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REMOVAL OF ABANDONED STRUCTURES & SHIPS/BOATS [“A.$.$.”] FROM PUBLIC TRUST “LAND”

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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REMOVAL OF ABANDONED STRUCTURES & SHIPS/BOATS [“A.$.$.”] FROM PUBLIC TRUST “LAND”

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  1. REMOVAL OF ABANDONED STRUCTURES & SHIPS/BOATS [“A.$.$.”]FROM PUBLIC TRUST “LAND” WHO PAYS?

  2. PROBLEM: OBSTRUCTIONS ON “PUBLIC TRUST” LAND STRUCTURES ON BEACH

  3. STRANDED/SUNK BOATS ON ESTUARINE BOTTOMS

  4. 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

  5. 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

  6. 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”?

  7. 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

  8. 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

  9. 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

  10. “HORIZONTAL LAYERS” OF OWNERSHIP

  11. 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?

  12. WHERE IS MHWM?

  13. 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?

  14. 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.

  15. SPECIAL “VERTICAL” OWNERSHIP PROBLEMS • 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

  16. “FIXTURE” ISSUEHouse Probably Not a “Personal Property Fixture” in Absence of Agreement

  17. 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

  18. STRUCTURE WRAP-UPWHO HAS TO PAY FOR REMOVAL?

  19. Unlikely Municipalities or Counties 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

  20. “BOAT RESTING ON PUBLIC TRUST BOTTOM” ISSUES

  21. Was it Accidental? 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

  22. Precise Location of Vessel 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?

  23. JURISDICTION IMPLICATIONS ON WHO PAYS • 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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