Removal of abandoned structures ships boats a from public trust land
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REMOVAL OF ABANDONED STRUCTURES & SHIPS/BOATS [“A.$.$.”] FROM PUBLIC TRUST “LAND”. WHO PAYS?. PROBLEM: OBSTRUCTIONS ON “PUBLIC TRUST” LAND. STRUCTURES ON BEACH. STRANDED/SUNK BOATS ON ESTUARINE BOTTOMS. PROBLEMS. Obstructs Public Access Potential Danger to Public

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Problems l.jpg
PROBLEMS

  • Obstructs Public Access

  • Potential Danger to Public

  • Failure of Both “Protection and Retreat” Policies

  • Can’t Predict Future “Build Up” (Natural or Man-made)

  • No Money

    • No Insurance Coverage

    • Owner Has Lost Asset, Can’t be Found, Has No Money, etc.

    • Government Has No Money


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CONFUSION: WHO HAS THE POWER TO DO SOMETHING?

  • Lots of Confusing Case Law/Grants/Statutes Going Back to Blackbeard Days

  • Numerous International, Federal, State, and Local Laws—Concurrent/Conflicting/Exclusive

  • Debates on:

    • Did the Power really have it?

    • If so, did the Power really delegate it?

    • If so, to who and how many and to do what?

  • ALL SAY MUCH, BUT SAY NOTHING


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FIRST THINGS FIRST

  • Whether a Structure or a Boat, It rests on “Land” or “Hard Bottom”

  • Power Follows Land Ownership

  • Power Can Force Who Pays

    SO, QUESTION IS

    WHO OWNS THE “LAND”?


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WHO “OWNS” FACTORS

  • Inlands and “Non-Navigable Banks” – Private Owners—Common Law, G.S. 77-20; Chpt. 146

  • Ocean Bottom 3 Miles Out – State-

  • Ocean Bottom 24 Miles Out – Feds

  • State “Public Trust” Areas

    • Between MHWM & MLWM-

      • How & When to Measure?

    • Bottom of Inland “Navigable” Waters


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WHAT IS “PUBLIC TRUST” LAND? THE STATE OWNS IT…BUT HOLDS IN TRUST FOR THE PUBLIC FOR:

Access to Navigable Waters

  • Even Under Piers and the Like

  • But no Trespassing over Abutting Private Property

  • “Diversion of Access” Allowed to Protect Habitat

  • Swimming / Fishing / Surfing / Boating on Waters

  • Launch and Land Boats

  • State Enforces Public’s Right to Keep Area Free From Obstruction

  • Respect Abutting Private Property Owner’s Littoral/Riparian Rights of Access and Use


  • Origin of public trust l.jpg
    ORIGIN OF PUBLIC TRUST

    • The King Owned, But Allowed Subjects to Use---

    • Ran “with the Land” Unless Grant Says New Owner Takes Free of Public Trust

    • Not Mentioned:

      • In Grant to Lord Proprietors

      • Or When Colonial Government Took It Over

      • Or When Land Ceded by Britain to N.C. By Treaty of Paris After American Revolution

    • In US Constitution

      • States Retained Power Upon Admittance to Union

      • New Federal Govt Reserved only Navigation and Commerce Authority As Superior to Public Trust



    Special structure problems l.jpg
    SPECIAL STRUCTURE PROBLEMS

    When Title To Land Bottom Lost to “THE INSCRUTABLETIDES OF GOD."

    Herman Melville, Moby Dick.”, quoted in Carolina Beach Fishing Pier, Inc. v. The Town of Carolina Beach, 277 N.C. 297, 300, 177 S.E.2d 513 (1970)

    House

    Real or Personal Property

    ?

    Ocean Bottom Owned by NC

    MHWM?

    MLWM?



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    Where are the Boundaries of “Horizontal Ownership”?

    Difference Between the Whether A

    Govt Owns or Regulates

    How did the Boundaries Change?

    Accretion/Reliction?

    Avulsion?

    Government Financed “Raised” Lands?

    Temporary? Lost Forever?


    Slide14 l.jpg

    State Legislative Grant Without Reserving Public Trust Rights?

    Rare Grants to Private Owners and U.S. Government

    Not Navigable at Any Time By Canoe/Kayak?

    Any Parts Obstruct Major Navigation?

    Access Rights of Riparian/Littoral Owners.


    Special vertical ownership problems l.jpg
    SPECIAL “VERTICAL” OWNERSHIP PROBLEMS Rights?

    • Own Land, Own House?

      • From Center of Earth to Sky Above

      • Sell Land, Sell House

    • Lose Land, Lose House?

      • If no Agreement Before or After, Yes.

        • By Nature (the “Inscrutable Tides”)

        • By Condemnation or Sale Contract

      • Can Still Own House After Losing Land if There’s an Agreement before or After Land Loss


    Fixture issue house probably not a personal property fixture in absence of agreement l.jpg
    “FIXTURE” ISSUE Rights?House Probably Not a “Personal Property Fixture” in Absence of Agreement


    Slide17 l.jpg

    Q: Effect of CAMA Building Permit Warning of Removal Obligation

    Q: Pre-CAMA Permit Structures

    If House is “Personal Property Fixture”

    Owner Theoretically Still Owns

    But Owner Can “Abandon” Under Personal Property Law


    Structure wrap up who has to pay for removal l.jpg
    STRUCTURE WRAP-UP ObligationWHO HAS TO PAY FOR REMOVAL?


    Slide19 l.jpg

    Unlikely Municipalities or Counties Obligation

    No Clear Delegation of Jurisdiction or Power

    Except in Rare Grant From State

    Not the Feds

    Likely Not the Former Owner or Insurer

    Likely the State

    Proposed BIMP Trust Fund Good Idea

    Economic Studies May Indicate Removal – Retreat Costlier Than Renourishment



    Slide21 l.jpg

    Was it Accidental? Obligation

    Maritime Right of Abandonment Relieves Owner

    Assuming No Prior Agreement by Owner

    Federal Preemption of State or Local Rules Providing Otherwise

    Neglectful/Willful Running Aground-Possible to Hold Owner/Operator Responsible

    Maritime “Salvor” Issues


    Slide22 l.jpg

    Precise Location of Vessel Obligation

    In Important Navigable Channels?

    On Non-Navigable “Muck” or Marsh?

    Landward of MHWM?

    On State Owned Bottom Under Navigable Waters?

    On Rare Areas Where State Conveyed Bottom Without Reserving Public Trust Rights?


    Jurisdiction implications on who pays l.jpg
    JURISDICTION IMPLICATIONS ON WHO PAYS Obligation

    • Major Federal Maritime Navigable Areas?

      • US Coast Guard and/or Army Corps of Engineers

    • Areas in Jurisdiction of NC Wildlife Commission and/or Marine Fisheries and/or DCM?

      • Complex “Shared Jurisdiction” Issues

    • Unclear if Municipalities/Counties Have Lawful Delegated Authority


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