The Supreme Court has ruled, the fat lady has sung, in the PPL Montana vs. the State of Montana case.  The Supreme Court overturned lower court  rulings that the “Great Falls” section of the river, and possibly other disputed  sections, were navigable, and therefore that the riverbed was owned by the  state.  A key point of the decision was that navigability must be determined on  a section by section basis, not on rivers in their entirety.

The decision laid out some legal principles which could have repercussions in  North Carolina.  Basically, it enumerated three distinct issues:

1. The title to riverbeds is determined under the equal-footing  doctrine. The State owns the riverbed if that section of the river was navigable  in the customary mode of trade and travel under natural and ordinary conditions  at the time of statehood. For NC, that was 1789. This is based in the U. S.  Constitution and is interpreted by federal case law.  (In NC, riverbeds that are  not navigable and therefore not owned by the State are owned by adjoining  property owners.)

2. The pubic trust doctrine applies to the public's right to use the  waters of rivers for fishing, boating, swimming, recreation, etc. This is  governed by state law.

3. Admiralty jurisdiction gives the federal government the authority to regulate waters which have become navigable since the date of statehood,  or which could become so by reasonable improvements.

The Pee Dee River has always been widely regarded as navigable from its mouth  to Cheraw, SC, and is still so regarded by the US Army Corps of Engineers.  The  report of the Army Corps regarding the upper Yadkin River, from Wilkesborough to  near Salisbury, in 1879, which the Yadkin Riverkeeper previously produced,  concluded that that section of the river could be made navigable with  improvements (i.e., it was not navigable in its natural condition at the time of statehood).

The Army Corps also reported on the lower Yadkin - upper Pee Dee River in  1888.  That report concluded that the entire section of the river from near  Salisbury to the SC line was unworthy of improvement [to make it navigable].   The report also noted that that section of the river was more suited to the  development of water power than navigation, and that local citizens were more  interested in fish having free passage up and down the river.

The Yadkin River has not been found to have been navigable by  boats used in 1789 in its natural and ordinary condition at the time of statehood (1789), and is  therefore not owned by the State.  This is what Alcoa has said all along.  Alcoa  bought, paid for, pays property taxes on, and owns the riverbed under their  project.  The people of NC and the riparian owners have the right to use the waters of the river, and  significant time was spent during the relicensing process on developing license  terms to accommodate and enhance public use of the river.

I haven't checked it all out, but I assume Progress Energy owns the riverbed under their section of the river, and that other adjacent landowners own the remainder of the riverbed.  Here's a good explanation of Water Law in North Carolina.

yadkin river of opportunity riverofopportunity.com

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Tags: alcoa, dean naujoks, navigability, ownership, river, yadkin, yadkin riverkeeper

Comment by Ann on March 27, 2012 at 12:15pm

That agrees with my information.  Early transportation was overland via the Trading Path, Great Wagon Road, and Cape Fear Road.  The Yadkin River was more of an obstacle to transportation; indeed, it stopped the British Army in 1781!

Do you have that old newspaper account of the rocky ride down the Yadkin?

 

Comment by CRY ME A RIVER OF OPPORTUNITIE$ on March 28, 2012 at 7:10am

Thank you.  David and Ann are wonderful historians regarding the Yadkin Valley region.  You are both a wealth of information.

Comment by another David on March 28, 2012 at 4:51pm

I hope I can presume to speak for both of us when I say 'Thank you'.  We try.  Those who don't understand history are doomed to kick up a ruckus over nothing!

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Politics

Look who's paying for Pat McCrory's campaign!

NC Division of Water Quality issues 401 Water Certification to Alcoa

Clean sweep for Alcoa against McCrory administration in court

So Much for that River of Opportunity!

Judge asks "Why isn't this like some banaba republic that confiscates property?"

State Board of Elections refers Hartsell campaign finance case to prosecutors

State loses second Alcoa lawsuit

Judge nixes State claim

Three Updates

Dean Naujoks sails into the sunset

Keith Crisco loses primary bid for U.S. House

Former Cabarrus County Clerk of Court Challenges Fletcher Hartsell in District 36

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Judge throws McCrory lawsuit for a loop

NC Wildlife shoots itself in both kneecaps

FERC denies New Energy's request for rehearing

McCrory's DENR has double-standard

Non-existent URRC acting like nothing's changed

NC Dept. of Administration files suit to have Alcoa riverbed declared state property

URRC:  A legacy of Big Bad Government stains the State's history of freedom

Uwharrie Regional Resources Commission (URRC) dissolved

Mud-slinging as strategy

News Flash:  FERC denies New Energy Capital motion for late intervention

Beating a Dead Horse - Revisited

Stanly County ends dispute with Alcoa

The Masked Marvel Strikes Again!

Stanly County and Alcoa close to settlement

THE ALCOA DRAMA CONTINUES.....

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Split decision in Stanly County

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This 'n' that

Big Bad Government no matter how you look at it

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