Federal Judge Grants Motion for Yadkin Riverkeeper to Defend Public Trust Doctrine

Yadkin Riverkeeper will intervene in State’s Riverbed Challenge against Alcoa. United States District Court Judge Terrence W. Boyle granted a motion on October 28, 2013 to allow Yadkin Riverkeeper to intervene as a plaintiff with the State of North Carolina in the case vs Alcoa Power Generating, Inc.

Dean Naujoks, the Yadkin Riverkeeper said, “Despite attempts by Alcoa to dismiss us from the State's riverbed case against Alcoa, Judge Boyle granted Yadkin Riverkeeper's motion to intervene to defend the public trust doctrine and the people’s right of ownership of submerged lands in the Yadkin River.”

Yadkin Riverkeeper holds the position that the State of North Carolina is the sole and exclusive owner of the Yadkin riverbed and that this water will be needed by the people of North Carolina. The position is based on Article XIV, Section 5 of the North Carolina Constitution where it states, “It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry.” The Yadkin River is a valuable public trust resource and should be used for the benefit of the public to provide safe, clean drinking water and to create prosperity throughout the region, as required under the Federal Power Act, as opposed to using the river to outsource profits for investments overseas, as ALCOA has done.

Judge Boyle’s conclusion stated that Yadkin Riverkeeper's "particularized focus and expertise will assist the Court in resolving questions of law; and that no delay or prejudice would result from permitting the Riverkeeper to intervene. The Riverkeeper contends that the State is the sole and exclusive owner of the relevant portions of submerged Yadkin River bed; and that its presence as an intervenor plaintiff would protect this interest, should the State's position change during the course of this litigation."

The U.S. Supreme Court has held that the beds and banks under all rivers, lakes and streams that are navigable are owned by the states and held in trust for the public. Federal courts have held that the state does not simply own the river and the riverside land, but also that it holds the river bed “in trust for the public.” This court decision is known as the Public Trust Doctrine. The state holds the resources in trust for the benefit of all the people and the general public has a right to fully enjoy these resources for a variety of uses, including drinking water, navigation, recreation and fisheries. The state cannot divest itself of this public-trust ownership, according to Naujoks.

Background

Ninety-eight years ago, aluminum giant ALCOA, an out-of-state for-profit business, began building and operating four hydro-electric plants throughout the Yadkin River basin and managed to secure a 50-year lease to power their Aluminum smelter located in Badin, NC. ALCOA once employed nearly 1,000 workers when the hydropower project was licensed by the Federal Energy Regulatory Commission (FERC) in 1958, but the company curtailed operations, laid off plant employees and permanently shut down the facility in 2007.

According to proponents of local control of the river, ALCOA is a multinational corporation that presently monopolizes and exploits the Yadkin River’s hydroelectric capacity for its bottom line, with little in return to the people of North Carolina. Excess electricity produced from the Yadkin River is now sold out of state and Alcoa’s shuttered aluminum plant no longer provides jobs nor economic benefit for the people of NC, which has created depressed and even blighted conditions in the Badin Lake area.  According to a recent economic report by Central Park NC, the state will lose $1.2 billion over the next 50 years if Alcoa receives the license. See full report www.riverofopporunity.org  

The fight for the Yadkin River made national news on August 2, 2013, when the NC Department of Administration (DOA) defended the State’s title to the river bed of the Yadkin River. The State filed a Petition for Declaratory Judgment seeking to put to rest the false claims that a private company—ALCOA—owned the bed of the Yadkin River.

The NC Division of Water Resources supported DOA’s filing by denying Alcoa’s 401 Water Quality Certification needed to secure a 50-year license to operate four hydro-power dams on the Yadkin River until “conflicting claims of ownership are resolved.”  On August 30, 2013, Duke Environmental Law and Policy Clinic, on behalf of Yadkin Riverkeeper, filed a motion to intervene in the State’s river bed case to defend the Public Trust Doctrine and the peoples right of ownership over the bed of the Yadkin River.