Judge throws McCrory lawsuit for a loop

In an order released Wednesday 11/27, U. S. District Court Judge Terrence W. Boyle denied the State's motion to remand the State's case against Alcoa, challenging Alcoa's ownership of the Yadkin riverbed, back to the State courts.  But, perhaps more importantly, to those familiar with the State's reasoning, the judge, in the process, ruled against many of the State's key arguments.

The State has maintained that North Carolina, as one of the original 13 colonies, virtually enjoys carte blanche in determining navigability and riverbed ownership criteria, and that last year's unanimous Supreme Court decision in the extremely similar PPL Montana, LLC v Montana case does not apply to North Carolina.  Judge Boyle, however, found that the equal footing doctrine does not set the original 13 states apart from the later-admitted 37 states, but rather that the later 37 states joined the Union on an equal footing with the original 13.  Quoting the PPL Montana decision, Judge Boyle stated, "As has recently been made plain, 'questions of navigability for determining state riverbed title are governed by federal law.'"

The judicial order went on to say "as to the State's reliance on an 1885 state statute regarding its ownership of the Yadkin River bed, states 'may [not] adopt a retroactive rule for determining navigability which would [serve] to enlarge what actually passed to the State . . .'"  (again quoting the PPL Montana decision).  The 1885 act referred to was the "Act to Declare the Great Pee Dee and Yadkin Rivers Public Highways", a mainstay of the state's evidence.

While Judge Boyle agreed that navigable waters and the soils under them passed to the original 13 states when they declared themselves sovereign and independent of Great Britain, "what remains to be decided in this matter is whether the subject waterway was navigable when the State declared its independence."

The burden of proof is on the State.  I have yet to see one shred of evidence from the state takeover contingent directly relevant to proving that the Yadkin River "was used or was susceptible to being used in its natural and ordinary condition as a highway of commerce over which trade and travel were or may have been conducted in the customary modes of trade and travel on water at the time of statehood (1789)."  The Yadkin Riverkeeper's paddling down a dammed and altered river in a modern fiberglass or plastic kayak has nothing to do with the matter.

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Tags: Alcoa, McCrory, State of North Carolina, Yadkin River, Yadkin Riverkeeper, navigability, ownership, public trust

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