THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, December 2, 1995 TAG: 9512020575
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY PAUL SOUTH, STAFF WRITER
DATELINE: HATTERAS VILLAGE LENGTH: Medium: 85 lines
In a move officials say would bolster North Carolina's case in a possible legal challenge to a federal weakfish ban, the Marine Fisheries Commission adopted a rule Friday prohibiting the use of flynets in state waters south of Cape Hatteras.
The use of flynets already is banned in that area by a 1994 proclamation issued by the state regulatory panel. Making the proclamation a rule, supporters say, will strengthen its legal standing in the event of a court challenge.
Proclamations can be rescinded within 48 hours after adoption. Rule changes, however, take about 18 months to come before the commission. The rule was approved by a 7-5 margin.
Opponents of the change say it will have the opposite effect and weaken the state's position. They also argued that fishermen were promised in 1994 that the proclamation would not be converted to a rule.
Last month, the U.S. Commerce Department announced a ban on the taking of weakfish - also known as gray trout - in federal waters. Unless a compromise between North Carolina and federal authorities can be reached, the state has said it will sue to remove the ban.
Marine Fisheries Commission Chairman Bob Lucas argued that the more permanent status of a rule puts the state on better legal footing.
``The argument that has been thrown in our face is that proclamation authority is an animal that doesn't exist in any other state,'' Lucas said. ``I'm sure that will be thrown up in the face of a federal judge as well. . .
Lucas added that not only will the new rule help North Carolina in the event of a lawsuit, but that it will also better protect the weakfish population.
``We're always being criticized for making rules not based on good science,'' he said. ``The data in this case is absolutely clear.''
Commission member Bill Foster, however, argued that the closure would weaken the state's case. He also expressed concern that fishermen were not consulted during discussions about the change.
``During the whole process, the people who were affected the most by this were not considered,'' Foster said.
Another commission member said that while he favored the flynet ban, he voiced concern over the ability to change the rule.
``I really have no problem with the rule,'' said Linnie Perry. ``But I'm concerned that this is a coffin nail that could not be removed.''
But the majority of the panel agreed with Dr. Dirk Frankenberg.
``I look at this rule as a tool they need in this case,'' he said. ``We need to give them that tool.''
In other action, the commission denied a request by the Town of Southern Shores to extend the limits on menhaden boats to waters off the town.
Under current state regulations, menhaden boats are restricted to 1.5 miles offshore from May 1 to Sept. 30 and one-half mile offshore from Oct. 1 to Dec. 31. Southern Shores Town Councilman Dick Wood told the commission that there was a potential for conflict if the limit were not put in place in Southern Shores, as it is in other beach communities.
However, the commission unanimously voted that since there was no evidence of conflict, that under moratorium rules they are prohibited from acting on the request.
Under those guidelines, in order for the commission to act on an issue, it must meet one of three criteria: to prevent further degradation of resources, to settle user conflicts and to maintain state control over fishery resources in order to avoid federal control.
In other action Friday, the commission:
Instructed Division of Marine Fisheries Director Bruce Freeman to study the effects of trawling in a portion of Pamlico Sound. That area, near the Hatteras Navigation Channel, has been closed since 1994 due to the presence of grass beds that serve as breeding grounds for shellfish, shrimp, crabs and small fish. A proposal to open the channel to trawlers was dropped.
Rejected a request by crab pot fishermen to increase the times when pots can be placed in deeper waters of the Pamlico, Pungo, Bay and Neuse rivers. Crabbers argued that the extension would ease stress on the crab population.
Passed a watered-down version of a resolution offered by the North Carolina Marine Fisheries Association urging the governor and the General Assembly to address water quality and habitat issues.
In the original version, the Marine Fisheries Commission would have refused to issue any restrictive regulations on the fisheries industry until the state addressed those issues. by CNB