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The 1985 Legislation, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust Monica Kivel Kalo

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The 1985 Legislation, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust Monica Kivel Kalo NORTH CAROLINA LAW REVIEW Volume 64 | Number 3 Article 3 3-1-1986 The aB ttle ot Preserve North Carolina's Estuarine Marshes: The 1985 Legislation, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust Monica Kivel Kalo Joseph J. Kalo Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Monica K. Kalo & Joseph J. Kalo, The Battle to Preserve North Carolina's Estuarine Marshes: The 1985 Legislation, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust, 64 N.C. L. Rev. 565 (1986). Available at: http://scholarship.law.unc.edu/nclr/vol64/iss3/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE BATTLE TO PRESERVE NORTH CAROLINA'S ESTUARINE MARSHES: THE 1985 LEGISLATION, PRIVATE CLAIMS TO ESTUARINE MARSHES, DENIAL OF PERMITS TO FILL, AND THE PUBLIC TRUST MONICA KIVEL KALOt JOSEPH J. KALOtt In recent years the ecological and economic importance of North Carolina'sestuarine marshes has been recognized. Landowners' claims of private ownership of these marshes, however, challenge the public's right to use these rich coastal wetlandsfor commercial and recreational purposes. ProfessorsMonica Kalo and Joseph Kalo examine the North Carolina GeneralAssembly's attempt to resolve these claims through a series of statutes enacted in May 1985. First, the authors explore the history of protected public commercial and recreational uses of North Carolina's estuarine complex. Second, they determine the validity of private ownership claims by focusing on the sources of the assertedpri- vate rights: Board of Education deeds, the Marketable Title Act, ad- verse possession, and the Torrens Act. The authors conclude that although many valid claims of private ownership exist, until a land- owner fills the land the public can use such land consistent with public trust rights. Furthermore,the authors contend that in most situations the State may legitimately prevent the destruction ofpublic trust rights by denying private landownerspermits to fill. t Professor of Law, North Carolina Central University School of Law. A.B. 1969, University of North Carolina at Greensboro; J.D. 1975, University of North Carolina. tt Professor of Law, University of North Carolina School of Law. A.B. 1966, Michigan State University; J.D. 1968, University of Michigan. We would like to express deep appreciation to our research assistants, especially Tim Nifong, a Ph.D. candidate in Biology and a joint degree student in the Law-City and Regional Planning pro- gram at the University of North Carolina at Chapel Hill. Tim's thorough research, editorial sugges- tions, breadth of ecological knowledge, and familiarity with coastal North Carolina's natural environment, people, and politics, were essential in developing and writing this Article. We also express thanks to the University of North Carolina Law Center for providing a summer grant that helped make this Article possible. Finally, we express deepest thanks to Daniel F. McLawhorn, Assistant Attorney General for the State of North Carolina, Environmental Section, for taking the time to discuss the issues presented by the problem of claims to coastal submerged land, for reading a draft of this Article, and for offering helpful criticisms. We and Mr. McLawhorn did not always agree on the interpretation of statutes or cases, but discussions with him led us to a deeper appreciation of the complexity of the problems involved. NORTH CAROLINA LAW REVIEW [Vol. 64 I. INTRODUCTION The chain of barrier islands-the famed Outer Banks-that flanks North Carolina's eastern shore encloses a vast estuarine system of bays, sounds, and river mouths with an estimated area of 2500 to 3500 square miles.1 Within the 2 United States only Louisiana and Alaska have more extensive estuarine waters. Depending largely on the proximity of a particular estuarine area to an inlet from the Atlantic Ocean, and thus to tidal influence, the waters within North Carolina's estuarine complex vary from nearly fresh to saline.3 A large portion of these waters are extremely shallow; consequently, they are covered with aquatic or wetland plant communities that range from brackish marshes in the northeastern portion of the State, dominated by the cattail and various aquatic plant species, to the true salt marshes of southeastern North Carolina, covered 4 by smooth cordgrass. A vast amount of the estuarine marsh complex within North Carolina has already been destroyed.5 It is estimated that between 1952 and 1969 over 45,000 acres-about 28.5 percent of the State's estuarine marshland-was filled or otherwise lost.6 Much of the almost continuous marsh of 58,000 acres7 that stretched between North Carolina's barrier islands and mainland from Beaufort to Sunset Beach has disappeared. Nevertheless, one can experience a sense of what once existed by looking to the west while driving over the bridge between the North Carolina mainland and Emerald Isle. There in the summer one can see the lush, yellow-green expanse of estuarine marsh cut by numerous channels and sloughs. Most people look briefly at this marsh as they travel to the attractions of the oceanfront with little appreciation of its ecological significance, its economic im- portance, or the gathering legal storm over its ownership and potential loss. Too wet for cultivation and unfit for human habitation, coastal estuarine marshes were traditionally considered to have little, if any, economic value in their natu- ral state.8 Ecologically, however, these marshes are among the most productive 1. Estimates vary, depending on the source. However, most sources place the estimate in the upper end of this range, at just over 9000 hectares (2.2 million acres). See, e.g., Adams, Interest in Estuarine Ecology, in PROCEEDINGS, SYMPOSIUM ON ESTUARINE ECOLOGY 2, 3 (U.N.C. Water Resources Research Inst. 1966); Cooper, Extent and DistributionofAreas of Environmental Concern in North Carolina,in COASTAL DEVELOPMENT AND AREAS OF ENVIRONMENTAL CONCERN 16, 17 (S. Baker ed. 1975). 2. Rice, Estuarine Land of North Carolina: Legal Aspect of Ownership, Use and Control, 46 N.C.L. REv. 779, 779 (1968). 3. W. CLAPHAM, NATURAL ECOSYSTEMS 167 (1973); Adams, supra note 1, at 3. 4. K. WILSON, NORTH CAROLINA WETLANDS: THEIR DISTRIBUTION & MANAGEMENT 19- 20 (1962). 5. Davis, Waves of Development Threaten the Tidewater, in ESTUARINE RESOURCES 37, 38 (T. Jackson ed. 1969). 6. Harrison, Where to Now for Wetlands?, WILDLIFE IN NORTH CAROLINA, Nov. 1968, at 6; see also G. SPINNER, A PLAN FOR THE MARINE RESOURCES OF THE ATLANTIC COASTAL ZONE 4 (1969) (table showing extent of coastal wetlands in 14 Atlantic states and estimating acres destroyed from 1954 to 1968). 7. K. WILSON, supra note 4, at 9, 12. 8. For example, in his 1932 treatment of the natural plant communities of North Carolina, the ecologist B.W. Wells described the coastal vegetation of the state as follows: 1986] ESTUARINE MARSHLAND lands in the world.9 Except for rice and sugar cane, no common agricultural crops approach the biological productivity levels attained in estuarine mar- shes. 10 Coastal estuarine marshes support a myriad of marine animals, includ- ing numerous finfish and shellfish species that use these marsh areas as hatcheries and nurseries for fry which ultimately migrate to the coastal fishing waters. 1 More than ninety percent of the marine fish harvested by American fishermen come from the continental shelf,12 and over two-thirds of these fish spend either their larval years or some period between spawning and adulthood in these estuarine waters. 13 Further, many commercially valuable shellfish are almost wholly estuarine inhabitants.' 4 Thus, estuarine marshes are the very heart of North Carolina's fisheries. Loss of these marshlands would have a catastrophic impact on coastal com- mercial and recreational fishing. Although economic data concerning the State's commercial fisheries and fish processing industries are incomplete, it is safe to say that millions of dollars and the livelihoods of thousands of coastal residents are involved.' 5 Moreover, although perhaps even more difficult to assess in terms of real dollars, the economic value of tourist and recreational uses of North Carolina's estuarine waters comprises a significant contribution to the 16 State's economy. Intimately tied to the protection and preservation of this important re- source are complex questions of legal ownership and state governmental power. Most residents assume that North Carolina's coastal marshes and waters are public property, available for recreational use by all. In legal parlance, the phrase "public trust rights" has been used to articulate this perception-that anyone may boat, fish, or swim in the estuarine waters or navigate, hunt, or fish in the adjoining marsh areas. 17 However, it has also long been true that many North Carolina's coast is rich (or shall we say poor) in salt marshes. If one has something of the tastes of the naturalist or an artist he will feel very sure that these vast salt-water grass and rush-covered areas have much wealth in them, whereas to the economist's mind they are but waste land. B. WELLS, THE NATURAL GARDENS OF NORTH CAROLINA 18-19 (1967). Although Wells was incorrect in his assessment of the economic status of coastal marshlands at that time, the aesthetic magnificence that he perceived in these areas is self-evident. Even the most casual visitor to the seashore cannot help but be impressed by the broad, flat, uninterrupted expanse of the yellow-green smooth cordgrass (Spartinaalterniflora) contrasting with the intense blues of the estuarine waters, or by the sunlit gold of sea oats (Uniola paniculata)dancing along the dunes in the onshore breeze.
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