February 11, 1998
Gary W. Thompson Chief, North Carolina Geodetic Survey 512 North Salisbury Street Raleigh, North Carolina 27604
RE: Advisory Opinion: North Carolina Seaward Boundary. N.C. Const. Art. XIV, § 2; N.C.G.S. § 141-6.
Dear Mr. Thompson:
We reply to your request for our opinion regarding the seaward boundary of North Carolina. You advised that the Minerals Management Service ("MMS") of the U.S. Department of the Interior has requested that the State agree to define North Carolina’s seaward boundary as a series of coordinates of points along the shoreline. You asked the following questions:
Questions: Would a modification of N.C.G.S. § 141-6 be required before this proposal could be accepted? Does N.C.G.S. § 141-6 allow the modification of the seaward boundary without the consent or approval of the North Carolina Legislature?
Answer: If the MMS proposal is to permanently fix the seaward boundary for the State at specific coordinates, accepting it would violate both N.C.G.S. § 141-6(a), and Article XIV, § 2 of the
N.C. Constitution, which the statute implements. However, an ambulatory boundary, which merely represents the seaward boundary’s location at a certain time, and moves with changes to the shoreline, whether by erosion, accretion or fill deposition, would be consistent with the constitution and not require amendment of the statute.
Discussion
Article XIV, § 2 of the N.C. Constitution provides that "[t]he limits and boundaries of the State shall be and remain as they are now." N.C.G.S. § 141-6(a), making reference to the constitutional provision, defines the eastern or seaward boundary of the State as follows:
. . .the eastern limit and boundary of the State of North Carolina on the Atlantic seaboard having always been, since the Treaty of Peace with Great Britain in 1783 and the Declaration of Independence of July 4, 1776, one marine league [three geographical miles] eastward from the Atlantic seashore, measured from the extreme low water mark, the eastern boundary is hereby declared to be fixed as it always has been at one marine league eastward from the seashore of the Atlantic Ocean bordering the State of North Carolina, measured from the extreme low water mark of the Atlantic Ocean seashore aforesaid.
The North Carolina Supreme Court concluded that, by adopting the Submerged Lands Act of 1953, 43 USC §§ 1301, et seq., "the United States in effect quitclaimed and confirmed the ownership of the State of North Carolina in the lands beneath the Atlantic Ocean" within three geographical miles of its coastline, consistent with N.C.G.S. § 141-6(a). State, ex rel. Bruton v. Flying "W" Enterprises, 273 N.C. 399, 406, 160 S.E.2d 482 (1968); 43 USC § 1312. In United States v. California, 381 U.S. 139 (1965), the U.S. Supreme Court held that § 1312 of the Submerged Lands Act requires that the baseline for measuring the seaward limit of the State’s boundary be established in accordance with the Convention on the Territorial Sea and the Contiguous Zone, an international treaty. The Convention defines the baseline generally as "the low water line along the coast. . . ." The baseline for the measuring the state boundary — being the low water mark — is ambulatory, and thus the State’s boundary, shifts with natural changes in the State’s coastline. United States v. Louisiana, 394 U.S. 11, 34 (1968). Likewise, artificial changes to the coastline cause corresponding changes in the baseline, and also alter the State’s seaward boundary. United States v. Louisiana, 389 U.S. 155, 158 (1967).
Since July 4, 1776 the State’s eastern boundary has been located three geographical miles from the extreme low water mark (ELWM) of the Atlantic Ocean. Of course, the physical location of the boundary has moved as the ELWM has migrated, but it has always remained at the same distance from the ELWM. Thus, reading the state constitutional provision together with the statute and the case law, we interpret them to require that the eastern boundary always remain at distance of three geographical miles from the ELWM. The state constitution being a limitation not only upon the executive branch, but upon the power of the legislature, McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961), this section would operate to bar either the General Assembly or an agent of the State from setting the boundary at some other location.
Therefore, the MMS request would violate Article XIV, § 2 of the N.C. Constitution, and
N.C.G.S. § 141-6(a) if it permanently defined the boundary at fixed location, because erosions and accretions, whether natural or artificial, would then cause the boundary to be located at some distance other than three geographical miles from the actual ELWM of the ocean. However, coordinates depicting an ambulatory boundary, which merely represents the seaward boundary’s location at a certain time, and moves with changes to the shoreline but always remains three geographical miles from the ELWM would not conflict with the constitution, nor require amendment of N.C.G.S. § 141-6.
Nothing else appearing, it would appear from the following language contained in the November 19, 1997 letter (first page, second paragraph) to you from Leland F. Thormahlen, Chief, MMS Mapping and Boundary Branch, which offered this proposal, that the MMS contemplates an ambulatory boundary:
The boundaries referenced in this letter were derived from copies of the most current
National Ocean Service (NOS) nautical charts, as noted in the salient point Listing, and
were developed as ambulatory boundaries, that is to say the boundaries will continue to
move with the erosions and accretions of the shoreline.
(Emphasis added.) However, earlier correspondence from MMS raises the concern whether the federal government would construe acceptance of this proposal to effect a general waiver by the State of changes to the State’s seaward boundary, per United States v. Alaska, 381 U.S. 139 (1992), resulting from the placement of "solid fill" below the high water mark of the ocean under permits by U.S. Army Corps of Engineers. In particular, a letter from Lee Thormahlen of MMS to you, dated July 25, 1996, suggested fixing the seaward boundary through the proposed agreement as an alternative to North Carolina signing such a disclaimer for boundary changes resulting from Corps-permitted projects. The federal government has sought such waivers in the past for beach nourishment and maintenance dredging projects. Although the State of North Carolina executed an individual waiver on June 28, 1989 to the Corps for a project at Pea Island, the State has since refused to sign individual or general disclaimers, on the grounds that it was barred by the state constitution. (Joseph H. Henderson, State Property Office to Daniel Small,
U.S. Army Corps of Engineers, August 16, 1995) Since the 1992 United States v. Alaska decision, the Corps has continued to permit projects without receiving the requested waivers. It is our opinion that waiving or disclaiming changes to the State’s seaward boundary, so as to reduce the boundary to less than three geographical miles at any particular point, would violate the Article XIV, § 2 of the N.C. Constitution. Therefore, the MMS proposal must clearly state that the seaward boundary would also move with so-called "artificial accretions," such as beach nourishment projects, as well as natural erosions and accretions, so as to always remain at three geographical miles from the ELWM, before it can be accepted.
At issue in United States v. Alaska was the seaward extension of the Alaska’s boundary by 2,700 feet, shifting title to about 730 acres of submerged lands with potentially valuable gold content from the federal government to the State. The U.S. Supreme Court concluded that Section 10 of the Rivers and Harbors Act of 1899 granted administrative discretion to the Corps of Engineers to consider the protection of the United States’ interest in its submerged lands as part of the Corps’ "public interest" review in making the permit decision. The Court found that consideration of the impact on the rights of the federal government lay properly within such public interest review. The Court also reasoned that the Corps’ action did not conflict with the Submerged Lands Act, because the Corps was not attempting to alter the State’s boundaries, but rather was determining whether the project in navigable waters would increase the State’s control over federal submerged lands to the detriment of the legitimate interests of the United States.
In United States v. Alaska, the Supreme Court was faced with a large, permanent solid fill structure affecting 730 acres of potentially gold-bearing substrate, rather than a temporary alteration of the shoreline on a dynamic, rapidly changing barrier island. We are of the opinion that coastal projects such as beach replenishments, which generally result in only in minor, temporary changes to the shoreline should be distinguished from substantial permanent alterations of the coastline. Any increases in the State’s control over federal submerged lands from such projects are short-term and inconsequential, having no detrimental effect on the legitimate interests of the United States.
Thank you for your inquiry. Please advise if we may be of further assistance.
signed by:
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General