rimfire pistol, archery equipment, or a handgun otherwise legal for that hunting season. Pursuit and retrieval under this subsection may occur between the hours of one-half hour after sunset and 11:00 p.m. if necessary, but such pursuit and retrieval may not be accomplished using a motorized vehicle.

For purposes of this section, the term "dispatch" means the quick and humane killing of a wounded animal to prevent further suffering through infection, starvation, or other distress in the wild.  (C.S., s. 2124; 1935, c. 486, s. 20; 1939, c. 235, s. 1; 1949, c. 1205, s. 3; 1955, c. 104; 1959, cc. 207, 500; 1961, c. 1182; 1963, c. 381; c. 697, ss. 1, 3½; 1967, c. 858, s. 1; c. 1149, s. 1.5; 1969, cc. 75, 140; 1971, c. 439, ss. 1-3; c. 899, s. 1; 1973, c. 1096; c. 1262, s. 18; 1975, c. 669; 1977, c. 493; 1979, c. 830, s. 1; 1979, 2nd Sess., c. 1285, ss. 4-6; 1983, c. 137, ss. 1, 2; c. 492; 1985, c. 360; c. 554, ss. 1, 2; 1987, cc. 97, 134, 827, s. 98; 1993, c. 539, s. 862; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 64, s. 1; 1999-120, s. 1; 2003-160, s. 1; 2005-76, ss. 1, 2; 2005-298, s. 1; 2007-401, s. 6; 2009-221, ss. 2, 3; 2011-22, s. 1; 2011-369, s. 4; 2013-283, s. 12; 2013-369, s. 23; 2015-195, s. 8.)

 

§ 113-291.1A.  Computer-assisted remote hunting prohibited.

(a)        It is unlawful for a person to engage in computer-assisted remote hunting or provide or operate a facility that allows others to engage in computer-assisted remote hunting if the wild animal or wild bird being hunted or shot is located in this State.

(b)        For purposes of this section "computer-assisted remote hunting" means the use of a computer or other device, equipment, or software, to remotely control the aiming and discharging of a firearm or other weapon, that allows a person, not physically present at the location of that firearm or other weapon, to hunt or shoot a wild animal or wild bird. (2005-62, s. 1.)

 

§ 113-291.2.  Seasons and bag limits on wild animals and birds; including animals and birds taken in bag; possession and transportation of wildlife after taking.

(a)        In accordance with the supply of wildlife and other factors it determines to be of public importance, the Wildlife Resources Commission may fix seasons and bag limits upon the wild animals and wild birds authorized to be taken that it deems necessary or desirable in the interests of the conservation of wildlife resources. The authority to fix seasons includes the closing of seasons completely when necessary and fixing the hours of hunting. The authority to fix bag limits includes the setting of season and possession limits. Different seasons and bag limits may be set in differing areas; early or extended seasons and different or unlimited bag limits may be authorized on controlled shooting preserves, game lands, and public hunting grounds; and special or extended seasons may be fixed for those engaging in falconry, using primitive weapons, or taking wildlife under other special conditions.

Unless modified by rules of the Wildlife Resources Commission or as provided in subsection (f) of this section, the seasons, shooting hours, bag limits, and possession limits fixed by the United States Department of Interior or any successor agency for migratory game birds in North Carolina must be followed, and a violation of the applicable federal rules is hereby made unlawful. When the applicable federal rules require that the State limit participation in seasons and/or bag limits for migratory game birds, the Wildlife Resources Commission may schedule managed hunts for migratory game birds. Participants in such hunts shall be selected at random by computer, and each applicant 16 years of age or older shall have the required general hunting license and the waterfowl hunting license prior to the drawing for the managed hunt. Each applicant under 16 years of age shall either have the required general hunting license and the waterfowl hunting license or shall apply as a member of a party that includes a properly licensed adult. All applications for managed waterfowl hunts shall be screened prior to the drawing for compliance with these requirements. A nonrefundable fee of ten dollars ($10.00) shall be required of each applicant to defray the cost of processing the applications.

(a1)      When the Executive Director of the Wildlife Resources Commission receives a petition from the State Health Director declaring a rabies emergency for a particular county or district pursuant to G.S. 130A-201, the Executive Director of the Wildlife Resources Commission shall develop a plan to reduce the threat of rabies exposure to humans and domestic animals by foxes, raccoons, skunks, or bobcats in the county or district. The plan shall be based upon the best veterinary and wildlife management information and techniques available. The plan may involve a suspension or liberalization of any regulatory restriction on the taking of foxes, raccoons, skunks, or bobcats, except that the use of poisons, other than those used with dart guns, shall not be permitted under any circumstance. If the plan involves a suspension or liberalization of any regulatory restriction on the taking of foxes, raccoons, skunks, or bobcats, the Executive Director of the Wildlife Resources Commission shall prepare and adopt temporary rules setting out the suspension or liberalization pursuant to G.S. 150B-21.1(a)(1). The Executive Director shall publicize the plan and the temporary rules in the major news outlets that serve the county or district to inform the public of the actions being taken and the reasons for them. Upon notification by the State Health Director that the rabies emergency no longer exists, the Executive Director of the Wildlife Resources Commission shall cancel the plan and repeal any rules adopted to implement the plan. The Executive Director of the Wildlife Resources Commission shall publicize the cancellation of the plan and the repeal of any rules in the major news outlets that serve the county or district.

(b)        Any individual hunter or trapper who in taking a wild animal or bird has wounded or otherwise disabled it must make a reasonable effort to capture and kill the animal or bird. All animals and birds taken that can be retrieved must be retrieved and counted with respect to any applicable bag limits governing the individual taking the animal or bird.

(c)        An individual who has lawfully taken game within applicable bag, possession, and season limits may, except as limited by rules adopted pursuant to subsection (c1) of this section, after the game is dead, possess and personally transport it for his own use by virtue of his hunting license, and without any additional permit, subject to tagging and reporting requirements that may apply to the fox and big game, as follows:

(1)       In an area in which the season is open for the species, the game may be possessed and transported without restriction.

(2)       The individual may possess and transport the game lawfully taken on a trip:

a.         To his residence;

b.         To a preservation or processing facility that keeps adequate records as prescribed in G.S. 113-291.3(b)(3) or a licensed taxidermist;

c.         From a place authorized in subparagraph b to his residence.

(3)       The individual may possess the game indefinitely at his residence, and may there accumulate lawfully-acquired game up to the greater of:

a.         The applicable possession limit for each species; or

b.         One half of the applicable season limit for each species.

The above subdivisions apply to an individual hunter under 16 years of age covered by the license issued to his parent or guardian, if he is using that license, or by the license of an adult accompanying him. An individual who has lawfully taken game as a landholder without a license may possess and transport the dead game, taken within applicable bag, possession, and season limits, to his residence. He may indefinitely retain possession of such game, within aggregate possession limits for the species in question, in his residence.

(c1)      In the event that the Executive Director finds that game carcasses or parts of game carcasses are known or suspected to carry an infectious or contagious disease that poses an imminent threat to the health or habitat of wildlife species, the Wildlife Resources Commission shall adopt rules to regulate the importation, transportation, or possession of those carcasses or parts of carcasses that, according to wildlife disease experts, may transmit such a disease.

(d)       Except in the situations specifically provided for above, the Wildlife Resources Commission may by rule impose reporting, permit, and tagging requirements that may be necessary upon persons:

(1)       Possessing dead wildlife taken in open season after the close of that season.

(2)       Transporting dead wildlife from an area having an open season to an area with a closed season.

(3)       Transporting dead wildlife lawfully taken in another state into this State.

(4)       Possessing dead wildlife after such transportation.

The Wildlife Resources Commission in its discretion may substitute written declarations to be filed with agents of the Commission for permit and tagging requirements.

(e)        Upon application of any landholder or agent of a landholder accompanied by a fee of fifty dollars ($50.00), the Executive Director may issue to such landholder or agent a special license and a number of special antlerless or antlered deer tags that in the judgment of the Executive Director is sufficient to accommodate the landholder or the landholder's agent's deer population management objectives or correct any deer population imbalance that may occur on the property. Subject to applicable hunting license requirements, the special deer tags may be used by any person or persons selected by the landholder or his agent as authority to take antlerless deer, including male deer with "buttons" or spikes not readily visible, or antlered deer on the tract of land concerned during any established deer hunting season. The Executive Director or designee may stipulate on the license that special deer tags for antlered deer, if applicable, may only be valid for deer that meet certain minimum harvest criteria. The Executive Director or designee may also define on the license valid hunt dates that fall outside of the general deer hunting season. Harvested antlerless or antlered deer for which special tags are issued shall be affixed immediately with a special deer tag and shall be reported immediately in the wildlife cooperator tagging book supplied with the special deer tags. This tagging book and any unused tags shall be returned to the Commission within 15 days of the close of the season. The Wildlife Resources Commission may offer an alternate reporting system when the Commission determines that such an alternate system is appropriate. Antlerless or antlered deer taken under this program and tagged with the special tags provided shall not count as part of the daily bag, possession, and season limits of the person taking the deer.

(f)        The Commission is authorized to issue proclamations to set seasons, shooting hours, bag limits, and possession limits that are congruent with the season framework established by the United States Department of Interior or any successor agency. The Commission may delegate this authority to the Executive Director. Each proclamation shall state the hour and date upon which it becomes effective and shall be issued at least 48 hours prior to the effective date and time. A permanent file of the text of all proclamations shall be maintained in the office of the Executive Director. Certified copies of proclamations are entitled to judicial notice in any civil or criminal proceeding.

The Executive Director shall make a reasonable effort to give notice of the terms of any proclamation to persons who may be affected by it. This effort shall include press releases to communications media, posting of notices at boating access areas and other places where persons affected may gather, personal communication by agents of the Wildlife Resources Commission, and other measures designed to reach persons who may be affected. Proclamations under this subsection shall remain in force until rescinded following the same procedure established for enactment.  (1935, c. 486, ss. 16, 17; 1949, c. 1205, s. 1; 1973, c. 1262, s. 18; 1977, c. 499, s. 1; 1979, c. 830, s. 1; 1979, 2nd Sess., c. 1285, s. 7; 1981, c. 681, s. 1; 1987, c. 38; c. 827, s. 98; 1989, c. 642, s. 2; 1995, c. 181, s. 1; 1997-402, s. 2; 1999-339, s. 7; 2003-344, ss. 7, 8; 2005-82, s. 2; 2007-401, s. 3; 2009-221, s. 1.)

 

§ 113-291.3.  Possession, sale, and transportation of wildlife.

(a)        Live wildlife and the nests and eggs of wild birds may be taken, possessed, transported, bought, sold, imported, exported, or otherwise acquired or disposed of only as specifically authorized in this Subchapter or its implementing rules. The Wildlife Resources Commission may impose necessary reporting, permit, and tagging requirements in regulating activities involving live wildlife and the nests and eggs of wild birds. The Wildlife Resources Commission may charge a reasonable fee to defray the cost of any tagging procedure.

(b)        With respect to dead wildlife:

(1)       Lawfully taken wildlife may be possessed and transported as provided in G.S. 113-291.2. Wildlife possessed under any dealer license may be possessed and transported in accordance with the provisions of law and rules applicable to the license, and wildlife may be sold to qualified persons if authorized under provisions governing the license. In other situations, except as this Subchapter may expressly provide, possession and transportation of wildlife may be regulated by the Wildlife Resources Commission.

(2)       Unless there is a specific restriction on the transfer of the species in question, an individual may accept the gift of wildlife lawfully taken within North Carolina if taking possession does not cause him to exceed applicable possession limits. If he notes and preserves in writing the name and address of the donor and under what license or exemption from license requirements the wildlife was taken, he may possess that wildlife without a permit in the places possession without a permit would be authorized in G.S. 113-291.2 had he taken the wildlife.

(3)       A licensed taxidermist or other licensed dealer taking temporary possession of wildlife of another may possess the wildlife that he is authorized to handle under his license in accordance with the rules of the Wildlife Resources Commission. A person not a dealer operating a preservation or processing facility, whether commercially or not, may possess the wildlife owned by another without any permit or license if he ascertains that the wildlife was lawfully taken within the State and keeps a written record of:

a.         The name and address of the owner of the wildlife and an adequate description of the wildlife left with him. If the description of the wildlife changes as the result of processing, the new description must be recorded.

b.         The date, serial number, and type of the license under which the wildlife was taken or the applicable exemption from license requirements which the taker met.

c.         The date all wildlife left with him is received and returned to the owner. If the receiving or returning of possession is to an agent or common carrier or otherwise occurs under circumstances in which permit requirements may apply, the type and date of the permit which authorizes the transaction must also be recorded.

(4)       The sale of rabbits and squirrels and their edible parts not for resale is permitted. If the Wildlife Resources Commission finds that affected game populations would not be endangered, it may authorize the sale of heads, antlers, horns, hides, skins, plumes, feet, and claws of one or more game animals or birds. In addition, it may authorize the sale of bobcats, opossums, and raccoons, and their parts, following their taking as game animals. No part of any bear or wild turkey may be sold under the above provisions, however, and no part of any fox taken in North Carolina may be sold except as provided in G.S. 113-291.4. In regulating sales, the Wildlife Resources Commission may impose necessary permit requirements.

(5)       Lawfully taken fur-bearing animals and their parts, including furs and pelts, may, subject to any tagging and reporting requirements, be possessed, transported, bought, sold, given or received as a gift, or otherwise disposed of without restriction. The skin of deer lawfully taken by hunting may be possessed, transported, bought, or sold, subject to tagging and reporting requirements and any season limits set by the Wildlife Resources Commission. The Wildlife Resources Commission may regulate the importation of wildlife from without the State by fur dealers, and may regulate the sale of fox fur and other wildlife hides taken within the State if sale of them is authorized. Fox furs lawfully taken without the State may be imported, possessed, transported, bought, sold, and exported in accordance with reasonable rules of the Wildlife Resources Commission. Processed furs acquired through lawful channels within or without the State by persons other than fur dealers are not subject to rule.

(6)       Nongame animals and birds open to hunting and nongame fish lawfully taken, except as this Subchapter and its implementing rules expressly provide otherwise, may be possessed, transported, bought, sold, given or received as a gift, or otherwise disposed of without restriction.

(7)       The possession and disposition of wild animals and wild birds killed accidentally or to prevent or halt depredations to property are governed by G.S. 113-274(c)(1a).

(8)       The edible parts of deer raised domestically in another state may be transported into this State and resold as a meat product for human consumption when the edible parts have passed inspection in the other state by that state's inspection agency or the United States Department of Agriculture.

(c)        The Wildlife Resources Commission may make reasonable rules governing the marking of packages, crates, and other containers in which wildlife may be shipped.

(d)       Any person hiring a hunter or trapper to take game is deemed to be buying game. Any hunter or trapper who may be hired is deemed to be selling game.  (1935, c. 486, ss. 19, 22; 1941, c. 231, s. 1; 1973, c. 1262, s. 18; 1979, c. 830, s. 1; 1979, 2nd Sess., c. 1285, s. 8; 1987, c. 827, s. 98; 1997-142, s. 15; 1997-456, s. 44; 2015-18, s. 1.)

 

§ 113-291.4.  Regulation of foxes; study of fox and fur-bearer populations.

(a)        All of the regulatory powers granted the Wildlife Resources Commission generally with respect to game, wild animals, and wildlife apply to foxes unless there are specific overriding restrictions in this section.

(b)        Except for any closed season under subsection (h), foxes may be taken with dogs both night and day on a year-round basis.

(c)        Foxes may not be taken with firearms except:

(1)       As provided in subsection (f) or (i) of this section or G.S. 113-291.4A(a).

(2)       As an incidental method of humanely killing them following any lawful method of taking that does not result in death.

(3)       When they are lawfully shot under laws and rules pertaining to the destruction of animals committing depredations to property.

(d)       Foxes may not be taken with the aid of any electronic calling device.

(e)        The Wildlife Resources Commission is directed to improve its capabilities for studying fox and fur-bearer populations generally and, on the basis of its present knowledge and future studies, to implement management methods and impose controls designed to produce optimum fox and fur-bearer populations in the various areas of the State.

(f)        If, on the basis of its studies and other information available, the Wildlife Resources Commission determines the population of foxes in an area is fully adequate to support a harvesting of that population, the Wildlife Resources Commission may, upon passage of local legislation permitting same, open a season for taking foxes by trapping. When the season is open for trapping, foxes may also be taken by the use of methods lawful for taking game animals, including the use of firearms. Any bag, possession, or season limits imposed on foxes taken from the area in question will apply in the aggregate to all foxes killed without regard to the method of taking.

(f1)      In those counties in which open seasons for taking foxes with weapons and by trapping were established between June 18, 1982, and July 1, 1987, in accordance with the procedure then set forth in subsection (f) of this section, the Wildlife Resources Commission is authorized to continue such seasons from year to year so long as the fox populations of such counties remain adequate to support the resulting harvest. The counties referred to in this subsection are as follows: Caswell, Clay, Graham, Henderson, Hyde, Macon, and Tyrrell.

(g)        The Wildlife Resources Commission may provide for the sale of foxes lawfully taken in areas of open season as provided in subsection (f), under a system providing strict controls. The Wildlife Resources Commission must implement a system of tagging foxes and fox furs with a special fox tag, and the Commission may charge two dollars and twenty-five cents ($2.25) for each tag furnished to hunters, trappers, and fur dealers. The fox tag or tags must be procured before taking foxes by any method designed to kill foxes or when the intent is to harvest foxes. The number of tags furnished to any individual may be limited as to area and as to number in accordance with area, bag, possession, or season limits that may be imposed on foxes. No person may continue to hunt or trap foxes under this fox harvesting provision unless he still has at least one valid unused fox tag lawful for use in the area in question. A person hunting foxes with dogs not intending to kill them need not have any fox tag, but any fox accidentally killed by that hunter must be disposed of without sale as provided below, and no foxes not tagged may be sold. The Wildlife Resources Commission may by rule provide reporting and controlled-disposition requirements, not including sale, of foxes killed accidentally by dog hunters, motor vehicles, and in other situations; it may also impose strict controls on the disposition of foxes taken by owners of property under the laws and rules relating to depredations, and authorize sale under controlled conditions of foxes taken under depredation permits.

(h)        In any area of the State in which the Wildlife Resources Commission determines that hunting of foxes with dogs has an appreciably harmful effect upon turkey restoration projects, it may declare a closed season for an appropriate length of time upon the taking with dogs of all species of wild animals and birds. Except as otherwise provided in G.S. 113-291.1(d) or (d1), this subsection does not prohibit lawful field trials or the training of dogs.

(i)         Upon notification by the State Health Director of the presence of a contagious animal disease in a local fox population, the Commission is authorized to establish such population control measures as are appropriate until notified by public health authorities that the problem is deemed to have passed.

(j)         The Wildlife Resources Commission shall prohibit the use of dogs in hunting foxes during the period from March 15 through July 15 in Bladen Lakes State Forest Game Land.  (1979, c. 830, s. 1; 1981 (Reg. Sess., 1982), c. 1203, ss. 1-3; 1985, c. 476, s. 2; 1987, c. 726, s. 1; c. 827, s. 98; 1989, c. 504, s. 2; c. 616, s. 4; c. 727, s. 113; 1991, c. 483, s. 1(a), (b); 1993, c. 208, s. 4; 2008-102, s. 3; 2015-144, s. 7(a).)

 

§ 113-291.4A.  Open seasons for taking foxes with firearms.

(a)        There is an open season for the taking of foxes with firearms in all areas of the State east of Interstate Highway 77 and in Mitchell and Caldwell Counties from the beginning of the season established by the Wildlife Resources Commission for the taking of rabbits and quail through January 1 of each year. The selling, buying, or possessing for sale of any fox or fox part taken pursuant to this subsection is prohibited, and is punishable as provided by G.S. 113-294(a) or (j).

(b)        The Wildlife Resources Commission shall establish appropriate bag and season limits that may be imposed upon the taking of foxes pursuant to this section, and may make reasonable rules governing the possession of foxes killed by motor vehicles or other accidental means.  (1989, c. 616, s. 1; 1989 (Reg. Sess., 1990), c. 811; 1995, c. 32, s. 1; 1999-456, s. 32; 2017-102, s. 41.)

 

§ 113-291.5.  Regulation of dogs used in hunting; limitations on authority of Wildlife Resources Commission; control of dogs on game lands; control of dogs chasing deer; other restrictions.

(a)        Except as provided in G.S. 113-291.4, in the area described below, the Wildlife Resources Commission may regulate the use of dogs taking wildlife with respect to seasons, times, and places of use. The area covered by this subsection is that part of the State in and west of the following counties or parts of counties: Rockingham; Guilford; that part of Alamance and Orange lying south of Interstate Highway 85; Chatham; that part of Wake lying south of N.C.  Highway 98; Lee; Randolph; Montgomery; Stanly; Union; and that part of Anson lying west of N.C. Highway 742.

(b)        In the area of the State lying east of that described in subsection (a), the Wildlife Resources Commission may not restrict or  prohibit the use of dogs in hunting or the training of dogs, in season or out, except during the breeding and raising seasons for game during the period April 15 through June 15.

(c)        On game lands, wildlife refuges, and public hunting grounds the Wildlife Resources Commission may regulate the possession and use of dogs and may impound dogs found running at large without supervision or, if unsupervised, without means of identification.

(d)       The Wildlife Resources Commission may not by its rules anywhere in the State restrict the number of dogs used in hunting or require that any particular breed of dog be used in hunting.

(e)        It is unlawful to allow dogs not under the control of the owner or the individual in possession of the dogs to run or chase deer during the closed deer season.

(f)        Nothing in this section is intended to require the leashing or  confining of pet dogs. (1979, c. 830, s. 1; 1987, c. 827, s. 98.)

 

§ 113-291.5A.  Exemption from civil liability for landholder permitting retrieval of hunting dogs.

(a)        It is the intent of the General Assembly to recognize that hunting with dogs is a valuable part of the outdoor heritage of the State of North Carolina, and it is further the intent of the General Assembly to encourage cooperative and neighborly agreements between landowners and hunters to allow legal retrieval of hunting dogs.

(b)        Any person, as an owner, lessee, occupant, or otherwise in control of land, who gives permission to a hunter to enter upon the land for the purpose of retrieving hunting dogs that have strayed onto the land owes that hunter the same duty of care the person owes a trespasser.  (2015-144, s. 8.)

 

§ 113-291.6.  Regulation of trapping.

(a)        No one may take wild animals by trapping upon the land of another without having in his possession written permission issued and dated within the previous year by the owner of the land or his agent. This subsection does not apply to public lands on which trapping is not specifically prohibited, including tidelands, marshlands, and any other untitled land.

(b)        No one may take wild animals by trapping with any steel-jaw, leghold, or conibear trap unless it:

(1)       Has a jaw spread of not more than seven and one-half inches.

(2)       Is horizontally offset with closed jaw spread of at least three sixteenths of an inch for a trap with a jaw spread of more than five and one-half inches. This subdivision does not apply if the trap is set in the water with quick-drown type of set.

(3)       Is smooth edged and without teeth or spikes.

(4)       Has a weather-resistant permanent tag attached legibly giving the trapper's name and address.

A steel-jaw or leghold trap set on dry land with solid anchor may not have a trap chain longer than eight inches from trap to anchor unless fitted with a shock-absorbing device approved by the Wildlife Resources Commission.

(c)        No person may set or otherwise use a trap so that animals or birds when caught will be suspended. No hook of any type may be used to take wild animals or wild birds by trapping.

(d)       Conibear type traps that have an inside jaw spread or opening (width or height) greater than seven and one-half inches and no larger than 26 inches in width and 12 inches in height may only be set in the water and in areas in which beaver and otter may be lawfully trapped. For the purposes of this section:

(1)       A water-set trap is one totally covered by water with the anchor secured in water deep enough to drown the animal trapped quickly.

(2)       In areas of tidal waters, the mean high water is considered covering water.

(3)       In reservoir areas, covering water is the low water level prevailing during the preceding 24 hours.

(4)       Marshland, as defined in G.S. 113-229(n)(3), is not considered dry land.

(e)        With respect to any lawfully placed trap of another set in compliance with the provisions of this section, no one without the express permission of the trapper may:

(1)       Remove or disturb any trap; or

(2)       Remove any fur-bearing animal from the trap.

This subsection does not apply to wildlife protectors or other law-enforcement officers acting in the performance of their duties.

(f)        Nothing in this section prohibits the use of steel- or metal-jaw traps by county or State public health officials or their agents to control the spread of disease when the use of these traps has been declared necessary by the State Health Director.

(g)        The Wildlife Resources Commission must include the trapping requirements of this section in its annual digest of hunting and trapping rules provided to each person upon purchase of a license.

(h)        A person who has been issued a depredation permit for coyotes under G.S. 113-274(c) may use a Collarumm™ trap, or similar trap approved by the Wildlife Resources Commission, solely for the purpose of taking coyotes under that permit. The person authorized to use these traps pursuant to this subsection shall provide information on the effectiveness and efficiency of the traps as requested by the Commission. To minimize the risk of harm to nontargeted species, any such trap set shall be attended daily and any nontarget animal caught released.  (1977, c. 933, ss. 2, 7; 1979, c. 830, s. 1; 1981, c. 729; 1987, c. 827, s. 98; 1989, c. 727, s. 114; 1997-418, s. 5; 2009-120, s. 1; 2010-156, s. 1.)

 

§ 113-291.7.  Regulation of bears; limited retention of local acts closing bear seasons.

(a)        Local acts closing the season on bears are exempted from the provisions of G.S. 113-133.1(b) until July 1, 1981. After that date any local acts setting a year-round closed season on bears which have not by their terms expired are temporarily retained until the Wildlife Resources Commission supersedes them by adopting rules either opening a season in the county affected or carrying forward the closed-season provision.

(b)        Any rule adopted by the Wildlife Resources Commission that regulates the taking of female bears with cubs or that regulates the taking or possession of cub bears shall define cub bears as bears weighing less than 75 pounds.  (1979, c. 830, s. 1; 1987, c. 827, s. 98; 2015-144, s. 6.)

 

§ 113-291.8.  Requirement to display hunter orange.

(a)        Any person hunting game animals other than foxes, bobcats, raccoons, and opossum, or hunting upland game birds other than wild turkeys, or hunting feral swine, with the use of firearms, must wear a cap or hat on his head made of hunter orange material or an outer garment of hunter orange visible from all sides. Any person hunting deer during a deer firearms season shall wear hunter orange. Hunter orange material is a material that is a daylight fluorescent orange color.

This section does not apply to a landholder, his spouse, or children, who are hunting on land held by the landholder. This subsection shall be enforced by warning ticket only until October 1, 1992, with respect to those hunting rabbit, squirrel, grouse, pheasant, and quail.

(b)        Any person violating this section during the 1987 big game hunting season shall be given a warning of violation only. Thereafter, any person violating this section has committed an infraction and shall pay a fine of twenty-five dollars ($25.00). An infraction is an unlawful act that is not a crime. The procedure for charging and trying an infraction is the same as for a misdemeanor, but conviction of an infraction has no consequence other than payment of a fine. A person convicted of an infraction may not be assessed court costs.

Wildlife Enforcement Officers are authorized to charge persons with the infraction created by this section.

(c)        Failure to wear hunter orange material in violation of this section shall not constitute negligence per se or contributory negligence per se.  (1987, c. 72, s. 1; 1991, c. 71, s. 1; 2007-401, s. 4; 2011-369, s. 5.)

 

§ 113-291.9.  Taking of beaver.

(a)        Notwithstanding any other law, there is an open season for taking beaver with firearms or bow and arrow during any open season for the taking of wild animals, provided that permission has been obtained from the owner or lessee of the land on which the beaver is being taken.

(b)        Notwithstanding any other law, it is lawful to use or sell beaver parts taken under a depredation permit issued by the Wildlife Resources Commission.

(c)        Notwithstanding G.S. 113-291.6(d) or any other law, it is lawful to set traps of the conibear type that have an inside jaw spread or opening (width or height) no larger than 26 inches in width and 12 inches in height if at least one-half of the trap is covered by water, when trapping beaver during the season for trapping beaver as established by the Wildlife Resources Commission.

(d)       Notwithstanding G.S. 113-291.1(b)(2) or any other law, it is lawful to use snares when trapping beaver during the season for trapping beaver as established by the Wildlife Resources Commission.

(e)        Repealed by Session Laws 1993, c. 33, s. 1.

(f)        Notwithstanding any other provision of law, landowners whose property is or has been damaged or destroyed by beaver may take beaver on their property by any lawful method without obtaining a depredation permit from the Wildlife Resources Commission, and may obtain assistance from other persons in taking the depredating beaver by giving those persons permission to take beaver on the landowner's property.

(g)        Repealed by Session Laws 1997-456, s. 53.  (1991, c. 483, s. 3; 1993, c. 33, s. 1; 1995, c. 509, s. 56; 1997-97, s. 1; 1997-456, s. 53; 2007-401, s. 2; 2009-120, s. 2.)

 

§ 113-291.10.  Beaver Damage Control Advisory Board.

(a)        There is established the Beaver Damage Control Advisory Board. The Board shall consist of nine members, as follows:

(1)       The Executive Director of the North Carolina Wildlife Resources Commission, or his designee, who shall serve as chair;

(2)       The Commissioner of Agriculture, or a designee;

(3)       The Assistant Commissioner of the North Carolina Forest Service of the Department of Agriculture and Consumer Services, or a designee;

(4)       The Director of the Division of Soil and Water Conservation of the Department of Agriculture and Consumer Services, or a designee;

(5)       The Director of the North Carolina Cooperative Extension Service, or a designee;

(6)       The Secretary of Transportation, or a designee;

(7)       The State Director of the Wildlife Services Division of the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or a designee;

(8)       The President of the North Carolina Farm Bureau Federation, Inc., or a designee, representing private landowners; and

(9)       A representative of the North Carolina Forestry Association.

(b)        The Beaver Damage Control Advisory Board shall develop a statewide program to control beaver damage on private and public lands. The Beaver Damage Control Advisory Board shall act in an advisory capacity to the Wildlife Resources Commission in the implementation of the program. In developing the program, the Board shall:

(1)       Orient the program primarily toward public health and safety and toward landowner assistance, providing some relief to landowners through beaver control and management rather than eradication;

(2)       Develop a priority system for responding to complaints about beaver damage;

(3)       Develop a system for documenting all activities associated with beaver damage control, so as to facilitate evaluation of the program;

(4)       Provide educational activities as a part of the program, such as printed materials, on-site instructions, and local workshops; and

(5)       Provide for the hiring of personnel necessary to implement beaver damage control activities, administer the program, and set salaries of personnel.

No later than March 15 of each year, the Board shall issue a report to the Wildlife Resources Commission, the Senate and House Appropriations Subcommittees on Natural and Economic Resources, and the Fiscal Research Division on the results of the program during the preceding year.

(c)        The Wildlife Resources Commission shall implement the program, and may enter a cooperative agreement with the Wildlife Services Division of the Animal and Plant Health Inspection Service, United States Department of Agriculture, to accomplish the program.

(d)       Notwithstanding G.S. 113-291.6(d) or any other law, it is lawful to use snares when trapping beaver pursuant to the beaver damage control program developed pursuant to this section. The provisions of Chapter 218 of the 1975 Session Laws; Chapter 492 of the 1951 Session Laws, as amended by Chapter 506 of the 1955 Session Laws; and Chapter 1011 of the 1983 Session Laws do not apply to trapping carried out in implementing the beaver damage control program developed pursuant to this section.

(e)        In case of any conflict between G.S. 113-291.6(a) and G.S. 113-291.6(b) and this section, this section prevails.

(f)        Each county that volunteers to participate in this program for a given fiscal year shall provide written notification of its wish to participate no later than September 30 of that year and shall commit the sum of four thousand dollars ($4,000) in local funds no later than September 30 of that year. Funds, as appropriated for this program each fiscal year of the biennium, shall be paid from funds available to the Wildlife Resources Commission to provide the State share necessary to support this program, provided the sum of at least twenty-five thousand dollars ($25,000) in federal funds is available each fiscal year of the biennium to provide the federal share.  (1991 (Reg. Sess., 1992), c. 1044, s. 69; 1993, c. 561, s. 111; 1993 (Reg. Sess., 1994), c. 769, s. 27.3; 1995, c. 358, s. 7; c. 437, s. 5; c. 467, s.4; c. 507, s. 26.6; 1996 Second Ex. Sess., c. 18, s. 27.15; 1997-256, s. 10; 1997-347, s. 6; 1997-401, s. 6; 1997-418, s. 5; 1997-443, c. 15.44; 1998-23, s. 16; 1998-212, s. 14.18(a)-(c), (e); 1999-237, s. 15.1(b), (c); 2005-386, s. 1.7; 2007-484, s. 13; 2009-451, s. 13.10; 2011-145, ss. 13.22A(bb), 13.25(rr), 13.29; 2013-155, s. 18.)

 

§ 113-291.11.  Feeding of alligators prohibited.

It is unlawful to intentionally feed alligators outside of captivity. (2007-401, s. 5.)

 

§ 113-291.12.  Unlawful to remove live feral swine from traps.

It is unlawful to remove feral swine from a trap while the swine is still alive or to transport the live swine after that removal.  (2011-369, s. 6(a).)

 

§ 113-291.13.  Application of wildlife laws to opossums.

No State or local statutes, rules, regulations, or ordinances related to the capture, captivity, treatment, or release of wildlife shall apply to the Virginia opossum (Didelphis virginiana) between the dates of December 29 of each year and January 2 of each subsequent year.  (2015-73, s. 1.)

 

§ 113-292.  Authority of the Wildlife Resources Commission in regulation of inland fishing and the introduction of exotic species.

(a)        The Wildlife Resources Commission is authorized to authorize, license, regulate, prohibit, prescribe, or restrict all fishing in inland fishing waters, and the taking of inland game fish in coastal fishing waters, with respect to:

(1)       Time, place, character, or dimensions of any methods or equipment that may be employed in taking fish;

(2)       Seasons for taking fish;

(3)       Size limits on and maximum quantities of fish that may be taken, possessed, bailed to another, transported, bought, sold, or given away.

(b)        The Wildlife Resources Commission is authorized to authorize, license, regulate, prohibit, prescribe, or restrict:

(1)       The opening and closing of inland fishing waters, whether entirely or only as to the taking of particular classes of fish, use of particular equipment, or as to other activities within the jurisdiction of the Wildlife Resources Commission; and

(2)       The possession, cultivation, transportation, importation, exportation, sale, purchase, acquisition, and disposition of all inland fisheries resources and all related equipment, implements, vessels, and conveyances as necessary to implement the work of the Wildlife Resources Commission in carrying out its duties.

To the extent not in conflict with provisions enforced by the Department, the Wildlife Resources Commission may exercise the powers conferred in this subsection in coastal fishing waters pursuant to its rule of inland game fish in such waters.

(c)        The Wildlife Resources Commission is authorized to make such rules pertaining to the acquisition, disposition, transportation, and possession of fish in connection with private ponds as may be necessary in carrying out the provisions of this Subchapter and the overall objectives of the conservation of wildlife resources.

(c1)      The Wildlife Resources Commission is authorized to issue proclamations suspending or extending the hook-and-line season for striped bass in the inland and joint waters of coastal rivers and their tributaries, and the Commission may delegate this authority to the Executive Director. Each proclamation shall state the hour and date upon which it becomes effective, and shall be issued at least 48 hours prior to the effective date and time. A permanent file of the text of all proclamations shall be maintained in the office of the Executive Director. Certified copies of proclamations are entitled to judicial notice in any civil or criminal proceeding.

The Executive Director shall make reasonable effort to give notice of the terms of any proclamation to persons who may be affected by it. This effort shall include press releases to communications media, posting of notices at boating access areas and other places where persons affected may gather, personal communication by agents of the Wildlife Resources Commission, and other measures designed to reach persons who may be affected. Proclamations under this subsection shall remain in force until rescinded following the same procedure established for enactment.

(d)       The Wildlife Resources Commission is authorized to authorize, license, regulate, prohibit, prescribe, or restrict anywhere in the State the acquisition, importation, possession, transportation, disposition, or release into public or private waters or the environment of zoological or botanical species or specimens that may threaten the introduction of epizootic disease or may create a danger to or an imbalance in the environment inimical to the conservation of wildlife resources. This subsection is not intended to give the Wildlife Resources Commission the authority to supplant, enact any conflicting rules, or otherwise take any action inconsistent with that of any other State agency acting within its jurisdiction.

(e)        It is unlawful for any person to:

(1)       Release or place exotic species of wild animals or wild birds in an area for the purpose of stocking the area for hunting or trapping;

(2)       Release or place species of wild animals or wild birds not indigenous to that area in an area for the purpose of stocking the area for hunting or trapping;

(3)       Take by hunting or trapping any animal or bird released or placed in an area in contravention of subdivisions (1) and (2) of this subsection, except under a permit to hunt or trap which may be issued by the Wildlife Resources Commission for the purpose of eradicating or controlling the population of any species of wildlife that has been so released or placed in the area. (1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1979, c. 830, s. 1; 1983, cc. 555, 615; 1987, c. 827, s. 98; 1991, c. 104, s. 1; c. 636, s. 8; 2003-344, s. 9.)

 

§ 113-293.  Obstructing rivers or creeks; keeping open fishways in dams.

(a), (b) Repealed by Session Laws 1979, c. 830, s. 1.

(c)        It is unlawful for any person in inland fishing waters:

(1)       To set a net of any description across the main channel of any river or creek;

(2)       To erect so as to extend more than three fourths of the distance across any river or creek any stand, dam, weir, hedge, or other obstruction to the passage of fish;

(3)       To erect any stand, dam, weir, or hedge in any part of a river or creek required to be left open for the passage of fish; or,

(4)       Having erected any dam where the same was allowed, to fail to make and keep open such slope or fishway as may be required by law to be kept open for the free passage of fish.

The provisions of this section may not be construed to conflict in any way with the laws and rules of any other agency with jurisdiction over the activity or subject matter in question. (Code, ss. 3387-3389; Rev., s. 2457; 1909, c. 466, s. 1; 1915, c. 84, s. 21; 1917, c. 290, s. 7; C.S., ss. 1878, 1974; 1925, c. 168, s. 2; 1935, c. 35; 1945, c. 776; 1951, c. 1045, s. 1; 1953, cc. 774, 1251; 1963, c. 1097, s. 1; 1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1979, c. 830, s. 1; 1987, c. 827, s. 98.)

 

§ 113-294.  Specific violations.

(a)        Any person who unlawfully sells, possesses for sale, or buys any wildlife is guilty of a Class 2 misdemeanor, punishable by a fine of not less than two hundred fifty dollars ($250.00), unless a greater penalty is prescribed for the offense in question.

(b)        Any person who unlawfully sells, possesses for sale, or buys any deer or wild turkey is guilty of a Class 2 misdemeanor, punishable by a fine of not less than five hundred dollars ($500.00) in addition to such other punishment prescribed for the offense in question.

(c)        Any person who unlawfully takes, possesses, or transports any wild turkey is guilty of a Class 2 misdemeanor, punishable by a fine of not less than two hundred fifty dollars ($250.00) in addition to such other punishment prescribed for the offense in question.

(c1)      Any person who unlawfully takes, possesses, transports, sells, possesses for sale, or buys any bear or bear part is guilty of a Class 1 misdemeanor, punishable by a fine of not less than two thousand dollars ($2,000) in addition to such other punishment prescribed for the offense in question. Each of the acts specified shall constitute a separate offense.

(c2)      Any person who unlawfully takes, possesses, transports, sells, possesses for sale, or buys any cougar (Felis concolor) is guilty of a Class 1 misdemeanor, unless a greater penalty is prescribed for the offense in question.

(c3)      Any person who unlawfully takes, possesses, or transports any elk is guilty of a Class 1 misdemeanor, punishable by a fine of not less than two thousand five hundred dollars ($2,500) in addition to such other punishment prescribed for the offense in question.

(d)       Any person who unlawfully takes, possesses, or transports any deer is guilty of a Class 3 misdemeanor, punishable by a fine of not less than two hundred fifty dollars ($250.00) in addition to such other punishment prescribed for the offense in question.

(d1)     Any person who unlawfully takes, possesses, or transports any deer from land that has been posted in accordance with the provisions of G.S. 14-159.7 without written permission of the landowner, lessee, or the agent of the landowner or lessee is guilty of a Class 2 misdemeanor, punishable by a fine of not less than five hundred dollars ($500.00).

(e)        Any person who unlawfully takes deer between a half hour after sunset and a half hour before sunrise with the aid of an artificial light is guilty of a Class 2 misdemeanor, punishable by a fine of not less than five hundred dollars ($500.00) in addition to such other punishment prescribed for the offense in question.

(f)        Any person who unlawfully takes, possesses, transports, sells, or buys any beaver, or violates any rule of the Wildlife Resources Commission adopted to protect beavers, is guilty of a Class 3 misdemeanor, unless a greater penalty is prescribed for the offense in question.

(g)        Any person who unlawfully takes wild animals or birds from or with the use of a vessel equipped with a motor or with motor attached is guilty of a Class 2 misdemeanor, unless a greater penalty is prescribed for the offense in question.

(h)        Any person who willfully makes any false or misleading statement in order to secure for himself or another any license, permit, privilege, exemption, or other benefit under this Subchapter to which he or the person in question is not entitled is guilty of a Class 1 misdemeanor.

(i)         Any person who violates any provision of G.S. 113-291.6, regulating trapping, is guilty of a Class 2 misdemeanor, unless a greater penalty is prescribed for the offense in question.

(j)         Any person who unlawfully sells, possesses for sale, or buys a fox, or who takes any fox by unlawful trapping or with the aid of any electronic calling device is guilty of a Class 2 misdemeanor, unless a greater penalty is prescribed for the offense in question.

(k)        Repealed by Session Laws 1995, c. 209, s. 1.

(l)         Any person who unlawfully takes, possesses, transports, sells or buys any bald eagle or golden eagle, alive or dead, or any part, nest or egg of a bald eagle or golden eagle is guilty of a Class 1 misdemeanor, unless a greater penalty is prescribed for the offense in question.

(m)       Any person who unlawfully takes any migratory game bird with a rifle; or who unlawfully takes any migratory game bird with the aid of live decoys or any salt, grain, fruit, or other bait; or who unlawfully takes any migratory game bird during the closed season or during prohibited shooting hours; or who unlawfully exceeds the bag limits or possession limits applicable to any migratory game bird; or who violates any of the migratory game bird permit or tagging rules of the Wildlife Resources Commission is guilty of a Class 2 misdemeanor, punishable by a fine of not less than two hundred fifty dollars ($250.00) in addition to any other punishment prescribed for the offense in question.

(n)        Any person who violates any rule of the Commission that restricts access by vehicle on game lands to a person who holds a special vehicular access identification card and permit issued by the Commission to persons who have a handicap that limits physical mobility shall be guilty of a Class 2 misdemeanor and shall be fined not less than one hundred dollars ($100.00) in addition to any other punishment prescribed for the offense.

(o)        Any person who willfully transports or attempts to transport live coyotes (Cania latrans) into this State for any purpose, or who breeds coyotes for any purpose in this State, is guilty of a Class 1 misdemeanor, and upon conviction the Wildlife Resources Commission shall suspend any controlled hunting preserve operator license issued to that person for two years.

(p)        Any person who willfully imports or possesses black-tailed or mule deer (Odocoileus hemionus and all subspecies) in this State for any purpose is guilty of a Class 1 misdemeanor.

(q)        Any person who violates any provision of G.S. 113-291.1A is guilty of a Class 1 misdemeanor.

(r)        It is unlawful to place processed food products as bait in any area of the State where the Wildlife Resources Commission has set an open season for taking black bears. For purposes of this subsection, the term "processed food products" means any food substance or flavoring that has been modified from its raw components by the addition of ingredients or by treatment to modify its chemical composition or form or to enhance its aroma or taste. The term includes substances modified by sugar, honey, syrups, oils, salts, spices, peanut butter, grease, meat, bones, or blood, as well as extracts of such substances. The term also includes sugary products such as candies, pastries, gums, and sugar blocks, as well as extracts of such products. Nothing in this subsection prohibits the lawful disposal of solid waste or the legitimate feeding of domestic animals, livestock, or birds. The prohibition against taking bears with the use and aid of bait shall not apply to the release of dogs in the vicinity of any food source that is not a processed food product as defined herein. Violation of this subsection constitutes a Class 2 misdemeanor, punishable by a fine of not less than two hundred fifty dollars ($250.00).

(s)        Any person who violates the provisions of G.S. 113-291.12 by unlawfully removing feral swine from a trap while the swine is still alive or by transporting such swine after that removal is guilty of a Class 2 misdemeanor, punishable by a fine of not less than two hundred fifty dollars ($250.00). The acts of removal from a trap and of transporting the swine after removal shall constitute separate offenses.  (1935, c. 486, s. 25; 1939, c. 235, s. 2; c. 269; 1941, c. 231, s. 2; c. 288; 1945, c. 635; 1949, c. 1205, s. 4; 1953, c. 1141; 1963, c. 147; c. 697, ss. 2, 31/2; 1965, c. 616; 1967, c. 729; c. 1149, s. 1; 1971, c. 423, s. 1; c. 524; c. 899, s. 2; 1973, c. 677; 1975, c. 216; 1977, c. 705, s. 4; c. 794, s. 2; c. 933, s. 8; 1979, c. 830, s. 1; 1985, c. 306; c. 554, s. 3; 1987, c. 452, s. 4; c. 827, s. 98; 1989, c. 327, s. 2; 1991, c. 366, s. 1; 1993, c. 539, s. 863; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 209, ss. 1, 2; 2003-96, s. 2; 2003-344, s. 10; 2005-62, s. 2; 2007-96, s. 1; 2011-369, s. 6(b); 2013-380, s. 11.)

 

§ 113-294.1.  Wildlife Poacher Reward Fund.

(a)        There is established in the Office of the State Treasurer the Wildlife Poacher Reward Fund. Monies in the Fund shall be used to pay rewards to persons who provide information to the Wildlife Resources Commission or to law enforcement authorities that results in the arrest and conviction of persons who have committed criminal offenses involving the taking, injury, removal, damage, or destruction of wildlife resources. The Wildlife Resources Commission shall adopt rules for the administration of the Fund for these purposes.

(b)        The assets of the Wildlife Poacher Reward Fund shall be derived from the following:

(1)       A percentage of the compensation paid annually to the Commission as special conditions of offenders' probation in criminal cases involving the taking, injury, removal, damage, or destruction of wildlife pursuant to G.S. 15A-1343(b1)(5), to be set by the Commission at not less than ten percent (10%) of those amounts paid as replacement costs and investigative costs.

(2)       All amounts paid to the Commission under G.S. 15A-1343(b1)(5) as compensation for rewards paid from the Fund.

(3)       The proceeds of any gifts, grants, and contributions to the State which are specifically designated for inclusion in the Fund.

(4)       Any other sources specified by law.  (2013-380, s. 1.)

 

§ 113-295.  Unlawful harassment of persons taking wildlife resources.

(a)        It is unlawful for a person to interfere intentionally with the lawful taking of wildlife resources or to drive, harass, or intentionally disturb any wildlife resources for the purpose of disrupting the lawful taking of wildlife resources. It is unlawful to take or abuse property, equipment, or hunting dogs that are being used for the lawful taking of wildlife resources. This subsection does not apply to a person who incidentally interferes with the taking of wildlife resources while using the land for other lawful activity such as agriculture, mining, or recreation. This subsection also does not apply to activity by a person on land he owns or leases.

Violation of this subsection is a Class 2 misdemeanor for a first conviction and a Class 1 misdemeanor for a second or subsequent conviction.

(a1)      It is unlawful to use an unmanned aircraft system, as defined in G.S. 15A-300.1, to violate subsection (a) of this section. Violation of this subsection is a Class 1 misdemeanor.

(b)        The Wildlife Resources Commission may, either before or after the institution of any other action or proceeding authorized by this section, institute a civil action for injunctive relief to restrain a violation or threatened violation of subsection (a) of this section pursuant to G.S. 113-131. The action shall be brought in the superior court of the county in which the violation or threatened violation is occurring or about to occur and shall be in the name of the State upon the relation of the Wildlife Resources Commission. The court, in issuing any final order in any action brought pursuant to this subsection may, in its discretion, award costs of litigation including reasonable attorney and expert-witness fees to any party.  (1987, c. 636, s. 3; 1993, c. 539, s. 864; 1994, Ex. Sess., c. 24, s. 14(c); 2014-100, s. 34.30(f).)

 

§ 113-296.  Disabled Sportsman Program.

(a)        The Disabled Sportsman Program is established, to be developed and administered by the Wildlife Resources Commission. The Disabled Sportsman Program shall consist of special hunting and fishing activities adapted to the needs of persons with the disabilities described in subsection (b) of this section.

(b)        In order to be eligible for participation in the Disabled Sportsman Program established by this section, an individual must be a holder of a Resident Disabled Veteran or Resident Totally Disabled license or must be able to certify through competent medical evidence one of the following disabilities:

(1)       Missing fifty percent (50%) or more of one or more limbs, whether by amputation or natural causes.

(2)       Paralysis of one or more limbs.

(3)       Dysfunction of one or more limbs rendering the individual unable to perform the tasks of grasping and lifting with the hands and arms or unable to walk without mechanical assistance, other than a cane.

(4)       Disease, injury, or defect confining the individual to a wheelchair, walker, or crutches.

(5)       Legal deafness.

(6)       Legal blindness, for purposes of participation in disabled fishing only.

The disability must be permanent, and an individual loses eligibility to participate in the Disabled Sportsman Program when the specified disability ceases to exist.

(c)        A person who qualifies under subsection (b) of this section may apply for participation in the Disabled Sportsman Program by completing an application supplied by the Wildlife Resources Commission and by supplying the medical evidence necessary to confirm the person's disability. In order to participate in activities under the Program, each disabled participant may be accompanied by an able-bodied companion, who may also participate in the hunting, fishing, or other activity. The Commission shall charge each disabled participant an application fee of ten-dollars ($10.00) to defray the cost of processing the application and administering the special activities provided under the Program. An applicant may apply for any or all available Disabled Sportsman hunts at the time of application for a single fee. Any subsequent applications shall be accompanied by an additional ten-dollar ($10.00) application fee. The participant and the participant's companion shall also obtain any applicable hunting, fishing, or other special license required for the activities.

(d)       In developing the Disabled Sportsman Program, the Wildlife Resources Commission shall:

(1)       Establish special seasons and bag limits for hunting all or selected species of wildlife;

(2)       Authorize the manner for taking wildlife, consistent with State law;

(3)       Permit the use of vehicles and other means of conveyance in areas normally closed to such use;

(4)       Set special fishing seasons and size and creel limits for inland fish; and

(5)       Permit the use of crossbows or other specially equipped bows by persons incapable of arm movement sufficient to operate a longbow, recurve bow, or compound bow, but only during a season for hunting with bow and arrow and only during a special hunt organized and supervised by the Wildlife Resources Commission for the Disabled Sportsman Program; and

(6)       Alter any other established rules of the Wildlife Resources Commission pertaining to hunting, fishing, or special activities, as generally applicable or as applicable to game lands, for the purpose of providing access to disabled persons participating in the Disabled Sportsman Program.

The Wildlife Resources Commission may use its game lands for purposes of conducting special activities for the Disabled Sportsman Program, and may enter into agreements with other landholders for purposes of conducting special activities on private lands.

(e)        The Wildlife Resources Commission may establish special activities under the Disabled Sportsman Program for any class or classes of disability described in subsection (b) of this section. The Commission shall publicize these activities through the public media and in the Commission's publications to ensure that disabled persons are notified of the activities and informed about the application process.

(f)        The Wildlife Resources Commission shall hold at least four special hunting activities under the Disabled Sportsman Program per calendar year. The Commission shall alternate the location of these special activities so as to provide equal access to disabled persons in all regions of the State.  (1993 (Reg. Sess., 1994), c. 557, s. 1; 2005-438, s. 3; 2005-455, s. 1.15; 2008-205, s. 2.)

 

§ 113-297.  Method exemptions for disabled persons.

(a)        Any person whose physical disability makes it impossible for the person to hunt or fish by conventional methods for one year or more may apply to the Wildlife Resources Commission for a hunting or fishing methods exemption allowing that person to hunt or fish in a manner that would otherwise be prohibited by rules adopted by the Commission. The application shall be accompanied by a signed statement from a physician containing the following information:

(1)       The nature of the person's disability;

(2)       The necessity of the exemption in order to allow the person to hunt or fish; and

(3)       Whether the disability is permanent or temporary and, if temporary, the length of time after which the physician anticipates that the person may be able to hunt or fish without the exemption.

The Wildlife Resources Commission may authorize any reasonable exemption in order to permit a disabled person complying with the requirements of this section to hunt or fish and may issue a permit describing the exemption made in each case. The permit may be permanent or, if the disability is temporary, the permit may coincide with the length of time the signed physician's statement indicates the disability is expected to last. A person issued a permit under this section shall possess the permit while hunting or fishing in the exempted manner.

(b)        In addition to providing disabled persons reasonable exemptions from rules adopted by the Wildlife Resources Commission, the Commission may permit a person complying with the application procedure outlined in subsection (a) of this section to use a crossbow or other specially equipped bow if the physician's statement indicates that the person is incapable of arm movement sufficient to operate a longbow, recurve bow, or compound bow. (1995, c. 62, s. 1.)

 

§ 113-298.  Unlawful use of facilities provided for disabled sportsman.

Any person who knowingly uses facilities or participates in activities provided by the Wildlife Resources Commission for disabled sportsmen, when that person does not meet the qualifications for use of those facilities or participation in those activities, is guilty of a Class 3 misdemeanor. (1997-326, s. 5.)

 

§ 113-299.  Aerial management of feral swine.

Notwithstanding G.S. 113-291.1(b)(1), employees of the Wildlife Resources Commission and employees of federal agencies whose responsibilities include fisheries and wildlife management, in the performance of such employees' official duties, may cull feral swine from aircraft, with the written permission of the landowner. However, no such activity shall occur in coastal counties, as defined in G.S. 113A-103(2) during waterfowl season.  (2016-113, s. 3.)

 

§ 113-300.  Reserved for future codification purposes.

 

 

Article 22A.

Use of Poisons and Pesticides.

§ 113-300.1.  Use of poisons and pesticides in general.

No one may take any wild animal or bird with the use of any poison or pesticide except as provided in this Article. The taking of fish by the use of poison is governed by G.S. 113-261 and G.S. 113-262, and the prohibitions of those sections against the taking of wildlife by poison apply unless specifically permitted under this Article. Otherwise, the Wildlife Resources Commission may, by rules consistent with the North Carolina Pesticide Law of 1971 and the Structural Pest Control Act of 1955, regulate, prohibit, or restrict the use of poisons or pesticides upon or severely affecting wildlife resources. (1979, c. 830, s. 1; 1979, 2nd Sess., c. 1285, s. 9; 1987, c. 827, s. 98.)

 

§ 113-300.2.  Declaring wild animal or bird a pest; concurrence of Wildlife Resources Commission required before poison or pesticide may be used.

(a)        When there is a factual basis for the declaration, any wild animal or bird may be declared a pest by:

(1)       The Commissioner of Agriculture under the Structural Pest Control Act of North Carolina of 1955, as amended, in Article 4C of Chapter 106 of the General Statutes, in accordance with any regulations or restrictions imposed by the Structural Pest Control Committee; or

(2)       The Pesticide Board under the North Carolina Pesticide Law of 1971, as amended, in Article 52 of Chapter 143 of the General Statutes.

(b)        When a wild animal or bird is declared a pest, the Commissioner of Agriculture or the Pesticide Board, as the case may be, must notify the Wildlife Resources Commission in writing of the action taken; the areas in which the declaration is effective; the type, amount, and mode of application of any poison or pesticide proposed for use against the pest; and other information pertinent to the declaration.

(c)        Upon receiving notification under subsection (b), the Wildlife Resources Commission may:

(1)       Hold a timely public hearing on the question whether it should concur in the declaration that the wild animal or bird is a pest and should be open to taking with the type or types of poison or pesticide specified or authorized in the notice, in the areas and under the circumstances specified. After holding the public hearing the Wildlife Resources Commission must decide, within 60 days after receiving the notice under subsection (b), whether it concurs or refuses to concur in the declaration that the wild animal or bird is a pest.

(2)       Take no action. In this event, 60 days after the Wildlife Resources Commission receives notice of the declaration under subsection (b), the concurrence of the Wildlife Resources Commission will occur automatically.

(d)       Upon the concurrence of the Wildlife Resources Commission in the declaration under subsection (b), the wild animal or bird may be taken with the use of any poison or pesticide specified in the notice in accordance with applicable restrictions in statutes and regulations and in accordance with any special restrictions imposed by the Commissioner of Agriculture, the Structural Pest Control Committee, or the Pesticide Board. If the Wildlife Resources Commission refuses to concur, no poison or pesticide may be used to take the wild animal or bird.

(e)        After holding a public hearing on the subject, the Wildlife Resources Commission may rescind its concurrence to a declaration under subsection (b) or grant its concurrence previously withheld.

(f)        With the approval of the Structural Pest Control Committee or the Pesticide Board, as the case may be, the Wildlife Resources Commission may grant a qualified concurrence to a declaration, imposing further restrictions as to the use of poison or pesticide in taking the wild animal or bird in question.

(g)        Notwithstanding any other provision of law, it is lawful to use any pesticide registered by the Pesticide Board to control any species of mole other than the Star-Nosed Mole (Condylura cristata parva), provided that (i) all rules regulating the application of pesticides adopted by the Pesticide Board are followed and (ii) pesticides used to control these species are applied in a manner that minimizes hazards to nontarget species.  (1979, c. 830, s. 1; 2014-103, s. 9.)

 

§ 113-300.3.  Penalties for violations of Article; repeated offenses.

(a)        Each day in which poisons or pesticides are used unlawfully in taking wild animals or birds constitutes a separate offense.

(b)        Any taking of a wild animal or bird in willful violation of this Article or in willful violation of any restrictions imposed by the Commissioner of Agriculture, the Structural Pest Control Committee, the Pesticide Board, or the Wildlife Resources Commission is punishable under G.S. 113-262(a).  For the purposes of prosecutions under that subsection, the term "poison" includes pesticides.

(c)        Any person taking a wild animal or bird declared a pest with the use of poison or pesticide who neglects to observe applicable restrictions imposed by the Commissioner of Agriculture, the Structural Pest Control Committee, the Pesticide Board, or the Wildlife Resources Commission is guilty of a Class 3 misdemeanor, unless a greater penalty is prescribed for the offense in question. (1979, c. 830, s. 1; 1993, c. 539, s. 865; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-300.4.  Reserved for future codification purposes.

 

 

Article 22B.

Interstate Wildlife Violator Compact.

§ 113-300.5.  Short title.

This Article may be cited as the "Interstate Wildlife Violator Compact."  (2008-120, s. 1.)

 

§ 113-300.6.  Governor to execute compact; form of compact.

The Governor shall execute an Interstate Wildlife Violator Compact on behalf of the State of North Carolina with any state of the United States legally joining therein in the form substantially as follows:

Article I.

Findings, Declaration of Policy, and Purpose.

(a)        The party states find that:

(1)       Wildlife resources are managed in trust by the respective states for the benefit of all residents and visitors.

(2)       The protection of their respective wildlife resources can be materially affected by the degree of compliance with state statute, law, regulation, ordinance, or administrative rule relating to the management of those resources.

(3)       The preservation, protection, management, and restoration of wildlife contributes immeasurably to the aesthetic, recreational, and economic aspects of these natural resources.

(4)       Wildlife resources are valuable without regard to political boundaries; therefore, all persons should be required to comply with wildlife preservation, protection, management, and restoration laws, ordinances, and administrative rules and regulations of all party states as a condition precedent to the continuance or issuance of any license to hunt, fish, trap, or possess wildlife.

(5)       Violation of wildlife laws interferes with the management of wildlife resources and may endanger the safety of persons and property.

(6)       The mobility of many wildlife law violators necessitates the maintenance of channels of communication among the various states.

(7)       In most instances, a person who is cited for a wildlife violation in a state other than the person's home state:

a.         Must post collateral or bond to secure appearance for a trial at a later date; or

b.         If unable to post collateral or bond, is taken into custody until the collateral or bond is posted; or

c.         Is taken directly to court for an immediate appearance.

(8)       The purpose of the enforcement practices described in subdivision (7) of this subsection is to ensure compliance with the terms of a wildlife citation by the person who, if permitted to continue on the person's way after receiving the citation, could return to the person's home state and disregard the person's duty under the terms of the citation.

(9)       In most instances, a person receiving a wildlife citation in the person's home state is permitted to accept the citation from the officer at the scene of the violation and to immediately continue on the person's way after agreeing or being instructed to comply with the terms of the citation.

(10)     The practice described in subdivision (7) of this subsection causes unnecessary inconvenience and, at times, a hardship for the person who is unable at the time to post collateral, furnish a bond, stand trial, or pay the fine, and thus is compelled to remain in custody until some alternative arrangement can be made.

(11)     The enforcement practices described in subdivision (7) of this subsection consume an undue amount of law enforcement time.

(b)        It is the policy of the party states to:

(1)       Promote compliance with the statutes, laws, ordinances, regulations, and administrative rules relating to management of wildlife resources in their respective states.

(2)       Recognize the suspension of wildlife license privileges of any person whose license privileges have been suspended by a party state and treat this suspension as if it had occurred in their state.

(3)       Allow violators to accept a wildlife citation, except as provided in subsection (b) of Article III, and proceed on the violator's way without delay whether or not the person is a resident in the state in which the citation was issued, provided that the violator's home state is party to this compact.

(4)       Report to the appropriate party state, as provided in the compact manual, any conviction recorded against any person whose home state was not the issuing state.

(5)       Allow the home state to recognize and treat convictions recorded for their residents which occurred in another party state as if they had occurred in the home state.

(6)       Extend cooperation to its fullest extent among the party states for obtaining compliance with the terms of a wildlife citation issued in one party state to a resident of another party state.

(7)       Maximize effective use of law enforcement personnel and information.

(8)       Assist court systems in the efficient disposition of wildlife violations.

(c)        The purposes of this compact are to:

(1)       Provide a means through which the party states may participate in a reciprocal program to effectuate policies enumerated in subsection (b) of this Article in a uniform and orderly manner.

(2)       Provide for the fair and impartial treatment of wildlife violators operating within party states in recognition of the person's right of due process and the sovereign status of a party state.

Article II.

Definitions.

Unless the context requires otherwise, the definitions in this Article apply through this compact and are intended only for the implementation of this compact:

(1)       "Citation" means any summons, complaint, ticket, penalty assessment, or other official document issued by a wildlife officer or other peace officer for a wildlife violation containing an order which requires the person to respond.

(2)       "Collateral" means any cash or other security deposited to secure an appearance for trial, in connection with the issuance by a wildlife officer or other peace officer of a citation for a wildlife violation.

(3)       "Compliance" with respect to a citation means the act of answering the citation through appearance at a court, a tribunal, or payment of fines, costs, and surcharges, if any, or both such appearance and payment.

(4)       "Conviction" means a conviction, including any court conviction, of any offense related to the preservation, protection, management, or restoration of wildlife which is prohibited by state statute, law, regulation, ordinance, or administrative rule, or a forfeiture of bail, bond, or other security deposited to secure appearance by a person charged with having committed any such offense, or payment of a penalty assessment, or a plea of nolo contendere, or the imposition of a deferred or suspended sentence by the court.

(5)       "Court" means a court of law, including Magistrate's Court and the Justice of the Peace Court.

(6)       "Home state" means the state of primary residence of a person.

(7)       "Issuing state" means the party state which issues a wildlife citation to the violator.

(8)       "License" means any license, permit, or other public document which conveys to the person to whom it was issued the privilege of pursuing, possessing, or taking any wildlife regulated by statute, law, regulation, ordinance, or administrative rule of a party state.

(9)       "Licensing authority" means the department or division within each party state which is authorized by law to issue or approve licenses or permits to hunt, fish, trap, or possess wildlife.

(10)     "Party state" means any state which enacts legislation to become a member of this wildlife compact.

(11)     "Personal recognizance" means an agreement by a person made at the time of issuance of the wildlife citation that the person will comply with the terms of that citation.

(12)     "State" means any state, territory, or possession of the United States, including the District of Columbia and the Commonwealth of Puerto Rico.

(13)     "Suspension" means any revocation, denial, or withdrawal of any or all license privileges, including the privilege to apply for, purchase, or exercise the benefits conferred by any license.

(14)     "Terms of the citation" means those conditions and options expressly stated upon the citation.

(15)     "Wildlife" means all species of animals, including but not necessarily limited to mammals, birds, fish, reptiles, amphibians, mollusks, and crustaceans, which are defined as "wildlife" and are protected or otherwise regulated by statute, law, regulation, ordinance, or administrative rule in a party state. "Wildlife" includes all species of animals that are protected or regulated by the Wildlife Resources Commission, the Marine Fisheries Commission, or the Division of Marine Fisheries in the Department of Environmental Quality. "Wildlife" also means food fish and shellfish as defined by statute, law, regulation, ordinance, or administrative rule in a party state. Species included in the definition of "wildlife" vary from state to state and determination of whether a species is "wildlife" for the purposes of this compact shall be based on local law.

(16)     "Wildlife law" means any statute, law, regulation, ordinance, or administrative rule developed and enacted to manage wildlife resources and the use thereof.

(17)     "Wildlife officer" means any individual authorized by a party state to issue a citation for a wildlife violation.

(18)     "Wildlife violation" means any cited violation of a statute, law, regulation, ordinance, or administrative rule developed and enacted to manage wildlife resources and the use thereof.

Article III.

Procedures for Issuing State.

(a)        When issuing a citation for a wildlife violation, a wildlife officer shall issue a citation to any person whose primary residence is in a party state in the same manner as if the person were a resident of the home state and shall not require the person to post collateral to secure appearance, subject to the exceptions contained in subsection (b) of this Article, if the officer receives the person's personal recognizance that the person will comply with the terms of the citation.

(b)        Personal recognizance is acceptable:

(1)       If not prohibited by local law or the compact manual; and

(2)       If the violator provides adequate proof of the violator's identification to the wildlife officer.

(c)        Upon conviction or failure of a person to comply with the terms of a wildlife citation, the appropriate official shall report the conviction or failure to comply to the licensing authority of the party state in which the wildlife citation was issued. The report shall be made in accordance with procedures specified by the issuing state and shall contain the information specified in the compact manual as minimum requirements for effective processing by the home state.

(d)       Upon receipt of the report of conviction or noncompliance required by subsection (c) of this Article, the licensing authority of the issuing state shall transmit to the licensing authority in the home state of the violator the information in a form and content as contained in the compact manual.

Article IV.

Procedures for Home State.

(a)        Upon receipt of a report of failure to comply with the terms of a citation from the licensing authority of the issuing state, the licensing authority of the home state shall notify the violator, shall initiate a suspension action in accordance with the home state's suspension procedures, and shall suspend the violator's license privileges until satisfactory evidence of compliance with the terms of the wildlife citation has been furnished by the issuing state to the home state licensing authority. Due process safeguards will be accorded.

(b)        Upon receipt of a report of conviction from the licensing authority of the issuing state, the licensing authority of the home state shall enter such conviction in its records and shall treat such conviction as if it occurred in the home state for the purposes of the suspension of license privileges.

(c)        The licensing authority of the home state shall maintain a record of actions taken and make reports to issuing states as provided in the compact manual.

Article V.

Reciprocal Recognition of Suspension.

All party states shall recognize the suspension of license privileges of any person by any state as if the violation on which the suspension is based had in fact occurred in their state and could have been the basis for suspension of license privileges in their state.

Article VI.

Applicability of Other Laws.

Except as expressly required by provisions of this compact, nothing herein shall be construed to affect the right of any party state to apply any of its laws relating to license privileges to any person or circumstance or to invalidate or prevent any agreement or other cooperative arrangements between a party state and a nonparty state concerning wildlife law enforcement.

Article VII.

Compact Administrator Procedures.

(a)        For the purpose of administering the provisions of this compact and to serve as a governing body for the resolution of all matters relating to the operation of this compact, a Board of Compact Administrators is established. The Board of Compact Administrators shall be composed of one representative from each of the party states to be known as the Compact Administrator. The Compact Administrator shall be appointed by the head of the licensing authority of each party state and will serve and be subject to removal in accordance with the laws of the state the Compact Administrator represents. A Compact Administrator may provide for the discharge of the Compact Administrator's duties and the performance of the Compact Administrator's functions as a Board member by an alternate. An alternate shall not be entitled to serve unless written notification of the alternate's identity has been given to the Board of Compact Administrators.

(b)        Each member of the Board of Compact Administrators shall be entitled to one vote. No action of the Board of Compact Administrators shall be binding unless taken at a meeting at which a majority of the total number of votes on the board are cast in favor thereof. Action by the Board of Compact Administrators shall be only at a meeting at which a majority of the party states are represented.

(c)        The Board of Compact Administrators shall elect annually, from its membership, a Chair and Vice-Chair.

(d)       The Board of Compact Administrators shall adopt bylaws, not inconsistent with the provisions of this compact or the laws of a party state, for the conduct of its business and shall have the power to amend and rescind its bylaws.

(e)        The Board of Compact Administrators may accept for any of its purposes and functions under this compact all donations and grants of money, equipment, supplies, materials, and services, conditional or otherwise, from any state, the United States, or any governmental agency, and may receive, utilize, and dispose of the same.

(f)        The Board of Compact Administrators may contract with or accept services or personnel from any governmental or intergovernmental agency, individual, firm, corporation, or any private nonprofit organization or institution.

(g)        The Board of Compact Administrators shall formulate all necessary procedures and develop uniform forms and documents for administering the provisions of this compact. All procedures and forms adopted pursuant to Board of Compact Administrators action shall be contained in the compact manual.

Article VIII.

Entry into Compact and Withdrawal.

(a)        This compact shall become effective when it has been adopted by at least two states.

(b)      (1)       Entry into the compact shall be made by resolution of ratification executed by the authorized officials of the applying state and submitted to the Chair of the Board of Compact Administrators.

(2)       The resolution shall be in a form and content as provided in the compact manual and shall include statements that in substance are as follows:

a.         A citation of the authority by which the state is empowered to become a party to this compact;

b.         Agreement to comply with the terms and provisions of the compact; and

c.         That compact entry is with all states then party to the compact and with any state that legally becomes a party to the compact.

(3)       The effective date of entry shall be specified by the applying state, but shall not be less than 60 days after notice has been given by the Chair of the Board of Compact Administrators or by the secretariat of the Board to each party state that the resolution from the applying state has been received.

(c)        A party state may withdraw from this compact by official written notice to the other party states, but a withdrawal shall not take effect until 90 days after notice of withdrawal is given. The notice shall be directed to the Compact Administrator of each member state. No withdrawal shall affect the validity of this compact as to the remaining party states.

Article IX.

Amendments to the Compact.

(a)        This compact may be amended from time to time. Amendments shall be presented in resolution form to the Chair of the Board of Compact Administrators and may be initiated by one or more party states.

(b)        Adoption of an amendment shall require endorsement by all party states and shall become effective 30 days after the date of the last endorsement.

Article X.

Construction and Severability.

This compact shall be liberally construed so as to effectuate the purposes stated herein. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, individual, or circumstance is held invalid, the compact shall not be affected thereby. If this compact shall be held contrary to the constitution of any party state thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.  (2008-120, s. 1; 2009-15, s. 1; 2015-241, s. 14.30(u).)

 

§ 113-300.7.  Appointment of Compact Administrator; implementation; rules; amendments.

(a)        The Chair of the Wildlife Resources Commission, in consultation with the Chair of the Marine Fisheries Commission and the Fisheries Director, shall appoint the Compact Administrator for North Carolina. The Compact Administrator shall serve at the pleasure of the Chair of the Wildlife Resources Commission.

(b)        The Wildlife Resources Commission, the Secretary of Environmental Quality, and the Division of Marine Fisheries may suspend or revoke the license, privilege, or right of any person to hunt, fish, trap, possess, or transport wildlife in this State to the extent that the license, privilege, or right has been suspended or revoked by another compact member under the provisions of this Article.

(c)        The Wildlife Resources Commission and the Marine Fisheries Commission shall adopt rules necessary to carry out the purposes of this Article.

(d)       Any proposed amendment to the Compact shall be submitted to the General Assembly as an amendment to G.S. 113-300.6. In order to be endorsed by the State of North Carolina as provided by subsection (b) of Article IX of the Compact, a proposed amendment to the Compact must be enacted into law.  (2008-120, s. 1; 2009-15, s. 2; 2015-241, s. 14.30(v).)

 

§ 113-300.8.  Violations.

It is unlawful for a person whose license, privilege, or right to hunt, fish, trap, possess, or transport wildlife has been suspended or revoked under the provisions of this Article to exercise that right or privilege within this State or to purchase or possess a license granting that right or privilege. A person who hunts, fishes, traps, possesses, or transports wildlife in this State or who purchases or possesses a license to hunt, fish, trap, possess, or transport wildlife in this State in violation of a suspension or revocation under this Article is guilty of a Class 1 misdemeanor.  (2008-120, s. 1.)

 

 

Article 23.

Administrative Provisions; Assent to Certain Federal Acts.

§ 113-301: Repealed by Session Laws 1979, c. 830, s. 1.

 

§ 113-301.1.  Wildlife Resources Commission obligated to make efforts to notify members of the public who may be affected by operative provisions of statutes and rules.

(a)        The Wildlife Resources Commission must prepare and distribute to license agents informational materials relating to hunting, fishing, trapping, and boating laws and rules administered by the Wildlife Resources Commission. The materials furnished an agent should be appropriate to the types of licenses the agent customarily handles, and in a quantity reasonably anticipated to be sufficient to meet the needs of licensees obtaining licenses from the agent.

(b)        In issuing new licenses and permits from the Raleigh office by mail, the Wildlife Resources Commission must generally inform the licensee or permittee of governing provisions of law and rules applicable to the type of license or permit secured. In issuing renewal licenses and permits by mail, the Wildlife Resources Commission must inform the licensee or permittee of any substantial changes in the law or rules that may affect the activities of the licensee or permittee.

(c)        After adopting rules that impose new restrictions upon the activities of members of the public who do not normally hold licenses or permits to engage in the activity in question, the Wildlife Resources Commission must take appropriate steps to publicize the new restrictions. These steps may include press releases to the media, informing local authorities, and other forms of communication that give promise of reaching the segment of the public affected.

(d)       After adopting new restrictions on hunting, fishing, trapping, or boating at a time other than when usual annual changes in the rules affecting those activities are adopted, the Wildlife Resources Commission must take appropriate steps to publicize the new restrictions in a manner designed to reach persons who may be affected.

(e)        Repealed by Session Laws 1987, c. 827, s. 9. (1979, c. 830, s. 1; 1979, 2nd Sess., c. 1285, s. 10; 1987, c. 827, s. 9; 2004-195, s. 1.1.)

 

§ 113-302.  Prima facie evidence provisions.

(a)        Except as provided below, possession of game or game fish in any hotel, restaurant, cafe, market, or store, or by any produce dealer, constitutes prima facie evidence of possession for the purpose of sale. This subsection does not apply to:

(1)        Possession of propagated game birds or hatchery-reared trout that is in accordance with licensing requirements and wrapping or tagging provisions that may apply; or

(2)        Game or game fish brought in by patrons in accordance with G.S. 113-276(i).

(b)        The flashing or display of any artificial light between a half hour after sunset and a half hour before sunrise in any area which is frequented or inhabited by wild deer by any person who has accessible to him a firearm, crossbow, or other bow and arrow constitutes prima facie evidence of taking deer with the aid of an artificial light. This subsection does not apply to the headlights of any vehicle driven normally along any highway or other public or private roadway. (1965, c. 957, s. 2; 1979, c. 830, s. 1.)

 

§ 113-302.1.  Inspection of licensed or commercial premises; authority to secure inspection warrants.

(a)        Protectors are authorized to enter and make a reasonable inspection at an appropriate time of day of any premises in which a person subject to administrative control under G.S. 113-276.2  conducts his operations to determine whether any wildlife on the premises is possessed in accordance with applicable laws and rules, required records are being kept, and other legal requirements are being observed. It is an appropriate time of day for inspection if the establishment is open for business or if a proprietor or employee is on the premises.

(b)        In cases not controlled by subsection (a), protectors who believe that wildlife may be on the premises of any public refrigeration storage plant, meat shop, store, produce market, hotel,  restaurant, or other public food-storage or eating place may request permission to enter the nonpublic areas of the premises to make a reasonable inspection to determine whether any wildlife on the premises is possessed in accordance with applicable laws and rules. If the person in charge of the premises refuses the inspection request of a protector, he is authorized to procure and execute an administrative search warrant issued under the terms of Article 4A of Chapter 15 of the General Statutes or under any successor legislation.

(c)        In cases controlled by subsection (a), an administrative search warrant may be secured in the protector's discretion or if case law requires it. Nothing in this section is intended to prevent a lawful search of premises, with or without a search warrant under Chapter 15A of the General Statutes, when the circumstances so justify. (1979, c. 830, s. 1; 1987, c. 827, s. 98.)

 

§ 113-303.  Arrest, service of process and witness fees of protectors.

All arrest fees and other fees that may be charged in any bill of costs for service of process by protectors must be paid to the county in which the trial is held.  No witness fee may be taxed in any bill of costs by virtue of the appearance of a protector as a witness in a criminal case within his enforcement jurisdiction.  Acceptance by any protector of any arrest fee, witness fee, or any other fee to which he is not entitled is a Class 1 misdemeanor. (1965, c. 957, s. 2; 1993, c. 539, s. 866; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-304.  Reciprocal agreements by Wildlife Resources Commission.

The Wildlife Resources Commission is empowered to make reciprocal agreements with other jurisdictions respecting the matters  governed in this Subchapter. Pursuant to such agreements the Wildlife Resources Commission may by rule modify provisions of this Subchapter in order to effectuate the purposes of such agreements, in the overall best interests of the conservation of wildlife resources. (1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1987, c. 827, s. 98.)

 

§ 113-305.  Cooperative agreements by Wildlife Resources Commission.

The Wildlife Resources Commission is empowered to enter into cooperative agreements with public and private agencies and individuals respecting the matters governed in this Subchapter. Pursuant to such agreements the Wildlife Resources Commission may expend funds, assign employees to additional duties within or without the State, assume additional responsibilities, and take other actions that may be required by virtue of such agreements, in the overall best interests of the conservation of wildlife resources. (1965, c. 957, s. 2; 1973, c. 1262, s. 18.)

 

§ 113-306.  Administrative authority of Wildlife Resources Commission; disposition of license funds; delegation of powers; injunctive relief; emergency powers.

(a)        In the overall best interests of the conservation of wildlife resources, the Wildlife Resources Commission may lease or purchase lands, equipment, and other property; accept gifts and grants on behalf of the State; establish wildlife refuges, management areas, and boating and fishing access areas, either alone or in cooperation with others; provide matching funds for entering into projects with some other governmental agency or with some scientific, educational, or charitable foundation or institution; condemn lands in accordance with the provisions of Chapter 40A of the General Statutes and other governing provisions of law; and sell, lease, or give away property acquired by it. Provided, that any private person selected to receive gifts or benefits by the Wildlife Resources Commission be selected:

(1)        With regard to the overall public interest that may result; and

(2)        From a defined class upon such a rational basis open to all within the class as to prevent constitutional infirmity with respect to requirements of equal protection of the laws or prohibitions against granting exclusive privileges or emoluments.

(b)        Except as otherwise specifically provided by law, all money credited to, held by, or to be received by the Wildlife Resources Commission from the sale of licenses authorized by this Subchapter must be consolidated and placed in the Wildlife Resources Fund.

(c)        The Wildlife Resources Commission may, within the terms of policies set by rule, delegate to the Executive Director all administrative powers granted to it.

(d)       The Wildlife Resources Commission is hereby authorized and directed to develop a plan and policy of wildlife management for all lands owned by the State of North Carolina which are suitable for this purpose. The Division of State Property and Construction of the Department of Administration shall determine which lands are suitable for the purpose of wildlife management. Nothing in the wildlife management plan shall prohibit, restrict, or require the change in use of State property which is presently being used or will in the future be used to carry out the goals and objectives of the State agency utilizing such land. Each plan of wildlife management developed by the Wildlife Resources Commission shall consider the question of public hunting; and whenever and wherever possible and consistent with the primary land use of the controlling agency, public hunting shall be allowed under cooperative agreement with the Wildlife Resources Commission. Any dispute over the question of public hunting shall be resolved by the Division of State Property and Construction.

(e)        Subject to any policy directives adopted by the members of the Wildlife Resources Commission, the Executive Director in his discretion may institute an action in the name of the Wildlife Resources Commission in the appropriate court for injunctive relief to prevent irreparable injury to wildlife resources or to prevent or regulate any activity within the jurisdiction of the Wildlife Resources Commission which constitutes a public nuisance or presents a threat to public health or safety.

(f)        The Wildlife Resources Commission may adopt rules governing the exercise of emergency powers by the Executive Director when the Commission determines that such powers are necessary to respond to a wildlife disease that threatens irreparable injury to wildlife or the public. The rules shall provide that the Executive Director must consult with the Commission, the State Veterinarian, and the Governor prior to implementing the emergency powers. The rules shall also specify the method by which the public will be notified of the exercise of emergency powers. The exercise of emergency powers shall not extend for more than 90 days after the Commission's determination that a disease outbreak has occurred, unless a temporary rule is adopted by the Commission in accordance with G.S. 150B-21.1 to replace the emergency powers. If a temporary rule is adopted prior to the expiration of the 90 days, the Executive Director may continue to exercise emergency powers until either a permanent rule to replace the temporary rule becomes effective or the temporary rule expires as provided by G.S. 150B-21.1(d). The Commission's determination that a disease outbreak has occurred shall constitute a basis for adoption of a temporary rule. The emergency powers that may be authorized by rules adopted pursuant to this subsection include:

(1)        Prohibiting activities that aid in the transmission or movement of the disease.

(2)        Implementing activities to reduce infection opportunities.

(3)        Implementing requirements to assist in the detection and isolation of the disease. (1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1977, c. 759; 1979, c. 830, s. 1; 1981, c. 482, s. 3; 1987, c. 827, ss. 98, 106; 2007-401, s. 1.)

 

§ 113-307.  Adoption of federal laws and regulations.

To the extent that the Wildlife Resources Commission is granted authority under this Chapter or under any other provision of law, including Chapter 75A of the General Statutes, over subject matter as to which there is concurrent federal jurisdiction, the Wildlife Resources Commission in its discretion may by reference in its rules adopt relevant provisions of federal law and regulations as State rules. To prevent confusion or conflict of jurisdiction in enforcement, the Wildlife Resources Commission may provide for an automatic incorporation by reference into its rules of future changes within any particular set of federal laws or regulations relating to some subject clearly within the jurisdiction of the Wildlife Resources Commission. (1965, c. 957, s. 2; 1973, c. 1262, s. 18; 1987, c. 827, s. 107.)

 

§ 113-307.1.  Legislative assent to specific federal acts.

(a)        The consent of the General Assembly of North Carolina is hereby given to the making by the Congress of the United States, or under its authority, of all such rules and regulations as the federal government shall determine to be needful in respect to game animals, game and nongame birds, and fish on such lands in the western part of North Carolina as shall have been, or may hereafter be, purchased by the United States under the terms of the act of Congress of March 1, 1911, entitled "An act to enable any state to cooperate with any other state or states, or with the United States, for the protection of the watersheds of navigable streams, and to appoint a commission for the acquisition of lands for the purposes of conserving the navigability of navigable rivers" (36 Stat. 961), and acts of Congress supplementary thereto and amendatory thereof, and in or on the waters thereon.

Nothing in this subsection shall be construed as conveying the ownership of wildlife from the State of North Carolina or permit the trapping, hunting, or transportation of any game animals, game or nongame birds, or fish by any person, including any agency, department, or instrumentality of the United States or agents thereof, on the lands in North Carolina, as shall have been or may hereafter be purchased by the United States under the terms of any act of Congress, except in accordance with the provisions of this Subchapter and its implementing regulations. Provided, that the provisions of G.S. 143B-135.20 apply with respect to licenses.

Any person, including employees or agents of any department or instrumentality of the United States, violating the provisions of this subsection is guilty of a Class 1 misdemeanor.

(b)        The State of North Carolina hereby assents to the provisions of the act of Congress entitled "An act to provide that the United States shall aid the states in wildlife restoration projects, and for other purposes," approved September 2, 1937 (Public Law 415, 75th Congress, also known as the "Pittman-Robertson Act"), 16 U.S.C. § 669, et seq., as amended, and the Wildlife Resources Commission and the Division of Marine Fisheries of the Department of Environmental Quality are hereby authorized, empowered, and directed to perform such acts as may be necessary to the conduct and establishment of cooperative wildlife restoration projects, as defined in the Pittman-Robertson Act, in compliance with the Act and rules and regulations promulgated by the Secretary of the Interior under the Act. No funds accruing to the State of North Carolina from license fees paid by hunters shall be diverted for any other purpose than the protection and propagation of game and wildlife in North Carolina and administration of the laws enacted for such purposes, which laws are and shall be administered by the Wildlife Resources Commission. No funds accruing to the State of North Carolina from license fees paid by fishermen for license programs administered by the Division of Marine Fisheries shall be diverted for any other purpose than the administration by the Division of Marine Fisheries of the Department of Environmental Quality of the portion of the State's fish programs applicable to the marine and estuarine resources over which the Division has authority under State law. Revenues collected from coastal recreational fishing licenses in accordance with the provisions of G.S. 113-175.1(c) and G.S. 113-175.5(c) shall be used solely for the administration of the Division of Marine Fisheries and for program functions described by this subsection.

(c)        Assent is hereby given to the provisions of the act of Congress entitled "An act to provide that the United States shall aid the states in fish restoration and management projects, and for other purposes," approved August 9, 1950 (Public Law 681, 81st Congress, also known as the "Dingell-Johnson Sport Fish Restoration Act"), 16 U.S.C. § 777, et seq., as amended, the Wildlife Resources Commission and the Division of Marine Fisheries of the Department of Environmental Quality are hereby authorized, empowered, and directed to perform such acts as may be necessary to the conduct and establishment of cooperative fish restoration projects, as defined in the Dingell-Johnson Sport Fish Restoration Act, in compliance with the Act and rules and regulations promulgated by the Secretary of the Interior under the Act; and no funds accruing to the State of North Carolina from license fees paid by fishermen shall be directed for any other purpose than the following:

(1)       The administration of the Wildlife Resources Commission and the protection, propagation, preservation, and investigation of fish and wildlife.

(2)       The administration by the Division of Marine Fisheries of the Department of Environmental Quality of the portion of the State's fish programs applicable to the marine and estuarine resources over which the Division has authority under State law. Revenues collected from coastal recreational fishing licenses in accordance with the provisions of G.S. 113-175.1(c) and G.S. 113-175.5(c) shall be used solely for the administration of the Division of Marine Fisheries and for program functions described by this subdivision.

(d)       If as a precondition to receiving funds under any cooperative program there must be a separation of license revenues received from certain classes of licensees and utilization of such revenues for limited purposes, the Wildlife Resources Commission is directed to make such arrangements for separate accounting within the Wildlife Resources Fund, or for separate funding, as may be necessary to insure the use of the revenues for the required purposes and eligibility for the cooperative funds. This subsection applies whether the cooperative program is with a public or private agency and whether the Wildlife Resources Commission acts alone on behalf of the State or in conjunction with some other State agency.  (1915, c. 205; C.S., s. 2099; 1939, c. 79, ss. 1, 2; 1979, c. 830, s. 1; 1993, c. 539, s. 867; 1994, Ex. Sess., c. 24, s. 14(c); 2004-199, s. 3; 2015-241, s. 14.30(ss); 2017-57, s. 13.15(b).)

 

 

Article 23A.

Promotion of Coastal Fisheries and Seafood Industry.

§ 113-308.  Definitions.

The definitions as given in G.S. 113-128 shall apply to this Article, except that the following will additionally apply:

(1)        Agency:  A group or an association which shall make applications and otherwise act for the fishing and seafood industry or a distinguishable part thereof. (1967, c. 890, s. 1.)

 

§ 113-309.  Declaration of policy.

It is declared to be in the interest of the public welfare of North Carolina that those engaged in "coastal fisheries," as defined in G.S. 113-129, shall be permitted and encouraged to act jointly and cooperatively for the purposes of promoting the common good, welfare, and advancement of their industry. (1967, c. 890, s. 2.)

 

§ 113-310.  Certain activities not to be deemed illegal or in restraint of trade.

No association, meeting or activity undertaken in pursuance of the provisions of this Article and intended to benefit all of the coastal fisheries or distinguishable part thereof hereinunder certified by the Marine Fisheries Commission shall be deemed or considered illegal or in restraint of trade. (1967, c. 890, s. 3; 1973, c. 1262, s. 28.)

 

§ 113-311.  Referendum and assessment declared to be in public interest.

It is hereby declared to be in the interest of the public that the coastal fisheries or any distinguishable part thereof shall be permitted by referendum to be held among themselves as prescribed by this Article, to levy upon themselves an assessment on such respective catches, volume, landings, income, or production for the purposes of promoting the common good, welfare, and advancement of the fishing and seafood industry of North Carolina, in addition to any and all taxes, levies, and licenses in effect on June 22, 1967, or that may be enacted and levied or imposed subsequently. (1967, c. 890, s. 4.)

 

§ 113-312.  Application to Marine Fisheries Commission for authority to conduct referendum.

Any agency fairly representative of any distinguishable part or all of the fishing and seafood industry may at any time make application in writing or petition to the Marine Fisheries Commission for certification and approval to conduct a referendum among the coastal fisheries or any distinguishable part thereof for the purpose  of levying an assessment under the provisions of this Article, collecting, and utilizing the proceeds for the purposes stated in such referendum and as set forth in this Article. (1967, c. 890, s. 5; 1973, c. 1262, s. 28.)

 

§ 113-313.  Action of Marine Fisheries Commission on application.

Upon receiving an application or petition as herein provided, the Marine Fisheries Commission shall at its next regular quarterly meeting consider such application as follows:

(1)        The Marine Fisheries Commission shall determine if the agency is in fact fairly representative of the coastal fisheries or distinguishable part thereof making application or petitioning for referendum and record in its minutes its determination.

(2)        The Marine Fisheries Commission shall determine if the application or petition is in conformity with the provisions  and purposes of this Article and record in its minutes its determination.

(3)        If the Marine Fisheries Commission determines in the affirmative as to (1) and (2) above, it shall authorize and empower the agency to hold and conduct a referendum on the question of whether or not members of the fishing and seafood industry, or the distinguishable part thereof, making application or petition, shall levy upon themselves an assessment under and subject to the conditions and provisions and for the purpose stated in this Article. (1967, c. 890, s. 6; 1973, c. 1262, s. 28.)

 

§ 113-314.  Agency to determine time and place of referendum, amount and basis of assessment, etc.; notice of referendum.

The agency shall fix, determine, and publicly announce such referendum at least 30 days before the date set for such referendum, the date, hours, and polling places for voting in such referendum, the amount and basis of the assessment proposed to be collected, the means by which such assessment shall be collected if favorably voted upon, and the general purposes to which said amount so collected shall be applied. Such public notice shall be published at least once 20 days prior to the election in one or more newspapers having general circulation in the area where the vote is to be taken. (1967, c. 890, s. 7.)

 

§ 113-315.  Maximum assessment.

No assessment levied on any commodity under the provisions of this Article shall exceed one percent (1%) of the average value of this commodity during the next three years for which published statistics by the State of North Carolina or the federal government are available next preceding the application or petition. (1967, c. 890, s. 8.)

 

§ 113-315.1.  Arrangements for and management of referendum; expenses.

The arrangements for and management of any referendum conducted under the provisions of this Article shall be under the direction of the agency duly certified and authorized to conduct the same, and any and all expenses in connection herewith shall be borne by the agency. (1967, c. 890, s. 9.)

 

§ 113-315.2.  Referendum may be by mail ballot or box ballot; who may vote.

Any referendum conducted under the provisions of this Article may be held by mail ballot or by box ballot as may be determined and publicly announced as herein provided by the agency before such referendum is called. A person licensed by the Marine Fisheries Commission to engage in business and commerce as may be directly affected by the paying of the assessment, or anyone who would be subject to paying such assessment should the question be voted in the affirmative, shall be eligible and may vote in such referendum. (1967, c. 890, s. 10; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1987, c. 641, s. 6.)

 

§ 113-315.3.  Preparation and distribution of ballots; conduct of referendum; canvass and declaration of results.

The duly certified agency shall prepare and distribute in advance of such referendum all necessary ballots for the purpose thereof, and shall under rules and regulations drawn up and promulgated by said agency, arrange for the necessary poll holders or officials for conducting the said referendum; and following said referendum and within 10 days thereafter the duly certified agency shall canvass and publicly declare the result of such referendum; except that in the event a mail ballot is used, a mail ballot shall be posted by registered mail on a prearranged date at least 30 days following announcement of same to each duly licensed voter by the agency, and a return, self-addressed envelope of suitable size and construction for containing the completed ballot with ample postage affixed shall be enclosed along with complete instructions on the voting procedure, these instructions stating that the ballot should be marked by the voter to indicate and show his preference, then inserted into the return envelope, sealed, and posted or returned within 10 days of the date of the original or first posting, and on a predesignated date and hour at least 15 days after the original mailing and at an open and public meeting, the return envelopes described above shall be opened, the ballots counted, tabulated, and the results publicly declared by the agency or its authorized representatives. (1967, c. 890, s. 11.)

 

§ 113-315.4.  Levy and collection of assessment; use of proceeds and other funds.

If in such referendum called under the provisions of this Article two thirds or more of the voters eligible and voting vote in the affirmative and in favor of the levying and collection of such assessment proposed in such referendum, then such assessment shall be collected annually, or more often as predetermined by the agency, for the three years set forth in the call for such referendum, and the collection of such assessment shall be under such method, rules, and regulations as may be determined by the agency prior to the announcement of the referendum and included in the announcement of the referendum; said assessment so collected shall be paid into the treasury of the agency, to be used together with other funds, including donations and grants from individuals, firms, governmental agencies, or corporations, and from other fees, dues, or assessments,  for the purpose set out in the referendum. (1967, c. 890, s. 12.)

 

§ 113-315.5.  Alternative method for collection of assessment.

As an alternate method for the collection of assessments provided for in G.S. 113-315.4, upon the request or petition of the agency and action by the Marine Fisheries Commission as prescribed in G.S. 113-313, the Secretary shall notify, by letter, all persons or firms licensed by the Marine Fisheries Commission to engage in business and commerce as may be directly affected by the paying of the assessment, that on and after the date specified in the letter the assessment shall become due and payable, and shall be remitted by said persons or firms to the Secretary who shall thereupon pay the amount of the assessments to the agency. The books and records of all such persons and firms shall at all times during regular business hours be open for inspection by the Secretary or his duly authorized agents. (1967, c. 890, s. 13; 1973, c. 1262, ss. 28, 86; 1977, c. 356; c. 771, s. 4; 1987, c. 641, s. 6; 1995, c. 504, s. 6; c. 509, s. 57.)

 

§ 113-315.6.  Subsequent referendum where assessment defeated.

In the event such referendum as herein provided for shall not be voted on affirmatively by two thirds or more of the voters eligible and voting, then the agency shall have full power and authority to call another referendum for the purposes herein set forth at any time after the next succeeding 12 months, on the question of an assessment for three years. (1967, c. 890, s. 14.)

 

§ 113-315.7.  Subsequent referendum where assessment adopted.

In the event such referendum as herein provided for shall be voted on affirmatively by two thirds or more of the voters eligible and voting, then the agency shall in its discretion have full power and authority to call and conduct during the third year after the latest referendum another referendum for the purpose set forth herein for the next ensuing three years. (1967, c. 890, s. 15.)

 

§ 113-315.8.  Refund of assessment; refusal to pay assessment.

Any persons or firm hereinunder assessed shall have the right to demand of and receive from the treasurer or disbursing office of the agency a refund of such assessment so collected, provided such  demand for refund is made in writing within 30 days from the end of the assessment year which shall be determined by the agency. Should a person or firm hereinunder assessed refuse to pay and does not pay the assessment within 30 days of when it is due and payable, then in such event suit may be brought by the duly certified agency in a court of competent jurisdiction to enforce the collection of the said assessment. (1967, c. 890, s. 16; 1971, c. 642, s. 1.)

 

§ 113-315.9.  Bond of financial officer; audit.

(a)        Before collecting and receiving such assessments, such treasurer or financial officer shall give bond to the agency to run in favor of the agency in the amount of the estimated total of such assessments as will be collected, and from time to time the agency may alter the amount of such bond which, at all times, must be equal to the total financial assets of the agency, such bond to have as surety thereon a surety company licensed to do business in the State of North Carolina, and to be in the form and amount approved by the agency and to be filed with the chairman or executive head of such agency.

(b)        The chairman or executive head of such agency shall cause an annual certified audit to be made of the financial records of the agency.  Such audit shall include, among other things, total annual compensation of each employee of the agency and detailed expenses incurred and reimbursed for each employee of the agency.  The chairman or executive head of such agency shall cause a copy of the certified audit to be submitted to the Department within 60 days of the end of the agency's fiscal year and shall cause a copy of the audit, or a summary thereof, to be published at least once in one or more newspapers having general circulation in the area where the assessments are made within 60 days of the end of the agency's fiscal year.  If the chairman or executive head of the agency shall fail to carry out the provisions of this paragraph, he shall be guilty of a Class 1 misdemeanor. (1967, c. 890, s. 17; 1971, c. 642, s. 2; 1973, c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1989, c. 727, s. 115; 1993, c. 539, s. 868; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§§ 113-315.10 through 113-315.14.  Reserved for future codification purposes.

 

 

Article 23B.

Fishermen's Economic Development Program.

§ 113-315.15.  Short title.

This Article shall be known as the Fishermen's Economic Development Act. (1973, c. 618, s. 1.)

 

§ 113-315.16.  Legislative findings.

The legislature finds that the fishermen of North Carolina  perform essential functions in providing wholesome food for the diets of the citizens of North Carolina, that they properly earn a livelihood by performing these essential functions, that they are entitled to the same or similar governmental services provided other segments of our society so as to become more proficient in the performance of these essential functions, and that the quality of life for North Carolinians is enhanced by the economic development of the fishing industry. (1973, c. 618, s. 1.)

 

§ 113-315.17.  Definitions.

As used in this Article:

(1)        "Economic development" means: giving helpful and useful aid to improve the proficiency of the citizens, and the efficiency of the operations are improved to the end that the economic well-being of fishermen is improved, the quality of life is enhanced and equality of opportunity is provided.

(2)        "Fisherman" means: any person, firm, corporation, cooperative, partnership, or any legally constituted group, engaged in the harvesting, handling, processing, packaging, and marketing of fishery or seafood products from coastal fishing waters as defined by G.S. 113-129. (1973, c. 618, s.  1.)

 

§ 113-315.18.  Fishermen's Economic Development Program.

The Secretary is hereby authorized to provide through his Department and the extension services of the University of North Carolina those services intended to promote the economic development of the fishermen, including but not limited to:

(1)        Instituting business management services to promote better business management practices throughout the fishing and seafood industry, and to promote the better use of credit and other business management techniques.

(2)        Providing counseling services to the fishermen at all levels and assisting them in meeting the federal and State environmental, safety and health requirements.

(3)        Improving waterways, harbors, inlets, and generally the water transportation system of North Carolina so as to more efficiently and safely accommodate commercial and sport fishing craft, and to provide access to and from fishing grounds. (1973, c. 618, s. 1; c. 1262, s. 28; 1975, c. 19, s. 36; 1977, c. 771, s. 4; 1989, c. 727, s. 116.)

 

§ 113-315.19.  Personnel needs.

To effectively carry out the duties and responsibilities set forth above, the Secretary may employ or contract with the extension services of the University of North Carolina to employ the following persons:

(1)        A person to have responsibility for the successful execution of the program and to coordinate as deemed desirable with other agencies of the State and federal government,

(2)        A business management specialist,

(3)        An insurance and finance specialist,

(4)        A specialist who could understand, interpret, and counsel on  regulations and requirements,

(5)        A specialist in waterways, and water transportation, and

(6)        Such clerical personnel as necessary to carry out the provisions of this Article. (1973, c. 618, s. 1.)

 

§§ 113-315.20 through 113-315.24.  Reserved for future codification purposes.

 

 

Article 23C.

North Carolina Marine Industrial Park Authority.

§ 113-315.25.  Creation of Authority; membership; appointment; terms and vacancies; officers; meetings and quorum; compensation.

(a)        There is hereby created the North Carolina Marine Industrial Park Authority. It shall be governed by a board composed of 11 members to be appointed as follows. The Board is hereby designated as the Authority.

(b)        Nine members shall be appointed by the Governor.

The initial appointments by the Governor shall be made on or after the date of ratification, four terms to expire July 1, 1981; four terms to expire July 1, 1983; and one term to expire July 1, 1985. Thereafter, at the expiration of each stipulated term of office all appointments shall be for a term of four years. The members of the Authority shall be selected as follows: one member be appointed to the Authority for a term to expire July 1, 1983, who is a resident of a village or town where a Marine Industrial Park is located; one member be appointed to the Authority for a term to expire July 1, 1983, who is a resident of a county where a Marine Industrial Park is located; two members be appointed to the Authority for terms which expire July 1, 1981, from the area of the State where a Marine Industrial Park is located; five members (two terms expire July 1, 1981; two terms expire July 1, 1983; and one term expires July 1, 1985) be appointed to the Authority who are residents of the State at large and insofar as practicable shall represent all the other sections of the State. At the expiration of the terms for the representatives as stated above the Governor shall use his discretion on reappointments. However, there shall be no less than five members of the Authority from coastal counties and there should be at least one member on the Authority from each village or town in which the Marine Parks are located. Any vacancy occurring in the membership of the Authority shall be filled by the appointing authority for the unexpired term. The Governor shall have the authority to remove any member appointed by the Governor.

(c)        Repealed by Session Laws 1981 (Regular Session, 1982), c. 1191, s. 36.

(d)       The General Assembly shall appoint two persons, one upon the recommendation of the Speaker of the House of Representatives, and one upon the recommendation of the President Pro Tempore of the Senate. Appointments by the General Assembly shall be made in accordance with G.S. 120-121, and vacancies in those appointments shall be filled in accordance with G.S. 120-122. The terms of the initial appointees by the General Assembly shall expire on June 30, 1983. The terms of subsequent appointees by the General Assembly shall be two years.

(e)        The Governor shall annually appoint from the members of the Authority the chairman and vice-chairman of the Authority. The Secretary of Commerce or his designee shall serve as secretary of the Authority.

(f)        No person shall serve on the Authority for more than two complete consecutive terms.

(g)        The Authority shall meet once in each 90 days at such regular meeting time as the Authority by rule may provide and at any place within the State as the Authority may provide, and shall also meet upon the call of its chairman or a majority of its members. A majority of its members shall constitute a quorum for the transaction of business. The members of the Authority shall not be entitled to compensation for their services, but shall receive per diem and necessary travel and subsistence expense in accordance with G.S. 138-5 and 138-6.  (1979, c. 459, s. 1; 1981 (Reg. Sess., 1982), c. 1191, ss. 36, 37; 1989, c. 751, s. 8(12); 1991 Session Laws (1992 Regular Session), c. 959, s. 85(b); 1995, c. 490, s. 47; 2013-211, s. 1.)

 

§ 113-315.26.  Personnel.

The Secretary of Commerce shall appoint any personnel as deemed necessary who shall serve at the pleasure of the Secretary of Commerce. The Secretary of Commerce shall have the power to appoint, employ and dismiss any employees deemed necessary to accomplish the purposes of this Article subject to the availability of funds. It is recommended that, to the fullest extent possible, the Secretary of Commerce consult with the Authority on matters of personnel.  (1979, c. 459, s. 2; 1983, c. 717, s. 24; 1983 (Reg. Sess., 1984), c. 1034, s. 164; 1989, c. 751, s. 8(13); c. 752, s. 39(d); 1991 (Reg. Sess., 1992), c. 959, s. 24; 2013-211, s. 1.)

 

§ 113-315.27.  Executive committee.

There shall be an executive committee consisting of the chairman of the Authority and two other members elected annually by the Authority. The executive committee shall be vested with authority  to do all acts which are specifically authorized by the bylaws of the  Authority. Members of the executive committee shall serve until their successors are elected. (1979, c. 459, s. 3.)

 

§ 113-315.28.  Purposes of Authority.

Through the Authority created by this Article, the State of North Carolina may engage in promoting, developing, constructing, equipping, maintaining and operating one or more marine industrial parks within the State, or within the jurisdiction of the State, and works of internal improvements related to the purposes set forth in this section, including the acquisition or construction, maintenance and operation of watercraft and facilities located at the parks or essential for the proper operation of the parks. The Authority is created as an instrumentality of the State of North Carolina for the accomplishment of the following general purposes:

(1)       To develop and improve the Wanchese Marine Industrial Park, and such other marine industrial parks, including inland ports and facilities, as may be deemed feasible for a more expeditious and efficient handling of marine commerce from and to any place or places in the State of North Carolina and other states and foreign countries;

(2)       To acquire, construct, equip, maintain, develop and improve the port facilities at the parks and to maintain, develop, and improve the navigability of waterways in or adjacent to the parks and those waterways connecting the parks with the channels of commerce of the Atlantic Ocean;

(3)       To foster and stimulate the growth of marine-related industries in the State of North Carolina;

(4)       Repealed by Session Laws 2013-211, s. 1, effective June 26, 2013.

(5)       To accept funds from any counties or cities containing a marine industrial park and to use the same in such manner, within the purposes of said Authority, as shall be stipulated by the funding county or city, and to act as agent or instrumentality of any funding counties or cities in any matter coming within the general purposes of said Authority;

(5a)     To encourage and develop the general maritime and marine-related industries and activities at or in the vicinity of the marine industrial parks;

(6)       And in general to do and perform any act or function which may tend to be useful toward the development and improvement of marine industrial parks in the State of North Carolina, and to increase the movement of waterborne marine commerce, foreign and domestic, to, through, and from the marine industrial parks.

The enumeration of the above purposes shall not limit or circumscribe the broad objective of developing to the utmost the marine industry possibilities of the State of North Carolina.  (1979, c. 459, s. 4; 1993, c. 278, s. 1; 1998-212, s. 15.5(a); 2013-211, s. 1.)

 

§ 113-315.29.  Powers of Authority.

In order to enable it to carry out the purposes of this Article, the Authority shall:

(1)       Have the powers of a body corporate, including the power to sue and be sued, to make contracts, and to adopt and use a common seal and to alter the same as may be deemed expedient;

(2)       Have the authority to make all necessary contracts and arrangements with other marine industrial park or port authorities of this and other states for the interchange of business, and for such other purposes as will facilitate and increase the marine industries;

(3)       Be authorized and empowered to rent, lease, buy, own, acquire, mortgage, otherwise encumber, and dispose of such property, real or personal, as said Authority may deem proper to carry out the purposes and provisions of this Article, all or any of them;

(4)       Be authorized and empowered to acquire, construct, maintain, equip and operate any wharves, docks, piers, quays, elevators, compresses, refrigeration storage plants, warehouses and other structures, and any and all facilities needful for the convenient use of the same in the aid of commerce, including the dredging of approaches to port facilities at the parks and improving the navigability of those waterways connecting the parks with the channels of commerce of the Atlantic Ocean;

(5)       Be authorized and empowered to pay all necessary costs and expenses involved and incident to the formation and organization of the Authority, and incident to its administration and operation, and to pay all other costs and expenses reasonably necessary or expedient in carrying out and accomplishing the purposes of this Article;

(6)       Be authorized and empowered to apply for and accept loans and grants of money from any federal agency or the State of North Carolina and its political subdivisions or from any public or private sources available for any and all of the purposes authorized in this Article, and to expend these funds in accordance with the directions and requirements of the granting or loaning authority, or imposed on the loans and grants by any federal agency, the State of North Carolina and its political subdivisions, or any public or private lender or donor, and to give such evidences of indebtedness as shall be required, provided, however, that no indebtedness of any kind incurred or created by the Authority shall constitute an indebtedness of the State of North Carolina, or any of its political subdivisions, and no such indebtedness shall involve or be secured by the faith, credit or taxing power of the State of North Carolina, or any of its political subdivisions;

(7)       Be authorized and empowered to act as agent for the United States of America, or any of its agencies, departments, corporations, or instrumentalities in any matter coming within the purposes or powers of the Authority;

(8)       Have power to adopt, alter or repeal bylaws and rules governing the manner in which its business may be transacted and in which the power granted to it may be enjoyed, and may provide for the appointment of any committees as the Authority may deem necessary or expedient in facilitating its business;

(8a)     Have the authority to assess and collect fees for its services or for the use of its facilities;

(9)       Be authorized and empowered to do any and all other acts and things in this Article authorized or required to be done, whether or not included in the general powers in this section mentioned; and

(10)     Be authorized and empowered to do any and all things necessary to accomplish the purposes of this Article.  (1979, c. 459, s. 5; 1987, c. 827, s. 108; 1993, c. 323, s. 1; 2013-211, s. 1.)

 

§ 113-315.30.  Approval of acquisition and disposition of real property.

Any transactions relating to the acquisition or disposition of real property or any estate or interest in real property, by the North Carolina State Marine Industrial Park Authority, shall be subject to prior review by the Governor and Council of State, and shall become effective only after the same has been approved by the Governor and Council of State. Upon the acquisition of real property or other estate or interest in real property, by the Authority, the fee title or other estate shall vest in and the instrument of conveyance shall name the "North Carolina Marine Industrial Park Authority" as grantee, lessee, or transferee. Upon the disposition of real property or any interest or estate therein, the instrument of conveyance or transfer shall be executed by the North Carolina Marine Industrial Park Authority. The approval of any transaction by the Governor and Council of State may be evidenced by a duly certified copy of excerpt of minutes of the meeting of the Governor and Council of State, attested by the private secretary to the Governor or the Governor, reciting such approval, affixed to the instrument of acquisition or transfer, and the certificate may be recorded as a part of the instrument of acquisition or transfer, and shall be conclusive evidence of review and approval of the subject transaction by the Governor and Council of State. The Governor, acting with the approval of the Council of State, may delegate the review and approval of such classes of lease, rental, easement, or right-of-way transactions as the Governor deems advisable, and the Governor may likewise delegate the review and approval of the severance of buildings and timber from the land.  (1979, c. 459, s. 6; 2013-211, s. 1.)

 

§ 113-315.31.  Issuance of bonds.

(a)        As a means of raising the funds needed from time to time in the acquisition, construction, equipment, maintenance and operation of any facility, building, structure, or any other matter or thing which the Authority is authorized to acquire, construct, equip, maintain, or operate by this Article, all or any of them, the Authority is hereby authorized at one time or from time to time to issue with the approval of the Governor negotiable revenue bonds of the Authority. The principal and interest of revenue bonds shall be payable solely from the revenue to be derived from the operation of all or any part of its properties and facilities.

(b)        A pledge of the net revenues derived from the operation of the properties and facilities, all or any of them, shall be made to secure the payment of the bonds issued to finance them as and when they mature.

(c)        Revenue bonds issued under the provisions of this Article shall not be deemed to constitute a debt of the State of North Carolina or a pledge of the faith and credit of the State. The issuance of such revenue bonds shall not directly or indirectly or contingently obligate the State to levy or to pledge any form of taxation whatever or to make any appropriation for their payment.

(d)       Such bonds and the income derived from them shall be exempt from all taxation within the State.

(e)        Notwithstanding any other provisions of this Article, the State Treasurer shall have the exclusive power to issue bonds and notes authorized under the act upon request of the Authority and with the approval of the Governor after receiving the advice of the Local Government Commission. The State Treasurer in his sole discretion shall determine the interest rates, maturities, and other terms and conditions of the bonds and notes authorized by this Article. The North Carolina Marine Industrial Park Authority shall determine when a bond issue is indicated. The Authority shall cooperate with the State Treasurer in structuring any bond issue in general, and also in soliciting proposals from financial consultants, underwriters, and bond attorneys.  (1979, c. 459, s. 7; 1983, c. 577, s. 2; 1985 (Reg. Sess., 1986), c. 955, ss. 13, 14; 2006-203, s. 28; 2013-211, s. 1.)

 

§ 113-315.32.  Power of eminent domain.

For the acquiring of rights-of-way and property necessary for the construction of wharves, piers, ships, docks, quays, elevators, compresses, refrigerator storage plants, warehouses and other riparian and littoral terminals and structures and approaches thereto, including the navigation stabilization structures and transportation facilities needful for the convenient use of same, the Authority shall have the right and power to acquire the same by purchase, by negotiation, or by condemnation, and should it elect to exercise the right of eminent domain, condemnation proceedings shall be maintained by and in the name of the Authority, and it may proceed in the manner provided for the Board of Transportation by Article 9 of Chapter 136 of the General Statutes. The power of eminent domain shall not apply to property of persons, State agency or corporations already devoted to public use, other than lands subject to the power of eminent domain by the State of North Carolina in the reservation clauses of a deed recorded in the Dare County Registry at Book 79 Page 548.  (1979, c. 459, s. 8; 1998-212, s. 15.5(b); 2013-211, s. 1.)

 

§ 113-315.33.  Exchange of property; removal of buildings, etc.

The Authority may exchange any property or properties acquired under the authority of this Chapter for other property, or properties usable in carrying out the powers conferred by this Article, and also may remove from lands needed for its purposes and reconstruct on other locations, buildings, terminals, or other structures, upon the payment of just compensation, if in its judgment, it is necessary or expedient so to do in order to carry out any of its plans for marine industrial park development, under the authorization of this Article.  (1979, c. 459, s. 9; 2013-211, s. 1.)

 

§ 113-315.34.  Jurisdiction of the Authority; application of Chapter 20; appointment and authority of special police.

(a)        The jurisdiction of the Authority in any of the parks shall extend to all properties owned by or under control of the Authority and shall also extend over the waters and shores within the parks and over that part of all tributary streams flowing into the parks in which the tide ebbs and flows, and shall extend to the outer edge of the outer bar situated at the approach to the port of any park.

(b)        All the provisions of Chapter 20 of the General Statutes relating to the use of the highways of the State and the operation of motor vehicles thereon are hereby made applicable to the streets, alleys and driveways on the properties owned by or under the control of the North Carolina Marine Industrial Park Authority. Any person violating any of the provisions of said Chapter in or on such streets, alleys or driveways shall, upon conviction thereof, be punished as therein prescribed. Nothing herein contained shall be construed as in any way interfering with the ownership and control of such streets, alleys and driveways on the properties of said Authority as is now vested by law in the said Authority.

(c)        The Authority shall post copies of rules concerning traffic and parking at appropriate places on property of the Authority. Violation of a rule concerning traffic or parking on property of the Authority is a Class 3 misdemeanor.

(d)       The Secretary of Commerce is authorized to appoint such number of employees of the Authority as he may think proper as special policemen, who, when so appointed, shall have within the jurisdiction of the Authority all the powers of policemen of incorporated towns. Special policemen may arrest persons who violate State law or a rule adopted by the Authority. Employees appointed as such special policemen shall take the general oath of office prescribed by G.S. 11-11.  (1979, c. 459, s. 10; 1987, c. 827, s. 109; 1989, c. 751, s. 8(14); 1991 (Reg. Sess., 1992), c. 959, s. 25; 1993, c. 539, s. 869; 1994, Ex. Sess., c. 24, s. 14(c); 2013-211, s. 1.)

 

§ 113-315.35.  Audit.

The operations of the North Carolina Marine Industrial Park Authority shall be subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes.  (1979, c. 459, s. 11; 1983, c. 913, s. 14; 2013-211, s. 1.)

 

§ 113-315.36.  Building contracts.

(a)        The following general laws, to the extent provided below, do not apply to the North Carolina Marine Industrial Park Authority:

(1)       Repealed by Session Laws 1999-368, s. 1.

(2)       Except for G.S. 143-128.2, Article 8 of Chapter 143 of the General Statutes does not apply to public building contracts of the Authority that require the estimated expenditure of public money in an amount less than two hundred fifty thousand dollars ($250,000). With respect to a contract that is exempted from certain provisions of Article 8 under this subdivision, the powers and duties set out in Article 8 shall be exercised by the Authority, and the Secretary of Administration and other State officers, employees, or agencies shall have no duties or responsibilities concerning the contract.

(3)       G.S. 143-341(3) does not apply to plans and specifications for construction or renovation authorized by the Authority that require the estimated expenditure of public money in an amount less than two hundred fifty thousand dollars ($250,000).

(b)        Notwithstanding the other provisions of this section, the services of the Department of Administration may be made available to the Authority, when requested by the Authority, with regard to matters governed by Article 8 of Chapter 143 of the General Statutes and G.S. 143-341(3). The Authority shall report quarterly to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources on any building contract to which this exemption is applied. The quarterly report required by this subsection shall specifically include information regarding the Authority's compliance with the provisions of G.S. 143-128.2.  (1979, c. 459, s. 12; 1997-331, s. 2; 1999-368, ss. 1, 2; 2001-496, s. 3.2; 2013-211, s. 1; 2017-57, s. 14.1(p).)

 

§ 113-315.37.  Liberal construction of Article.

It is intended that the provisions of this Article shall be liberally construed to accomplish the purposes provided for, or intended to be provided for, herein, and where strict construction would result in the defeat of the accomplishment of any of the acts authorized herein, and a liberal construction would permit or assist in the accomplishment thereof, the liberal construction shall be chosen. (1979, c. 459, s. 13.)

 

§ 113-315.38.  Warehouses, wharves, etc., on property abutting navigable waters.

The powers, authority and jurisdiction granted to the North Carolina Marine Industrial Park Authority under this Article and Chapter shall not be construed so as to prevent other persons, firms and corporations, including municipalities, from owning, constructing, leasing, managing and operating warehouses, structures and other improvements on property they own, lease, or control abutting upon and adjacent to navigable waters and streams in this State, nor to prevent other persons, firms and corporations from constructing, owning, leasing and operating wharves, docks and piers associated with the warehouses, structures, and other improvements, nor to prevent other persons, firms and corporations from encumbering, leasing, selling, conveying or otherwise dealing with and disposing of the properties, facilities, lands and improvements after construction.  (1979, c. 459, s. 14; 2013-211, s. 1.)

 

§ 113-315.39.  Taxation.

The property of the Authority shall not be subject to any taxes or assessments.  (1979, c. 459, s. 15; 2013-211, s. 1.)

 

 

Article 24.

Miscellaneous Transitional Provisions.

§ 113-316.  General statement of purpose and effect of revisions of Subchapter IV made in 1965 and 1979.

To clarify the conservation laws of the State and the authority and jurisdiction of the Department and the North Carolina Wildlife Resources Commission: commercial fishing waters are renamed coastal fishing waters and the Department is given jurisdiction over and responsibility for the marine and estuarine resources in coastal fishing waters; the laws pertaining to commercial fishing operations and marine fishing and fisheries regulated by the Department are consolidated and revised generally and broadened to reflect the jurisdictional change respecting coastal fisheries; laws relating to the conservation of wildlife resources administered by the Wildlife Resources Commission are consolidated and revised; and the enforcement authority of marine fisheries inspectors and wildlife protectors is clarified, including the authority of wildlife protectors over boating and other activities other than conservation within the jurisdiction of the Wildlife Resources Commission. (1965, c. 957, s. 1; 1973, c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1979, c. 830, s. 1; 1989, c. 727, s. 117.)

 

§ 113-317.  Repealed by Session Laws 1979, c. 830, s. 1.

 

§§ 113-318 through 113-320.  Repealed by Session Laws 1973, c. 1262, s. 28.

 

§§ 113-321 through 113-322.  Repealed by Session Laws 1979, c. 830, s. 1.

 

§§ 113-323 through 113-330: Reserved for future codification purposes.

 

 

Article 25.

Endangered and Threatened Wildlife and Wildlife Species of Special Concern.

§ 113-331.  Definitions.

All of the definitions contained in Article 12 of this Chapter 113 shall apply in this Article except to the extent that they may be herein modified for the purposes of this Article 25.  As used in this Article, unless the context requires otherwise:

(1)        "Conserve" and "conservation" mean the use and application of all methods, procedures and biological information for the purpose of bringing populations of native and once-native species of wildlife in balance with the optimum carrying capacity of their habitat, and maintaining such balance.  These methods and procedures include all activities associated with scientific resource management such as research; census; law enforcement; habitat protection, acquisition, and enhancement; and restoration of species to unoccupied parts of historic range.  With respect to endangered and threatened species, the terms mean the use of methods and procedures to bring the species to the point at which the measures provided are no longer necessary.

(2)        "Endangered species" means any native or once-native species of wild animal whose continued existence as a viable component of the State's fauna is determined by the Wildlife Resources Commission to be in jeopardy or any species of wild animal determined to be an "endangered species" pursuant to the Endangered Species Act.

(3)        "Endangered Species Act" means the Endangered Species Act of 1973, Public Law 93-205 (87 Stat. 884), as it may be subsequently amended.

(4)        "Advisory Committee" means the North Carolina Nongame Wildlife Advisory Committee which is the advisory body of knowledgeable and representative citizens established by resolution of the Wildlife Resources Commission and charged to consider matters relating to nongame wildlife conservation and to advise the Commission in such matters.

(5)        "Protected animal" means a species of wild animal designated by the Wildlife Resources Commission as endangered, threatened, or of special concern.

(6)        "Protected animal list" means any one of the lists of North Carolina animal species that are endangered, threatened, or of special concern.

(7)        "Scientific council" means the group of scientists identified and assembled by the Advisory Committee to review the scientific evidence and to evaluate the status of wildlife species that are candidates for inclusion on a protected animal list.

(8)        "Special concern species" means any species of wild animal native or once-native to North Carolina which is determined by the Wildlife Resources Commission to require monitoring but which may be taken under regulations adopted under the provisions of this Article.

(9)        "Threatened species" means any native or once-native species of wild animal which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, or one that is designated as a threatened species pursuant to the Endangered Species Act.

(10)      "Wild animal" means any native or once-native nongame amphibian, bird, crustacean, fish, mammal, mollusk or reptile not otherwise legally classified by statute or regulation such as game and fur bearing animals, except those inhabiting and depending upon coastal fishing waters, marine and estuarine resources, marine mammals found in coastal fishing waters, sea turtles found in coastal fishing waters, and those declared to be pests under the Structural Pest Control Act of North Carolina of 1955 or the North Carolina Pesticide Law of 1971.  Nothing in this definition is intended to abrogate G.S. 113-132(a) or (c), confer jurisdiction upon the Wildlife Resources Commission as to any subject exclusively regulated by any other agency, or to authorize the Wildlife Resources Commission by its regulations to supersede any valid provision of law or regulation administered by any other agency. (1987, c. 382, s. 1.)

 

§ 113-332.  Declaration of policy.

The General Assembly finds that the recreation and aesthetic needs of the people, the interests of science, the quality of the environment, and the best interests of the State require that endangered and threatened species of wild animals and wild animals of special concern be protected and conserved, that their numbers should be enhanced and that conservation techniques be developed for them; however, nothing in this Article shall be construed to limit the rights of a landholder in the management of his lands for agriculture, forestry, development or any other lawful purpose without his consent.  The North Carolina Zoological Park is not subject to the provisions of this Article. (1987, c. 382, s. 1.)

 

§ 113-333.  Powers and duties of the Commission.

(a)        In the administration of this Article, the Wildlife Resources Commission shall have the following powers and duties:

(1)        To adopt and publish an endangered species list, a threatened species list, and a list of species of special concern, as provided for in G.S. 113-334, identifying each entry by its scientific and common name.

(2)        To reconsider and revise the lists from time to time in response to public proposals or as the Commission deems necessary.

(3)        To coordinate development and implementation of conservation programs and plans for endangered and threatened species of wild animals and for species of special concern.

(4)        To adopt and implement conservation programs for endangered, threatened, and special concern species and to limit, regulate, or prevent the taking, collection, or sale of protected animals.

(5)        To conduct investigations to determine whether a wild animal should be on a protected animal list and to determine the requirements for conservation of protected wild animal species.

(6)        To adopt and implement rules to limit, regulate, or prohibit the taking, possession, collection, transportation, purchase or sale of those species of wild animals in the classes Amphibia and Reptilia that do not meet the criteria for listing pursuant to G.S. 113-334 if the Commission determines that the species requires conservation measures in order to prevent the addition of the species to the protected animal lists pursuant to G.S. 113-334. This subdivision does not authorize the Commission to prohibit the taking of any species of the classes Amphibia and Reptilia solely to protect persons, property, or habitat; to prohibit possession by any person of four or fewer individual reptiles; or to prohibit possession by any person of 24 or fewer individual amphibians.

(b)        Using the procedures set out in Article 2A of Chapter 150B of the General Statutes, the Wildlife Resources Commission shall develop a conservation plan for the recovery of protected wild animal species. In developing a conservation plan for a protected wild animal species, the Wildlife Resources Commission shall consider the range of conservation, protection, and management measures that may be applied to benefit the species and its habitat. The conservation plan shall include a comprehensive analysis of all factors that have been identified as causing the decline of the protected wild animal species and all measures that could be taken to restore the species. The analysis shall consider the costs of measures to protect and restore the species and the impact of those measures on the local economy, units of local government, and the use and development of private property. The analysis shall consider reasonably available options for minimizing the costs and adverse economic impacts of measures to protect and restore the species.

(c)        In implementing a conservation plan under this Article, the Wildlife Resources Commission shall not adopt any rule that restricts the use or development of private property. If a conservation plan identifies a conservation, protection, or restoration measure the implementation of which is beyond the scope of the authority of the Wildlife Resources Commission, the Commission may petition the General Assembly, any agency that has regulatory authority to implement the measure, a unit of local government, or any other public or private entity and request the assistance of that agency or entity in implementing the measure.

(d)       The Commission is authorized to develop a bat eviction and exclusion curriculum that may be taught by trade associations or wildlife conservation organizations for certification. The curriculum may incorporate the training that is provided as part of Wildlife Damage Control Agent certification in best management practices for removing and evicting bats from structures and in preventing bats from reentering structures.  (1987, c. 382, s. 1; 1995, c. 392, s. 1; 2003-100, s. 1; 2009-219, s. 1.)

 

§ 113-334.  Criteria and procedures for placing animals on protected animal lists.

(a)        All native or resident wild animals which are on the federal lists of endangered or threatened species pursuant to the Endangered Species Act have the same status on the North Carolina protected animals lists.

(b)        The Advisory Committee, after considering a report on the status of a candidate species from the Scientific Council, may by resolution propose to the Wildlife Resources Commission that a species of wild animal be added to or removed from a protected animal list.

(c)        If the Commission, with the advice of the Advisory Committee, finds there is probably merit in the proposal, it shall examine relevant scientific and economic data and factual information necessary to determine:

(1)        Whether any other state or federal agency or private entity is taking steps to protect the wild animal which is the subject of the proposal;

(2)        Whether there is present or threatened destruction, modification, or curtailment of its habitat;

(3)        If there is over-utilization for commercial, recreational, scientific, or educational purposes;

(4)        Whether there is critical population depletion from disease, predation, or other mortality factors;

(5)        Whether alternative regulatory mechanisms exist; and

(6)        The existence of other man-made factors affecting continued viability of the animal in North Carolina.

(d)       The Commission, with the advice of the Advisory Committee, shall tentatively determine whether any regulatory action is warranted with regard to the proposal and, if so, the specific regulatory action to be proposed by it.  Notice of its proposed rulemaking shall be published in the North Carolina Register and the subsequent proceedings shall conform with the Administrative Procedure Act. (1987, c. 382, s. 1.)

 

§ 113-335.  North Carolina Nongame Wildlife Advisory Committee.

The North Carolina Nongame Wildlife Advisory Committee is created subject to constitution, organization, and function as determined appropriate and advisable by resolution of the Wildlife Resources Commission.  The Advisory Committee is to be comprised of knowledgeable and representative citizens of North Carolina whose responsibility shall be to advise the Commission on matters related to conservation of nongame wildlife including creation of protected animal lists and development of conservation programs for endangered, threatened, and special concern species.

Members of the Advisory Committee shall receive necessary travel and subsistence expenses while on official business of the Committee in accordance with G.S. 138-5 and G.S. 138-6, to be paid from the Nongame Account of the Wildlife Resources Fund. (1987, c. 382; 1989 (Reg. Sess., 1990), c. 1066, s. 48.)

 

§ 113-336.  Powers and duties of the Advisory Committee.

The Advisory Committee shall have the following powers and duties:

(1)        To gather and provide information and data and advise the Wildlife Resources Commission with respect to all aspects of the biology and ecology of endangered, threatened, and special concern species;

(2)        To investigate and make recommendations to the Commission as to the status of endangered, threatened, and special concern species;

(3)        To identify and assemble experts from the disciplines of ornithology, mammalogy, herpetology, ichthyology, taxonomy, ecology and other fields as necessary to serve as the Scientific Council and to charge the Scientific Council to review the scientific evidence, to evaluate the status of candidate species, and to report back their findings with recommendations;

(4)        To develop and present to the Commission management and conservation practices for preserving endangered, threatened, and special concern species;

(5)        To recommend critical habitat areas for protection or acquisition;

(6)        To advise the Commission on matters submitted to it by the Commission which involve technical zoological questions or the development of pertinent regulations, and to make any recommendations as deemed by the Advisory Committee to be worthy of the Commission's attention. (1987, c. 382, s. 1.)

 

§ 113-337.  Unlawful acts; penalties.

(a)        It is unlawful:

(1)        To take, possess, transport, sell, barter, trade, exchange, export, or offer for sale, barter, trade, exchange or export, or give away for any purpose including advertising or other promotional purpose any animal on a protected wild animal list, except as authorized according to the regulations of the Commission, including those promulgated pursuant to G.S. 113-333(1);

(2)        To perform any act specifically prohibited by the regulations of the Commission promulgated pursuant to its authority under G.S. 113-333.

(b)        Each person convicted of violating the provisions of this Article is guilty of a Class 1 misdemeanor. (1987, c. 382, s. 1; 1999-408, s. 10.)

 

§§ 113-338 through 113-350:  Reserved for future codification purposes.

 

 

Article 25A.

Unified Licenses.

§ 113-351.  Unified hunting and fishing licenses; subsistence license waiver.

(a)        Definitions. - The definitions set out in G.S. 113-174 apply to this Article.

(b)        General Provisions Governing Licenses and Waivers. - The general provisions governing licenses set out in G.S. 113-174.1 apply to licenses and waivers issued under this section.

(c)        Types of Unified Hunting and Fishing Licenses; Fees; Duration. - The Wildlife Resources Commission shall issue the following Unified Hunting and Fishing Licenses:

(1)       Annual Resident Unified Sportsman/Coastal Recreational Fishing License. - $65.00. This license is valid from the date of issue for a period of 12 months as defined by G.S. 113-270.1B(b) and G.S. 113-270.1B(c). This license shall be issued only to an individual who is a resident of the State. This license authorizes the licensee to take all wild animals and wild birds, including waterfowl, by all lawful methods in all open seasons, including the use of game lands; to fish with hook and line for all fish in all inland fishing waters and joint fishing waters, including public mountain trout waters; and to engage in recreational fishing in coastal fishing waters.

(2)       Annual Resident Unified Inland/Coastal Recreational Fishing License. - $40.00. This license is valid from the date of issue for a period of 12 months as defined by G.S. 113-270.1B(b) and G.S. 113-270.1B(c). This license shall be issued only to an individual who is a resident of the State. This license authorizes the licensee to fish with hook and line for all fish in all inland fishing waters and joint fishing waters, including public mountain trout waters, and to engage in recreational fishing in coastal fishing waters.

(3)       Lifetime Unified Sportsman/Coastal Recreational Fishing Licenses. - Except as provided in sub-subdivision f. of this subdivision, a license issued under this subdivision is valid for the lifetime of the licensee. A license issued under this subdivision authorizes the licensee to take all wild animals and wild birds, including waterfowl, by all lawful methods in all open seasons, including the use of game lands; to fish with hook and line for all fish in all inland fishing waters and joint fishing waters, including public mountain trout waters; and to engage in recreational fishing in coastal fishing waters.

a.         Infant Lifetime Unified Sportsman/Coastal Recreational Fishing License. - $275.00. This license shall be issued only to an individual who is younger than one year of age.

b.         Youth Lifetime Unified Sportsman/Coastal Recreational Fishing License. - $450.00. This license shall be issued only to an individual who is one year of age or older but younger than 12 years of age.

c.         Resident Adult Lifetime Unified Sportsman/Coastal Recreational Fishing License. - $675.00. This license shall be issued only to an individual who is 12 years of age or older but younger than 70 years of age and who is a resident of the State.

d.         Nonresident Adult Lifetime Unified Sportsman/Coastal Recreational Fishing License. - $1,550. This license shall be issued only to an individual who is 12 years of age or older and who is not a resident of the State.

e.         Resident Age 70 Lifetime Unified Sportsman/Coastal Recreational Fishing License. - $30.00. This license shall be issued only to an individual who is 70 years of age or older and who is a resident of the State.

f.          Resident Disabled Veteran Lifetime Unified Sportsman/Coastal Recreational Fishing License. - $110.00. This license shall be issued only to an individual who is a resident of the State and who is a fifty percent (50%) or more disabled veteran as determined by the United States Department of Veterans Affairs or as established by rules of the Wildlife Resources Commission. This license remains valid for the lifetime of the licensee so long as the licensee remains fifty percent (50%) or more disabled.

g.         Resident Totally Disabled Lifetime Unified Sportsman/Coastal Recreational Fishing License. - $110.00. This license shall be issued only to an individual who is a resident of the State and who is totally and permanently disabled as determined by the Social Security Administration or as established by rules of the Wildlife Resources Commission.

(4)       Lifetime Unified Inland/Coastal Recreational Fishing Licenses. - Except as provided in sub-subdivisions b. and c. of this subdivision, a license issued under this subdivision is valid for the lifetime of the licensee. A license issued under this subdivision authorizes the licensee to fish with hook and line for all fish in all inland fishing waters and joint fishing waters, including public mountain trout waters, and to engage in recreational fishing in coastal fishing waters.

a.         Resident Lifetime Unified Inland/Coastal Recreational Fishing License. - $450.00.

b.         Resident Legally Blind Lifetime Unified Inland/Coastal Recreational Fishing License. - No charge. This license shall be issued only to an individual who is a resident of the State and who has been certified by the Department of Health and Human Services as an individual whose vision with glasses is insufficient for use in ordinary occupations for which sight is essential. This license remains valid for the lifetime of the licensee so long as the licensee remains legally blind.

c.         Resident Adult Care Home Lifetime Unified Inland/Coastal Recreational Fishing License. - No charge. This license shall be issued only to an individual who is a resident of the State and who resides in an adult care home as defined in G.S. 131D-2.1 or G.S. 131E-101(1). This license remains valid for the lifetime of the licensee so long as the licensee remains a resident of an adult care home.

(d)       Resident Subsistence Unified Inland/Coastal Recreational Fishing License Waiver. - A county department of social services shall issue a Resident Subsistence Unified Inland/Coastal Recreational Fishing License Waiver to an individual who receives benefits from Medicaid, Food and Nutrition Services, or Work First Family Assistance through the county department of social services and who requests a waiver. This waiver shall be issued at no charge. This waiver is valid for a period of one year from the date of issuance. This waiver shall be issued only to an individual who is a resident of the State. This waiver authorizes the waiver holder to fish with hook and line for all fish in all inland fishing waters and joint fishing waters, except for public mountain trout waters, and to engage in recreational fishing in coastal fishing waters. County departments of social services shall supply the Wildlife Resources Commission with the name, mailing address, and telephone number of each individual who receives a waiver.  (2005-455, s. 1.16; 2006-79, s. 2; 2006-255, s. 10; 2007-97, s. 14; 2009-462, s. 4(e); 2013-283, s. 10; 2014-100, s. 14.25(d).)

 

§§ 113-352 through 113-377:  Reserved for future codification purposes.

 

 

Article 26.

Marine Fisheries Compact and Commission.

§§ 113-377.1 through 113-377.7:  Transferred to §§ 113-252 through 113-258 by Session Laws 1965, c. 957.

 

 

SUBCHAPTER IVA. REPEALS.

Article 26A.

Repeal of Acts.

§ 113-377.8.  Repeal of certain public, public-local, special and private acts.

The following public, public-local, special and private acts are hereby repealed: Chapter 36 of the Public Laws of 1901; Chapter 113 of the Public Laws of 1901; Chapter 260 of the Public Laws of 1901; Chapter 308 of the Public Laws of 1901; Chapter 326 of the Public Laws of 1901; Chapter 370 of the Public Laws of 1901; Chapter 431 of the Public Laws of 1901; Chapter 435 of the Public Laws of 1901; Chapter 475 of the Public Laws of 1901; Chapter 589 of the Public Laws of 1901; Chapter 673 of the Public Laws of 1901; Chapter 702 of the Public Laws of 1901; Chapter 771 of the Public Laws of 1901; Chapter 131 of the Public Laws of 1903; Chapter 414 of the Public Laws of 1903; Chapter 520 of the Public Laws of 1903; Chapter 631 of the Public Laws of 1903; Chapter 650 of the Public Laws of 1903; Chapter 658 of the Public Laws of 1903; Chapter 668 of the Public Laws of 1903; Chapter 732 of the Public Laws of 1903; Chapter 752 of the Public Laws of 1903; Chapter 86 of the Public Laws of 1905; Chapter 265 of the Public Laws of 1905; Chapter 283 of the Public Laws of 1905; Chapter 351 of the Public Laws of 1905; Chapter 363 of the Public Laws of 1905; Chapter 500 of the Public Laws of 1905; Chapter 560 of the Public Laws of 1905; Chapter 386 of the Public Laws of 1907; Chapter 572 of the Public Laws of 1907; Chapter 690 of the Public Laws of 1907; Chapter 811 of the Public Laws of 1907; Chapter 977 of the Public Laws of 1907; Chapter 426 of the Public Laws of 1909; Chapter 466 of the Public Laws of 1909; Chapter 585 of the Public Laws of 1909; Chapter 755 of the Public Laws of 1909; Chapter 871 of the Public Laws of 1909; Chapter 525 of the Public-Local Laws of 1911; Chapter 547 of the Public-Local Laws of 1911; Chapter 572 of the Public-Local Laws of 1913; Chapter 587 of the Public-Local Laws of 1913; Chapter 402 of the Private Laws of 1913; Chapter 58 of the Public-Local Laws, Extra Session of 1913; Chapter 211 of the Public-Local Laws, Extra Session of 1913; Chapter 30 of the Public Laws of 1915; Chapter 180 of the Public Laws of 1915; Chapter 610 of the Public-Local Laws of 1915; Chapter 599 of the Public-Local Laws of 1917; Chapter 202 of the Public-Local Laws, Extra Session 1920; Chapter 114 of the Public-Local Laws of 1921; Chapter 384 of the Public-Local Laws of 1921; Chapter 432 of the Public-Local Laws of 1921; Chapter 439 of the Public-Local Laws of 1921; Chapter 157 of the Public-Local Laws, Extra Session of 1921; Chapter 130 of the Public-Local Laws of 1923; Chapter 352 of the Public-Local Laws of 1923; Chapter 533 of the Public-Local Laws of 1923; Chapter 548 of the Public-Local Laws of 1923; Chapter 461 of the Public-Local Laws of 1925; Chapter 623 of the Public-Local Laws of 1925; Chapter 228 of the Public-Local Laws of 1927; Chapter 208 of the Public-Local Laws of 1929; Chapter 42 of the Public Laws of 1933; Chapter 51 of the Public Laws of 1933; Chapter 241 of the Public-Local Laws of 1933; Chapter 575 of the Public-Local Laws of 1933; Chapter 365 of the Public-Local Laws of 1935; Chapter 368 of the Public-Local Laws of 1935; Chapter 509 of the Public-Local Laws of 1935; Chapter 513 of the Public-Local Laws of 1935; Chapter 352 of the Public Laws of 1937; Chapter 266 of the Public-Local Laws of 1937; Chapter 632 of the Public-Local Laws of 1937; Chapter 265 of the Public Laws of 1939; Chapter 138 of the Public-Local Laws of 1939; Chapter 179 of the Public-Local Laws of 1939; Chapter 335 of the Public-Local Laws of 1941; Chapter 221 of the Special Laws of 1947; Chapter 485 of the Special Laws of 1947; Chapter 1017 of the Special Laws of 1947; Chapter 1031 of the Special Laws of 1949.

Provided that any public, public-local, special or private law herein repealed may be covered by a regulation of the Board of Conservation and Development to effectuate the same privileges or protection therein provided upon the petition of either the representative or senator from that county or district filed within six months from the date of ratification. (1951, c. 1045, s. 2.)

 

 

SUBCHAPTER V. OIL AND GAS CONSERVATION.

Article 27.

Oil and Gas Conservation.

Part 1. General Provisions.

§ 113-378.  Persons drilling for oil or gas to register and furnish bond.

Any person, firm or corporation before making any drilling exploration in this State for oil or natural gas shall register with the Department of Environmental Quality. To provide for such registration, the drilling operator must furnish the name and address of such person, firm or corporation, and the location of the proposed drilling operations, and file with the Department a bond running to the State of North Carolina in an amount totaling the sum of (i) five thousand dollars ($5,000) plus (ii) one dollar ($1.00) per linear foot proposed to be drilled for the well. Any well opened by the drilling operator shall be plugged upon abandonment in accordance with the rules of the Department.  (1945, c. 765, s. 2; 1971, c. 813, s. 1; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1987, c. 827, s. 110; 1989, c. 727, s. 118; 1997-443, s. 11A.119(a); 2011-276, s. 1; 2013-365, s. 5(a); 2015-241, s. 14.30(u).)

 

§ 113-379.  Filing log of drilling and development of each well.

Upon the completion or shutting down of any abandoned well, the drilling operator shall file with the Department or other State agency, or with any division thereof hereinafter created for the regulation of drilling for oil or natural gas, a complete log of the drilling and development of each well. (1945, c. 765, s. 3; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 119.)

 

§ 113-380.  Violation a misdemeanor.

Except as otherwise provided, any person, firm or officer of a corporation violating any of the provisions of this Article shall upon conviction thereof be guilty of a Class 1 misdemeanor.  (1945, c. 765, s. 4; 1971, c. 813, s. 2; 1993, c. 539, s. 870; 1994, Ex. Sess., c. 24, s. 14(c); 2012-143, s. 2(a).)

 

Part 2.  The Oil and Gas Conservation Act.

§ 113-381.  Title.

This law shall be designated and known as the Oil and Gas Conservation Act. (1945, c. 702, s. 1.)

 

§ 113-382.  Declaration of policy.

In recognition of imminent evils that can occur in the production and use and waste of natural oil and/or gas in the absence of equal or correlative rights of owners of crude oil or natural gas in a common source of supply to produce and use the same, and in the absence of adequate measures for the protection of the environment, this law is enacted for the protection of public interests against such evils by prohibiting waste and compelling ratable production and  authorizing regulations for the protection of the environment. (1945,  c. 702, s. 2; 1971, c. 813, ss. 3, 4.)

 

§§ 113-383 through 113-386.  Repealed by Session Laws 1973, c. 1262, s. 86.

 

§ 113-387: Repealed by Session Laws 2014-4, s. 17(c), effective July 1, 2015, and applicable to energy minerals severed on or after that date.

 

 

§ 113-388: Repealed by Session Laws 2014-4, s. 17(c), effective July 1, 2015, and applicable to energy minerals severed on or after that date.

 

§ 113-389.  Definitions.

Unless the context otherwise requires, the words defined in this section shall have the following meaning when found in this law:

(1)       "Base fluid" shall mean the continuous phase fluid type, such as water, used in a hydraulic fracturing treatment.

(1a)     "Commission" shall mean the North Carolina Oil and Gas Commission.

(1b)     "Department" shall mean the Department of Environmental Quality.

(1c)     "Division" shall mean the Division of Energy, Mineral, and Land Resources of the Department of Environmental Quality.

(2)       "Field" shall mean the general area which is underlaid or appears to be underlaid by at least one pool; and "field" shall include the underground reservoir or reservoirs containing crude petroleum oil or natural gas, or both. The words "field" and "pool" mean the same thing when only one underground reservoir is involved; "field," unlike "pool," may relate to two or more pools.

(3)       "Gas" shall mean all natural gas, including casing-head gas, and all other hydrocarbons not defined as oil in subdivision (7).

(3a)     "Hydraulic fracturing additive" shall mean any chemical substance or combination of substances, including any chemical or proppants, which is intentionally added to a base fluid for purposes of preparing a hydraulic fracturing fluid or treatment of a well.

(3b)     "Hydraulic fracturing fluid" shall mean the fluid, including the applicable base fluid and all hydraulic fracturing additives, used to perform a hydraulic fracturing treatment.

(3c)     "Hydraulic fracturing treatment" shall mean all stages of the treatment of a well by the application of hydraulic fracturing fluid under pressure that is expressly designed to initiate or propagate fractures in a target geologic formation to enhance production of oil and gas.

(4)       "Illegal gas" shall mean gas which has been produced within the State of North Carolina from any well during any time that well has produced in excess of the amount allowed by any rule, regulation or order of the Department, as distinguished from gas produced within the State of North Carolina from a well not producing in excess of the amount so allowed, which is "legal gas."

(5)       "Illegal oil" shall mean oil which has been produced within the State of North Carolina from any well during any time that that well has produced in excess of the amount allowed by rule, regulation or order of the Department, as distinguished from oil produced within the State of North Carolina from a well not producing in excess of the amount so allowed, which is "legal oil."

(6)       "Illegal product" shall mean any product of oil or gas, any part of which was processed or derived, in whole or in part, from illegal oil or illegal gas or from any product thereof, as distinguished from "legal product," which is a product processed or derived to no extent from illegal oil or illegal gas.

(6a)     "Lessee" shall mean the person entitled under an oil and gas lease to drill and operate wells.

(6b)     "Lessor" shall mean the owner of subsurface oil or gas resources who has executed a lease and who is entitled to the payment of a royalty on production.

(7)       "Oil" shall mean crude petroleum oil, and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods, and which are not the result of condensation of gas after it leaves the reservoir.

(7a)     "Oil and gas developer or operator" or "developer or operator" shall mean a person who acquires a lease for the purpose of conducting exploration for or extracting oil or gas.

(7b)     "Oil and gas operations" or "activities" shall mean the exploration for or drilling of an oil and gas well that requires entry upon surface estate and the production operations directly related to the exploration or drilling.

(8)       "Owner" shall mean the person who has the right to drill into and to produce from any pool, and to appropriate the production either for himself or for himself and others.

(9)       "Person" shall mean any natural person, corporation, association, partnership, receiver, trustee, guardian, executor, administrator, fiduciary or representative of any kind.

(10)     "Pool" shall mean an underground reservoir containing a common accumulation of crude petroleum oil or natural gas or both. Each zone of a general structure which is completely separated from the other zone in the structure is covered by the term "pool" as used herein.

(11)     "Producer" shall mean the owner of a well or wells capable of producing oil or gas, or both.

(12)     "Product" means any commodity made from oil or gas and shall include refined crude oil, crude tops, topped crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casing-head gasoline, natural gas gasoline, naphtha, distillate, gasoline, kerosene, benzine, wash oil, waste oil, blended gasoline, lubricating oil, blends or mixtures of oil with one or more liquid products or by-products derived from oil or gas, and blends or mixtures of two or more liquid products or by-products derived from oil or gas, whether hereinabove enumerated or not.

(12a)   "Proppant" shall mean sand or any natural or man-made material that is used in a hydraulic fracturing treatment to prop open the artificially created or enhanced fractures once the treatment is completed.

(12b)  "Surface owner" means the person who holds record title to or has a purchaser's interest in the surface of real property.

(13)     "Tender" shall mean a permit or certificate of clearance for the transportation of oil, gas or products, approved and issued or registered under the authority of the Department.

(14)     "Waste" in addition to its ordinary meaning, shall mean "physical waste" as that term is generally understood in the oil and gas industry. It shall include:

a.         The inefficient, excessive or improper use or dissipation of reservoir energy; and the locating, spacing, drilling, equipping, operating or producing of any oil or gas well or wells in a manner which results, or tends to result, in reducing inefficiently the quantity of oil or gas ultimately to be recovered from any pool in this State.

b.         The inefficient storing of oil, and the locating, spacing, drilling, equipping, operating or producing of any oil or gas well or wells in a manner causing, or tending to cause, unnecessary or excessive surface loss or destruction of oil or gas.

c.         Abuse of the correlative rights and opportunities of each owner of oil and gas in a common reservoir due to nonuniform, disproportionate, and unratable withdrawals causing undue drainage between tracts of land.

d.         Producing oil or gas in such manner as to cause unnecessary water channelling or coning.

e.         The operation of any oil well or wells with an inefficient gas-oil ratio.

f.          The drowning with water of any stratum or part thereof capable of producing oil or gas.

g.         Underground waste however caused and whether or not defined.

h.         The creation of unnecessary fire hazards.

i.          The escape into the open air, from a well producing both oil and gas, of gas in excess of the amount which is necessary in the efficient drilling or operation of the well.

j.          Permitting gas produced from a gas well to escape into the air.

(15)     "Water supply" shall mean any groundwater or surface water intended or used for human consumption; household purposes; or farm, livestock, or garden purposes.  (1945, c. 702, s. 9; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 218(59); 1997-443, s. 11A.119(a); 2011-276, s. 3(a); 2012-143, s. 2(b); 2014-4, s. 4(c); 2015-241, s. 14.30(u).)

 

§ 113-390.  Waste prohibited.

Waste of oil or gas as defined in this law is hereby prohibited. (1945, c. 702, s. 10.)

 

§ 113-391.  Jurisdiction and authority; rules and orders.

(a)        The Oil and Gas Commission, created by G.S. 143B-293.1, in conjunction with rule-making authority specifically reserved to the Environmental Management Commission under subsection (a3) of this section, shall establish a modern regulatory program for the management of oil and gas exploration and development in the State and the use of horizontal drilling and hydraulic fracturing treatments for that purpose. The program shall be designed to protect public health and safety; protect public and private property; protect and conserve the State's air, water, and other natural resources; promote economic development and expand employment opportunities; and provide for the productive and efficient development of the State's oil and gas resources. To establish the program, the Commission shall adopt rules for all of the following purposes:

(1)       Regulation of pre-drilling exploration activities, including seismic and other geophysical and stratigraphic surveys and testing.

(2)       Regulation of drilling, operation, casing, plugging, completion, and abandonment of wells.

(3)       Prevention of pollution of water supplies by oil, gas, or other fluids used in oil and gas exploration and development.

(4)       Protection of the quality of the water, air, soil, or any other environmental resource against injury or damage or impairment.

(5)       Regulation of horizontal drilling and hydraulic fracturing treatments for the purpose of oil and gas exploration. Such rules shall, at a minimum, include standards or requirements related to the following:

a.         Information and data to be submitted in association with applications for permits to conduct oil and gas exploration and development activities using horizontal drilling and hydraulic fracturing treatments, which may include submission of hydrogeological investigations and identification of mechanisms to prevent and diagnose sources of groundwater contamination in the area of drilling sites. In formulating these requirements, the Commission shall consider (i) how North Carolina's geology differs from other states where oil and gas exploration and development activities using horizontal drilling and hydraulic fracturing treatments are common and (ii) the routes of possible groundwater contamination resulting from these activities and the potential role of vertical geological structures such as dikes and faults as conduits for groundwater contamination.

b.         Collection of baseline data, including groundwater, surface water, and air quality in areas where oil and gas exploration and development activities are proposed. With regard to rules applicable to baseline data for groundwater and surface water, the Commission shall adopt rules that, at a minimum, establish standards to satisfy the pre-drilling testing requirement established under G.S. 113-421(a), including contaminants for which an operator or developer must test and necessary qualifications for persons conducting such tests.

c.         Appropriate construction standards for oil and gas wells, which shall address the additional pressures of horizontal drilling and hydraulic fracturing treatments. These rules, at a minimum, shall include standards for casing and cementing sufficient to handle highly pressurized injection of hydraulic fracturing fluids into a well for purposes of fracturing bedrock and extraction of gas, and construction standards for other gas production infrastructure, such as storage pits and tanks.

d.         Appropriate siting standards for wells and other gas production infrastructure, such as storage pits and tanks, including appropriate setback requirements and identification of areas, such as floodplains, where oil and gas exploration and production activities should be prohibited. Siting standards adopted shall be consistent with any applicable water quality standards adopted by the Environmental Management Commission or by local governments pursuant to water quality statutes, including standards for development in water supply watersheds.

e.         Limits on water use, including, but not limited to, a requirement that oil and gas operators prepare and have a water and wastewater management plan approved by the Department, which, among other things, limits water withdrawals during times of drought and periods of low flows. Rules adopted shall be (i) developed in light of water supply in the areas of proposed activity, competing water uses in those areas, and expected environmental impacts from such water withdrawals and (ii) consistent with statutes, and rules adopted by the Environmental Management Commission pursuant to those statutes, which govern water quality and management of water resources, including, but not limited to, statutes and rules applicable to water withdrawal registration, interbasin transfer requirements, and water quality standards related to wastewater discharges.

f.          Management of wastes produced in connection with oil and gas exploration and development and use of horizontal drilling and hydraulic fracturing treatments for that purpose. Such rules shall address storage, transportation, and disposal of wastes that may contain radioactive materials or wastes that may be toxic or have other hazardous wastes' characteristics that are not otherwise regulated as a hazardous waste by the federal Resource Conservation and Recovery Act (RCRA), such as top-hole water, brines, drilling fluids, additives, drilling muds, stimulation fluids, well servicing fluids, oil, production fluids, and drill cuttings from the drilling, alteration, production, plugging, or other activity associated with oil and gas wells. Wastes generated in connection with oil and gas exploration and development and use of horizontal drilling and hydraulic fracturing treatments for that purpose that constitute hazardous waste under RCRA shall be subject to rules adopted by the Environmental Management Commission to implement RCRA requirements in the State.

g.         Prohibitions on use of certain chemicals and constituents in hydraulic fracturing fluids, particularly diesel fuel.

h.         Disclosure of chemicals and constituents used in oil and gas exploration, drilling, and production, including hydraulic fracturing fluids, to State regulatory agencies and to local government emergency response officials, and, with the exception of those items constituting trade secrets, as defined in G.S. 66-152(3), and that are designated as confidential or as a trade secret under G.S. 132-1.2, requirements for disclosure of those chemicals and constituents to the public.

i.          Installation of appropriate safety devices and development of protocols for response to well blowouts, chemical spills, and other emergencies, including requirements for approved emergency response plans and certified personnel to implement these plans as needed.

j.          Measures to mitigate impacts on infrastructure, including damage to roads by truck traffic and heavy equipment, in areas where oil and gas exploration and development activities that use horizontal drilling and hydraulic fracturing technologies are proposed to occur.

k.         Notice, record keeping, and reporting.

l.          Proper well closure, site reclamation, post-closure monitoring, and financial assurance. Rules for financial assurance shall require that an oil or gas developer or operator establish financial assurance that will ensure that sufficient funds are available for well closure, post-closure maintenance and monitoring, any corrective action that the Department may require, and to satisfy any potential liability for sudden and nonsudden accidental occurrences, and subsequent costs incurred by the Department in response to an incident involving a drilling operation, even if the developer or operator becomes insolvent or ceases to reside, be incorporated, do business, or maintain assets in the State.

(6)       Repealed by Session Laws 2014-4, s. 9, effective June 4, 2014.

(7)       To require the making of reports showing the location of oil and gas wells and the filing of logs and drilling records.

(8)       To prevent "blowouts," "caving," and "seepage," as such terms are generally understood in the oil and gas industry.

(9)       To identify the ownership of all oil or gas wells, producing leases, refineries, tanks, plants, structures, and all storage and transportation equipment and facilities.

(10)     To regulate the "shooting," perforating, and chemical treatment of wells.

(11)     To regulate secondary recovery methods, including the introduction of gas, air, water, or other substances into producing formations.

(12)     To regulate the spacing of wells and to establish drilling units.

(13)     To regulate and, if necessary in its judgment for the protection of unique environmental values, to prohibit the location of wells in the interest of protecting the quality of the water, air, soil, or any other environmental resource against injury, damage, or impairment.

(13a)   Criteria to set the amount of a bond required pursuant to G.S. 113-421(a3), including, at a minimum, the number of wells proposed at a site, the pre-drilling condition of the property, the amount of acreage that would be impacted by the proposed oil and gas activities, and other factors designed to enable establishment of bonds on a site-by-site basis.

(14)     Any other matter the Commission deems necessary for implementation of a modern regulatory program for the management of oil and gas exploration and development in the State and the use of horizontal drilling and hydraulic fracturing for that purpose.

(a1)      The regulatory program required to be established and the rules required to be adopted pursuant to subsection (a) of this section shall not include a program or rules for the regulation of oil and gas exploration and development in the waters of the Atlantic Ocean and the coastal sounds as defined in G.S. 113A-103.

(a2)      In addition to the matters for which the Commission is required to adopt rules pursuant to subsection (a) of this section, the Commission may adopt rules as it deems necessary for any of the following purposes:

(1)       To require the operation of wells with efficient gas-oil ratios and to fix such ratios.

(2)       To limit and prorate the production of oil or gas, or both, from any pool or field for the prevention of waste as defined in this Article and rules adopted thereunder.

(3)       To require, either generally or in or from particular areas, certificates of clearance or tenders in connection with the transportation of oil or gas.

(4)       To prevent, so far as is practicable, reasonably avoidable drainage from each developed unit which is not equalized by counter-drainage.

(a3)      The Environmental Management Commission shall adopt rules, after consideration of recommendations from the Oil and Gas Commission, for all of the following purposes:

(1)       Stormwater control for sites on which oil and gas exploration and development activities are conducted.

(2)       Regulation of toxic air emissions from drilling operations, if it determines that the State's current air toxics program and any federal regulations governing toxic air emissions from drilling operations to be adopted by the State by reference are inadequate to protect public health, safety, welfare, and the environment. In formulating appropriate standards, the Department shall assess emissions from oil and gas exploration and development activities that use horizontal drilling and hydraulic fracturing technologies, including emissions from associated truck traffic, in order to (i) determine the adequacy of the State's current air toxics program to protect landowners who lease their property to drilling operations and (ii) determine the impact on ozone levels in the area in order to determine measures needed to maintain compliance with federal ozone standards.

(a4)      The Department shall administer and enforce the provisions of this Article, and rules adopted thereunder, and all other laws relating to the conservation of oil and gas, except for jurisdiction and authority reserved to the Department of Labor and the  Oil and Gas Commission, as otherwise provided. The Commission and the Department may issue orders as may be necessary from time to time in the proper administration and enforcement of this Article and rules adopted thereunder.

(a5)      Entry of rules in the North Carolina Administrative Code that address the areas identified by subsections (a) and (a3) of this section by July 1, 2015, create a rebuttable presumption that the rules are sufficient to meet the requirements for development of a modern regulatory program pursuant to this section.

(a6)      The Commission shall have the authority to develop rules addressing requirements for: permit applications; permit modifications; permit conditions; denial of applications for permits; permit transfers from one person to another; and permit durations, suspensions, revocations, and release.

(b)        The Commission and the Department, as appropriate, shall have the authority and it shall be their duty to make such inquiries as may be proper to implement the provisions of this Article. In the exercise of such power the Commission and the Department, as appropriate, shall have the authority to collect data; to make investigations and inspections; to examine properties, leases, papers, books and records; to examine, check, test and gauge oil and gas wells, tanks, refineries, and means of transportation; to hold hearings; and to provide for the keeping of records and the making of reports; and to take such action as may be reasonably necessary to enforce this law.

(b1)      In the exercise of their respective authority over oil and gas exploration and development activities, the Commission and the Department, as applicable, shall have access to all data, records, and information related to such activities, including, but not limited to, seismic surveys, stratigraphic testing, geologic cores, proposed well bore trajectories, hydraulic fracturing fluid chemicals and constituents, drilling mud chemistry, and geophysical borehole logs. With the exception of information designated as a trade secret, as defined in G.S. 66-152(3), and that is designated as confidential or as a trade secret under G.S. 132-1.2, the Department shall make any information it receives available to the public. The State Geologist, or the State Geologist's designee, shall serve as the custodian of all data, information, and records received by the Department pursuant to this subsection, including information designated as a trade secret, as defined in G.S. 66-152(3), and that is designated as confidential or as a trade secret under G.S. 132-1.2, and shall ensure that all of the information, including information designated as a trade secret, as defined in G.S. 66-152(3), and that is designated as confidential or as a trade secret under G.S. 132-1.2, is maintained securely as provided in G.S. 132-7.

(c)        Repealed by Session Laws 2012-143, s. 2(c), effective August 1, 2012.

(d)       The Department of Labor shall develop, adopt, and enforce rules establishing health and safety standards for workers engaged in oil and gas operations in the State, including operations in which hydraulic fracturing treatments are used for that purpose.

(e)        The Department shall submit an annual report on its activities conducted pursuant to this Article and rules adopted under it to the Environmental Review Commission, the Joint Legislative Commission on Energy Policy, the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the chairs of the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources, and the Fiscal Research Division of the General Assembly on or before October 1 of each year.  (1945, c. 702, s. 11; 1971, c. 813, ss. 5, 6; 1973, c. 1262, s. 86; 1987, c. 827, s. 111; 1989, c. 727, s. 120; 2012-143, s. 2(c); 2013-365, s. 5(b); 2014-4, ss. 4(c), 7(a), 8(b), 9; 2014-122, s. 11(j); 2015-1, s. 6(a); 2017-57, s. 14.1(qq).)

 

§ 113-391.1.  Trade secret and confidential information determination; protection; retention; disclosure to emergency personnel.

(a)        Legislative Findings. - The General Assembly finds that while confidential information must be maintained as such with the utmost care, for the protection of public health, safety, and the environment, the information should be immediately accessible to first responders and medical personnel in the event that the information is deemed necessary to address an emergency.

(b)        Determination and Treatment of Confidential Information. - Information obtained by the Commission and the Department pursuant to this Article, and rules adopted thereunder, shall be available to the public except that, upon a showing satisfactory to the Commission by any person that information to which the Commission and Department has access, if made public, would divulge methods or processes entitled to protection as confidential information pursuant to G.S. 132-1.2, the Commission shall consider the information confidential. In accordance with subsection (b1) of G.S. 113-391, the State Geologist shall serve as the custodian of the confidential information and shall ensure that it is maintained securely as provided in G.S. 132-7. The State Geologist, or the Geologist's designee, shall:

(1)       Review confidential information that concerns hydraulic fracturing fluid, as that term is defined in G.S. 113-389, to ensure compliance with all State and federal laws, rules, and regulations concerning prohibited chemicals or constituents, or exceedances of standards for chemicals or constituents. The State Geologist, or the Geologist's designee, shall issue a written certification within five days of completion of the review that the hydraulic fracturing fluids, including chemicals and constituents contained therein, comply with all State and federal laws, rules, and regulations; (ii) transmit the certification to the Mining and Energy Commission and the Director of the Division of Energy, Mining, and Land Resources; and (iii) transmit a copy of the certification electronically to the permittee. Horizontal drilling and hydraulic fracturing treatments shall not commence until this written certification has been issued and transmitted as required by this subsection.

(2)       Review, in consultation with the State Health Director, confidential information that concerns hydraulic fracturing fluid, as that term is defined in G.S. 113-389, to advise local health departments of additional parameters that should be included in testing for private drinking water wells in their jurisdictions in compliance with the requirements of G.S. 87-97 and the Private Well Water Education Act enacted by S.L. 2013-122.

(c)        Exceptions to Disclosure Prohibitions. - Confidential information obtained by the Commission and the Department pursuant to this Article, and rules adopted thereunder, may be disclosed to any officer, employee, or authorized representative of any federal or State agency if disclosure is necessary to carry out a proper function of the Department or other agency or when relevant in any proceeding under this Article. Confidential information shall be disclosed to the following:

(1)       The Division of Emergency Management of the Department of Public Safety. The Division shall maintain this information as confidential except if disclosure is necessary to carry out a proper function of the Division, including for the purposes of emergency planning and emergency response. For purposes of this section, the term "emergency" is defined as provided in G.S. 166A-19.3.

(2)       A treating health care provider who determines that a medical emergency exists and that the information is necessary for emergency or first aid treatment. Regardless of the existence of a written statement of need or a confidentiality agreement, the Department shall immediately disclose the confidential information to the treating health care provider upon request. If confidential information is disclosed pursuant to this subdivision, the Department shall notify the owner of the confidential information as soon as practicable, but no later than 24 hours after disclosure. The owner of the confidential information may require execution of a written statement of need and a confidentiality agreement from the treating health care provider as soon as circumstances permit. The confidentiality agreement (i) may restrict the use of the information to the health purposes indicated in a written statement of need; (ii) may provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre-estimate of likely damages; and (iii) may not include requirements for the posting of a penalty bond. The parties are not precluded from pursuing noncontractual remedies to the extent permitted by law.

(3)       A Fire Chief, as that term is defined in G.S. 95-174, who determines that an emergency exists and that the information is necessary to address the emergency. Regardless of the existence of a written statement of need or a confidentiality agreement, the Department shall immediately disclose the confidential information to the Fire Chief upon request. If confidential information is disclosed pursuant to this subdivision, the Department shall notify the owner of the confidential information as soon as practicable, but no later than 24 hours after disclosure. The owner of the confidential information may require execution of a written statement of need and a confidentiality agreement from the Fire Chief as soon as circumstances permit. The confidentiality agreement (i) may restrict the use of the information to the emergency purposes indicated in a written statement of need; (ii) may provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre-estimate of likely damages; and (iii) may not include requirements for the posting of a penalty bond. The parties are not precluded from pursuing noncontractual remedies to the extent permitted by law.

(d)       Penalties for Unlawful Disclosure. - Except as provided in subsection (c) of this section or as otherwise provided by law, any person who has access to confidential information pursuant to this section and who knowingly and willfully discloses it to any person not authorized to receive it shall be guilty of a Class 1 misdemeanor and shall be subject to civil action for damages and injunction by the owner of the confidential information, including, without limitation, actions under Article 24 of Chapter 66 of the General Statutes.

(e)        Appeal From Commission Decisions Concerning Confidentiality. - Within 10 days of any decision made pursuant to subsection (b) of this section, the Commission shall provide notice to any person who submits information asserted to be confidential (i) that the information is not entitled to confidential treatment and (ii) of any decision to release such information to any person who has requested the information. Notwithstanding the provisions of G.S. 132-9, or procedures for appeal provided under Article 4 of Chapter 150B of the General Statutes, any person who requests information and any person who submits information who is dissatisfied with a decision of the Commission to withhold or release information made pursuant to subsection (b) of this section shall have 30 days after receipt of notification from the Commission to appeal by filing an action in superior court and in accordance with the procedures for a mandatory complex business case set forth in G.S. 7A-45.4. Notwithstanding any other provision of G.S. 7A-45.4, the appeal shall be heard de novo by a judge designated as a Business Court Judge under G.S. 7A-45.3. The information may not be released by the Commission until the earlier of (i) the 30-day period for filing of an appeal has expired without filing of an appeal or (ii) a final judicial determination has been made in an action brought to appeal a decision of the Commission. In addition, the following shall apply to actions brought pursuant to this section:

(1)       Such actions shall be set down for immediate hearing.

(2)       The burden shall be on the owner of the information to show that the information is entitled to protection as confidential information pursuant to G.S. 132-1.2.

(3)       The court shall allow a party seeking disclosure of information who substantially prevails to recover its reasonable attorneys' fees if attributed to the information. The court may not assess attorneys' fees against the Commission or the Department, however, but shall impose such fees on the owner of the information asserting confidentiality.

(4)       If the court determines that an action brought pursuant to this section was filed in bad faith or was frivolous, the court shall assess reasonable attorneys' fees against the person or persons instituting the action and award to the prevailing party or parties.  (2014-4, s. 8(a); 2014-115, s. 67.)

 

§ 113-392.  Protecting pool owners; drilling units in pools; location of wells; shares in pools.

(a)        Whether or not the total production from a pool be limited or prorated, no rule or order of the Commission shall be such in terms or effect:

(1)       That it shall be necessary at any time for the producer from, or the owner of, a tract of land in the pool, in order that he may obtain such tract's just and equitable share of the production of such pool, as such share is set forth in this section, to drill and operate any well or wells on such tract in addition to such well or wells as can produce without waste such share, or

(2)       As to occasion net drainage from a tract unless there be drilled and operated upon such tract a well or wells in addition to such well or wells thereon as can produce without waste such tract's just and equitable share, as set forth in this section, of the production of such pool.

(b)        For the prevention of waste and to avoid the augmenting and accumulation of risks arising from the drilling of an excessive number of wells, the Commission shall, after a hearing, establish a drilling unit or units for each pool. The Commission may establish drainage units of uniform size for the entire pool or may, if the facts so justify, divide into zones any pool, establish a drainage unit for each zone, which unit may differ in size from that established in any other zone; and the Commission may from time to time, if the facts so justify, change the size of the unit established for the entire pool or for any zone or zones, or part thereof, establishing new zones and units if the facts justify their establishment.

(c)        Repealed by Session Laws 2014-4, s. 10, effective June 4, 2014.

(d)       Subject to the reasonable requirements for prevention of waste, a producer's just and equitable share of the oil and gas in the pool (also sometimes referred to as a tract's just and equitable share) is that part of the authorized production for the pool (whether it be the total which could be produced without any restriction on the amount of production, or whether it be an amount less than that which the pool could produce if no restriction on the amount were imposed) which is substantially in the proportion that the quantity of recoverable oil and gas in the developed area of his tract in the pool bears to the recoverable oil and gas in the total developed area of the pool, insofar as these amounts can be ascertained practically; and to that end, the rules, permits and orders of the Commission shall be such as will prevent or minimize reasonably avoidable net drainage from each developed unit (that is, drainage which is not equalized by counter-drainage), and will give to each producer the opportunity to use his just and equitable share of the reservoir energy.  (1945, c. 702, s. 12; 1973, c. 1262, s. 86; 1987, c. 827, s. 112; 2012-143, s. 2(d); 2014-4, s. 10.)

 

§ 113-393.  Development of lands as drilling unit by agreement or order of Commission.

(a)        Integration of Interests and Shares in Drilling Unit. - When two or more separately owned tracts of land are embraced within an established drilling unit, the owners thereof may agree validly to integrate their interests and to develop their lands as a drilling unit. Where, however, such owners have not agreed to integrate their interests, the Commission shall, for the prevention of waste or to avoid drilling of unnecessary wells, require such owners to do so and to develop their lands as a drilling unit. All orders requiring such integration shall be made after notice and hearing, and shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense, and will prevent or minimize reasonably avoidable drainage from each developed unit which is not equalized by counter-drainage. The portion of the production allocated to the owner of each tract included in a drilling unit formed by an integration order shall, when produced, be considered as if it had been produced from such tract by a well drilled thereon.

In the event such integration is required, and provided also that after due notice to all the owners of tracts within such drilling unit of the creation of such drilling unit, and provided further that the Commission has received no protest thereto, or request for hearing thereon, whether or not 10 days have elapsed after notice has been given of the creation of the drilling unit, the operator designated by the Commission to develop and operate the integrated unit shall have the right to charge to each other interested owner the actual expenditures required for such purpose not in excess of what are reasonable, including a reasonable charge for supervision, and the operator shall have the right to receive the first production from the well drilled by him thereon, which otherwise would be delivered or paid to the other parties jointly interested in the drilling of the well, so that the amount due by each of them for his shares of the expense of drilling, equipping, and operating the well may be paid to the operator of the well out of production; with the value of the production calculated at the market price in the field at the time such production is received by the operator or placed to his credit. After being reimbursed for the actual expenditures for drilling and equipping and operating expenses incurred during the drilling operations and until the operator is reimbursed, the operator shall thereafter pay to the owner of each tract within the pool his ratable share of the production calculated at the market price in the field at the time of such production less the reasonable expense of operating the well. In the event of any dispute relative to such costs, the Commission shall determine the proper costs.

(b)        When Each Owner May Drill. - Should the owners of separate tracts embraced within a drilling unit fail to agree upon the integration of the tracts and the drilling of a well on the unit, and should it be established that the Commission is without authority to require integration as provided for in subsection (a) of this section, then, subject to all other applicable provisions of this law, the owner of each tract embraced within the drilling unit may drill on his tract, but the allowable production from each tract shall be such proportion of the allowable for the full drilling unit as the area of such separately owned tract bears to the full drilling unit.

(c)        Cooperative Development Not in Restraint of Trade. - Agreements made in the interests of conservation of oil or gas, or both, or for the prevention of waste, between and among owners or operators, or both, owning separate holdings in the same oil or gas pool, or in any area that appears from geological or other data to be underlaid by a common accumulation of oil or gas, or both, or between and among such owners or operators, or both, and royalty owners therein, of a pool or area, or any part thereof, as a unit for establishing and carrying out a plan for the cooperative development and operation thereof, when such agreements are approved by the Commission, are hereby authorized and shall not be held or construed to violate any of the statutes of this State relating to trusts, monopolies, or contracts and combinations in restraining of trade.

(d)       Variation from Vertical. - Whenever the Department fixes the location of any well or wells on the surface, the point at which the maximum penetration of such wells into the producing formation is reached shall not unreasonably vary from the vertical drawn from the center of the hole at the surface, provided, that the Commission shall prescribe rules and the Department shall prescribe orders governing the reasonableness of such variation. This subsection shall not apply to wells drilled for the purpose of exploration or development of natural gas through use of horizontal drilling in conjunction with hydraulic fracturing treatments.  (1945, c. 702, s. 13; 1973, c. 1262, s. 86; 1987, c. 827, s. 112; 2012-143, s. 3(a).)

 

§ 113-394.  Limitations on production; allocating and prorating "allowables."

(a)        The Commission may limit the total amount of oil, including condensate, which may be produced in the State by fixing an amount which shall be designated "allowable" for the State. The Commission may then allocate or distribute the "allowable" for the State among the pools on a reasonable basis and in such manner as to avoid undue discrimination, and so that waste will be prevented. In allocating the "allowable" for the State, and in fixing "allowables" for pools producing oil or hydrocarbons forming condensate, or both oil and such hydrocarbons, the Commission may take into account the producing conditions and other relevant facts with respect to such pools, including the separate needs for oil, gas and condensate, and may formulate rules setting forth standards or a program for the distribution of the "allowable" for the State, and distribute the "allowable" for the State in accordance with such standards or program, and where conditions in one pool or area are substantially similar to those in another pool or area, then the same standards or programs shall be applied to such pools and areas so that as far as practicable a uniform program will be followed; provided, however, the Commission shall allow the production of a sufficient amount of natural gas from any pool to supply adequately the reasonable market demand for such gas for light and fuel purposes if such production can be obtained without waste, and the condensate "allowable" for such pool shall not be less than the total amount of condensate produced or obtained in connection with the production of the gas "allowable" for light and fuel purposes, and provided further that, if the amount allocated to pool as its share of the "allowable" for the State is in excess of the amount which the pool should produce to prevent waste, then the Commission shall fix the "allowable" for the pool so that waste will be prevented.

In allocating "allowables" to pools, the Commission shall not be bound by nominations or desires of purchasers to purchase oil from particular fields or areas, and the Commission shall allocate the "allowable" for the State in such manner as will prevent undue discrimination against any pool or area in favor of another or others which would result from selective buying or nominating by purchasers of oil, as such term "selective buying or nominating" is understood in the oil business.

(b)        Repealed by Session Laws 2013-365, s. 4, effective July 29, 2013.

(c)        Whenever the Commission limits the total amount of oil or gas which may be produced in any pool in this State to an amount less than that which the pool could produce if no restrictions were imposed (which limitation may be imposed either incidental to, or without, a limitation of the total amount of oil or gas which may be produced in the State), the Commission shall prorate or distribute the "allowable" production among the producers in the pool on a reasonable basis, and so that each producer will have the opportunity to produce or receive his just and equitable share, as such share is set forth in subsection G.S. 113-392(d), subject to the reasonable necessities for the prevention of waste.

(d)       Whenever the Commission limits the total amount of gas which may be produced from a pool, the Commission shall then allocate or distribute the allowable production among the developed areas in the pool on a reasonable basis, so that each producer will have the opportunity to produce his just and equitable share, as such share is set forth in subsection G.S. 113-392(d), whether the restriction for the pool as a whole is accomplished by order or by the automatic operation of the prohibitory provisions of this law. As far as applicable, the provisions of subsection (a) of this section shall be followed in allocating any "allowable" of gas for the State.

(e)        After the effective date of any rule or order of the Commission fixing the "allowable" production of oil or gas, or both, or condensate, no person shall produce from any well, lease, or property more than the "allowable" production which is fixed, nor shall such amount be produced in a different manner than that which may be authorized.  (1945, c. 702, s. 14; 1973, c. 1262, s. 86; 1975, c. 19, ss. 37, 38; 1987, c. 827, s. 112; 2012-143, s. 2(e); 2013-365, s. 4.)

 

§ 113-395.  Permits, fees, and notice required for oil and gas activities.

(a)        Before any well, in search of oil or gas, shall be drilled, the person desiring to drill the same shall submit an application for a permit to the Department upon such form as the Department may prescribe and shall pay a fee of three thousand dollars ($3,000) for the first well to be drilled on a pad and fifteen hundred dollars ($1,500) for each additional well to be drilled on the same pad. The drilling of any well is prohibited unless the Department has issued a permit for the activity.

(b)        Any person desiring to use hydraulic fracturing treatments in conjunction with oil and gas operations or activities shall submit an application for a permit to the Department upon such form as the Department may prescribe. The use of hydraulic fracturing treatments is prohibited unless the Department has issued a permit for the activity.

(c)        Each abandoned well and each dry hole shall be plugged promptly in the manner and within the time required by rules prescribed by the Commission, and the owner of such well shall give notice, upon such form as the Commission may prescribe, of the abandonment of each dry hole and of the owner's intention to abandon, and shall pay a fee of four hundred fifty dollars ($450.00). No well shall be abandoned until such notice has been given and such fee has been paid.  (1945, c. 702, s. 15; 1973, c. 1262, s. 86; 1987, c. 827, s. 113; 2011-276, s. 2; 2012-143, s. 3(c); 2014-4, s. 11.)

 

§ 113-395.1.  Miscellaneous permit requirements.

The Department shall require that all natural gas compressor stations associated with an oil and gas drilling operation be located inside a baffled building.  (2014-4, s. 15(a).)

 

§ 113-395.2.  Subsurface injection of waste prohibited.

(a)        Disposal of wastes produced in connection with oil and gas exploration, development, and production, and use of horizontal drilling and hydraulic fracturing treatments for that purpose by injection to subsurface or groundwaters of the State by means of wells is prohibited in accordance with G.S. 143-214.2.

(b)        Notwithstanding G.S. 143-214.2, a violation of subsection (a) of this section shall constitute a Class 1 misdemeanor.  (2014-4, s. 15(a).)

 

§ 113-395.3.  Environmental compliance review requirements for applicants and permit holders.

(a)        For purposes of this section, "applicant" means an applicant for a permit and a permit holder and includes the owner or operator of the facility, and if the owner or operator is a business entity, applicant also includes (i) the parent, subsidiary, or other affiliate of the applicant; (ii) a partner, officer, director, member, or manager of the business entity, parent, subsidiary, or other affiliate of the applicant; and (iii) any person with a direct or indirect interest in the applicant, other than a minority shareholder of a publicly traded corporation who has no involvement in management or control of the corporation or any of its parents, subsidiaries, or affiliates.

(b)        The Department shall conduct an environmental compliance review of each applicant for a new permit under this Article. The environmental compliance review shall evaluate the environmental compliance history of the applicant for a period of five years prior to the date of the application and may cover a longer period at the discretion of the Department. The environmental compliance review of an applicant may include consideration of the environmental compliance history of the parents, subsidiaries, or other affiliates of an applicant or parent that is a business entity, including any business entity or joint venturer with a direct or indirect interest in the applicant, and other facilities owned or operated by any of them. The Department shall determine the scope of the review of the environmental compliance history of the applicant, parents, subsidiaries, or other affiliates of the applicant or parent, including any business entity or joint venturer with a direct or indirect interest in the applicant, and of other facilities owned or operated by any of them. An applicant for a permit shall provide environmental compliance history information for each facility, business entity, joint venture, or other undertaking in which any of the persons listed in this subsection is or has been an owner, operator, officer, director, manager, member, or partner, or in which any of the persons listed in this subsection has had a direct or indirect interest as requested by the Department.

(c)        The Department shall determine the extent to which the applicant, or a parent, subsidiary, or other affiliate of the applicant or parent, or a joint venturer with a direct or indirect interest in the applicant, has substantially complied with the requirements applicable to any activity in which any of these entities previously engaged and has substantially complied with federal, North Carolina, and other states' laws, regulations, and rules for the protection of the environment. The Department may deny an application for a permit if the applicant has a history of significant or repeated violations of statutes, rules, orders, or permit terms or conditions for the protection of the environment or for the conservation of natural resources as evidenced by civil penalty assessments, administrative or judicial compliance orders, or criminal penalties.

(d)       A permit holder shall notify the Department of any significant change in its environmental compliance history or any significant change in the (i) identity of any person or structure of the business entity that holds the permit for the facility; (ii) identity of any person or structure of the business entity that owns or operates the facility; or (iii) assets of the permit holder, owner, or operator of the facility. The permit holder shall notify the Department within 30 days of a significant change. A change shall be considered significant if it would result in a change in the identity of the permit holder, owner, or operator for purposes of environmental compliance review. Based on its review of the changes, the Department may modify or revoke a permit, or require issuance of a new permit.  (2014-4, s. 15(a).)

 

§ 113-395.4.  Seismic or geophysical data collection.

(a)        Notwithstanding any other provision of law, no liability for trespass shall arise from activities conducted for the purpose of seismic or geophysical data collection. Provided, however, (i) persons conducting seismic and geophysical data collection may only conduct such activity by undershooting from an off-site location and without physical entry to private land, unless the landowner's consent for such activity is obtained in writing and (ii) persons conducting seismic or geophysical data collection shall be civilly liable for any physical or property damage determined to be a direct result of their seismic or geophysical data collection activities, whether or not the seismic or geophysical data collection was conducted by undershooting the land at an off-site location or by physical entry to land as permitted by the landowner.

(b)        Conduct of seismic or geophysical data collection activities through physical entry to land without a landowner's written consent shall constitute a Class 1 misdemeanor.  (2014-4, s. 15(a).)

 

§ 113-396.  Wells to be kept under control.

In order to protect further the natural gas fields and oil fields in this State, it is hereby declared to be unlawful for any person to permit negligently any gas or oil well to go wild or to get out of control. The owner of any such well shall, after 24 hours' written notice by the Department given to him or to the person in possession of such well, make reasonable effort to control such well.

In the event of the failure of the owner of such well within 24 hours after service of the notice above provided for, to control the same, if such can be done within the period, or to begin in good faith upon service of such notice, operations to control such well, or upon failure to prosecute diligently such operations, then the Department shall have the right to take charge of the work of controlling such well, and it shall have the right to proceed, through its own agents or by contract with a responsible contractor, to control the well or otherwise to prevent the escape or loss of gas or oil from such well all at the reasonable expense of the owner of the well. In order to secure to the Department the payment of the reasonable cost and expense of controlling or plugging such well, the Department shall retain the possession of the same and shall be entitled to receive and retain the rents, revenues and income therefrom until the costs and expenses incurred by the Department shall be repaid. When all such costs and expenses have been repaid, the Department shall restore possession of such well to the owner; provided, that in the event the  income received by the Department shall not be sufficient to reimburse the Department as provided for in this section, the Department shall have a lien or privilege upon all of the property of the owner of such well, except such as is exempt by law, and the Department shall proceed to enforce such lien or privilege by suit brought in any court of competent jurisdiction, the same as any other civil action, and the judgment so obtained shall be executed in the same manner now provided by law for execution of judgments. Any excess over the amount due the Department which the property seized and sold may bring, after payment of court costs, shall be paid over to the owner of such well. (1945, c. 702, s. 16; 1973, c. 1262, s. 86.)

 

§ 113-397.  Hearing in emergency.

If an emergency situation, as defined by the Department, arises under this Article, the Department may conduct a hearing to determine the appropriate course of action after giving any notice it considers practicable.  Chapter 150B of the General Statutes does not apply to a hearing under this section.  The rules of evidence apply in a hearing under this section. (1945, c. 702, s. 17; 1973, c. 1262, s. 86; 1987, c. 827, s. 114.)

 

§ 113-398.  Procedure and powers in hearings by Department.

In the exercise and enforcement of its jurisdiction, the said Department is authorized to summon witnesses, administer oaths, make ancillary orders and require the production of records and books for the purpose of examination at any hearing or investigation conducted by it. In connection with the exercise and enforcement of its jurisdiction, the Department shall also have the right and authority to certify as for contempt, to the court of any county having jurisdiction, violations by any person of any of the provisions of this Article or of the rules or orders of the Department, and if it be found by said court that such person has knowingly and willfully violated same, then such person shall be punished as for contempt in the same manner and to the same extent and with like effect as if said contempt had been of an order, judgment or decree of the court to which said certification is made. (1945, c. 702, s. 18; 1973, c. 1262, s. 86; 1987, c. 827, s. 115.)

 

§ 113-399.  Suits by Department.

The Department may bring an action in any court of competent jurisdiction in the State to enforce, by injunction or another remedy, an order issued or rule adopted by the Department under this Article.  The court may enter any judgment or order necessary to enforce an order issued or rule adopted by the Department under this Article. (1945, c. 702, s. 19; 1973, c. 1262, s. 86; 1987, c. 827, s. 116.)

 

§ 113-400.  Assessing costs of hearings.

The said Department is hereby authorized and directed to tax and assess against the parties involved in any hearing the costs incurred therein. (1945, c. 702, s. 20; 1973, c. 1262, s. 86.)

 

§ 113-401.  Party to hearings; review.

The term "party" as used in this Article shall include any person, firm, corporation or association. In proceedings for review of an order or decision of said Department, the Department shall have all rights and privileges granted by this Article to any other party to such proceedings. (1945, c. 702, s. 21; 1973, c. 1262, s. 86.)

 

§ 113-402.  Administrative review.

A party who is dissatisfied with a decision or order of the Department under this Article may obtain administrative review of the decision by filing a petition for a contested case hearing under G.S. 150B-23 within 10 days after the decision or order is made. (1945, c. 702, s. 22; 1973, c. 1262, s. 86; 1987, c. 827, s. 117.)

 

§ 113-403.  Judicial review.

Article 4 of Chapter 150B of the General Statutes governs judicial review of a decision or order made under this Article. (1945, c. 702, s. 23; 1973, c. 1262, s. 86; 1987, c. 827, s. 118.)

 

§§ 113-404 through 113-405: Repealed by Session Laws 1987, c.  827, s. 119.

 

§ 113-406.  Effect of pendency of judicial review; stay of proceedings.

The filing or pendency of the application for judicial review provided for in this Article shall not in itself stay or suspend the operation of any order or decision of the Department, but, during the pendency of such proceeding the court, in its discretion, may stay or suspend, in whole or in part, the operation of the order or decision of the Department. No order so staying or suspending an order or decision of the Department shall be made by any court of this State otherwise than on five days' notice and, after a hearing, and if a stay or suspension is allowed the order granting the same shall contain a specific finding, based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage. (1945, c. 702, s. 26; 1973, c. 1262, s. 86; 1987, c. 827, s. 120.)

 

§ 113-407.  Stay bond.

In case the order or decision of the Department is stayed or suspended, the order or judgment of the court shall not become effective until a bond shall have been executed and filed with and approved by the court, payable to the Department, sufficient in amount and security to secure the prompt payment, by the party petitioning for the stay, of all damages caused by the delay in the enforcement of the order or decision of the Department. (1945, c. 702, s. 27; 1973, c. 1262, s. 86.)

 

§ 113-408.  Enjoining violation of laws and rules; service of process; application for drilling well to include residence address of applicant.

Whenever it shall appear that any person is violating, or threatening to violate, any statute of this State with respect to the  conservation of oil or gas, or both, or any provision of this law, or any rule or order made thereunder by any act done in the operation of any well producing oil or gas, or by omitting any act required to be done thereunder, the Department, through the Attorney General, may bring suit against such person in the superior court in the county in which the well in question is located, to restrain such person or persons from continuing such violation or from carrying out the threat of violation. In such suit the Department may obtain injunctions, prohibitory and mandatory, including temporary restraining orders and temporary injunctions, as the facts may warrant, including, when appropriate, an injunction restraining any person from moving or disposing of illegal oil, illegal gas or illegal product, and any or all such commodities may be ordered to be impounded or placed under the control of an agent appointed by the court if, in the judgment of the court, such action is advisable.

If any such defendant cannot be personally served with summons in that county, personal jurisdiction of that defendant in such suit may be obtained by service made on any employee or agent of that defendant working on or about the oil or gas well involved in such suit, and by the Department mailing a copy of the complaint in the action to the defendant at the address of the defendant then recorded with the director of production and conservation.

Each application for the drilling of a well in search of oil or gas in this State shall include the address of the residence of the applicant or each applicant, which address shall be the address of each person involved in accordance with the records of the director of production and conservation, until such address is changed on the records of the Department after written request. (1945, c. 702, s. 28; 1973, c. 1262, s. 86; 1987, c. 827, s. 121.)

 

§ 113-409.  Punishment for making false entries, etc.

Any person who, for the purpose of evading this law, or of evading any rule or order made thereunder, shall intentionally make or cause to be made any false entry or statement of fact in any report required to be made by this law or by any rule or order made hereunder; or who, for such purpose, shall make or cause to be made any false entry in any account, record, or memorandum kept by any person in connection with the provisions of this law or of any rule or order made thereunder; or who, for such purpose, shall omit to make, or cause to be omitted, full, true and correct entries in such accounts, records, or memoranda, of all facts and transactions pertaining to the interest or activities in the petroleum industry of such person as may be required by the Department under authority given in this law or by any rule or order made hereunder; or who, for such purpose shall remove out of the jurisdiction of the State, or who shall mutilate, alter, or by any other means falsify, any book, record, or other paper, pertaining to the transactions regulated by this law, or by any rule or order made hereunder, shall be deemed guilty of a Class 2 misdemeanor. (1945, c. 702, s. 29; 1973, c. 1262, s. 86; 1987, c. 827, s. 122; 1993, c. 539, s. 871; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 113-410.  Penalties for other violations.

(a)        Any person who fails to secure a permit prior to drilling a well or using hydraulic fracturing treatments, or who knowingly and willfully violates any provision of this Article, or any rule or order of the Commission or the Department made hereunder, shall, in the event a penalty for such violation is not otherwise provided for herein, be subject to a penalty of not to exceed twenty-five thousand dollars ($25,000) a day for each and every day of such violation, and for each and every act of violation, such penalty to be recovered in a suit in the superior court of the county where the defendant resides, or in the county of the residence of any defendant if there be more than one defendant, or in the superior court of the county where the violation took place. The place of suit shall be selected by the Department, and such suit, by direction of the Department, shall be instituted and conducted in the name of the Department by the Attorney General. The payment of any penalty as provided for herein shall not have the effect of changing illegal oil into legal oil, illegal gas into legal gas, or illegal product into legal product, nor shall such payment have the effect of authorizing the sale or purchase or acquisition, or the transportation, refining, processing, or handling in any other way, of such illegal oil, illegal gas or illegal product, but, to the contrary, penalty shall be imposed for each prohibited transaction relating to such illegal oil, illegal gas or illegal product.

(b)        Any person knowingly and willfully aiding or abetting any other person in the violation of any statute of this State relating to the conservation of oil or gas, or the violation of any provisions of this law, or any rule or order made thereunder, shall be subject to the same penalties as prescribed in subsection (a) of this section for the violation by such other person.

(c)        In determining the amount of a penalty under this section, the Department shall consider all of the following factors:

(1)       The degree and extent of harm to the natural resources of the State, to the public health, or to private property resulting from the violation.

(2)       The duration and gravity of the violation.

(3)       The effect on ground or surface water quantity or quality or on air quality.

(4)       The cost of rectifying the damage.

(5)       The amount of money the violator saved by noncompliance.

(6)       Whether the violation was committed willfully or intentionally.

(7)       The prior record of the violator in complying or failing to comply with this Article or a rule adopted pursuant to this Article.

(8)       The cost to the State of the enforcement procedures.

(d)       If any civil penalty has not been paid within 60 days after notice of assessment has been served on the violator or within 30 days after service of the final decision by the administrative law judge in accordance with G.S. 150B-34, a final decision by the Committee on Civil Penalty Remissions established under G.S. 143B-293.6, or a court order, whichever is later, the Secretary or the Secretary's designee shall request the Attorney General to institute a civil action in the superior court of any county in which the violator resides or has his or its principal place of business to recover the amount of the civil penalty.

(e)        The clear proceeds of penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.  (1945, c. 702, s. 30; 1973, c. 1262, s. 86; 1987, c. 827, s. 122; 1998-215, s. 50; 2012-143, s. 2(f).)

 

§ 113-411.  Dealing in or handling of illegal oil, gas or product prohibited.

(a)        The sale, purchase or acquisition, or the transportation, refining, processing or handling in any other way of illegal oil, illegal gas or illegal product is hereby prohibited. All persons purchasing any petroleum product must first be licensed to do so by the Department.

(b)        Unless and until the Department provides for certificates of clearance or tenders, or some other method, so that any person may have an opportunity to determine whether any contemplated transaction of sale, purchase or acquisition, or transportation, refining, processing or handling in any other way, involves illegal oil, illegal gas or illegal product, no penalty shall be imposed for the sale, purchase or acquisition, or the transportation, refining, processing or handling in any other way of illegal oil, illegal gas or illegal product, except under circumstances hereinafter stated. Penalties shall be imposed for the commission of each transaction prohibited in this section when the person committing the same knows that illegal oil, illegal gas or illegal product is involved in such transaction, or when such person could have known or determined such fact by the exercise of reasonable diligence or from facts within his knowledge. However, regardless of lack of actual notice or knowledge, penalties as provided in this law shall apply to any sale, purchase or acquisition, and to the transportation, refining, processing or handling in any other way, of illegal oil, illegal gas or illegal product, where administrative provision is made for identifying the character of the commodity as to its legality. It shall likewise be a violation for which penalties shall be imposed for any person to sell, purchase or acquire, or to transport, refine, process or handle in any other way any oil, gas or any product without complying with any rule or order of the Department relating thereto. (1945, c. 702, s. 31; 1973, c. 1262, s. 86; 1987, c. 827, s. 122.)

 

§ 113-412.  Seizure and sale of contraband oil, gas and product.

Apart from, and in addition to, any other remedy or procedure which may be available to the Department, or any penalty which may be sought against or imposed upon any person with respect to violations relating to illegal oil, illegal gas, or illegal product, all illegal oil, illegal gas and illegal product shall, except under such circumstances as are stated herein, be contraband and shall be seized and sold. Such sale shall not take place unless the court shall find, in the proceeding provided for in this paragraph, that the commodity involved is contraband. Whenever the Department believes that illegal oil, illegal gas or illegal product is subject to seizure and sale, as provided herein, it shall, through the Attorney General, have issued a warrant of attachment and bring a civil action in rem for that purpose in the superior court of the county where the commodity is found, or the action may be maintained in connection with any suit or cross bill for injunction or for penalty relating to any prohibited transaction involving such illegal oil, illegal gas or illegal product. Any interested person who may show himself to be adversely affected by any such seizure and sale shall have the right to intervene in such suit to protect his rights.

The action referred to above shall be strictly in rem and shall proceed in the name of the State as plaintiff against the illegal oil, illegal gas or illegal product mentioned in the complaint, as defendant, and no bond or bonds shall be required of the plaintiff in connection therewith. Upon the filing of the complaint, the clerk of the court shall issue a summons directed to the sheriff of the county, or to such other officer or person as the court may authorize to serve process, requiring him to summon any and all persons (without undertaking to name them) who may be interested in the illegal oil, illegal gas, or illegal product mentioned in the complaint to appear and answer within 30 days after the issuance and service of such summons. The summons shall contain the style and number of the suit and a very brief statement of the nature of the cause of action. It shall be served by posting one copy thereof at the courthouse door of the county where the commodity involved in the suit is alleged to be located and by posting another copy thereof near the place where the commodity is alleged to be located. Copy of such summons shall be posted at least five days before the return day stated therein, and the posting of such copy shall constitute constructive possession of such commodity by the State. A copy of the summons shall also be published once each week for four weeks in some newspaper published in the county where the suit is pending and having a bona fide circulation therein. No judgment shall be pronounced by any court condemning such commodity as contraband until after the lapse of five days from the last publication of said summons. Proof of service of said summons, and the manner thereof, shall be as provided by general law.

Where it appears by a verified pleading on the part of the plaintiff, or by affidavit, or affidavits, or by oral testimony, that grounds for the seizure and sale exist, the clerk, in addition to the summons or warning order, shall issue a warrant of attachment, which shall be signed by the clerk and bear the seal of the court. Such warrant of attachment shall specifically describe the illegal oil, illegal gas or illegal product, so that the same may be identified with reasonable certainty. It shall direct the sheriff to whom it is addressed to take into his custody, actual or constructive, the illegal oil, illegal gas or illegal product, described therein, and to hold the same subject to the orders of the court. Said warrant of attachment shall be executed as a writ of attachment is executed. No bond shall be required before the issuance of such warrant of attachment, and the sheriff shall be responsible upon his official bond for the proper execution thereof.

In a proper case, the court may direct the sheriff to deliver the custody of any illegal oil, illegal gas or illegal product seized by him under a warrant of attachment, to a commissioner to be appointed by the court, which commissioner shall act as the agent of the court and shall give bond with such approved surety as the court may direct, conditioned that he will faithfully conserve such illegal oil, illegal gas or illegal product, as may come into his custody and possession in accordance with the orders of the court; provided, that the court may in its discretion appoint any member of the Department or any agent of the Department as such commissioner of the court.

Sales of illegal oil, illegal gas or illegal product seized under the authority of this law, and notices of such sales, shall be in accordance with the laws of this State relating to the sale and disposition of attached property; provided, however, that where the property is in custody of a commissioner of the court, the sale shall be held by said commissioner and not by the sheriff. For his services hereunder, such commissioner shall receive a reasonable fee to be paid out of the proceeds of the sale or sales to be fixed by the court ordering such sale.

The court may order that the commodity be sold in specified lots or portions, and at specified intervals, instead of being sold at one time. Title to the amount sold shall pass as of the date of the law which is found by the court to make the commodity contraband. The judgment shall provide for the clear proceeds of the sales to be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. The amount sold shall be treated as legal oil, legal gas or legal product, as the case may be, in the hands of the purchaser, but the purchaser and the commodity shall be subject to all applicable laws, rules, and orders with respect to further sale or purchase or acquisition, and with respect to the transportation, refining, processing, or handling in any other way, of the commodity purchased.

Nothing in this section shall deny or abridge any cause of action a royalty owner, or a lienholder, or any other claimant, may have, because of the forfeiture of the illegal oil, illegal gas, or illegal product, against the person whose act resulted in such forfeiture. No illegal oil, illegal gas or illegal product shall be sold for less than the average market value at the time of sale of similar products of like grade and character. (1945, c. 702, s. 32; 1973, c. 1262, s. 86; 1987, c. 827, s. 123; 1998-215, s. 51.)

 

§ 113-413: Repealed by Session Laws 1987, c.  827, s. 124.

 

§ 113-414.  Filing list of renewed leases in office of register of deeds.

On December 31 of each year, or within 10 days thereafter, every person, firm or corporation holding petroleum leases shall file in the office of the register of deeds of the county within which the land covered by such leases is located, a list showing the leases which have been renewed for the ensuing year. (1945, c. 702, s. 34.)

 

§ 113-415.  Conflicting laws.

No provision of this Article shall be construed to repeal, amend, abridge or otherwise affect the authority and responsibility (i) vested in the Environmental Management Commission by Article 7 of Chapter 87 of the General Statutes, pertaining to the location, construction, repair, operation and abandonment of wells; (ii) vested in the Environmental Management Commission related to the control of water and air pollution as provided in Articles 21 and 21A of Chapter 143 of the General Statutes; (iii) vested in the Department and the Commission for Public Health by Article 10 of Chapter 130A of the General Statutes pertaining to public water-supply requirements; or (iv) vested in the Environmental Management Commission related to the management of solid and hazardous waste as provided in Article 9 of Chapter 130A of the General Statutes.  (1971, c. 813, s. 7; 1973, c. 476, s. 128; c. 1262, s. 23; 1989, c. 727, s. 121; 2007-182, s. 2; 2012-143, s. 2(g); 2014-122, s. 11(k); 2015-1, s. 3.7.)

 

§ 113-415.1.  Local ordinances regulating oil and gas exploration, development, and production activities invalid; petition to preempt local ordinance.

(a)        It is the intent of the General Assembly to maintain a uniform system for the management of oil and gas exploration, development, and production activities, and the use of horizontal drilling and hydraulic fracturing for that purpose, and to place limitations upon the exercise by all units of local government in North Carolina of the power to regulate the management of oil and gas exploration, development, and production activities by means of ordinances, property restrictions, zoning regulations, or otherwise. Notwithstanding any authority granted to counties, municipalities, or other local authorities to adopt local ordinances, including, but not limited to, those imposing taxes, fees, or charges or regulating health, environment, or land use, all provisions of local ordinances, including those regulating land use, adopted by counties, municipalities, or other local authorities that regulate or have the effect of regulating oil and gas exploration, development, and production activities within the jurisdiction of a local government are invalidated and unenforceable, to the extent necessary to effectuate the purposes of this Part, that do the following:

(1)       Place any restriction or condition not placed by this Article upon oil and gas exploration, development, and production activities and use of horizontal drilling or hydraulic fracturing for that purpose within any county, city, or other political subdivision.

(2),      (3) Repealed by Session Laws 2015-264, s. 56.2(a), effective retroactively to June 4, 2014.

(4)       In any manner are in conflict or inconsistent with the provisions of this Article.

(b),       (c) Repealed by Session Laws 2015-264, s. 56.2(a), effective retroactively to June 4, 2014.

(c1)      If a local zoning or land-use ordinance imposes requirements, restrictions, or conditions that are generally applicable to development, including, but not limited to, setback, buffer, and stormwater requirements, and oil and gas exploration, development, and production activities would be regulated under the ordinance of general applicability, the operator of the proposed activities may petition the Oil and Gas Commission to review the matter. After receipt of a petition, the Commission shall hold a hearing in accordance with the procedures in subsection (d) of this section and shall determine whether or to what extent to preempt the local ordinance to allow for the regulation of oil and gas exploration, development, and production activities.

(d)       When a petition described in subsection (c1) of this section has been filed with the Oil and Gas Commission, the Commission shall hold a public hearing to consider the petition. The public hearing shall be held in the affected locality within 60 days after receipt of the petition by the Commission. The Commission shall give notice of the public hearing by both of the following means:

(1)       Publication in a newspaper or newspapers having general circulation in the county or counties where the activities are to be conducted, once a week for three consecutive weeks, the first notice appearing at least 30 days prior to the scheduled date of the hearing.

(2)       First-class mail to persons who have requested notice. The Commission shall maintain a mailing list of persons who request notice in advance of the hearing pursuant to this section. Notice by mail shall be complete upon deposit of a copy of the notice in a postage-paid wrapper addressed to the person to be notified at the address that appears on the mailing list maintained by the Commission, in a post office or official depository under the exclusive care and custody of the United States Postal Service.

(e)        Any interested person may appear before the Oil and Gas Commission at the hearing to offer testimony. In addition to testimony before the Commission, any interested person may submit written evidence to the Commission for the Commission's consideration. At least 20 days shall be allowed for receipt of written comment following the hearing.

(f)        A local zoning or land-use ordinance is presumed to be valid and enforceable to the extent the zoning or land-use ordinance imposes requirements, restrictions, or conditions that are generally applicable to development, including, but not limited to, setback, buffer, and stormwater requirements, unless the Oil and Gas Commission makes a finding of fact to the contrary. The Commission shall determine whether or to what extent to preempt local ordinances so as to allow for the establishment and operation of the facility no later than 60 days after conclusion of the hearing. The Commission shall preempt a local ordinance only if the Commission makes all of the following findings:

(1)       That there is a local ordinance that would regulate oil and gas exploration, development, and production activities, or use of horizontal drilling or hydraulic fracturing for that purpose.

(2)       That all legally required State and federal permits or approvals have been issued by the appropriate State and federal agencies or that all State and federal permit requirements have been satisfied and that the permits or approvals have been denied or withheld only because of the local ordinance.

(3)       That local citizens and elected officials have had adequate opportunity to participate in the permitting process.

(4)       That the oil and gas exploration, development, and production activities, and use of horizontal drilling or hydraulic fracturing for that purpose, will not pose an unreasonable health or environmental risk to the surrounding locality and that the operator has taken or consented to take reasonable measures to avoid or manage foreseeable risks and to comply to the maximum feasible extent with applicable local ordinances.

(g)        If the Oil and Gas Commission does not make all of the findings under subsection (f) of this section, the Commission shall not preempt the challenged local ordinance. The Commission's decision shall be in writing and shall identify the evidence submitted to the Commission plus any additional evidence used in arriving at the decision.

(h)        The decision of the Oil and Gas Commission shall be final unless a party to the action files a written appeal under Article 4 of Chapter 150B of the General Statutes, as modified by this section, within 30 days of the date of the decision. The record on appeal shall consist of all materials and information submitted to or considered by the Commission, the Commission's written decision, a complete transcript of the hearing, all written material presented to the Commission regarding the location of the oil and gas exploration, development, and production activities, the specific findings required by subsection (f) of this section, and any minority positions on the specific findings required by subsection (f) of this section. The scope of judicial review shall be as set forth in G.S. 150B-51, except as this subsection provides regarding the record on appeal.

(i)         If the court reverses or modifies the decision of the Oil and Gas Commission, the judge shall set out in writing, which writing shall become part of the record, the reasons for the reversal or modification.

(j)         In computing any period of time prescribed or allowed by this procedure, the provisions of Rule 6(a) of the Rules of Civil Procedure, G.S. 1A-1, shall apply.  (2014-4, s. 14; 2015-264, s. 56.2(a).)

 

§§ 113-416 through 113-419.  Repealed by Session Laws 1959, c. 779, s. 3.

 

Part 3. Landowner Protection.

§ 113-420.  Notice and entry to property.

(a)        Notice Required for Activities That Do Not Disturb Surface of Property to Surface Owner. - If an oil or gas developer or operator is not the surface owner of the property on which oil and gas operations are to occur, before entering the property for oil or gas operations that do not disturb the surface, including inspections, staking, surveys, measurements, and general evaluation of proposed routes and sites for oil or gas drilling operations, the developer or operator shall give written notice to the surface owner at least 14 days before the desired date of entry to the property. Notice shall be given by certified mail, return receipt requested. The requirements of this subsection may not be waived by agreement of the parties. The notice, at a minimum, shall include all of the following:

(1)       The identity of person(s) requesting entry upon the property.

(2)       The purpose for entry on the property.

(3)       The dates, times, and location on which entry to the property will occur, including the estimated number of entries.

(b)        Notice Required for Land-Disturbing Activities to Surface Owner. - If an oil or gas developer or operator is not the surface owner of the property on which oil or gas operations are to occur, before entering the property for oil or gas operations that disturb the surface, the developer or operator shall give written notice to the surface owner at least 30 days before the desired date of entry to the property. Notice shall be given by certified mail, return receipt requested. The notice, at a minimum, shall include all of the following:

(1)       A description of the exploration or development plan, including, but not limited to (i) the proposed locations of any roads, drill pads, pipeline routes, and other alterations to the surface estate and (ii) the proposed date on or after which the proposed alterations will begin.

(2)       An offer of the oil and gas developer or operator to consult with the surface owner to review and discuss the location of the proposed alterations.

(3)       The name, address, telephone number, and title of a contact person employed by or representing the oil or gas developer or operator who the surface owner may contact following the receipt of notice concerning the location of the proposed alterations.

(b1)      Persons Entering Land; Identification Required; Presumption of Proper Protection While on Surface Owners' Property. - Persons who enter land on behalf of an oil or gas developer or operator for oil and gas operations shall carry on their person identification sufficient to identify themselves and their employer or principal and shall present the identification to the surface owner upon request. Entry upon land by such a person creates a rebuttable presumption that the surface owner properly protected the person against personal injury or property damage while the person was on the land.

(b2)      Notice of Initiation of Exploration, Development, and Production Activities to Owner of Subsurface Oil or Gas Resources. - If an oil or gas developer or operator is the lessee of subsurface oil or gas resources, before initiating oil or gas exploration or development operations with respect to those resources, the developer or operator shall give written notice to the lessor of those resources at least 30 days before the oil and gas operations are to be initiated. The notice, at a minimum, shall include all of the following:

(1)       A description of the exploration or development plan, including, the proposed date on which the exploration or development will begin.

(2)       The name, address, telephone number, and title of a contact person employed by or representing the oil or gas developer or operator who the lessor may contact following the receipt of notice.

(c)        Venue. - If the oil or gas developer or operator fails to give notice or otherwise comply with the provisions of this section, the surface owner may seek appropriate relief in the superior court for the county in which the oil or gas well is located and may receive actual damages.  (2011-276, s. 3(b); 2012-143, s. 4(a); 2014-4, s. 12.)

 

§ 113-421.  Presumptive liability for water contamination; compensation for other damages; responsibility for reclamation.

(a)        Presumptive Liability for Water Contamination. - It shall be presumed that an oil or gas developer or operator is responsible for contamination of all water supplies that are within a one-half mile radius of a wellhead that is part of the oil or gas developer's or operator's activities unless the presumption is rebutted by a defense established as set forth in subsection (a1) of this subsection. If a contaminated water supply is located within a one-half mile radius of a wellhead, in addition to any other remedy available at law or in equity, including payment of compensation for damage to a water supply, the developer or operator shall provide a replacement water supply to the surface owner and other persons using the water supply at the time the oil or gas developer's activities were commenced on the property, which water supply shall be adequate in quality and quantity for those persons' use.

(a1)      [Rebuttal of Presumption.] In order to rebut a presumption arising pursuant to subsection (a) of this section, an oil or gas developer or operator shall have the burden of proving by a preponderance of the evidence any of the following:

(1)       The contamination existed prior to the commencement of the drilling activities of the oil or gas developer or operator, as evidenced by a pre-drilling test of the water supply in question conducted in conformance with G.S. 113-423(f).

(2)       The surface owner or owner of the water supply in question refused the oil or gas developer or operator access to conduct a pre-drilling test of the water supply conducted in conformance with G.S. 113-423(f).

(3)       The water supply in question is not within a one-half mile radius of a wellhead that is part of the oil or gas developer's or operator's activities.

(4)       The contamination occurred as the result of a cause other than activities of the developer or operator.

(a2)      Compensation for Other Damages Required. - The oil or gas developer or operator shall be obligated to pay the surface owner compensation for all of the following:

(1)       Any damage to a water supply in use prior to the commencement of the activities of the developer or operator which is due to those activities.

(2)       The cost of repair of personal property of the surface owner, which personal property is damaged due to activities of the developer or operator, up to the value of replacement by personal property of like age, wear, and quality.

(3)       Damage to any livestock, crops, or timber determined according to the market value of the resources destroyed, damaged, or prevented from reaching market due to the oil or gas developer's or operator's activities.

(a3)      Reclamation of Surface Property Required. - An oil or gas developer or operator shall:

(1)       Reclaim all surface areas affected by its operations no later than two years following completion of the operations. If the developer or operator is not the surface owner of the property, prior to commencement of activities on the property, the oil or gas developer or operator shall provide a bond running to the surface owner sufficient to cover reclamation of the surface owner's property. Upon registration with the Department pursuant to G.S. 113-378, a developer shall request that the Oil and Gas Commission set the amount of the bond required by this subsection. As part of its request, the developer shall provide supporting documentation, including information about the proposed oil and gas activities to be conducted, the site on which they are to occur, and any additional information required by the Commission. The Commission shall set the amount of the bond in accordance with the criteria adopted by the Commission pursuant to G.S. 113-391(a)(13a) and notify the developer and surface owner of the amount within 30 days of setting the amount of a bond. A surface owner or developer may appeal the amount of a bond set pursuant to this subsection to the Commission within 60 days after receipt of notice from the Commission of the amount required. After evaluation of the appeal and issuance of written findings, the Commission may order that the amount of the bond be modified. Parties aggrieved by a decision of the Commission pursuant to this subsection may appeal the decision as provided under Article 4 of Chapter 150B of the General Statutes within 30 days of the date of the decision.

(2)       Provide a bond running to the State sufficient to cover any potential environmental damage caused by the drilling process in an amount no less than one million dollars ($1,000,000). The Commission may increase the amount of the bond required by this subdivision if the Commission determines that the drilling operation would be sited in an environmentally sensitive area.

(a4)      Remediation Required. - Nothing in this Article shall be construed to obviate or affect the obligation of a developer or operator to comply with any other requirement under law to remediate contamination caused by its activities.

(a5)      Replacement Water Supply Required. - If a water supply belonging to the surface owner or third parties is contaminated due to the activities of the developer or operator, in addition to any other remedy available at law or in equity, the developer or operator shall provide a replacement water supply to persons using the water supply at the time the oil or gas developer's activities were commenced on the property, which water supply shall be adequate in quality and quantity for those persons' use.

(b)        Time Frame for Compensation. - When compensation is required, the surface owner shall have the option of accepting a one-time payment or annual payments for a period of time not less than 10 years.

(c)        Venue. - The surface owner has the right to seek damages pursuant to this section in the superior court for the county in which the oil or gas well is located. The superior court for the county in which the oil or gas well is located has jurisdiction over all proceedings brought pursuant to this section. If the surface owner or the surface owner's assignee is the prevailing party in an action to recover unpaid royalties or other damages owed due to activities of the developer or operator, the court shall award any court costs and reasonable attorneys' fees to the surface owner or the surface owner's assignee.

(d)       [Certain Limits Void. -] Conditions precedent, notice provisions, or arbitration clauses included in lease documents that have the effect of limiting access to the superior court in the county in which the oil or gas well is located are void and unenforceable.

(e)        Joint and Several Liability. - In order to provide maximum protection for the public interest, any actions brought for recovery of cleanup costs, damages, or for civil penalties brought pursuant to this section or any other section of this Article or rules adopted thereunder may be brought against any one or more of the persons having control over the activities that contributed to the contamination, damage to property, or other violations. All such persons shall be jointly and severally liable, but ultimate liability as between the parties may be determined by common-law principles. (2011-276, s. 3(b); 2012-143, s. 4(b); 2013-365, s. 5(c); 2014-4, ss. 4(c), 13(a).)

 

§ 113-422.  Indemnification.

An oil or gas developer or operator shall indemnify and hold harmless a surface owner against any claims related to the developer's or operator's activities on the surface owner's property, including, but not limited to, (i) claims of injury or death to any person; (ii) damage to impacted infrastructure or water supplies; (iii) damage to a third party's real or personal property; and (iv) violations of any federal, State, or local law, rule, regulation, or ordinance, including those for protection of the environment.  (2011-276, s. 3(b); 2012-143, s. 4(c).)

 

§ 113-423.  Required lease terms.

(a)        Required Information to be Provided to Potential Lessors and Surface Owners. - Prior to executing a lease for oil and gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property, an oil or gas developer or operator, or any agent thereof, shall provide the lessor with a copy of this Part and a publication produced by the Consumer Protection Division of the North Carolina Department of Justice entitled "Oil & Gas Leases: Landowners' Rights." If the lessor is not the surface owner of the property, the oil or gas developer or operator shall also provide the surface owner with a copy of this Part and the publication prior to execution of a lease for oil and gas rights.

(b)        Maximum Duration. - Any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall expire at the end of 10 years from the date the lease is executed, unless, at the end of the 10-year period, oil or gas is being produced for commercial purposes from the land to which the lease applies. If, at any time after the 10-year period, commercial production of oil or gas is terminated for a period of six months or more, all rights to the oil or gas shall revert to the surface owner of the property to which the lease pertains. No assignment or agreement to waive the provisions of this subsection shall be valid or enforceable. As used in this subsection, the term "production" includes the actual production of oil or gas by a lessee, or when activities are being conducted by the lessee for injection, withdrawal, storage, or disposal of water, gas, or other fluids, or when rentals or royalties are being paid by the lessee. No force majeure clause shall operate to extend a lease beyond the time frames set forth in this subsection.

(c)        Minimum Royalty Payments. - Any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall provide that the lessor shall receive a royalty payment of not less than twelve and one-half percent (12.5%) of the proceeds of sale of all oil or gas produced from the lessor's just and equitable share of the oil and gas in the pool, which sum shall not be diminished by pre-production or post-production costs, fees, or other charges assessed by the oil or gas developer or operator against the property owner. Royalty payments shall commence no later than six months after the date of first sale of product from the drilling operations subject to the lease and thereafter no later than 60 days after the end of the calendar quarter within which subsequent production is sold. At the time each royalty payment is made, the oil or gas developer or operator shall provide documentation to the lessor on the time period for which the royalty payment is made, the quantity of product sold within that period, and the price received, at a minimum. If royalty payments have not been made within the required time frames, the lessor shall be entitled to interest on the unpaid royalties commencing on the payment due date at the rate of twelve and one-half percent (12.5%) per annum on the unpaid amounts. Upon written request, the lessor shall be entitled to inspect and copy records of the oil or gas developer or operator related to production and royalty payments associated with the lease.

(d)       Bonus Payments. - Any bonus payments, or other initial payments, due under a lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall be paid by the lessee to the lessor within 60 days of execution of a lease. If a bonus payment or other initial payment has not been made within the required time frame, the lessor shall be entitled to interest on the unpaid amount commencing on the payment due date at the rate of ten percent (10%) per annum on the unpaid amount.

(e)        Agreements for Use of Other Resources; Associated Payments. - Any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall clearly state whether the oil or gas developer or operator shall use groundwater or surface water supplies located on the property and, if so, shall clearly state the estimated amount of water to be withdrawn from the supplies on the property, and shall require permission of the surface owner therefore. At a minimum, water used by the developer or operator shall not restrict the supply of water for domestic uses by the surface owner. The lease shall provide for full compensation to the surface owner for water used from the property by the developer or operator in an amount not less than the fair market value of the water consumed based on water sales in the area at the time of use.

(f)        Pre-Drilling Testing of Water Supplies. - Any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall include a clause that requires the oil or gas developer or operator to pay for the reasonable costs involved in testing all water supplies within a one-half mile radius from a proposed wellhead that is part of the oil or gas developer's or operator's activities at least 30 days prior to initial drilling activities and at least five follow-up tests at six months, 12 months, 18 months, and 24 months after production has commenced and a test within 30 days after completion of production activities at the site. The Department shall identify the location of all water supplies, including wells, on a property on which drilling operations are proposed to occur. A surface owner shall use an independent third party selected from a laboratory certified by the Department's Wastewater/Groundwater Laboratory Certification program to sample wells located on their property, and the developer or operator shall pay for the reasonable costs involved in testing of the wells in question. Developers and operators may share analytical results obtained with other developers and operators as necessary or advisable. All analytical results from testing conducted pursuant to this section (i) shall be provided to the Department within 30 days of testing and (ii) shall constitute a public record under Chapter 132 of the General Statutes, and the Department shall post any results to the Department's Web site within 30 days of receipt of the results. Nothing in this subsection shall be construed to preclude or impair the right of any surface owner to refuse pre-drilling testing of wells located on their property.

(g)        Recordation of Leases. - Any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property, including assignments of such leases, shall be recorded within 30 days of execution in the register of deeds office in the county that the land that is subject to the lease is located.

(h)        Notice of Assignment Required. - Written notice of assignment of any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall be provided to the lessor within 30 days of such assignment. If the surface owner of the property is not the lessor, written notice of assignment of any lease of oil or gas rights shall also be given to the surface owner of the property to which the lease pertains within 30 days of such assignment.

(i)         Lender Approval of Lease. - Any lease for oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property with a surface owner shall include a conspicuous boldface disclosure concerning notification to lenders, which shall be initialed by the surface owner, and state the following:

NOTICE TO LENDER(S) PRIOR TO EXECUTION OF LEASE:

Surface owners are advised to secure written approval from any lender who holds a mortgage or deed of trust on any portion of the surface property involved in the lease prior to execution of the lease and obtain written confirmation that execution of the lease will not violate any provision associated with any applicable mortgage or deed of trust, which could potentially result in foreclosure.

I have read and understood the                             __________________

terms of this provision.                                         Surface Owner's Initials

(j)         Seven-Day Right of Rescission. - Any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall be subject to a seven-day right of rescission in which the lessor or lessee may cancel the lease. A bold and conspicuous notice of this right of rescission shall be included in all such leases. In order to cancel the lease, the lessor or lessee shall notify the other party in writing within seven business days of execution of the lease, and the lessor shall return any sums paid by the lessee to the lessor under the terms of the lease.  (2011-276, s. 3(b); 2012-143, s. 4(d); 2012-201, s. 12(d); 2014-4, s. 13(b).)

 

§ 113-423.1.  Surface activities.

(a)        Agreements on Rights and Obligations of Parties. - The developer or operator and the surface owner may enter into a mutually acceptable agreement that sets forth the rights and obligations of the parties with respect to the surface activities conducted by the developer or operator.

(b)        Minimization of Intrusion Required. - An oil or gas developer or operator shall conduct oil and gas operations in a manner that accommodates the surface owner by minimizing intrusion upon and damage to the surface of the land. As used in this subsection, "minimizing intrusion upon and damage to the surface" means selecting alternative locations for wells, roads, pipelines, or production facilities, or employing alternative means of operation that prevent, reduce, or mitigate the impacts of the oil and gas operations on the surface, where such alternatives are technologically sound, economically practicable, and reasonably available to the operator. The standard of conduct set forth in this subsection shall not be construed to (i) prevent an operator from entering upon and using that amount of the surface as is reasonable and necessary to explore for, develop, and produce oil and gas and (ii) abrogate or impair a contractual provision binding on the parties that expressly provides for the use of the surface for the conduct of oil and gas operations or that releases the operator from liability for the use of the surface. Failure of an oil or gas developer or operator to comply with the requirements of this subsection shall give rise to a cause of action by the surface owner. Upon a determination by the trier of fact that such failure has occurred, a surface owner may seek compensatory damages and equitable relief. In any litigation or arbitration based upon this subsection, the surface owner shall present evidence that the developer's or operator's use of the surface materially interfered with the surface owner's use of the surface of the land. After such showing, the developer or operator shall bear the burden of proof of showing that it minimized intrusion upon and damage to the surface of the land in accordance with the provisions of this subsection. If a developer or operator makes that showing, the surface owner may present rebuttal evidence. A developer or operator may assert, as an affirmative defense, that it has conducted oil or gas operations in accordance with a regulatory requirement, contractual obligation, or land-use plan provision that is specifically applicable to the alleged intrusion or damage. Nothing in this subsection shall do any of the following:

(1)       Preclude or impair any person from obtaining any and all other remedies allowed by law.

(2)       Prevent a developer or operator and a surface owner from addressing the use of the surface for oil and gas operations in a lease, surface use agreement, or other written contract.

(3)       Establish, alter, impair, or negate the authority of local governments to regulate land use related to oil and gas operations.  (2012-143, s. 4(e).)

 

§ 113-424:  Repealed by Session Laws 2012-143, s. 4(f), effective July 2, 2012.

 

§ 113-425.  Registry of landmen required.

(a)        Establishment of Registry. - The Department of Environmental Quality, in consultation with the Consumer Protection Division of the North Carolina Department of Justice, shall establish and maintain a registry of landmen operating in this State. As used in this section, "landman" means a person that, in the course and scope of the person's business, does any of the following:

(1)       Acquires or manages oil or gas interests.

(2)       Performs title or contract functions related to the exploration, exploitation, or disposition of oil or gas interests.

(3)       Negotiates for the acquisition or divestiture of oil or gas rights, including the acquisition or divestiture of land or oil or gas rights for a pipeline.

(4)       Negotiates business agreements that provide for the exploration for or development of oil or gas.

(b)        Registration Required. - A person may not act, offer to act, or hold oneself out as a landman in this State unless the person is registered with the Department in accordance with this section. To apply for registration as a landman, a person shall submit an application to the Department on a form to be provided by the Department, which shall include, at a minimum, all of the following information:

(1)       The name of the applicant or, if the applicant is not an individual, the names and addresses of all principals of the applicant.

(2)       The business address, telephone number, and electronic mail address of the applicant.

(3)       The social security number of the applicant or, if the applicant is not an individual, the federal employer identification number of the applicant.

(4)       A list of all states and other jurisdictions in which the applicant holds or has held a similar registration or license.

(5)       A list of all states and other jurisdictions in which the applicant has had a similar registration or license suspended or revoked.

(6)       A statement whether any pending judgments or tax liens exist against the applicant.

(c)        The Department may deny registration to an applicant, reprimand a registrant, suspend or revoke a registration, or impose a civil penalty on a registrant if the Department determines that the applicant or registrant does any of the following:

(1)       Fraudulently or deceptively obtains, or attempts to obtain, a registration.

(2)       Uses or attempts to use an expired, suspended, or revoked registration.

(3)       Falsely represents oneself as a registered landman.

(4)       Engages in any other fraud, deception, misrepresentation, or knowing omission of material facts related to oil or gas interests.

(5)       Had a similar registration or license denied, suspended, or revoked in another state or jurisdiction.

(6)       Otherwise violates this section.

(d)       An applicant may challenge a denial, suspension, or revocation of a registration or a reprimand issued pursuant to subsection (c) of this section, as provided in Chapter 150B of the General Statutes.

(e)        The Department shall adopt rules as necessary to implement the provisions of this section.  (2012-143, s. 4(g); 2015-241, s. 14.30(u).)

 

§ 113-426.  Publication of information for landowners.

In order to effect the pre-lease publication distribution requirement as set forth in G.S. 113-423(a), and to otherwise inform the public, the Consumer Protection Division of the North Carolina Department of Justice, in consultation with the North Carolina Real Estate Commission, shall develop and make available a publication entitled "Oil & Gas Leases: Landowners' Rights" to provide general information on consumer protection issues and landowner rights, including information on leases of oil or gas rights, applicable to exploration and extraction of gas or oil. The Division and the Commission shall update the publication as necessary.  (2012-143, s. 4(h).)

 

§ 113-427.  Additional remedies.

The remedies provided by this Part are not exclusive and do not preclude any other remedies that may be allowed by law.  (2012-143, s. 4(i).)