The passage of a “mini budget” bill in the North Carolina General Assembly last October that focused on funding disaster recovery, education, infrastructure, and government operations also affected private property rights for more than 3,600 landowners across the state, including those in a community in Watauga County.
The question is, was it done inadvertently, or did legislators know what effect a small action taken in the bill would have on property owners’ rights?
Carolina Journal first reported on the ongoing dispute in April between Twin Rivers Property Owners Association (POA) in Foscoe, outside of Boone, and the state’s Wildlife Resources Commission (WRC) over ownership rights of submerged lands, or streambeds, underlying two shallow, rocky mountain streams that flow through Twin Rivers, which consists of waterways from the Watauga River and Boone Fork.
Last May, the POA’s stream patroller found some young fishermen fishing in the area. At the time, the water was about two inches deep. The patroller told the men it was private property, which was clearly marked by signs surrounding the area.
A spokesperson for the POA told Carolina Journal in a phone interview that one of the men lectured the patroller about North Carolina’s Public Trust Doctrine, which states that if a stream is navigable, then the water and the underlying stream bottom can be entered by any member of the public at any time.
The spokesperson said the only problem is that the area isn’t navigable as the water level is only inches deep in the area of the streambeds unless a heavy rain occurs.
Twin Rivers’ issue is with the stream beds, the land underlying the water, which they say is privately owned and that they pay taxes on.
“It’s very interesting to have a situation in which one arm of the state or subdivision of the state, in this case, Watauga County, is treating my stream bed as private for purposes of taxing me, while another arm of the state [WRC] is arguing that it’s public in order to make it available to, I guess, more voters,” the POA spokesperson said.
They also said it was interesting that the executive director of the WRC is the person who reviewed the POA’s request in 2010 for a statutory registration that permitted the POA to post the no trespassing signs along the streams.
In 2011, the WRC formally granted Twin Rivers a statutory registration under Article 21A of Chapter 113, known as the Registered Property Program (RPP).
Under the RPP, landowners who controlled fishing rights could register their property with the WRC and post it against unauthorized fishing.
Twin Rivers relied heavily on that registration, investing more than a million dollars in stream restoration, trout stocking, habitat improvements, and private security. For years, the arrangement functioned without controversy.
The POA filed a lawsuit in the Office of Administrative Hearings (NC OAH), after a WRC officer agreed with the anglers, along with his supervisors.
A judge in the NC OAH granted a temporary restraining order and injunction against those who could further trespass.
The WRC appealed to the Watauga County Superior Court, putting the NC OAH case on hold.
In May, the Superior Court dismissed the appeal and sent the case back to OAH for trial.
Fast forward to October, with less than two months before the trial, the General Assembly passed SB 449, Continuing Budget Operations Part IV, and Democratic Gov. Josh Stein signed it into law shortly after. It mainly dealt with additional funding for Hurricane Helene recovery and other budgetary issues, but clearly states that the WRC Registered Property Program was repealed with the bill being signed into law.
Not only did Twin Rivers property owners lose their rights, but more than 3,600 landowners across North Carolina with similar registrations did as well.
With the repeal in place, the WRC went back to the NC OAH and moved to dismiss the contested case, arguing that repeal of the statute had rendered the Association’s registration unenforceable. The tribunal agreed and dismissed the case in December.
The association spokesperson told Carolina Journal in an emailed statement that it’s hard to view the chain of events as being purely coincidental.
“The RPP had been on the books for years,” the spokesperson said. “If it were truly duplicative or administratively burdensome, it could have been repealed at any time. But it wasn’t—until the WRC was losing in court.”
Twin Rivers spokesperson told CJ that the WRC contacted Rep. Ben Moss, R-Richmond, chair of the Wildlife Resources Committee, and requested the repeal. They said that Moss wanted to help the WRC and was aware of the lawsuit.
In an emailed statement to Carolina Journal, Moss declined to comment and suggested contacting the WRC, to which they replied, “The lawsuit with Twin Rivers is currently on appeal. We are not going to comment on active litigation.”
The spokesperson told CJ that at the time of the passage of the bill, legislative leadership, specifically, House Speaker Destin Hall, R-Caldwell, was not aware of the ongoing lawsuit when the repeal was enacted, and no savings clause was included to preserve existing registrations or pending cases.
Hall’s office has not returned a request for comment from Carolina Journal.
“It’s telling that more than 3,600 landowners lost registered rights overnight, yet there was no public notice, no hearing, no explanation from the agency beforehand,” the spokesperson said. “And the repeal just happened to come on the eve of trial in the one case where the WRC’s enforcement practices were under judicial scrutiny.”
The spokesperson added that the key difference is that the RPP required the WRC to confirm through its own process that the applicant actually controlled the fishing rights, and the Landowner Protection Act does not.
“That confirmation mattered in our case, and now the agency seems bent on erasing its own paper trail,” they told CJ. “When a landowner purchases property that includes the river bottom, pays value for it, pays taxes on it year after year, and is then told that the public may occupy it at will, the landowner no longer has any greater rights to that property than a stranger.”
Following the dismissal of the administrative case, the Association has decided to take a voluntary dismissal of the lawsuit after not seeing a path forward.
“It’s pretty hard to tell an appellate court that a judge was mistaken for refusing to enforce the statute that doesn’t exist, so it was a difficult decision, but I think the correct one,” the spokesperson told CJ in a phone interview on Monday.
The small community has raised hundreds of thousands of dollars to fight the lawsuit with the WRC, which is represented by the North Carolina Department of Justice, according to the spokesperson.
The Association is evaluating other options, including forming a coalition of landowners, property owners’ associations, and fishing clubs that can pool their resources together to possibly file a new lawsuit and request a declaratory ruling.
Twin Rivers spokesperson told CJ that the community’s residents are disappointed and feel betrayed by a powerful state agency.
“I think the perception is that a government agency that couldn’t prevail under the law consoled itself by unmaking the law,” they said. “This was not moving the goal posts. It was folding up the field at night and calling the game. When this agency realized it would lose in court, it solved the problem by eliminating the law.”