December 2, 1998
Mr. Thomas Ashe Lockhart, Jr. The Sanford Holshouser Law Firm One Exchange Plaza 219 Fayetteville Street, Suite 1000 Raleigh, North Carolina 27601
RE: Advisory Opinion; Bass Lake, Town of Holly Springs N.C.G.S. § 1-45.1 and N.C.G.S. § 113-131
Dear Mr. Lockhart:
You have requested an advisory opinion on behalf of the Town of Holly Springs regarding its proposed purchase of an interest in Bass Lake, which is currently owned in fee by the J. Harry Cornell Estate and subject to a conservation easement held by The Nature Conservancy.
As stated in your letter of November 23, 1998, the facts are summarized as follows. Bass lake was once owned by J. Harry Cornell, who during his lifetime granted a conservation easement to The Nature Conservancy and who left the lake to his estate to be held in trust, with the conservation easement to be enforced by The Nature Conservancy. In short, the conservation easement restricted the use of the lake and prohibited any development on the property. In 1996, Hurricane Fran caused a breach in the dam and the lake drained. The Town of Holly Springs would like to acquire the lake from the estate, rebuild the dam, and install some walkways and an outbuilding or two for use as a scenic public park. The estate has agreed in principle to the plan and The Nature Conservancy has agreed to an amendment of the easement that would permit the relatively minor development, and to convey the amended easement to the Town of Holly Springs provided that there is no merger of the easement with the underlying fee.
Your specific question is whether the proposed amendment of The Nature Conservancy’s existing conservation easement for Bass Lake to authorize the Town of Holly Springs to reconstruct the breached dam and allow use of the recreated lake as a public park gives rise to a public trust doctrine challenge under N.C.G.S. §§ 113-131 and 1-45.1.
It is our opinion that the intended actions, as described above, would not operate to adversely affect any public trust rights in the waters of Bass Lake. Public trust rights are defined by the common law, and expressly recognized in N.C.G.S. § 1-45.1: they "include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State…." The Department of Environment and Natural Resources and the Wildlife Resources Commission have been designated as the stewards of the marine, estuarine and wildlife resources of the State, and are authorized to take such actions as may be necessary to conserve and protect public trust rights. N.C.G.S. § 113-131. While we have not had extensive discussions with either agency, it would appear their interests are advanced by the proposal and a challenge under N.C.G.S. § 113-131 would not be requested of the Attorney General.
Thank you for the opportunity to review this matter. Please advise if we can provide any additional assistance.
signed by:
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General