public trust doctrine in North Carolina

2022“The public trust doctrine is a common law principle providing that certain land associated with bodies of water is held in trust by the State for the benefit of the public.” Fabrikant v. Currituck Cty., 174 N.C.

2022STATE OF N.C. 2022-NCCOA-589 Opinion of the Court ¶ 16 This Court stated “the public trust doctrine cannot give rise to an assertion of ownership that would be available to any ‘private litigants in like circumstances.’ ” Id. at 42 , 621 S.E.2d at 27 (quoting Williams v. N.C.

2022This Court held the plaintiffs did not have standing to bring a claim under the public trust doctrine against a private corporation as “only the [S]tate, through the Attorney General, is authorized to bring in a representative capacity for and on behalf of the using and consuming public of this State actions deemed to be advisable in the public interest.” Id. at 117 , 574 S.E.2d at 53 (citing Idaho v. Coeur D’Alene Tribe, 521 U.S. 261, 284 , 138 L.

2022This Court held the plaintiffs did not have standing to bring a claim under the public trust doctrine against a private corporation as “only the [S]tate, through the Attorney General, is authorized to bring in a representative capacity for and on behalf of the using and consuming public of this State actions deemed to be advisable in the public interest.” Id. at 117 , 574 S.E.2d at 53 (citing Idaho v. Coeur D’Alene Tribe, 521 U.S. 261, 284 , 138 L.

2022“Any party, public or private, can assert title to land on the strength of a deed, but only the State, acting in its sovereign capacity, may assert rights in land by means of the public trust doctrine.” Id. (citing Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C.

2022This Court held the plaintiffs did not have standing to bring a claim under the public trust doctrine against a private corporation as “only the [S]tate, through the Attorney General, is authorized to bring in a representative capacity for and on behalf of the using and consuming public of this State actions deemed to be advisable in the public interest.” Id. at 117 , 574 S.E.2d at 53 (citing Idaho v. Coeur D’Alene Tribe, 521 U.S. 261, 284 , 138 L.

2021Navigability of Lake Norman ¶ 37 Irrespective of easements and also arguing that the Third Parties have a common-law right to use the waters of Lake Norman above the Kiser’s submerged land for recreational activities and to erect and maintain docks and other such structures that provide access from the Third Parties’ lots to the waters of Lake Norman, Duke and the Third Parties assert the public trust doctrine and riparian rights respectively. ¶ 38 Exploring the first claim, the public trust doctrine is a common-law principle recognized by statute that provides for the public use of both publi

2021Navigability of Lake Norman ¶ 37 Irrespective of easements and also arguing that the Third Parties have a common-law right to use the waters of Lake Norman above the Kiser’s submerged land for recreational activities and to erect and maintain docks and other such structures that provide access from the Third Parties’ lots to the waters of Lake Norman, Duke and the Third Parties assert the public trust doctrine and riparian rights respectively. ¶ 38 Exploring the first claim, the public trust doctrine is a common-law principle recognized by statute that provides for the public use of both publi

2018App. 130, 136-37 , 693 S.E.2d 208, 213 (2010) (allowing a private defendant to assert the public trust doctrine as a defense to an action for trespass).

2018App. 130 , 136-37, 693 S.E.2d 208 , 213 (2010) (allowing a private defendant to assert the public trust doctrine as a defense to an action for trespass).

2022Relevant to the case sub judice, three key principles have emerged. ¶ 12 First, “the public trust doctrine, established by the common law of this State, involves two concepts: (1) public trust lands, which are ‘certain land[s] associated with bodies of water [and] held in trust by the State for the benefit of the public[;]’ and (2) public trust rights, which are ‘those rights held in trust by the State for the use and benefit of the people of the State in common.’ ” Town of Nags Head v. Richardson, 260 N.C.

2022Relevant to the case sub judice, three key principles have emerged. ¶ 12 First, “the public trust doctrine, established by the common law of this State, involves two concepts: (1) public trust lands, which are ‘certain land[s] associated with bodies of water [and] held in trust by the State for the benefit of the public[;]’ and (2) public trust rights, which are ‘those rights held in trust by the State for the use and benefit of the people of the State in common.’ ” Town of Nags Head v. Richardson, 260 N.C.

2021KISER 2021-NCCOA-558 Opinion of the Court water is navigable for the purpose of the public trust doctrine, this State has historically adopted several tests over nearly 200 years, that include the “ebb and flow” test, Wilson v. Forbes, 13 N.C. 30, 38 (1828), “sea vessel” test, State v. Glen, 52 N.C. 321, 333 (1859), and “navigable in fact” test, State v. Twiford, 136 N.C. 603, 606 , 48 S.E. 586, 588 (1904).

2021KISER 2021-NCCOA-558 Opinion of the Court water is navigable for the purpose of the public trust doctrine, this State has historically adopted several tests over nearly 200 years, that include the “ebb and flow” test, Wilson v. Forbes, 13 N.C. 30, 38 (1828), “sea vessel” test, State v. Glen, 52 N.C. 321, 333 (1859), and “navigable in fact” test, State v. Twiford, 136 N.C. 603, 606 , 48 S.E. 586, 588 (1904).

2021To determine if a watercourse is navigable-in-law is to consider if it is navigable-in-fact, “[t]he navigability of a watercourse is therefore largely a question of fact,” State v. Baum, 128 N.C. 600, 604 , 38 S.E. 900, 901 (1901), and, thus, is a determination that this Court is prohibited from considering. ¶ 43 This Court may only hear issues of law and is barred from making findings of fact.

2021To determine if a watercourse is navigable-in-law is to consider if it is navigable-in-fact, “[t]he navigability of a watercourse is therefore largely a question of fact,” State v. Baum, 128 N.C. 600, 604 , 38 S.E. 900, 901 (1901), and, thus, is a determination that this Court is prohibited from considering. ¶ 43 This Court may only hear issues of law and is barred from making findings of fact.

2021KISER 2021-NCCOA-558 Opinion of the Court water is navigable for the purpose of the public trust doctrine, this State has historically adopted several tests over nearly 200 years, that include the “ebb and flow” test, Wilson v. Forbes, 13 N.C. 30, 38 (1828), “sea vessel” test, State v. Glen, 52 N.C. 321, 333 (1859), and “navigable in fact” test, State v. Twiford, 136 N.C. 603, 606 , 48 S.E. 586, 588 (1904).

2021KISER 2021-NCCOA-558 Opinion of the Court water is navigable for the purpose of the public trust doctrine, this State has historically adopted several tests over nearly 200 years, that include the “ebb and flow” test, Wilson v. Forbes, 13 N.C. 30, 38 (1828), “sea vessel” test, State v. Glen, 52 N.C. 321, 333 (1859), and “navigable in fact” test, State v. Twiford, 136 N.C. 603, 606 , 48 S.E. 586, 588 (1904).

2021KISER 2021-NCCOA-558 Opinion of the Court water is navigable for the purpose of the public trust doctrine, this State has historically adopted several tests over nearly 200 years, that include the “ebb and flow” test, Wilson v. Forbes, 13 N.C. 30, 38 (1828), “sea vessel” test, State v. Glen, 52 N.C. 321, 333 (1859), and “navigable in fact” test, State v. Twiford, 136 N.C. 603, 606 , 48 S.E. 586, 588 (1904).

2021KISER 2021-NCCOA-558 Opinion of the Court water is navigable for the purpose of the public trust doctrine, this State has historically adopted several tests over nearly 200 years, that include the “ebb and flow” test, Wilson v. Forbes, 13 N.C. 30, 38 (1828), “sea vessel” test, State v. Glen, 52 N.C. 321, 333 (1859), and “navigable in fact” test, State v. Twiford, 136 N.C. 603, 606 , 48 S.E. 586, 588 (1904).

2015Our Supreme Court has noted that "the law involving the public trust doctrine has been recognized ... as having become unnecessarily complex and at times conflicting." Gwathmey v. State of North Carolina, 342 N.C. 287 , 311, 464 S.E.2d 674 , 688 (1995).

2015Our Supreme Court has noted that "the law involving the public trust doctrine has been recognized ... as having become unnecessarily complex and at times conflicting." Gwathmey v. State of North Carolina, 342 N.C. 287 , 311, 464 S.E.2d 674 , 688 (1995).

2022“Any party, public or private, can assert title to land on the strength of a deed, but only the State, acting in its sovereign capacity, may assert rights in land by means of the public trust doctrine.” Id. (citing Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C.

2022“Any party, public or private, can assert title to land on the strength of a deed, but only the State, acting in its sovereign capacity, may assert rights in land by means of the public trust doctrine.” Id. (citing Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C.

2022Indeed, even though Gwathmey, in part overruled Shepard’s Point5—the original case adopting the public trust doctrine—the essential principle remains the same: the State owns tidal lands and waters for the benefit of the public, subject to “concomitant restraints.” Credle, 322 N.C. at 525 , 369 S.E.2d at 827 . ¶ 20 Application of sovereign immunity in this case, however, would effectively reduce the public trust doctrine to nothing more than a “fanciful gesture” and prevent judicial review—contemplated by Gwathmey—as a plaintiff would never have the “opportunity to enter the courthouse doors a

2022Indeed, even though Gwathmey, in part overruled Shepard’s Point5—the original case adopting the public trust doctrine—the essential principle remains the same: the State owns tidal lands and waters for the benefit of the public, subject to “concomitant restraints.” Credle, 322 N.C. at 525 , 369 S.E.2d at 827 . ¶ 20 Application of sovereign immunity in this case, however, would effectively reduce the public trust doctrine to nothing more than a “fanciful gesture” and prevent judicial review—contemplated by Gwathmey—as a plaintiff would never have the “opportunity to enter the courthouse doors a

2022Craig, 363 N.C. at 342 , 678 S.E.2d at 356 .

2022Craig, 363 N.C. at 342 , 678 S.E.2d at 356 .

2012See Town of Nags Head v. Cherry, Inc., No. COA11-93, 2012 WL 540742 (N.C.

2010“Under the public trust doctrine, the lands under navigable waters ‘are held in trust by the State for the benefit of the public’ and *133 ‘the benefit and enjoyment of North Carolina’s submerged lands is available to all its citizens, subject to reasonable legislative regulation, for navigation, fishing and commerce.’ ” Parker v. New Hanover Cty., 173 N.C.

2010App. 644, 653 , 619 S.E.2d 868, 875 (2005) (quoting State ex ret.

2009The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation.’ ” [136 N.C.]' at 608-09, 48 S.E. at 588 (quoting Attorney General v. Woods, 108 Mass. 436, 440 (1871)).