Property owners in a gated community in Watauga County are dealing with a case of David vs Goliath in what could set a precedent for other property owners in the state.
An ongoing contested case between Twin Rivers Property Owners Association (POA) in Foscoe, outside of Boone, and the state’s Wildlife Resources Commission (WRC) surrounds the ownership of submerged lands, or streambeds, underlying two shallow, rocky mountain streams that flow through Twin Rivers, which consists of waterways from the Watauga River and Boone Fork.
The community was developed with 160 lots about 25 years ago. Nearly 60 have been built.
Last May, the POA’s stream patroller found some young fishermen fishing in the area. At the time, the water was about two inches deep. The patroller told the men it was private property, which was clearly marked by signs surrounding the area.
North Carolina’s Public Trust doctrine
A spokesperson for the POA told Carolina Journal in a recent phone interview that one of the men lectured the patroller about North Carolina’s Public Trust Doctrine, which states that if a stream is navigable, then the water and the underlying stream bottom can be entered by any member of the public at any time.
The spokesperson said the only problem is that the area isn’t navigable.
With the exception of heavy flooding rain, like a hurricane, the water level is only inches deep in the area of the streambeds the rest of the time, not enough for a fisherman or a kayaker to pass through, and there is a fair amount of dry land on both sides.
“So, you could walk beside our streams on cobble or stones or sand in some areas without even getting your feet wet,” they said.
Their only issue is with the stream beds, the land underlying the water.
Private vs public land ownership rights
“Our position is that the stream beds are privately owned, and that’s based on a couple of things,” the POA spokesperson said. “Our lots extend to the midpoint in the stream. Our deeds and the deeds of our predecessors show that we own the stream bottoms.”
Landowners are also taxed on the stream beds.
“It’s very interesting to have a situation in which one arm of the state or subdivision of the state, in this case, Watauga County, is treating my stream bed as private for purposes of taxing me, while another arm of the state [WRC] is arguing that it’s public in order to make it available to, I guess, more voters,” the POA spokesperson said.
They also said it was interesting that the executive director of the WRC is the person who reviewed and granted the POA’s request in 2010 for a statutory registration that permitted the POA to post the no trespassing signs along the streams.
“The WRC issued the registration without any qualification relating to navigability or anything of that sort,” the spokesperson said.
In addition, the POA has engaged in two major stream remediation projects, totaling more than $900,000, due to past hurricane damage. The spokesperson said they received all the approvals from the WRC to reposition hundreds of tons of boulders in the river.
“If they were taking the position that these streams were navigable, they might have said something about it in their written approvals, but bear in mind, you can’t do anything that would disturb the navigability of these streams. But they didn’t,” they said.
The angler who told the patroller about the state’s Public Trust Doctrine said they could contact the WRC for confirmation. A former board member did and talked with a WRC officer who the POA spokesperson said was young and inexperienced.
The officer agreed with the anglers, along with his supervisors.
Stunned, the POA filed a lawsuit in the Office of Administrative Hearings (NC OAH).
“The state is fighting us very hard because they’re asserting that yes, anglers can, in fact, walk in on the stream beds, and they cite a string of North Carolina state court cases that have broadened the Public Trust Doctrine over the years that have been extended all the way to rivers or streams that can be used by modern lightweight watercraft,” the POA spokesperson told CJ.
Federal Cases Supersede state cases
There have been two federal cases on navigability since, which may prove to be in the POA’s favor.
The first, PPL Montana, LLC v Montana, was in February 2012. The state maintained that the rivers in question in certain areas were navigable when Montana became a state, and, therefore, their riverbeds belonged to the state. The state, however, lost the case.
“A unanimous US Supreme Court decision said that when you’re looking at the ownership of stream beds as opposed to the water, then you use a federal test of navigability, whether the stream was used or could have been used by vessels that were commonly used in trade and transport at the time of statehood,” the spokesperson said. “That’s very different because the kinds of vessels that were used at the time of North Carolina’s statehood would have been heavy pole boats, flatboats made out of logs, or Native American log dugouts, none of which could make any progress whatsoever on our shallow streams.”
The same ruling held true for North Carolina v Alcoa Power Generating Inc. regarding ownership of the streambeds of portions of 45 miles of the Yadkin River. After numerous rulings, the state lost its argument that when it attained statehood, the segment of the river was navigable, and therefore, the state had always owned and continued to own the riverbeds. A final appeal to the US Supreme Court in 2018 was rejected.
“Our stream beds form part of the second smallest water basin in the entire state,” the POA spokesperson said. “We’ve got this situation where those two federal precedents are being completely ignored in our case, and we’re drawing attention to them, but the state and its attorneys are essentially ignoring us. It’s as though those decisions didn’t even exist.”
The spokesperson told CJ that when the POA deposed the WRC officer, he admitted in his deposition that he had never even heard of the federal cases, which caused the administrative law judge to say that the WRC had not adequately trained its personnel on the extent of the Public Trust Doctrine.
The Property Owners Association, which pays a lot to stock the fish, making sure they are treated properly, using barbless hooks, limits on how many can be caught, etc., was quite dismayed when word got out that it was okay to trespass onto their property last spring, and the stock was depleted.
A judge in the NC OAH granted a temporary restraining order and injunction against those that could further trespass.
Not liking that order, the WRC appealed to the Watauga County Superior Court, putting the NC OAH case on hold.
What’s next
A hearing is scheduled in Superior Court the week of May 19. The court will decide whether to take it under advisement, request a further briefing, grant the appeal, or deny it, which would prompt the case to resume in NC OAH and, optimistically, finish up in a few months.
If the court grants WRC the appeal, the Twin Rivers Property Owners Association will continue to fight it in court.
“There are larger issues at stake, and that’s where do public rights and private rights begin,” the spokesperson told CJ. “That margin has always been debated in different contexts and settings. It has varied over the years, and definitely, the pendulum has swung in favor of the public.”
Carolina Journal reached out to the WRC for comment. A spokesperson emailed the following statement: “Thank you for your inquiry. As this is an active litigation, our agency refers you to the legal documents filed in the court system as a resource regarding this matter.”
The post Watauga County property owners in David vs Goliath battle over water rights first appeared on Carolina Journal.