IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NORTH CAROLINA
`SOUTHERN DIVISION
`No. 7:20-CV-00141
`
`NORTH CAROLINA COASTAL FISHERIES )
`REFORM GROUP, JOSEPH WILLIAM
`)
`ALBEA, DAVID ANTHONY SAMMONS,
`)
`CAPTAIN SETH VERNON, CAPTAIN
`)
`RICHARD ANDREWS, and DWAYNE
`)
`BEVELL,
`)
`)
` )
`)
`
`Plaintiffs,
`
`v.
`
`))
`
`COMPLAINT
`
`CAPT. GASTON LLC; ESTHER JOY,
`INC., HOBO SEAFOOD, INC.; LADY
`SAMAIRA, INC.; TRAWLER CAPT.
`ALFRED, INC.; TRAWLER CHRISTINA
`ANN, INC.; TRAWLERS GARLAND
`and JEFF, INC.; and NORTH CAROLINA
`DEPARTMENT OF ENVIRONMENTAL
`QUALITY, DIVISION OF MARINE
`FISHERIES,
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Defendants. )
`______________________________________ )
`
`NOW COME Plaintiffs North Carolina Coastal Fisheries Reform Group, Joseph William
`
`Albea, David Anthony Sammons, Captain Seth Vernon, Captain Richard Andrews, and Dwayne
`
`Bevell (“Plaintiffs”), by and through undersigned counsel and upon information and belief, and
`
`allege and say the following:
`
`INTRODUCTION
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`Plaintiffs live, work, and recreate in and around North Carolina’s coastal waters and
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`depend on North Carolina’s fisheries. They actively advocate for improved fisheries practices in
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`North Carolina to ensure the long-term health of its fisheries and to mitigate if not undo the
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`damage already caused by commercial shrimp trawling operations. Defendants operate large
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`commercial shrimp trawling operations in North Carolina’s coastal waters or are responsible for
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`regulating those operations pursuant to federal and state laws. Each defendant independently and
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`significantly has harmed North Carolina’s coastal waters by using non-selective, destructive
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`trawling equipment to harvest shrimp, or by allowing such shrimp trawling practices to continue
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`despite federal and state laws prohibiting such activities. Plaintiffs bring this suit against the
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`Defendants because their actions have violated the Federal Water Pollution Control Act, 33
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`U.S.C. §§ 1251 et seq., and the Plaintiffs’ rights under North Carolina’s Public Trust Doctrine as
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`enshrined in the Constitution, General Statutes, and common law of the State of North Carolina.
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`JURISDICTION AND VENUE
`
`1.
`
`This action is brought pursuant to the Federal Water Pollution Control Act of
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`1972 (“Clean Water Act” or “Act”), 33 U.S.C. §§ 1251 et seq., for actions committed by the
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`Defendants which have violated the Act’s prohibition on discharging pollutants to and dredging
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`in navigable waters without a permit. This Court has original jurisdiction over the Plaintiffs’
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`federal claims pursuant to 28 U.S.C. § 1331.
`
`2.
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`This case also arises under the Constitution, General Statutes, and common law of
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`the State of North Carolina. This Court has supplemental jurisdiction over Plaintiffs’ state law
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`claims pursuant to 28 U.S.C. § 1367.
`
`3.
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`All material events giving rise to this cause of action occurred in and along North
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`Carolina coastal waters, including the Pamlico Sound, in Raleigh, North Carolina, and in
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`Morehead City, North Carolina. Upon information and belief, all Defendants maintain offices
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`
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`and conduct business in one or more of these locations. Venue is proper in the United States
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`District Court for the Eastern District of North Carolina per 28 U.S.C. § 1391(b).
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`4.
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`This court has authority to enter declaratory and injunctive relief pursuant to
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`Rules 57 and 65 of the Federal Rules of Civil Procedure; 28 U.S.C. §§ 2201 and 2202; 33 U.S.C.
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`§§ 1251 et seq. and North Carolina’s Public Trust Doctrine as enshrined in the Constitution,
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`General Statutes, and common law of the State of North Carolina.
`
`5.
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`This court also has authority to impose civil penalties of up to $25,000.00 per day
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`on a party that has violated the Clean Water Act pursuant to 33 U.S.C. §§ 1319(d) and 1365.
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`PARTIES
`
`6.
`
`Plaintiff North Carolina Coastal Fisheries Reform Group (“NCCFRG”) is a
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`nonprofit membership organization dedicated to protecting North Carolina's coastal and marine
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`public trust resources through education, advocacy, and action. NCCFRG promotes sustainable
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`fisheries practices that will accommodate the public’s use of these resources without
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`compromising the long-term health of the state's coastal and marine environments and
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`economies. NCCFRG works with coastal and marine stakeholders, the State of North Carolina,
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`and the public to restore our fisheries for current and future generations.
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`7.
`
`NCCFRG has dedicated substantial resources to researching current shrimp
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`trawling practices in North Carolina coastal waters1, and to engaging with government agencies
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`and stakeholders
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`to address current shrimp
`
`trawling practices’ detrimental
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`long-term
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`environmental and economic impacts on North Carolina’s fisheries.
`
`
`1 The term “North Carolina coastal waters” refers to inshore waters, such as Pamlico Sound, as
`well as those ocean waters up to three nautical miles from the shore, all of which are subject to
`North Carolina’s jurisdiction pursuant to relevant state and federal laws. North Carolina coastal
`waters include coastal fishing waters, as defined by N.C. Gen. Stat. § 113-129(4).
`3
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`
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`8.
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`NCCFRG’s membership includes small business owners and recreational
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`fishermen who rely on the State’s fisheries for their livelihoods and recreation.
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`9.
`
`Plaintiff Joseph William Albea is a founding member of NCCFRG and an avid
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`recreational fisherman who regularly fishes and recreates in the Pamlico Sound and other North
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`Carolina coastal waters. Mr. Albea has long advocated to protect the State’s recreational fishing
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`resources and to promote sustainable commercial fishing practices.
`
`10.
`
`Plaintiff David Anthony Sammons is a founding member of NCCFRG and an
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`avid recreational fisherman who regularly fishes and recreates in North Carolina coastal waters.
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`Mr. Sammons advocates to protect the State’s recreational fishing resources and to promote
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`sustainable commercial fishing practices.
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`11.
`
`Plaintiff Captain Seth Vernon is a professional fishing guide whose livelihood
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`depends upon the health and quality of North Carolina’s fisheries. Plaintiff Vernon also fishes
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`and recreates in North Carolina coastal waters.
`
`12.
`
`Plaintiff Captain Richard Andrews is a professional fishing guide whose
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`livelihood depends upon the health and quality of North Carolina’s fisheries. Plaintiff Andrews
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`also fishes and recreates in North Carolina coastal waters.
`
`13.
`
`Plaintiff Dwayne Bevell is a tackle shop owner whose livelihood depends upon
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`the health and quality of North Carolina’s fisheries. The majority of Plaintiff Bevell’s business
`
`comes from recreational fishermen and tourists. Plaintiff Bevell also fishes and recreates in
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`North Carolina coastal waters.
`
`14.
`
`Defendant Capt. Gaston LLC is the owner and operator of the shrimp trawling
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`vessel the Micah Bell. Capt. Gaston LLC is a North Carolina corporation, with a local office and
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`corporate headquarters located in New Bern, North Carolina.
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`
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`15.
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`The Micah Bell typically is docked in Beaufort, North Carolina, and operates in
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`North Carolina coastal waters, including the Pamlico Sound.
`
`16.
`
`Defendant Esther Joy, Inc. is the owner and operator of the shrimp trawling vessel
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`the Bridgot Denise. Esther Joy, Inc. is a North Carolina registered corporation, with a local office
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`located in Wanchese, North Carolina, and corporate headquarters located in Suffolk, Virginia.
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`17.
`
`The Bridgot Denise is docked in Wanchese, North Carolina, and operates in North
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`Carolina coastal waters, including the Pamlico Sound.
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`18.
`
`Defendants Hobo Seafood, Inc. and Trawlers Garland and Jeff, Inc. are North
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`Carolina corporations owned by Lee Bland Williams and operate or have operated the shrimp
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`trawling vessel Blackbeard.
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`19.
`
`Hobo Seafood, Inc. is a North Carolina corporation with a local office and
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`corporate headquarters located in Swan Quarter, North Carolina.
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`20.
`
`Trawlers Garland and Jeff, Inc. is a North Carolina corporation with a local office
`
`and corporate headquarters in Scranton, North Carolina.
`
`21.
`
`Blackbeard is docked in Swan Quarter, North Carolina, and operates in North
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`Carolina coastal waters, including the Pamlico Sound.
`
`22.
`
`Defendant Lady Samaira, Inc. is the owner and operator of the shrimp trawling
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`vessel the Lady Samaira. Lady Samaira, Inc. is a North Carolina corporation with a local office
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`and corporate headquarters located in Swan Quarter, North Carolina.
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`23.
`
`The Lady Samaira is docked in Swan Quarter, North Carolina, and operates in
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`North Carolina coastal waters, including the Pamlico Sound.
`
`
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`24.
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`Defendant Trawler Capt. Alfred, Inc. is the owner and operator of the shrimp
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`trawling vessel the Birdie P. Trawler Capt. Alfred, Inc. is a North Carolina corporation with a
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`local office and corporate headquarters located in Hobucken, North Carolina.
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`25.
`
`The Birdie P is docked in Hobucken, North Carolina, and operates in North
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`Carolina coastal waters, including the Pamlico Sound.
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`26.
`
`Defendant Trawler Christina Ann, Inc. is the owner and operator of the shrimp
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`trawling vessel the Christina Ann. Trawler Christina Ann, Inc. is a North Carolina corporation
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`with a local office located in Oriental, North Carolina, and corporate headquarters located in
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`Beaufort, North Carolina.
`
`27.
`
`The Christina Ann is docked in Oriental, North Carolina, and operates in North
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`Carolina coastal waters, including the Pamlico Sound.
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`28. When discussed collectively, the defendant corporations named in Paragraphs 14
`
`through 27 above are referred to as “Defendant Trawling Companies” herein.
`
`29.
`
`Defendant Trawling Companies run some of the largest shrimp trawling vessels in
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`the State of North Carolina, and their operations extend to other states along the eastern
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`seaboard. Some of Defendant Trawling Companies are subsidiaries of or otherwise affiliated
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`with multinational seafood corporations.
`
`30.
`
`Defendant North Carolina Department of Environmental Quality, Division of
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`Marine Fisheries (“Defendant Agency”) is the state agency charged with protecting the State’s
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`marine and estuarine fisheries through administration, regulation, and enforcement. Per the
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`Defendant Agency, it is “dedicated to ensuring sustainable marine and estuarine fisheries and
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`habitats
`
`for
`
`the benefit and health of
`
`the people of North Carolina.” DMF,
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`http://portal.ncdenr.org/web/mf/ (last visited July 15, 2020).
`
`
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`31.
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`Defendant Agency’s fisheries management responsibilities include managing the
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`State’s shrimp and finfish fisheries and administering and enforcing state regulations applicable
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`to shrimp trawling operations that operate in North Carolina coastal waters.
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`32. When discussed collectively, Defendant Trawling Companies and Defendant
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`Agency are referred to as “Defendants” herein.
`
`FACTS
`
`33.
`
`Known as the “fishing gem of North Carolina,” the Pamlico Sound is the largest
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`embayed estuary in the world. Albemarle-Pamlico National Estuary P’ship, The Albemarle-
`
`Pamlico Region, https://apnep.nc.gov/our-estuary/albemarle-pamlico-
`
`region#:~:text=Spans%20of%20up%20to%2040,miles%20wide%20in%20some%20places. (last
`
`visited July 15, 2020).
`
`34.
`
`The Pamlico Sound is part of the larger Albemarle-Pamlico estuary, which
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`Congress designated as “an estuary of national significance” in 1987, and currently is listed as
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`one of “America’s Great Waters” by the National Wildlife Federation’s Great Waters Coalition.
`
`Albemarle-Pamlico National Estuary P’ship, Our Estuary, https://apnep.nc.gov/our-
`
`estuary#:~:text=The%20Albemarle%2DPamlico%20estuary%20was,produce%20more%20food
`
`%20per%20acre (last visited July 15, 2020).
`
`35.
`
`The Pamlico Sound provides essential habitat for juvenile pink, white, and brown
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`shrimp species, and is home to mature shrimp of those species that are harvested for commercial
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`sale.
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`36.
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`The Pamlico Sound also provides essential spawning and nursery habitat for
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`many finfish species, including recreationally- and economically-important species like the
`
`
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`southern flounder, spot, Atlantic croaker, weakfish (gray trout), red drum, speckled trout, and
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`striped bass.
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`37. When left undisturbed by commercial fishing operations, juvenile finfish remain
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`in the Pamlico Sound until they may migrate to nearshore ocean waters.
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`38.
`
`Defendant Trawling Companies harvest shrimp from the Pamlico Sound by
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`dragging trawl nets, which include otter trawls and skimmer trawls, along the bottom of the
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`Sound. DMF, SHRIMP, Farfantepenaeus aztecus, Farfantepenaeus duorarum, Litopenaeus
`
`setiferus, http://portal.ncdenr.org/web/mf/shrimp (last visited July 28, 2020). Defendant
`
`Trawling Companies primarily use otter trawls. This equipment captures shrimp and whatever
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`other fish and marine species that are unable to escape from the trawls or nets.
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`39.
`
`Commercial shrimping equipment and practices are non-selective and routinely
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`result in non-shrimp species being caught, injured, killed, and discarded. These “unwanted” fish
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`and marine species caught during commercial shrimping expeditions are referred to as
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`“bycatch.”
`
`NOAA,
`
`National
`
`Bycatch
`
`Report,
`
`Feb.
`
`18,
`
`2018,
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`https://www.fisheries.noaa.gov/resource/document/national-bycatch-report.
`
`40.
`
`It is generally accepted that for every one pound of shrimp harvested in North
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`Carolina coastal waters, roughly four pounds of bycatch are discarded. E.g., N.C. Wildlife Fed’n,
`
`Unintended Consequences, N.C. Wildlife Fed’n Journal 2 (Spring 2014), https://ncwf.org/wp-
`
`content/uploads/ncwf-journal-spring-2014.pdf.
`
`41.
`
`Shrimp trawling operations discard the majority of bycatch back into coastal
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`waters. This large-scale disposal of dead and decomposing fish and marine species results in
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`significant increases in organic matter and nutrient pollution in the marine environment. Such
`
`
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`pollution encourages eutrophication, which decreases dissolved oxygen levels in the water,
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`among other deleterious pollution effects.
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`42.
`
`This discarded bycatch equates to a huge number of fish. For example, in 2017
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`commercial shrimping operations caught nearly fourteen million pounds of shrimp in North
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`Carolina waters. DMF, SHRIMP, Farfantepenaeus aztecus, Farfantepenaeus duorarum,
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`Litopenaeus setiferus, http://portal.ncdenr.org/web/mf/shrimp (last visited July 28, 2020), with
`
`about 8.5 million pounds coming from the Pamlico Sound estuary. Applying the accepted
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`bycatch ratio of four pounds of bycatch for every pound of shrimp caught to the total pounds of
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`shrimp caught results in about 34 million pounds of bycatch caught and discarded in the Pamlico
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`sound estuary in 2017. One Division of Marine Fisheries (“DMF”) study found 21.8 individuals
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`in each pound of Pamlico Sound by-catch, meaning that in 2017 the total number of non-shrimp
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`caught and discarded by shrimp trawlers would have been on the order of 740 million
`
`individuals. Kevin Brown, Characterization of the inshore commercial shrimp trawl fishery in
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`Pamlico
`
`Sound
`
`and
`
`its
`
`tributaries,
`
`North
`
`Carolina
`
`(Apr.
`
`29,
`
`2014),
`
`http://sedarweb.org/docs/supp/SEDAR_PW6_RD13_Brown2010_CharacterizeTrawl.pdf
`
`Similar numbers would hold for other years.2
`
`43.
`
`Juvenile Atlantic croaker, spot, and weakfish (gray trout) are caught and killed at
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`the highest rates by Pamlico Sound shrimp trawlers. Id. In fact, that same DMF study found that
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`just one species out of the many species of finfish—juvenile Atlantic croaker—substantially
`
`outnumbered shrimp in the trawl nets.
`
`
`2 Brown calculated a bycatch ratio of 3.44 to 1, which would change the estimates in this
`paragraph to 29,000,000 pounds of bycatch caught and discarded in the Pamlico Sound estuary,
`comprised of 637,000,000 individuals.
`
`
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`44.
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`Shrimping bycatch removes these many millions of juvenile fish, preventing them
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`from joining the adult population, and also preventing them from eventually spawning and
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`adding to future juvenile populations. As a result, some of North Carolina’s fisheries have
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`experienced steep and species-threatening declines in certain finfish populations, which at times
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`have resulted in the fishing seasons for those species to close prematurely or not open. E.g., Jack
`
`Igelman, Proposal to Regulate Coastal Fishing Draws Strong Differences of Opinion, Carolina
`
`Public Press, Dec. 27, 2019, https://carolinapublicpress.org/29412/proposal-to-regulate-coastal-
`
`fishing-draws-strong-differences-of-opinion/.
`
`45. Millions of pounds of shrimp are harvested from North Carolina coastal waters
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`each year, meaning that millions of pounds of juvenile finfish bycatch are killed and discharged
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`back into those waters annually.
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`46.
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`The decline of some of North Carolina’s fisheries due to shrimp trawling has
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`direct negative consequences for commercial and recreational fishing opportunities and North
`
`Carolina’s coastal economy.
`
`47.
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`Compounding the problem is the fact that juvenile finfish often serve as a primary
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`food source for high-level fish and marine species. Therefore, depleting juvenile finfish
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`populations harms those higher-level species and diminishes their ability to survive in their
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`current territory.
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`48.
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`Shrimp trawling operations, by virtue of dragging otter trawls and other non-
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`selective, heavy gear along the bottoms of North Carolina coastal waters, damage the habitats of
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`bottom-dwelling species and disturb sediments, causing those sediments to become re-suspended
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`in the water.
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`49.
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`Defendant Trawling Companies are among the largest shrimp trawling operations
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`in the State of North Carolina and trawl for shrimp in North Carolina coastal waters, including
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`the Pamlico Sound.
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`50.
`
`Defendant Trawling Companies’ shrimp trawling activities result in millions of
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`pounds of bycatch, including juvenile finfish, being caught and disposed of into North Carolina
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`coastal waters, including the Pamlico Sound, each year.
`
`51.
`
`Defendant Trawling Companies’ shrimp trawling activities result in the bottoms
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`of ecologically- and commercially-important fisheries being dredged, thereby harming fish and
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`marine species by destroying habitats, including oyster habitat, and re-suspending sediments that
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`pollute coastal waters, including the Pamlico Sound.
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`52.
`
`Defendant Trawling Companies’ shrimp trawling activities pollute and degrade
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`North Carolina’s marine and estuarine environments.
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`53.
`
`Defendant Trawling Companies’ shrimp trawling activities harm fish and other
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`marine species, threatening and endangering their ability to propagate and maintain their
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`populations.
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`54.
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`Degraded marine and estuarine habitats and declining fish and marine species
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`populations directly threaten the State’s coastal economy that depends upon commercial and
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`recreational fishing and tourism. Both commercial and recreational fishers for non-shrimp
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`species are injured by the destruction caused by commercial shrimp trawling.
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`55.
`
`Defendant Agency allows Defendant Trawling Companies to continue shrimp
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`trawling operations in the Pamlico Sound, as described above, despite its mandate to ensure
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`sustainable marine and estuarine fisheries and habitats for the benefit and health of all North
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`Carolinians.
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`
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`FIRST CAUSE OF ACTION AND CLAIM FOR RELIEF
`(Illegal Discharge of Pollutants into Navigable Waters, 33 U.S.C. §§ 1251 et seq.)
`
`56.
`
`The Clean Water Act’s central operative provision is found in Section 301, which
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`prohibits “the discharge of any pollutant by any person.” 33 U.S.C. § 1311(a).
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`57.
`
`The Act broadly defines “pollutant” as “dredged spoil, solid waste, incinerator
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`residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
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`radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
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`municipal, and agricultural waste discharged into water.” Id. § 1362(6).
`
`58.
`
`The Act defines “discharge of a pollutant” as “any addition of any pollutant to
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`navigable waters from any point source.” Id. § 1362(12).
`
`59.
`
`The Act defines “point source” as “any discernible, confined and discrete
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`conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
`
`fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
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`floating craft, from which pollutants are or may be discharged.” Id. § 1362(14).
`
`60.
`
`Federal courts have confirmed that manipulating and redepositing materials
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`originally from a water body subject to the Clean Water Act back into that water body constitutes
`
`the discharge of a pollutant under the Act. See, e.g., United States v. Deaton, 209 F.3d 331, 334-
`
`37 (4th Cir. 2000) (holding that the deposit of dredged materials back into a wetland constitutes
`
`the discharge of pollutant under the Act although the deposit does not result in a net increase in
`
`the amount of material present in the wetland); Borden Ranch P’ship v. U.S. Army Corps of
`
`Eng’rs, 261 F.3d 810, 814-15 (9th Cir. 2001) (holding that churning up soil already in a wetland
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`can constitute a pollutant discharge under the Act).
`
`
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`61.
`
`Defendant Trawling Companies’ unpermitted discharges of bycatch directly back
`
`into the Pamlico Sound’s coastal waters from shrimp trawling vessels constitutes an illegal
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`discharge of a pollutant under the Clean Water Act.
`
`62.
`
`Defendant Trawling Companies’ disturbance, removal, and re-depositing of
`
`sediment as a result of pulling shrimp trawling equipment across the bottom of North Carolina
`
`coastal waters, including the Pamlico Sound, constitutes an illegal discharge of a pollutant under
`
`the Clean Water Act.
`
`SECOND CAUSE OF ACTION AND CLAIM FOR RELIEF
`(Unpermitted Dredging in Navigable Waters, 33 U.S.C. §§ 1251 et seq.)
`
`63.
`
`The Clean Water Act requires that any person wishing to discharge dredged or
`
`filled material into navigable waters obtain a Section 404 Permit from the U.S. Army Corps of
`
`Engineers. 33 U.S.C. § 1344.
`
`64.
`
`A prerequisite to obtaining a Section 404 Permit is receiving a Clean Water Act
`
`Section 401 Certification from the authorized state certifying agency. Id. § 1341.
`
`65.
`
`The word “dredge” means “to dig, gather, or pull out with or as if with a dredge,”
`
`for example “dredging oysters in the bay.” Merriam-Webster, dredge, https://www.merriam-
`
`webster.com/dictionary/dredge (last visited July 15, 2020).
`
`66.
`
`The term “dredged material” means “material that is excavated or dredged from
`
`waters of the United States”3 including navigable waters 40 C.F.R. § 232.2.
`
`
`3 The U.S. Environmental Protection Agency defines “waters of the United States” to encompass
`“the territorial seas and traditional navigable waters; perennial and intermittent tributaries that
`contribute surface water flow to such waters; certain lakes, ponds, and impoundments of
`jurisdictional waters; and wetlands adjacent to other jurisdictional waters.” The Navigable
`Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22250 (Apr.
`21, 2020) (to be codified at 33 C.F.R. pt. 328; 40 C.F.R. pts. 110, 112, 116, 117, 120, 122, 230,
`232, 300, 302, and 401).
`
`
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`67.
`
`The term “discharge of dredged material” means “any addition of dredged
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`material into, including redeposit of dredged material other than incidental fallback within, the
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`Waters of the United States,” including navigable waters. Id.
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`68.
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`“Incidental fallback” refers to the de minimus or inconsequential redeposits of
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`dredged material that does not or would not destroy or degrade an area of waters subject to the
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`Clean Water Act. See id.; Am. Mining Congress v. U.S. Army Corps of Eng’rs, 951 F. Supp. 267
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`(D.D.C. 1997) (holding that incidental fallback refers to small volumes of dredged material
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`redeposited in the same location from which they were removed).
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`69.
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`Defendant Trawling Companies’ dragging otter trawls and other non-selective
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`equipment along the bottom of the Pamlico Sound to harvest shrimp results in the dredging of
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`the Sound’s estuarine sediments.
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`70.
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`Defendant Trawling Companies’ disturbance, removal, and re-depositing of large
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`volumes of sediments beyond the sediments’ original location violate the Clean Water Act’s
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`Section 404 Permit requirement.
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`71.
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`Upon information and belief, Defendant Trawling Companies have not obtained
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`Section 401 Certifications from the North Carolina Department of Environmental Quality or
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`Section 404 Permits from the U.S. Army Corps of Engineers.
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`THIRD CAUSE OF ACTION AND CLAIM FOR RELIEF
`(North Carolina Public Trust Doctrine)
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`72.
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`The Public Trust Doctrine is an ancient doctrine originating in Roman civil law
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`and later incorporated into common law that makes the government the trustee of natural
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`resources for the benefit of all citizens. Under this doctrine, natural resources (including
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`navigable waters, fisheries, and wildlife) are deemed universally important in the lives of the
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`citizens that depend on them. See Fabrikant v. Currituck Cty., 174 N.C. App. 30, 41, 621 S.E.2d
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`19, 27 (2005) (confirming that “public trust rights are ‘those rights held in trust by the State for
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`the use and benefit of the people of the State in common . . . They include, but are not limited to,
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`the right to navigate, swim, hunt, fish and enjoy all recreational activities in the watercourses of
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`the State and the right to freely use and enjoy the State's ocean and estuarine beaches and public
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`access to the beaches.’”) (citations omitted); The Wildlife Society, The Public Trust Doctrine:
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`Implications for Wildlife Management and Conservation in the United States and Canada
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`(2010), https://wildlife.org/wp-content/uploads/2014/05/ptd_10-1.pdf.
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`73.
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`North Carolina’s Public Trust Doctrine is enshrined in its Constitution, General
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`Statutes, and common law.
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`74.
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`Per the Constitution of the State of North Carolina,
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`It shall be the policy of this State to conserve and protect its lands and
`waters for the benefit of all its citizenry, and to this end it shall be a proper
`function of the State of North Carolina and its political subdivisions to
`acquire and preserve park, recreational, and scenic areas, to control and
`limit the pollution of our air and water, to control excessive noise, and in
`every other appropriate way to preserve as a part of the common heritage
`of this State its forests, wetlands, estuaries, beaches, historical sites,
`openlands, and places of beauty….
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`N.C. Const. art. XIV, § 5.
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`75.
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`N.C. Gen. Stat. § 1-45.1 defines “public trust rights” as
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`those rights held in trust by the State for the use and benefit of the people
`of the State in common. They are established by common law as
`interpreted by the courts of this State. They include, but are not limited to,
`the right to navigate, swim, hunt, fish, and enjoy all recreational activities
`in the watercourses of the State and the right to freely use and enjoy the
`State's ocean and estuarine beaches and public access to the beaches.
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`Further, N.C. Gen. Stat. § 113-133.1(a) confirms that “[t]he enjoyment of the
`
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`76.
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`wildlife resources of the State belongs to all of the people of the State,” and N.C. Gen. Stat. §
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`143-211(a) tasks Defendant Agency with achieving and maintaining “a total environment of
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`superior quality” for the citizens to whom the State’s natural resources belong.
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`77.
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`North Carolina coastal waters’’s fisheries are public trust resources that
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`Defendant Agency must maintain and protect for the benefit of all North Carolinians.
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`78.
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`Defendant Trawling Companies’ shrimp trawling operations violate other North
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`Carolinians’ public trust rights to use and enjoy North Carolina coastal waters and their fisheries.
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`Their annual, wanton destruction of tens of millions of fish for which they have no use violates
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`the public trust rights of all North Carolinians to those fish, and specifically violates the public
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`trust rights of the individual plaintiffs to share in those resources.
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`79.
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`By failing to adequately regulate Defendant Trawling Companies’ shrimp
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`trawling operations and allowing them to degrade and diminish North Carolina coastal waters’
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`fisheries, Defendant Agency has impermissibly abdicated its responsibilities under North
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`Carolina’s Public Trust Doctrine.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully prays this Court enters:
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`
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`1.
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`A judicial declaration that Defendant Trawling Companies have violated the
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`Clean Water Act, 33 U.S.C. §§ 1251 et seq, and North Carolina’s Public Trust Doctrine;
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`2.
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`A judicial declaration that Defendant Agency has violated both the Clean Water
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`Act, 33 U.S.C. §§ 1251 et seq., and North Carolina’s Public Trust Doctrine;
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`3.
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`An order enjoining Defendant Trawling Companies from continuing shrimp
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`trawling operations in North Carolina’s coastal waters unless and until they show that they can
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`undertake trawling without violating the Clean Water Act and the Public Trust Doctrine by either
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`Case 7:20-cv-00141-FL Document 1 Filed 08/04/20 Page 16 of 17
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`eliminating the destruction of non-target species or reducing that destruction to de minimis
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`levels;
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`4.
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`An order instructing the Defendant Agency to take such steps as are necessary
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`and in compliance with the Clean Water Act and North Carolina’s Public Trust Doctrine to
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`regulate and decrease the levels of bycatch destroyed by Defendant Trawling Companies;
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`5.
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`An order directing Defendant Trawling Companies to pay appropriate civil
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`penalties of up to $25,000.00 per day for each Clean Water Act violation;
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`An order awarding the costs of this action to Plaintiffs; and
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`An order granting Plaintiffs such other and further relief as the Court deems
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`6.
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`7.
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`proper.
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`This the 4th day of August 2020.
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`/s/ James L. Conner II
` BY: ___________________________________
`James L. Conner II
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`N.C. State Bar No. 12365
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`E-mail: jconner@cbsattorneys.com
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`Shannon M. Arata
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`N.C. State Bar No. 47544
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`E-mail: sarata@cbsattorneys.com
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`4819 Emperor Boulevard, Suite 400
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`Durham, North Carolina 27703
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`Telephone: (919) 887-2607
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`Facsimile: (919) 827-8806
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`Attorneys for Plaintiffs
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`CALHOUN, BHELLA & SECHREST, LLP
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`Case 7:20-cv-00141-FL Document 1 Filed 08/04/20 Page 17 of 17
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