When state coastal reserve boundaries (Masonboro Island, Rachel Carson, etc.) include private property that the state hasn't yet purchased, can the state apply its coastal reserve use restrictions to the private parcels, and can it block private landowners from building piers into the adjoining state-owned submerged waters?

Plain-English summary

The NC Coastal Reserve System encompasses several large estuarine areas: Zeke's Island, Rachel Carson Reserve, Currituck Banks, Masonboro Island, Permuda Island, Buxton Woods, Bald Head Woods, and Kitty Hawk Woods. The state has been acquiring these lands gradually since 1980 (Zeke's Island was the first). Acquisition takes years; in some cases (Masonboro Island), it has not yet completed. The state drew boundaries around proposed acquisition areas, and within those boundaries are pockets of privately owned land that the state has not yet purchased.

Coastal Management Director Roger Schecter asked the AG two questions:

1. Do the use restrictions in the Coastal Reserve statutes (research, education, "other public uses") apply to private in-holdings within reserve boundaries?

2. If the waters of a coastal reserve abut privately owned shoreline, can the state prohibit a private owner from building a pier onto the state-owned submerged lands within the reserve?

Senior Deputy AG Daniel C. Oakley and Assistant AG Robin W. Smith answered no to both.

On private in-holdings. The Coastal Reserve statute (N.C.G.S. § 113A-129.2) provides a framework for state acquisition and management of estuarine lands. It does not purport to regulate private property. Subsection (e), which limits reserve lands to research, education, and "other public uses" with "improvements and alterations" only consistent with those uses, applies to lands the state has acquired. The phrase "[a]ll lands and waters within the system" is naturally read to mean state-owned lands within the system, not private in-holdings that happen to lie within boundary lines drawn for future acquisition.

Reasons the AG gives:

• The statute speaks of "acquisition" and "acquisitions or dispositions of property" under Chapter 146. It is an acquisition framework, not a regulatory framework.
• The statute lists only public uses as appropriate, suggesting the legislature contemplated public lands.
• The statute contains no regulatory mechanism (e.g., permit requirement) by which restrictions on private property could be enforced.
• N.C.G.S. § 113A-128 expressly prohibits Article 7 of Chapter 113A from being read to authorize any rule or order that constitutes a taking of property without compensation.
• DCM has consistently interpreted the rules to apply only to state-owned property. Agency interpretation gets great weight per MacPherson v. City of Asheville.

So privately owned lands within coastal reserve boundary lines are not subject to coastal-reserve use restrictions. They remain subject to CAMA (the Coastal Area Management Act) where applicable, but CAMA permits are required only in Areas of Environmental Concern (AECs), and the coastal reserve sites have not been separately designated as AECs.

On private piers. The coastal-reserve statutes do not authorize the state to prohibit a private property owner from building a pier from privately owned shoreline onto state-owned submerged lands within a coastal reserve. But the Division of Coastal Management may deny a CAMA permit for the pier under CAMA standards, including public-trust concerns under N.C.G.S. § 113A-120(a)(5).

The riparian-rights analysis is detailed. NC recognizes riparian rights as property rights protected against uncompensated takings. Shepard's Point Land Co. v. Atlantic Hotel (1903) lists riparian rights as:

• The right to remain a riparian proprietor.
• The right of access to and from the water.
• The right to build a pier or wharf to navigable water, subject to reasonable state regulations.
• The right to accretions or alluvium.

The right to build a pier is "qualified" (per Bond v. Wool, 1890) and "subject to reasonable regulations" for the protection of public rights. But it is still a property right that the state cannot extinguish without compensation.

Weeks v. N.C. Dept. of Natural Resources (1990) is the leading NC case on the takings limit. There, the CAMA denied a permit for a 900-foot pier, and the Court of Appeals held that the denial did not amount to a taking because (1) the CRC had not foreclosed permitting a pier of some length, and (2) the near-shore submerged lands were subject to many recreational uses. The Court emphasized "[t]he Legislature's authority to protect public trust rights always is limited by plaintiff's right to retain some use or value of his property."

Practical implication. The state can regulate pier construction through CAMA permits based on environmental and public-trust grounds, but cannot prohibit all pier construction simply because the adjoining waters are designated as part of a coastal reserve. A blanket "no piers in coastal reserves" rule would likely be a taking of riparian rights from affected private landowners.

The AG's structural recommendation. The opinion suggests that the underlying problem is the gap between coastal-reserve boundary designations and actual state acquisition. DEHNR drew boundary lines around lands proposed for acquisition, including some private in-holdings. The state would resolve the problem by either:

1. Completing acquisition of all property within the boundaries, or
2. Revising the boundaries to include only state-owned lands.

Until then, the AG opinion provides the operational rules: coastal-reserve restrictions apply only to state-acquired lands; private in-holdings keep CAMA-level protection only; riparian rights are protected; and CAMA permit decisions are the operative regulatory tool for private development.

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. The Coastal Reserve System has continued to evolve, including completion of some acquisitions and boundary adjustments. CAMA has been amended multiple times. Public trust and riparian-rights doctrine in NC has continued to develop in subsequent cases.

Background and statutory framework

The federal Coastal Zone Management Act (1972) created the National Estuarine Research Reserve System, with federal grant funding to states for acquiring estuarine lands. NC began participating in 1980 with Zeke's Island. By the late 1980s, NC had also acquired Permuda Island and started Buxton Woods with state-only funds. In 1989, the General Assembly created the NC Coastal Reserve System to bring all the sites (federal-grant-funded and state-funded) under a unified state framework.

The acquisition-then-regulate structure is intentional. The state acquires lands voluntarily through purchase or donation (with Chapter 146 governing the acquisition mechanism). Once acquired, the lands are managed under the coastal-reserve statutes and rules. Private in-holdings within boundary lines are not acquired by the boundary designation alone; they remain private property until separately purchased.

The takings concern is fundamental constitutional law. Both the U.S. and NC Constitutions protect property from being taken for public use without just compensation. Regulatory takings doctrine (developed since Pennsylvania Coal Co. v. Mahon, 1922, and Lucas v. South Carolina Coastal Council, 1992) protects landowners from regulation so restrictive that it deprives them of all economic use.

NC's coastal-reserve framework, by limiting restrictions to state-acquired property, avoids the takings problem entirely. The state has to pay (or the donor has to give) before the restrictions apply. This is the constitutionally safe path.

The riparian-rights analysis is also important. NC's recognition of riparian rights as property rights goes back to Shepard's Point Land Co. (1903) and earlier. The right to build a pier is the most economically significant riparian right because it provides water access for a coastal property. State regulation can shape that right (location, length, design) but cannot eliminate it without compensation.

Common questions

Can the state condemn private in-holdings to complete the coastal reserve?

Yes, with payment of just compensation. State condemnation power under Chapter 40A and the AG's statutory acquisition authority under Chapter 146 allows the state to acquire any private property for public use, including coastal-reserve consolidation, with fair-market-value compensation.

What if a private landowner wants to do significant development on a private in-holding?

The development would be subject to whatever regulatory framework would otherwise apply: CAMA permits where the property is in an AEC, local zoning, state environmental permits for specific activities (water quality, air quality, waste disposal). The coastal-reserve designation does not add additional regulatory restrictions on the private parcel.

Could the state increase regulatory protection of private in-holdings without compensation?

If the new regulation does not destroy all reasonable economic use (per Lucas and NC takings precedent), yes. State environmental and land-use regulations routinely restrict private property without compensation, as long as they leave reasonable use. A specific coastal-reserve regulation applied to private property would face the takings analysis on its facts.

What about pier construction on private shoreline outside a coastal reserve?

Standard CAMA permit requirements apply. The riparian-rights analysis is the same: the state can regulate but not extinguish the right to a reasonable pier. The Weeks framework controls.

Source

• Landing page: https://ncdoj.gov/opinions/application-of-the-coastal-reserve-statutes/

Citations

• N.C.G.S. § 113A-129.1 et seq.
• N.C.G.S. § 113A-129.2
• N.C.G.S. § 113A-100 et seq.
• N.C.G.S. § 113A-113
• N.C.G.S. § 113A-128
• N.C.G.S. § 113A-120(a)(5)
• T15A NCAC 7O
• 16 U.S.C. § 1451 et seq.
• Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980)
• MacPherson v. City of Asheville, 283 N.C. 299, 196 S.E.2d 200 (1973)
• Mason v. Huber, 78 N.C. App. 16, 337 S.E.2d 99 (1985)
• Shepard's Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39 (1903)
• Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890)
• Weeks v. N.C. Dept. of Natural Resources, 97 N.C. App. 215, 388 S.E.2d 228, rev. denied, 326 N.C. 601, 393 S.E.2d 890 (1990)

Original opinion text

October 12, 1995

Roger N. Schecter, Director
Division of Coastal Management
P.O. Box 27687
Raleigh, N.C. 27602

Re: Advisory Opinion; Request for Advice on Application of the Coastal Reserve Statutes, N.C.G.S. § 113A-129.1 et seq., and Rules Adopted Pursuant to the Statutes.

Dear Mr. Schecter:

This letter is offered in response to your request of August 24, 1995 for advice on application of certain development and use restrictions set out in the Coastal Reserve statutes and rules to private property within the designated Reserve boundaries. In order to address your questions, it is first necessary to review the history of the North Carolina Coastal Reserve Program and adoption of the statutes and rules governing the program.

Section 315 of the Coastal Zone Management Act of 1972, 16 U.S.C. § 1451 et seq., (CZMA) established a National Estuarine Sanctuary Program that provided for designation of certain estuarine areas as estuarine sanctuaries to be preserved and used for research purposes. The statute also created a federal grant program under which the Secretary of Commerce could make grants to the coastal states "for purposes of acquiring such lands and waters and any property interests therein, as are necessary to ensure the appropriate long-term management of an area as a national estuarine reserve". The Coastal Zone Management Reauthorization Act of 1985 amended section 315 of the CZMA by renaming the federal system the "National Estuarine Research Reserve System".

North Carolina began acquiring estuarine lands for inclusion in what is now the National Estuarine Research Reserve System with the acquisition of Zeke's Island in 1980. That acquisition was followed by acquisitions for the Rachel Carson Reserve in 1983, the Currituck Banks site in 1984 and the beginning of acquisitions in the Masonboro Island Reserve in 1985. Those four original sites were acquired with the assistance of federal grant funds for inclusion in the National Estuarine Research Reserve System and included both estuarine waters and lands to acquired with federal grant assistance. At the time, the North Carolina Coastal Reserve System did not exist; neither the coastal reserve statutes, N.C.G.S. § 113A-129.1 et seq., nor the State's administrative rules governing use of reserve lands, T15A NCAC 70, had been adopted.

Under federal rules adopted by the National Oceanic and Atmospheric Administration (NOAA) to implement Section 315, the state's grant application was required to include "[a] description of the proposed site and its major resources, including location, proposed boundaries, and adjacent land uses". 15 CFR § 921.11(e)(2). NOAA approves Estuarine Research Reserve designations based on the proposed acquisition boundaries. See 15 CFR §§ 921.12 and 921.13. Actual acquisition of property included in the Rachel Carson Estuarine Research Reserve took place over a period of six years (1983-1989) and acquisitions in the Masonboro Island Estuarine Research Reserve have been underway since 1985 and are not yet complete.

In 1986, the Department of Natural Resources and Community Development (predecessor to the Department of Environment, Health and Natural Resources) as the grant recipient, adopted rules governing the administration and use of lands in the four North Carolina components of the National Estuarine Research Reserves. T15A NCAC 7O. Those rules prohibited certain activities on reserve lands.

The Department acquired Permuda Island in 1987 and began acquisitions in Buxton Woods in 1988 with state funds; those sites were not designated as National Estuarine Research Reserves. In 1989, the General Assembly created the North Carolina Coastal Reserve System for purposes of "acquiring, improving and maintaining undeveloped coastal land and water areas in a natural state", N.C.G.S. § 113A-129.2(a)(1989). The Permuda Island and Buxton Woods sites (already acquired or under acquisition) became part of that system, as did the four sites already designated under the National Estuarine Research Reserve System. Since creation of the North Carolina Coastal Reserve System, the State has acquired or begun acquisition of two additional sites to be included in the state system: Bald Head Woods (acquisition completed in 1995) and Kitty Hawk Woods.

With this as background, the two questions raised in your memorandum are addressed below:

Question 1: Do the restrictions on use of coastal reserve lands set out in the statutes and rules governing the coastal reserve program apply to privately-owned lands within the boundaries shown on the coastal reserve maps?

No. The Coastal Reserve statute creates a framework for state acquisition and management of estuarine lands and waters; it does not purport to regulate private property. The only language in the coastal reserve statutes expressly limiting the use of reserve lands appears in N.C.G.S. § 113A-129.2(e) which states as follows:

All lands and waters within the system shall be used primarily for research and education. Other public uses, such as hunting, fishing, navigation, and recreation, shall be allowed to the extent consistent with these primary uses. Improvements and alterations to the land shall be limited to those consistent with these uses.

Words and phrases of a statute must be interpreted in context; individual expressions must be interpreted as part of a composite whole, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980).

The statute creating the state coastal reserve system identifies its purpose as being "acquiring, improving and maintaining undeveloped coastal land and water areas in a natural state". N.C.G.S. 113A-129.2(a). The statute further provides that "[a]ll acquisitions or dispositions of property for lands within this system shall be in accordance with the provisions of Chapter 146 of the General Statutes". N.C.G.S. § 113A-129.2(d). This language indicates that the General Assembly's intent in creating the Coastal Reserve System was to create a framework for state acquisition of undeveloped natural areas at the coast.

The statute expressly speaks of acquisition of these land and water areas. The uses of reserve lands identified in the statute (research, education and "other public uses") anticipate public occupation and use of lands within the system. The fact that the only uses identified as appropriate on coastal reserve lands are public uses reinforces the fact that the General Assembly intended the lands within the Coastal Reserve System to be public lands.

Conversely, nothing in the statute indicates an intent to create a new regulatory program for private property. The statute does not include any regulatory mechanism, such as a permit requirement, through which such restrictions could be enforced on privately-owned property. Many, although not necessarily all, privately owned lands within the designated coastal reserve boundaries will be within the jurisdiction of the Coastal Area Management Act (N.C.G.S. § 113A-100 et seq.; CAMA) and development on those lands requires a CAMA permit and compliance with all CAMA development standards. CAMA permits, however, are required only in Areas of Environmental Concern (AECs) designated by the Coastal Resources Commission pursuant to N.C.G.S. § 113A-113. The CRC has not designated the coastal reserve sites as separate AECs; only those parts of the coastal reserves that fall within the generic AEC designations (e.g., public trust waters and the estuarine shoreline AEC) are subject to CAMA permit requirements.

Several of the designated coastal reserves may include areas outside of CAMA permit jurisdiction (most often the upland area landward of the estuarine shoreline or ocean hazard AEC). To the extent there are private in-holdings within the proposed boundaries of the coastal reserves and outside of CAMA permit jurisdiction, the coastal reserve statute provides no means of enforcing any restrictions on development or use.

As noted above, the statute presumes that coastal reserve lands will be used only for public purposes; it identifies acceptable public uses and allows "[i]mprovements and alterations…consistent with these uses". N.C.G.S. § 113A-129.2(e). The only criteria established by statute for development on reserve lands are that: 1. it must be related to one of the identified public uses; and 2. it must be consistent with the overall intent to preserve these areas in a natural state. This provides further evidence that the legislature adopted the coastal reserve statutes to provide a framework for acquisition of public lands and not to create a new regulatory program for private property.

Finally, the application of the statutory language limiting use of reserve lands to research, education and "other public uses" to privately-owned lands would have the effect of confiscating private lands for public use without compensation. The confiscatory effect would result from the restriction of the use of those lands to public uses, denying the property owner any ability to make private use of the property. That result would be directly contrary to the plain statement in N.C.G.S. § 113A-128 that:

[n]othing in this Article authorizes any governmental agency to adopt a rule or issue any order that constitutes a taking of property in violation of the Constitution of this State or of the United States.

This injunction applies not only to decisions of the Coastal Resources Commission under CAMA, but also to actions of the Department of Environment, Health and Natural Resources in implementing the coastal reserve statutes which are also codified in Article 7 of Chapter 113A.

With regard to application of the Department's coastal reserve rules, the Department is authorized by statute to define the areas to be included in the coastal reserve system and set standards for use of those lands. The Department must do so in a manner consistent with the statutory authority. The statutes do not authorize the Department, by simply drawing a proposed acquisition boundary around privately-owned property, to prohibit all development on such property and appropriate it for public use.

In fact, the Department of Environment, Health and Natural Resources, Division of Coastal Management has never applied the coastal reserve statutes and rules to privately-owned property within proposed coastal reserve boundaries. In implementing the coastal reserve program, DCM has interpreted the statutory language concerning uses of reserve property to apply to lands actually acquired by the state pursuant to the statute (and to state-owned submerged lands) and not to privately-owned lands within the coastal reserve boundaries. On issues of statutory construction, the interpretation of the agency with responsibility for implementing the statute is entitled to great weight. MacPherson v. City of Asheville, 283 N.C. 299, 196 S.E.2d 200 (1973).

Question 2: If the water areas within the coastal reserve abut privately owned shoreline may the state prohibit the private property owner from building a pier or boat ramp for water access from their property onto state-owned submerged lands within the coastal reserve pursuant to the coastal reserve statutes?

No. The Coastal reserve statutes do not in themselves support a decision to deny permission to build a pier on privately-owned shorelines abutting waters within a designated coastal reserve. The Division of Coastal Management may, however, deny a CAMA permit for such a pier based on inconsistency with CAMA development standards unless denial of a permit would constitute a taking under N.C.G.S. §113A-128.

Submerged lands within the designated coastal reserves are owned by the state and held in trust for the use of the public. Thus, there is no question that the coastal reserve statutes and rules apply to the submerged lands within the coastal reserve boundaries. As discussed above, however, the coastal reserve statutes do not operate to regulate private property above mean high water. The question that you raise about pier construction necessarily involves development on both private property and state-owned submerged lands and is not clearly addressed in the coastal reserve statutes.

The statutes limit use of reserve lands to education, research and "[o]ther public uses, such as hunting, fishing, navigation and recreation" to the extent consistent with the primary uses. The statute goes on to state that "[i]mprovements and alterations to the lands shall be limited to those consistent with these uses". Since the statute recognizes fishing, navigation and recreation as uses allowed on reserve lands and allows improvements and alterations consistent with those uses, there appears to be no absolute statutory bar to construction of a pier on submerged lands within coastal reserve boundaries. The statute could be interpreted, however, to limit such structures to those associated with research and education activities or those available for public use.

The reserve use requirements set out in T15A NCAC 7O .0202 also do not specifically bar construction of piers, boat ramps or similar structures on reserve lands. The broadest restriction appearing in the rules prohibits "acts or uses which are detrimental to the maintenance of the property in its natural condition…including, but not limited to, disturbances of the soil, mining, commercial or industrial uses, timber harvesting, ditching and draining, deposition of waste materials". In the context of the statute, which allows improvement and alteration of reserve lands consistent with the public uses enumerated in the statute, the Department has the authority to permit structures on reserve lands. If private piers are entirely prohibited under the coastal reserve statutes and rules, it will be solely because of their private rather than public nature.

This result would contradict the conclusion reached above that the coastal reserve statutes do not regulate privately owned upland property. A total prohibition against pier construction on private property abutting waters within a designated coastal reserve would, in fact, be a severe restriction on use of that privately-owned shoreline and limit the riparian owner's common law right to construct a pier for water access.

North Carolina recognizes riparian rights to be property rights that cannot be taken for public purposes without compensating the owner. Mason v. Huber, 78 N.C. App. 16, 337 S.E.2d 99 (1985). In addition to the right to make reasonable use of the adjoining waters, the following rights arise from the ownership of land bounded by navigable waters:

• the right to be and remain a riparian proprietor;
• the right of access to and from the water, including its navigable parts;
• the right to build a pier or wharf out to the navigable water, subject to reasonable regulations by the State, and
• the right to accretions or alluvium.

Shepard's Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 2d 39 (1903). [Emphasis added.]

Nothing in the statute indicates that the Legislature considered the impact of a coastal reserve designation on riparian rights, or even recognized the potential for an impact. As discussed above, the focus of the statute is on creating an acquisition program for coastal lands and defining the uses of the properties acquired. In reviewing the history of the coastal reserve system, we have found no evidence that the State has acquired this particular property interest from the owners of private in-holdings within coastal reserve boundaries. Absent acquisition of this property interest, nothing in the statute indicates an intent to restrict development on privately-owned shorelines adjoining lands and waters within a coastal reserve.

The legislature had no direct role in designating the coastal reserve components and delineating the boundaries; the Department of Environment, Health and Natural Resources designated the components and established the boundaries by rule. Since actual designation of the coastal reserves occurred after adoption of the statutes, neither knowledge of the sites nor their boundaries can be imputed to the legislature. While the coastal reserve statutes clearly allow inclusion of estuarine waters (and the state-owned submerged lands underlying those waters) in the coastal reserves, the statutory scheme indicates that the legislature intended that those waters would be contiguous to state-owned lands within the reserve and not riparian property in private ownership. Instead, in several instances DEHNR has included both privately owned upland property and the estuarine waters abutting those privately owned shorelines within designated coastal reserve boundaries.

As noted above, DEHNR drew certain of the coastal reserve boundaries to include privately owned upland property (such as Masonboro Island) because those boundaries represented the area for proposed state acquisition. DEHNR then also included within the boundaries a buffer of estuarine waters around the lands proposed for acquisition. All of the estuarine waters designated as part of a coastal reserve immediately adjoin lands owned by the State or proposed for State acquisition and the waterward boundary of the coastal reserve is set off from any privately owned shoreline that is not proposed for acquisition (such as the Beaufort waterfront across from the Rachel Carson site and the mainland shoreline in the vicinity of the Masonboro Island site). Thus, it appears that DEHNR, in setting coastal reserve boundaries, intended to include only those estuarine waters immediately adjacent to lands to be acquired by the State.

This approach is fully consistent with the intent of the statute. The questions that you raise arise from the fact that the State has not yet acquired all of the lands proposed for State acquisition. Actual State acquisition of these areas or revision of the boundaries to include only those land areas actually acquired by the State would resolve the issue and eliminate the potential conflict between the intent of the coastal reserve statutes and the Department's implementation of the coastal reserve program. Nothing in the statutes, however, authorizes DEHNR to prohibit pier construction on privately-owned shoreline based solely on a designation of the waters adjoining the shoreline as part of a coastal reserve.

The Division of Coastal Management may regulate pier construction on these shorelines under CAMA development standards. The riparian right to build a pier for access to the water clearly is a qualified right, subject to state regulation and subordinate to the rights of the public under the public trust doctrine. As the Supreme Court stated in Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890):

a littoral proprietor and a riparian owner…have a qualified property in the water frontage belonging, by nature to their land, the chief advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of their water fronts to navigable water, and the right to construct wharves, piers or landings, subject to such general rules and regulations as the Legislature, in the exercise of its powers, may prescribe for the protection of public rights in rivers or navigable waters. [Emphasis added.]

In Weeks v. N.C. Dept. of Natural Resources and Community Development, 97 N.C. App. 215, 388 S.E.2d 228, rev. denied, 326 N.C. 601, 393 S.E.2d 890 (1990), the Court of Appeals applied this principle to hold that denial of a CAMA permit for a proposed pier of 900 feet in length did not constitute a taking of the property owner's riparian rights. In doing so, the Court noted the balance required between public and private rights:

[P]laintiff's right in the appurtenant submerged land is subordinate to public trust protections, such as those evinced in N.C.G.S. § 113A-120(a)(5) (permits may be denied upon a finding that the "development will jeopardize the public rights and interest" in the waterways and lands "under or flowed by tidal waters or navigable waters, to which the public may have rights of access or public trust rights"). The Legislature's authority to protect public trust rights always is limited by plaintiff's right to retain some use or value of his property.

In support of the Weeks permit denial, the CRC had made extensive findings concerning the adverse impact of the proposed pier on other public trust uses due to its unusual length. In finding that the State was entitled to summary judgment on the takings claim in Weeks, the Court noted that: (1) the CRC had not foreclosed the possibility of permitting a pier of some length on the plaintiff's property; and (2) the uncontested facts indicated that the near-shore submerged lands were also subject to many recreational uses.

All of these cases support the State's right to limit (and possibly prohibit) pier construction based on adverse environmental or public trust impacts. Such an action would be consistent with the common law limitation on the riparian right to build a pier or wharf, that it is subject to regulation "for protection of the public rights in rivers or navigable waters". Complete denial of the right to construct a pier for water access may be subject to challenge only if it is unsupported by a determination that construction of the pier would interfere with public trust rights or cause environmental harm.

We hope this is of some assistance.

Daniel C. Oakley
Senior Deputy Attorney General

Robin W. Smith
Assistant Attorney General