State of North Carolina may have the right to collect additional payments from Alcoa
Yadkin Riverkeeper today submitted a request for a Declaratory Ruling by the North Carolina Secretary of Administration to determine the true ownership of the Yadkin River bed in Stanly County in order to protect the State’s interests from Alcoa Power Generating, Inc. (Alcoa).
Based on recently uncovered deeds, Yadkin Riverkeeper believes that the Department of Administration is overdue in challenging Alcoa’s assertions of ownership of the Yadkin riverbed; and that citizens of North Carolina are the rightful owners of the river itself as a Public Trust Resource. Furthermore, these deeds suggest that the State of North Carolina may be entitled to request additional payments from the owner of the deeds.
In its investigation, attorneys for Yadkin Riverkeeper uncovered a series of five land grants filed with the Register of Deeds of Stanly County dating back to 1899. These grants were for land under the bed of the Yadkin River and were granted to a person named as W. Smithdeal, then to Yadkin River Power Company and eventually Carolina Power and Light. The first chain appears of record in book number 21 and page 264 of the Stanly County Register. Yadkin Riverkeeper recently contacted Alcoa requesting deeds to prove Alcoa holds title to the land but have not received a response from the company.
“Alcoa has repeatedly confused the public for years, claiming the company owns the land under the dams and the lakes on the Yadkin River,” said Dean Naujoks, Yadkin Riverkeeper. “If Alcoa cannot prove ownership, they are not entitled to another 50 year license. The state granted Duke and Progress Energy title to use the river bed on both the Pee Dee and Catawba River. We are demanding Alcoa produce deed of ownership. The Department of Administration must determine the issue of ownership once and for all.”
The Smithdeal deeds include more than 500 acres of riverbed along stretches of the river between Stanly and Montgomery County, including the area where Badin Lake and Falls Reservoir are located. These grants are subject to a payment provision of monies to the State of North Carolina and to a requirement that free passage of fish be maintained as directed by the General Assembly in 1887.
Yadkin Riverkeeper believes this new information may trigger the General Assembly to demand payment from the owners. The record at the Register of Deeds’ office shows that the Smithdeal deeds were conveyed to third parties, who then conveyed them to the Yadkin River Power Company. The record in Stanly County does not show the transfer of these grants from Yadkin River Power Company to Alcoa.
The issue of public ownership over the river bed has become a hot topic on the national stage. Last week, the Supreme Court heard oral arguments from state of Montana and 26 other states who filed Amicus Briefs in support of Montana, arguing a private utility, PTL Montana, does not own the river bed. Lower courts ruled in favor of Montana to collect $53 million in back payments for use of the river bed. PPL Montana, like Alcoa, argued it owns the river bed.
Public Television aired the story last week highlighting the potential impact of the Supreme Court limiting or overturning the public trust doctrine which is a legal principle derived from English Common Law. The essence of the doctrine is that the waters of the state are a public resource owned by, and available to all citizens equally, for the purposes of navigation, conducting commerce, fishing, recreation and similar uses. The doctrine limits public and private use of waters beneath navigable rivers and tidal waters to protect the public's right to use the waters. Typically, private parties can only lease or get an easement to use these public resources with the understanding the state is the legitimate owner.
“The State of North Carolina needs to figure this out before any consideration can be given toward supporting Alcoa's 50 year re licensing bid,” said Naujoks. “The Governor must give The Secretary of Administration time to investigate if public land under the Yadkin River was deeded over by the state. If Alcoa cannot prove it has legitimate claim of ownership, Alcoa cannot receive another 50 year license. We cannot allow private corporations to rewrite history by eliminating the public trust doctrine that established public ownership over waters of the United States.”
In 1879, the Army Corps of Engineers recommended to the United States Congress that they appropriate money to remove dozens of small dams that kept boats from being able to navigate some stretches of the Yadkin River. In 1885, the North Carolina General Assembly declared that the Yadkin River was a public highway for the passage of boats and made it illegal for anyone to construct a new dam across the Yadkin River, unless that dam had an opening for boats to pass.
Additionally, the deeds for the grant of the bed of the Yadkin River were issued to W. Smithdeal and subject to the following provision: “Yielding and paying to us such sums of money, yearly or otherwise, as our General Assembly may from time to time direct, and promising obedience to all acts of the General Assembly now existing or hereafter to be enacted, concerning the passage of fish in the waters of said premises.”
“With these findings, I believe the General Assembly should consider charging Alcoa for the use of the river bottom. These deeds specify that the owner would expect to pay when the General Assembly asks for rent,” said Naujoks.
The request for a declaratory ruling is pursuant to N.C. Gen. Stat. § 150B-4 and 01 N.C. Admin. Code 01B.0602 et seq., and states Declaratory Ruling to the North Carolina Secretary of Administration (“Secretary”) requesting the following rulings: (a) that the Department of Administration has the duty to maintain an accurate inventory of all state-owned lands; (b) that the State of North Carolina owns the bed of the Yadkin River in trust for the People of North Carolina as subject to the doctrine of the Public Trust; (c) that the State of North Carolina has asserted to FERC that the license for the Yadkin Project no longer serves the public interest and the Department of Administration is obligated to assist the State in its efforts to recapture the Yadkin Project; (d) that the Department of Administration is the proper agency of the State of North Carolina to defend the State’s real property interests in the bed of the Yadkin River in the Yadkin Project; and (e) that the Department of Administration must investigate whether title has been granted away from the State in the bed of the Yadkin River in the vicinity of the Yadkin Project.