Can the NC legislature lease the bottom of state-owned navigable waters to private marinas for a nominal fee without violating the state constitution?

Plain-English summary

The state of NC owns the bottoms of its navigable waters. When somebody wants to build a private dock or marina sticking out over those bottoms, they need an easement (or some other permission) from the state. In 1995, the General Assembly was considering S.B. 52 to formalize a marina easement program, and a committee substitute added a one-time fee of $1,000 per acre. Norma Ware on the General Assembly staff asked the AG whether the proposed fee structure raised constitutional problems.

Chief Counsel John R. McArthur and Senior Deputy AG Daniel C. Oakley walked through three issues.

The fee versus the exclusive emoluments clause. The exclusive emoluments clause (Article I, § 32) bars exclusive privileges to favored individuals without a public-service or public-interest rationale. A nominal fee for valuable easements could look like a gift of public resources. But the Proposed Committee Substitute contained specific legislative findings about tourism, recreation, coastal economy, and public access. Under the Town of Emerald Isle v. North Carolina, 320 N.C. 640 (1987) test, an exemption survives the emoluments clause if it promotes the general welfare and the legislature has a reasonable basis. The findings here gave the courts what they need. The opinion stopped short of guaranteeing constitutionality but said the fee structure, with the findings, was on stronger ground than the original S.B. 52 (which had no findings and no fee at all). The AG also noted the $1,000 figure was not intended to approximate fair market value (water column leases under G.S. § 113-202.1 cost $500/acre annually); the size of the fee was a legislative call as long as it was not so small as to be a pure giveaway.

Extending easements to the main channel. Section 3 of the Proposed Committee Substitute would have required easements to extend out to the main water course area. That conflicted with the existing Coastal Area Management Act regulations and the common-law public trust doctrine. It also ran into Weeks v. N.C. Dep't of Natural Resources and Community Development, 97 N.C. App. 215 (1990), which had constrained how far private structures could extend.

Fifty-plus-fifty year term. A 50-year easement renewable for another 50 was a significant impairment of public trust rights. The State holds those rights as trustee for the public; State ex rel. Rohrer v. Credle, 322 N.C. 522 (1988) is the foundational case. The State may not convey fee simple title to public trust lands, waters, or natural resources. Whether the 50-plus-50 structure crossed the line into impermissible impairment would have been an issue of first impression.

The opinion's bottom line: the Committee Substitute was stronger than S.B. 52 because it had findings and a fee, but two structural features (channel-extension easements; 50-plus-50 term) could face serious legal challenges if enacted as written.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC marina easement law and CAMA regulations have evolved substantially since 1995, including through reorganization under DENR and DEQ and additional public trust doctrine litigation.

Background and statutory framework

The public trust doctrine in NC. NC follows the common law public trust doctrine: navigable waters and the bottoms beneath them are held by the State in trust for the public, who have the right to fish, navigate, and recreate. Private uses (docks, marinas, dredging) require legal authority and cannot extinguish public trust rights.

Coastal Area Management Act (CAMA). CAMA regulates development in coastal counties through local land use plans and state permits. CRC (Coastal Resources Commission) rules already governed how far private structures could extend over public trust waters. The Proposed Committee Substitute's main-channel rule conflicted with those CAMA limits.

Water column leases (G.S. § 113-202.1). The State already had a separate program for water column leases (typically for shellfish aquaculture) at $500 per acre annually. The marina easement fee at $1,000 one-time was much less revenue per acre per year, which made the constitutional question sharper.

Town of Emerald Isle test. This is the modern test for the exclusive emoluments clause: (1) general welfare, not individual benefit, and (2) reasonable legislative basis. Marina infrastructure tied to tourism and coastal access fits the framework well in principle.

Why findings matter. Legislative findings give the courts the rationale they need to apply the deferential presumption of constitutionality (Glenn v. Board of Education, 210 N.C. 525 (1936); State v. Warren, 252 N.C. 690 (1960)). Without findings, the General Assembly is more exposed to a challenge that the program is a private giveaway.

Weeks v. NC DENRCD. Weeks (1990) was the leading NC appellate decision on private structures over public trust waters. It constrained the scope of privately-permitted structures, which the channel-extension provision would have overridden.

Rohrer v. Credle. Rohrer (1988) is the cornerstone NC Supreme Court case on the State's role as public trust trustee. It blocks fee simple alienation of public trust resources and requires careful scrutiny of long-term encumbrances.

Common questions

Q: Did S.B. 52 with the Committee Substitute become law?

A: The opinion analyzed the bill as drafted; whether it was enacted in that form is a separate legislative-history question. NC marina easement law has been further refined since 1995.

Q: Can a private marina owner today get a 100-year easement on state submerged lands?

A: The opinion flagged 50-plus-50 as potentially impermissible. Current programs use shorter terms and renewal frameworks more attuned to public trust constraints.

Q: What is the difference between an easement and a lease for state submerged lands?

A: An easement is a non-possessory right to use the land for a specific purpose (e.g., a dock). A lease conveys broader possessory rights for a defined term. Both must be drafted to preserve public trust rights.

Q: Could a court challenge a marina easement after it was issued?

A: A taxpayer or public-interest plaintiff could challenge as-applied issuances under the public trust doctrine or the emoluments clause. The opinion's caveats reflect those risks.

Q: Why is the State's fee structure different for shellfish leases vs. marina easements?

A: Shellfish leases generate predictable annual rent on a renewable basis; marina easements are typically long-term and tied to capital investment. The two markets justify different pricing structures, though both must serve the public trust.

Q: What does "main water course area" mean?

A: In navigation terms, the channel where boat traffic flows. Extending easements that far out implicates navigation rights, which are core public trust uses.

Citations from the opinion

• N.C. Const. Art. I, § 32
• N.C.G.S. § 113-202.1
• Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781 (1936)
• State v. Warren, 252 N.C. 690, 114 S.E. 660 (1960)
• Taylor v. Carolina Racing Assoc., 241 N.C. 80, 84 S.E.2d 390 (1954)
• Simonton v. Lanier, 71 N.C. 498 (1874)
• Lowe v. Tarble, 312 N.C. 467, 323 S.E.2d 19 (1984)
• Leete v. Warren County, 114 N.C. App. 755, 443 S.E.2d 98 (1994)
• Brumely v. Baxter, 225 N.C. 691, 36 S.E.2d 281 (1945)
• Bridges v. Charlotte, 221 N.C. 472, 20 S.E.2d 825 (1942)
• Martin v. Raleigh, 208 N.C. 369, 180 S.E. 786 (1935)
• State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967)
• Town of Emerald Isle v. North Carolina, 320 N.C. 640, 360 S.E.2d 756 (1987)
• Weeks v. N.C. Dep't of Natural Resources and Community Development, 97 N.C. App. 215, 388 S.E.2d 228 (1990)
• State ex rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E.2d 825 (1988)

Source

• Landing page: https://ncdoj.gov/opinions/marina-easements-submerged-lands/

Original opinion text

Best-effort transcription from the NCDOJ landing page; the opening paragraphs (request letter and initial framing) were not in the scraped capture, so the text below begins mid-discussion. The linked landing page is authoritative.

• The promotion of recreational and commercial boating and fishing activities in and over state-owned submerged lands and public access to such is in the public interest.
• Public and private structures in and over state-owned submerged lands generally serve public trust purposes consistent with the public interest.
• Such structures promote tourism, which in turn helps support the economy of eastern North Carolina.
• The State itself cannot provide adequate access to use and enjoyment of public trust waters and much of such access must be provided by privately-owned structures.
• A "high charge for easements for continued utilization or future construction of such structures would be counter-productive for the intent of the State to provide an opportunity for the construction of such structures, . . . and would place North Carolina at a competitive disadvantage in attracting tourism to the State . . . ."

Our courts have made clear that enactments by the General Assembly are presumed constitutional, and judgments about the public interest are matters for the elected representatives of the people unless a law clearly violates a constitutional prohibition or limitation.

It is well settled in this State that the courts have the power, and it is their duty in proper cases, to declare an act of the General Assembly unconstitutional, but it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people. Glenn v. Board of Education, 210 N.C. 525, 529-30, 187 S.E. 781, 784 (1936).

"The presumption is that an act passed by the Legislature is constitutional, and it must be so held by the courts unless it appears to be in conflict with some constitutional provision. [Citations omitted.] The legislative department is the judge, within reasonable limits, of what the public welfare requires, and the wisdom of its enactments is not the concern of the courts. As to whether an act is good or bad law, wise or unwise, is a question for the Legislature and not for the courts; it is a political question. The mere expediency of legislation is a matter for the Legislature, when it is acting entirely within constitutional limitations, but whether it is so acting is a matter for the courts. [Citations omitted.]" State v. Warren, 252 N.C. 690, 696, 114 S.E. 660, 664 (1960).

The exclusive emoluments clause of the North Carolina Constitution provides:

No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.

N.C. Const. Art. 1 Sec. 32. This clause prohibits governmental units from exempting some individuals from prohibitions or limitations that otherwise generally apply. See, e.g., Taylor v. Carolina Racing Assoc., 241 N.C. 80, 84 S.E.2d 390 (1954) (Striking grants of exclusive franchises to operate racing tracks, in contravention of the general laws prohibiting gambling.) Simonton v. Lanier, 71 N.C. 498 (1874) (Legislation authorizing bank to charge higher interest rates than otherwise allowed by law confers exclusive emolument).

However, "not every classification which favors a particular group of persons is an `exclusive emolument or privilege' within the meaning of the constitutional prohibition." Lowe v. Tarble, 312 N.C. 467, 323 S.E.2d 19, 21 (1984). When the beneficiary provides a public service in exchange for the benefit, there is no prohibition. See, e.g., Leete v. Warren County, 114 N.C. App. 755, 443 S.E.2d 98 (1994) (service as county employee); Brumely v. Baxter, 225 N.C. 691, 36 S.E.2d 281 (1945) (military service); Bridges v. Charlotte, 221 N.C. 472, 20 S.E.2d 825 (1942) (teaching in the public schools); Martin v. Raleigh, 208 N.C. 369, 180 S.E. 786 (1935) (caring for the indigent sick). And where the exemption or benefit is justified by promotion of the public interest, it is not prohibited. See, e.g., State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967) (Exemptions from jury duty for physicians, firemen, nurses, ministers and mothers of children under twelve, etc. is justified for a public purpose). The Supreme Court recently stated the test succinctly as follows:

In sum, a statute which confers an exemption that benefits a particular group of persons is not an exclusive emolument or privilege within the meaning of Article I, Section 32, if: (1) the exemption is intended to promote the general welfare rather than the benefit of the individual, and (2) there is a reasonable basis for the legislature to conclude the granting of the exemption serves the public interest.

Town of Emerald Isle v. North Carolina, 320 N.C. 640, 360 S.E.2d 756 (1987).

The one thousand dollar ($1000) per acre one-time fee set forth in the Proposed Committee Substitute does not approximate, and we understand is not intended to approximate fair market value for the easement rights. Nor is this fee comparable to the $500 per acre annual fee charged for water column leases from the State. See, N.C.G.S. § 113-202.1. However, the amount of the fee, in both instances, appears to be a legislative prerogative unless it is so small as to be judged a gift of public trust resources with no public benefit.

The question whether the Proposed Committee Substitute for S.B. 52 with the addition of the fee violates the constitutional prohibition against exclusive emoluments, therefore, turns in large measure on whether there is a reasonable basis to support the legislative findings of public benefits that will derive from the easement program, as well as the presumption that attaches to those findings. This is a factual question the resolution of which we cannot predict with certainty. Much would depend on the facts to support the findings in the particular easement or permit that may be challenged. We can advise, however, that the Proposed Committee Substitute, if enacted, would be presumed constitutional by the courts and is on stronger constitutional grounds than S.B. 52 as currently drafted, as the latter contains neither legislative findings nor any fee.

Two other aspects of the Proposed Committee Substitute would likely be raised in any court challenge. First, the Proposed Committee Substitute appears to require the issuance of easements out to the main water course area. See Sec. 3. This provision is inconsistent with current Coastal Area Management Act regulations and the common law public trust doctrine. Further, it is contrary to the holding of Weeks v. N.C. Dep't of Natural Resources and Community Development, 97 N.C. App. 215, 388 S.E.2d 228 (1990).

Second, an easement term of fifty years renewable for an additional fifty years is a significant impairment of the common law public trust rights the public has in the navigable waters of the State. The State is the guardian and trustee of those rights for the public, and it may not totally divest those rights for private use. State, ex. rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E.2d 825 (1988). In short, the State may not convey fee simple title to public trust lands, waters or natural resources. Whether a fifty year term renewable for an additional fifty years, as provided in the Proposed Committee Substitute, is an impermissible impairment of public trust rights would be a question of first impression for the North Carolina courts.

John R. McArthur, Chief Counsel

Daniel C. Oakley, Senior Deputy Attorney General