If a NC town buys a private lake that is subject to a conservation easement, and the conservation easement gets amended to allow a public park with walkways and small buildings, does that create a public trust doctrine problem under NC law?

Plain-English summary

In 1998, the Town of Holly Springs proposed buying Bass Lake from the J. Harry Cornell Estate. Cornell had granted a conservation easement to The Nature Conservancy. After Hurricane Fran breached the dam in 1996, the Town wanted to rebuild it and use the recreated lake as a scenic public park with walkways and one or two outbuildings. According to the request, the estate agreed in principle and the Conservancy agreed to amend the easement to permit that development and convey the amended easement to the Town, provided it did not merge with the underlying fee.

The Town's lawyer asked whether amending the easement for this project would give rise to a public trust doctrine challenge under N.C.G.S. §§ 113-131 and 1-45.1. The AG concluded that the actions as described "would not operate to adversely affect any public trust rights in the waters of Bass Lake." The opinion quoted § 1-45.1's recognition of rights to navigate, swim, hunt, fish, and enjoy recreational activities in state watercourses. It identified the Department of Environment and Natural Resources and the Wildlife Resources Commission as stewards authorized to protect those rights under § 113-131.

The office said it had not had extensive discussions with either agency. It thought their interests appeared advanced by the proposal and said a § 113-131 challenge would not be requested of the AG. The conclusion addressed this proposed project on the facts supplied to the office.

Currency note

This opinion was issued in 1998. 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.

Common questions

Q: What development did Holly Springs propose at Bass Lake?
A: The Town proposed reconstructing the breached dam, adding walkways and one or two outbuildings, and using the recreated lake as a scenic public park. The opinion addressed those proposed actions as described by the Town's lawyer.

Q: What was The Nature Conservancy's role in the plan?
A: It held the conservation easement. According to the request recited in the opinion, it agreed to amend the easement to permit the proposed development and convey the amended easement to the Town, provided there was no merger with the underlying fee.

Q: Which public trust rights did the opinion discuss?
A: Quoting § 1-45.1, the opinion listed navigation, swimming, hunting, fishing, and recreational activities in the state's watercourses. The office concluded that the described Bass Lake proposal would not adversely affect any public trust rights in its waters.

Q: Did the AG say either resource agency had approved the project?
A: No. The office said it had not had extensive discussions with either agency. It expected their interests to be advanced by the proposal and said a challenge under § 113-131 would not be requested of the AG.

Background and statutory framework

The opinion cited N.C.G.S. § 1-45.1 for its recognition of public trust rights and N.C.G.S. § 113-131 for the resource agencies' stewardship role. It answered the Town's specific question about the proposed conservation-easement amendment, dam reconstruction, and public park use. It did not decide whether another party could bring a challenge or whether every similar project would satisfy other legal requirements.

Citations

• N.C. Gen. Stat. § 1-45.1 (public trust rights recognized in the opinion)
• N.C. Gen. Stat. § 113-131 (resource agencies' stewardship role)

Source

• Landing page: https://ncdoj.gov/opinions/bass-lake-town-of-holly-springs/

Original opinion text

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