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REMOVAL OF ABANDONED STRUCTURES & SHIPS/BOATS [“A.$.$.”] FROM PUBLIC TRUST “LAND” PowerPoint Presentation
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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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removal of abandoned structures ships boats a from public trust land

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

WHO PAYS?

problems
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
confusion who has the power to do something
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
first things first
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”?

who owns factors
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
what is public trust land the state owns it but holds in trust for the public for
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
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
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?

slide13
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
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
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
slide17
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

slide19
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

slide21
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

slide22
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?

jurisdiction implications on who pays
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