Mar 21st, 2014 by Prof. Coplan, Karl S.
Under the Public Trust doctrine, navigable waters are held in an inalienable trust by State government. Members of the public have a right to transit by boat on waters susceptible to navigation. This is true even where both shorelines are under private ownership, and even where the lands under the water are held in private ownership. North Carolina has recognized right of navigation even for manmade canals, in a case called Fish House, Inc. v. Clarke.
In the continuing saga of the North Carolina Waterkeepers efforts to expose and remediate the release of toxic coal ash from Duke Energy ash dump ponds throughout the state, Cape Fear Riverkeeper Kemp Burdette, Waterkeeper Coal Coordinator Donna Lisenby, and Waterkeeper Staff Attorney Pete Harrison (a Pace Environmental Litigation Clinic alum) drove a jon boat up a canal connected to the Cape Fear river to investigate the ongoing coal ash leaks. Watch this confrontation between Pete and the local sheriff’s deputy in this segment from the Rachel Maddow show:
When the deputy tells Pete to go get off the navigable canal and not came back, or Fish and Wildlife would “scratch them a ticket,” because the lands and the canal belong to Duke Power, Pete points out that the water belongs to everyone.
After the incident, North Carolina attorney Bob Epting, who has been working with the North Carolina Waterkeepers on these efforts, wrote the following letter to Sheriff Webster (who has been a supporter of efforts to clean up North Carolina’s waters) to remind the Sheriff’s office of the public’s navigation rights. I am reproducing the entirety of this wonderful assertion of public trust principles here (with Bob’s permissions):
Dear Sheriff Webster,
On March 13, Deputy Telkey encountered several representatives of the Riverkeepers, an organization I am interested in both as a supporter and as an environmental lawyer.
The Riverkeepers, including the Cape Fear Riverkeeper, were in a small flatboat on the public waters of the State of North Carolina, on a waterway flowing into the Cape Fear River from the Duke Energy coal-fired power plant near Moncure. They were there to take samples of the River water near where Duke Energy was discovered two days earlier illegally discharging toxic wastewater from its coal ash pond into the waters of the State. No permit exists to allow such a discharge, and we believe the discharge, if willful and intentional, may be a criminal violation of the federal Clean Water Act, as well as various State statutes and regulations.
Deputy Telkey will verify that the Riverkeepers never set foot upon or otherwise entered upon the land owned by Duke Energy on either side of the waterway.
Nevertheless, Deputy Telkey, accompanied by Duke Energy employees, approached our Riverkeepers, who were in their boat on the navigable waters of the State, and from the riverbank, accused them of trespassing on the property of Duke Energy, asked them for their identification papers, and then told them they would be arrested if they returned by water to that site. Later, Deputy Telkey telephoned and repeated the warning, saying that Duke Energy wanted to be sure the Riverkeepers knew they were forbidden to return to that site on that stream, which is some forty or more feet wide, free-flowing, and clearly navigable, as shown by the travel of these men by motorboat up its course from the Cape Fear River.
I acknowledge that Duke Energy asserts that they own the land on each side of this navigable waterway, and that it asserts the right, arising from that ownership, to keep citizens off the waterway, where the Riverkeepers were engaged in serious work important to the health and welfare of the downstream communities, for whom the River is their primary drinking-water source.
On the other hand, I want you and Deputy Telkey to know that I am of the opinion, contrary to Duke’s assertion, that every citizen of the State has legal access including the right to be on and use that stream, which is a part of the “navigable waters of the State.” I know that many, many citizens of Chatham County, and many other learned lawyers, share this opinion. If it were not so, the work of the Haw River Assembly, which you have enthusiastically supported over the years, would be greatly restricted. Knowing you and your public support and respect for the Haw, which flows together with the Deep to form the Cape Fear just upstream of this site,, I suspect that you understand that my opinion is correct.
Under these circumstances, as there are conflicting interpretations of the law, this may well be a legal question to be determined by the Courts.
In the meantime, please understand that, with all due respect, you and your deputies have no authority to order citizens to leave and not to return to use, enjoy, or navigate the waters of the State. It is the business of Judges to resolve such issues, after proceedings affording all the parties due process of law, to enter appropriate findings, conclusions and Orders.
Neither Deputies of the Sheriff’s Department, nor even the Sheriff himself, are vested with judicial authority, and you all should take care to refrain from and avoid being used by powerful corporate interests to enforce prohibitions that fly in the face of the law of this State and Nation.
(Consider what Aunt Bea would say, upon learning at the dinner table that Opie’s science project investigating a fish kill, had been terminated because a deputy threatened to arrest him for trespassing if he came back again to look for the source of the stuff he had actually seen the day before running into their favoirte fishing hole. Ask yourself, “WWAD?”)
If Duke Energy wishes to litigate these issues, we are prepared to meet them in such litigation, and in accordance with lawful process, and after procedural discovery is completed, to present ourselves and these issues to the Court for resolution.
We’d like very much to learn, for example, how long and in what quantities Duke employees have been illegally discharging toxic wastewater from this coal-ash pond into the River; what individual officers and employees of Duke Energy directed and approved such a course of action on Duke’s behalf; and whether as a matter of company policy such a course of action has been employed to empty or draw down coal ash ponds at any of Duke’s other other thirteen coal-fired plant sites in North Carolina.
One would suspect that Duke has made some calculations as to the cost-savings it would enjoy from simply dumping their waste from these toxic ponds directly into the River, as opposed to draining and treating this wastewater before it is discharged, as the law requires. We would enjoy the opportunity to question Duke officials about such calculations, and how they might affect Duke’s plan to charge its customers with the costs of cleaning up these toxic ash ponds.
Inded, the federal grand jury is investigating such questions right now as to the chronic toxic pollution seeping from Duke’s waste ponds, especially the accidental release from the Dan River plant. This was no accidental spill though at Moncure. This was an intentional, contining illegal discharge, and its particulars should be of interest to that grand jury. In this sense, Riverkeeper’s actions are in aid of a criminal investigation, and ought not be obstructed by Duke’s unsupported assertion that it has a right to prevent access to these waters of the State.
These questions are essential to being able to determine the extent of the harm caused by Duke Energy by these actions, and what course Duke Energy should be ordered to follow in order to minimize and mitigate the risk and harm it has caused to the public health and safety. This is what Riverkeepers do, in the usual course of their work. They are not terrorists. Rather, they do work that is even more crucial to the public interest in these days when government agencies have been robbed of their ability to do meaningful investigative and enforcement work.
We intend to keep on monitoring and speaking out, as stewards of the rivers, including that part of the Cape Fear that runs through Chatham County beside the Moncure plant. In this regard, we will continue to exercise our rights of access to the River, including its navigable tributaries
In the meantime, I want you to know that we believe and have told the Riverkeepers that the people of North Carolina own the public, navigable waters of the State, and that they have the right to be on, use, and protect the public, navigable waters of the State. We have also cautioned them to take care not to enter edjacent privately owned property,
Please understand that the Riverkeepers’ efforts to monitor and analyze the effects of Duke Energy’s willful, intentional, unpermitted, discharge of toxic wastewater into Cape Fear River are legal and may not be prohibited by the Chatham County Sheriff’s Department without some underlying judiicial Order. It is the business of the Courts, to say whether Duke Energy may prohibit these folks from using the navigable waters of the State to establish and monitor the effects of Duke’s illegal discharge of toxic wastewater into the Cape Fear River.
I know you sir, and I know that in your heart, you will want to support this work.
With kind regards,
EPTING & HACKNEY
PO Drawer 1329
Chapel Hill, NC 27514
Here is the Sheriff’s response:
Thanks for meeting me earlier today in reference to the interaction of my deputy, the Riverkeepers and Duke Energy staff last week.
As you know, on March 13, 2014, a deputy was dispatched to Duke Energy (Cape Fear Coal Plant) in Moncure reference a trespassing call.
The deputy dealt with several issues including, “are occupants in a boat, on canal waters, on private property, trespassing”?
My deputy having limited information at hand – made a decision that in his opinion harmed neither side and kept the peace.
Since then we consulted with Jep Rose – the County Attorney about conflicting interpretations of property rights and water rights.
At this point in time with the information currently available, Mr. Rose has advised us to consider the canal waters to be a publicly navigable waterway. Again, thank you for meeting with me this afternoon and I appreciate your friendship and working relationship.
Sheriff Richard. H. Webster
Chatham County Sheriff’s Office
Somewhere in heaven, Joe Sax is smiling.