I am attaching a letter I sent to the North Carolina Wildlife Commission's Wildlife in North Carolina Magizine. This is one small step in an effort to do something about this law. Anyone who cares about future genration's ability to hunt our sounds and rivers should step up and say that a priviledge few cannot control our waters. If this is revoked it should lessen the crowds and the public hunting areas such as Pamlico Point.
May 2, 2014
To: Wildlife Resources Commission - Wildlife in North Carolina Magazine
From: Jim Broadwell
Re: Article on North Carolina's Public Trust Doctrine (NCPTD)
I would like to express my sincere appreciation for the article in the May, 2014 edition regarding navigable waters and the public's right to fish in those waters. Anything that raises awareness of the North Carolina Public Trust Doctrine helps protect every citizen's rights to North Carolina's wonderful outdoors.
I think it is time for you to extend your coverage of this topic to the area of hunting, particularly waterfowl hunting in North Carolina's sounds, bays, and rivers. Clarity on this issue would be helpful to all citizens. In addition, a close examination of restrictions that have been imposed on the general public should shine a light on state and local actions that go against the intent of the Public Trust Doctrine.
People familiar with the NCPTD know that the legislature cannot grant individuals exclusive use of navigable water unless it furthers the interest of the Public Trust Doctrine.
§ 1-45.1. No adverse possession of property subject to public trust rights:
Title to real property held by the State and subject to public trust rights may not be
acquired by adverse possession. As used in this section, "public trust rights" means those
rights held in trust by the State for the use and benefit of the people of the State in
common. They are established by common law as interpreted by the courts of this State.
They include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all
recreational activities in the watercourses of the State and the right to freely use and enjoy
the State's ocean and estuarine beaches and public access to the beaches.
It has consistently been the law of this jurisdiction that lands and waters held by the
sovereign in trust for the public cannot be conveyed by the State so as to deprive the
public of its rights therein, except for legislatively authorized public purposes furthering
the trust.
In my opinion some counties have overstepped their lawful authority and granted special privileges to a very limited number of individuals that do not meet the criteria of "except for legislatively authorized public purposes furthering the trust."
Several egregious examples need to be exposed and rectified. In my opinion one of those examples is:
Pamlico County - Safe Hunter Rule - the North Carolina Wildlife Resources Commission has a note in the local rules section that prohits hunters from:
â—Ź Take migratory waterfowl within 500 yards of another's permanent hunting location without permission of the landholder upon whose land the waterfowl is taken.
The local interpretation of this is that a land owner can establish a blind on the owner's property adjacent to the shore of Pamlico Sound or one of the bays or rivers. Upon establishment of the blind no hunter can hunt within a 500 yard semi- circle of the blind location in public waters. The local interpretation of this rule is that no one can ever hunt public waters near the property owner's blind location whether it is occupied or not.
As a result several large landowners have essentially stolen hunting rights from the public on huge tracts of public water.
I believe that on its face this ordinance is inappropriate, confusing and misinterpreted. I will add comments regarding the ordinance:
â—Ź Take migratory waterfowl within 500 yards of another's permanent hunting location (500 yards is extremely excessive, most waterfowl are shot within 40 yards of a blind and the shot used for waterfowl is infective past 100 yards) without permission of the landholder upon whose land the waterfowl is taken. (this is where the local interpretation is confusing - If a landowner places a blind on his property adjacent to the water in Jones Bay, Pamlico County how can the law be interpreted to mean that a person cannot set up in water in Jones Bay and hunt? Waterfowl taken by this hunter is not taken on the land of the property owner, the hunter is taking waterfowl in Jones Bay, land covered by the North Carolina Public Trust Doctrine.)
Regardless, I believe the ordinance should be removed and North Carolina's hunters should be able to hunt in waters covered by the NCPTD. It is not for the few but for all citizens.
Below are quotes from either actual cases, NC General Statutes that seem germane to this conversation:
North Carolina has more than 2,200,000 acres of coastal
sounds, salt marshes, and broad river mouths. As one of the thirteen
original states, North Carolina was governed by the English
Lords Proprietor during its colonial period. Naturally, the common
law public trust doctrine was applied to ensure the free use of
the coastal waterways for public navigation, fishing, and commerce.
As early as 1711 and 1719, the first representative government
ensured the continuity of the common law by enacting
laws which precluded any grant of exclusive rights in navigable waters
or the lands beneath them. Those rights under the public
trust doctrine have survived to the present day and are defined as
"the right to navigate, 'swim, hunt, fish, and enjoy all recreational
activities in the watercourses of the State." 134 "
134. N.C. GEN. STAT. § 1-45.1 (1985). Cauffman, id.
"Lands under navigable waters can neither be appropriated by
private persons nor conveyed to them by the State except for a
public purpose when authorized by statute; and that . . . such
lands and the waters above them are held in trust for the use and
benefit of all our people," (1.)
(1.) Id. (citing Shepard's Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44
S.E. 39 (1903); Skinner v. Hettrick, 73 N.C. 53 (1875); to Ward v. Willis, 51 N.C.
[State title to the lands under navigable waters] is a title different
in character from that which the State holds [in] lands intended
for sale .... It is a title held in trust for the people of the State
that they may enjoy the navigation of the waters, carry on commerce
over them, and have liberty of fishing therein freed from
the obstruction or interference of private parties .... The State
can no more abdicate its trust over property in which the whole
people are interested, like navigable waters and soils under
them[,] ... than it can abdicate its police powers in the administration
of government and the preservation of the peace .... 62
62. Id. at 452-53
169. 52 N.C. 371. In Skinner v. Hettrick, 73 N.C. 53 (1875), the court held
that since Albemarle Sound was a navigable water, it was not subject to entry
although every citizen had fishing. privileges in the waters. Therefore, while a
beach owner could draw his seine to the beach to the exclusion of others, he could
not acquire the sole right of fishing in the waters of the sound because to constitute
a several fishery there must be a right of soil. Such right could not be had in
Albemarle Sound. The court also pointed out that regulation of the right to fish in
navigable waters is a proper subject of legislation. See also Bell v. Smith, 171 N.C.
116, 87 S.E. 987 (1916) (grant of land bordering upon or partly under navigable
waters cannot confer upon the grantee sole or exclusive right of fishing in such
waters).
Finally, the court turned to an eighty-five-year-old case to
make its point: "Navigable waters are free. They cannot be sold or
monopolized. They can belong to no one but the public and are
reserved for free and unrestricted use by the public for all time.
Whatever monopoly may obtain on land, the waters are unbridled
yet."226 The court concluded that "[h]istory and the law bestow[
ed] the title of these submerged lands and their oysters upon
the State to hold in trust for the people so that all [might] enjoy
their beauty and bounty. 2 2 7
226. Id. (quoting State v. Twiford, 136 N.C. 603, 609, 48 S.E. 586, 588
(1904)).
227. Id. The early controversies leading to the adoption of the public trust
doctrine in this country were also based on the right to use oyster beds. Arnold v.
Mundy, 6 N.J.L. (1 Hal.) 1 (1821). Oyster beds constitute breeding grounds and a
source of food for innumerable species, both aquatic and amphibious. They also
protect adjacent water by acting as filters. Just v. Marinette County, 56 Wis. 2d 7,
201 N.W.2d 761 (1972).
While some of these examples relate to restrictions on fishing, both fishing and hunting are activities covers by North Carolina General Statute 1.45-1. In my opinion these rulings and statutes are precedent for both hunting and fishing since they are equal activities in the NCPTD.
Here is a copy of the letter sent to someone who has hunted for many years in Pamlico county and the type of intimidation a wealthy landowner tries to apply to take advantage of North Carolina's public water. You may know about this situation and that the landowner is not a North Carolina citizen.
You can clearly see that both the landowners and his lawyer believe that the waters of Pamlico Sound, its bays and tributaries are his. If this is not a blatant breach of the public trust document I do not know what is.
As a result of your unique position I respectfully ask that you champion the cause with both the North Carolina General Assembly and the counties whose ordinances go against the spirit and intent of the Public Trust Doctrine. The hunters and fisherman whose revenues support your agency really need you on this one.
Regards,
Jim Broadwell
for some reason the letter did not copy - no to the other chat site "Portal" and look under Safe Hunter Law. it will get you going.
May 2, 2014
To: Wildlife Resources Commission - Wildlife in North Carolina Magazine
From: Jim Broadwell
Re: Article on North Carolina's Public Trust Doctrine (NCPTD)
I would like to express my sincere appreciation for the article in the May, 2014 edition regarding navigable waters and the public's right to fish in those waters. Anything that raises awareness of the North Carolina Public Trust Doctrine helps protect every citizen's rights to North Carolina's wonderful outdoors.
I think it is time for you to extend your coverage of this topic to the area of hunting, particularly waterfowl hunting in North Carolina's sounds, bays, and rivers. Clarity on this issue would be helpful to all citizens. In addition, a close examination of restrictions that have been imposed on the general public should shine a light on state and local actions that go against the intent of the Public Trust Doctrine.
People familiar with the NCPTD know that the legislature cannot grant individuals exclusive use of navigable water unless it furthers the interest of the Public Trust Doctrine.
§ 1-45.1. No adverse possession of property subject to public trust rights:
Title to real property held by the State and subject to public trust rights may not be
acquired by adverse possession. As used in this section, "public trust rights" means those
rights held in trust by the State for the use and benefit of the people of the State in
common. They are established by common law as interpreted by the courts of this State.
They include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all
recreational activities in the watercourses of the State and the right to freely use and enjoy
the State's ocean and estuarine beaches and public access to the beaches.
It has consistently been the law of this jurisdiction that lands and waters held by the
sovereign in trust for the public cannot be conveyed by the State so as to deprive the
public of its rights therein, except for legislatively authorized public purposes furthering
the trust.
In my opinion some counties have overstepped their lawful authority and granted special privileges to a very limited number of individuals that do not meet the criteria of "except for legislatively authorized public purposes furthering the trust."
Several egregious examples need to be exposed and rectified. In my opinion one of those examples is:
Pamlico County - Safe Hunter Rule - the North Carolina Wildlife Resources Commission has a note in the local rules section that prohits hunters from:
â—Ź Take migratory waterfowl within 500 yards of another's permanent hunting location without permission of the landholder upon whose land the waterfowl is taken.
The local interpretation of this is that a land owner can establish a blind on the owner's property adjacent to the shore of Pamlico Sound or one of the bays or rivers. Upon establishment of the blind no hunter can hunt within a 500 yard semi- circle of the blind location in public waters. The local interpretation of this rule is that no one can ever hunt public waters near the property owner's blind location whether it is occupied or not.
As a result several large landowners have essentially stolen hunting rights from the public on huge tracts of public water.
I believe that on its face this ordinance is inappropriate, confusing and misinterpreted. I will add comments regarding the ordinance:
â—Ź Take migratory waterfowl within 500 yards of another's permanent hunting location (500 yards is extremely excessive, most waterfowl are shot within 40 yards of a blind and the shot used for waterfowl is infective past 100 yards) without permission of the landholder upon whose land the waterfowl is taken. (this is where the local interpretation is confusing - If a landowner places a blind on his property adjacent to the water in Jones Bay, Pamlico County how can the law be interpreted to mean that a person cannot set up in water in Jones Bay and hunt? Waterfowl taken by this hunter is not taken on the land of the property owner, the hunter is taking waterfowl in Jones Bay, land covered by the North Carolina Public Trust Doctrine.)
Regardless, I believe the ordinance should be removed and North Carolina's hunters should be able to hunt in waters covered by the NCPTD. It is not for the few but for all citizens.
Below are quotes from either actual cases, NC General Statutes that seem germane to this conversation:
North Carolina has more than 2,200,000 acres of coastal
sounds, salt marshes, and broad river mouths. As one of the thirteen
original states, North Carolina was governed by the English
Lords Proprietor during its colonial period. Naturally, the common
law public trust doctrine was applied to ensure the free use of
the coastal waterways for public navigation, fishing, and commerce.
As early as 1711 and 1719, the first representative government
ensured the continuity of the common law by enacting
laws which precluded any grant of exclusive rights in navigable waters
or the lands beneath them. Those rights under the public
trust doctrine have survived to the present day and are defined as
"the right to navigate, 'swim, hunt, fish, and enjoy all recreational
activities in the watercourses of the State." 134 "
134. N.C. GEN. STAT. § 1-45.1 (1985). Cauffman, id.
"Lands under navigable waters can neither be appropriated by
private persons nor conveyed to them by the State except for a
public purpose when authorized by statute; and that . . . such
lands and the waters above them are held in trust for the use and
benefit of all our people," (1.)
(1.) Id. (citing Shepard's Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44
S.E. 39 (1903); Skinner v. Hettrick, 73 N.C. 53 (1875); to Ward v. Willis, 51 N.C.
[State title to the lands under navigable waters] is a title different
in character from that which the State holds [in] lands intended
for sale .... It is a title held in trust for the people of the State
that they may enjoy the navigation of the waters, carry on commerce
over them, and have liberty of fishing therein freed from
the obstruction or interference of private parties .... The State
can no more abdicate its trust over property in which the whole
people are interested, like navigable waters and soils under
them[,] ... than it can abdicate its police powers in the administration
of government and the preservation of the peace .... 62
62. Id. at 452-53
169. 52 N.C. 371. In Skinner v. Hettrick, 73 N.C. 53 (1875), the court held
that since Albemarle Sound was a navigable water, it was not subject to entry
although every citizen had fishing. privileges in the waters. Therefore, while a
beach owner could draw his seine to the beach to the exclusion of others, he could
not acquire the sole right of fishing in the waters of the sound because to constitute
a several fishery there must be a right of soil. Such right could not be had in
Albemarle Sound. The court also pointed out that regulation of the right to fish in
navigable waters is a proper subject of legislation. See also Bell v. Smith, 171 N.C.
116, 87 S.E. 987 (1916) (grant of land bordering upon or partly under navigable
waters cannot confer upon the grantee sole or exclusive right of fishing in such
waters).
Finally, the court turned to an eighty-five-year-old case to
make its point: "Navigable waters are free. They cannot be sold or
monopolized. They can belong to no one but the public and are
reserved for free and unrestricted use by the public for all time.
Whatever monopoly may obtain on land, the waters are unbridled
yet."226 The court concluded that "[h]istory and the law bestow[
ed] the title of these submerged lands and their oysters upon
the State to hold in trust for the people so that all [might] enjoy
their beauty and bounty. 2 2 7
226. Id. (quoting State v. Twiford, 136 N.C. 603, 609, 48 S.E. 586, 588
(1904)).
227. Id. The early controversies leading to the adoption of the public trust
doctrine in this country were also based on the right to use oyster beds. Arnold v.
Mundy, 6 N.J.L. (1 Hal.) 1 (1821). Oyster beds constitute breeding grounds and a
source of food for innumerable species, both aquatic and amphibious. They also
protect adjacent water by acting as filters. Just v. Marinette County, 56 Wis. 2d 7,
201 N.W.2d 761 (1972).
While some of these examples relate to restrictions on fishing, both fishing and hunting are activities covers by North Carolina General Statute 1.45-1. In my opinion these rulings and statutes are precedent for both hunting and fishing since they are equal activities in the NCPTD.
Here is a copy of the letter sent to someone who has hunted for many years in Pamlico county and the type of intimidation a wealthy landowner tries to apply to take advantage of North Carolina's public water. You may know about this situation and that the landowner is not a North Carolina citizen.
You can clearly see that both the landowners and his lawyer believe that the waters of Pamlico Sound, its bays and tributaries are his. If this is not a blatant breach of the public trust document I do not know what is.
As a result of your unique position I respectfully ask that you champion the cause with both the North Carolina General Assembly and the counties whose ordinances go against the spirit and intent of the Public Trust Doctrine. The hunters and fisherman whose revenues support your agency really need you on this one.
Regards,
Jim Broadwell
for some reason the letter did not copy - no to the other chat site "Portal" and look under Safe Hunter Law. it will get you going.
