Can NC let waterfront homeowners lease the water under their docks to grow oysters for personal use?

Plain-English summary

The Division of Marine Fisheries and the Marine Fisheries Commission wanted to know whether they could let coastal homeowners lease the water column under their private docks for the limited purpose of growing oysters for personal use, perhaps in submerged cages. Senior Deputy AG James Gulick and Special Deputies J. Allen Jernigan and Francis Crawley said no.

The core reason is the public trust doctrine. Under NC common law, the State's navigable waters belong to all citizens for boating, fishing, and other public-trust uses. That status does not change just because someone has built a pier on top of them. Three NC Supreme Court cases nail this down:

• Capune v. Robbins (1968) and RJR Technical Co. v. Pratt (1995): a riparian owner's common-law right to build a pier does not give the owner any greater rights in the water or bottom under the pier than any other citizen has.
• Bell v. Smith (1916): owning riparian land and a pier does not give the owner an exclusive right to fish the waters in front of the property.
• Gwathmey v. Hogarth (1995): when the legislature has not clearly and specifically said it is alienating public trust rights, courts presume it did not.

That presumption is the controlling rule of statutory construction here. The shellfish-leasing statutes (G.S. §§ 113-201, 113-202, 113-202.1) authorize the Marine Fisheries Commission to lease "non-productive submerged bottom" and the water column above it for shellfish cultivation, but the legislature wrote those statutes for commercial shellfish cultivation. G.S. § 113-202(p) reinforces the commercial-only purpose by declaring it against public policy for leased shellfish beds to be held privately if they fail to produce in commercial quantities. The statutes contain no parallel provision for personal-use leases.

Applying the Gwathmey presumption against alienation of public trust rights, plus the latin canon expressio unius est exclusio alterius (the statute's specific mention of commercial-purpose leases implies the exclusion of personal-use leases), the AG concluded the agencies have no statutory authority to grant personal-use shellfish leases under private docks. To grant such leases, the General Assembly would need to amend the statutes with clear and specific words authorizing it.

The AG did, however, bless the second part of the request. The Division can run a temporary pilot study to evaluate the management and enforcement issues such a program would raise (worker time, supervision burden, polluted-area issues, accountability for oyster sources, conflicts with neighbors). G.S. § 113-261 gives the Division broad research authority, and a research study is allowed even when the activity being studied would not otherwise be permissible as an ongoing regulatory program.

Note on personal use that does not require a lease: under G.S. § 113-169.2, an individual without a state shellfish license or standard commercial fishing license may still take up to one bushel of oysters per day for personal use from public or private shellfish grounds. That bushel-per-day rule is the existing legal channel for personal shellfish gathering; it does not require any exclusive lease.

Currency note

This opinion was issued in 2003. 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 shellfish-leasing provisions in Chapter 113 have been amended multiple times since 2003; anyone considering a shellfish lease today should consult current statutes and the Marine Fisheries Commission's current rules.

Background and statutory framework

The public trust doctrine in NC. The public trust doctrine traces to Roman and English common law and was carried into NC law by colonial-era charters and post-Revolution legislation. The State holds the beds and waters of navigable waters in trust for the public, principally for navigation, commerce, and fishing. Private property rights end at the high-water mark or, in some cases, the low-water mark, and end again at any cut where navigable waters begin.

Riparian rights, narrowly defined. A riparian owner does enjoy certain common-law privileges: access to the water from the bank, a wharfing-out right to build a pier extending to navigable depth, and (in some contexts) reasonable use of the water. None of those privileges convert the public waters below a private dock into exclusive private property. The NC Supreme Court has repeatedly rejected attempts to do so. Capune dealt with a dispute over recreational use of waters near a private pier. Bell v. Smith dealt with whether the riparian owner could exclude commercial fishermen.

Statutory construction against alienation of public trust rights. Under Gwathmey v. Hogarth, NC courts presume the legislature does not intend to alienate public trust rights. A statute that grants exclusive private rights in trust waters must say so in clear, specific terms. Generic words won't do. McKinney v. Deneen added that exceptions to the public trust doctrine should be strictly construed.

The shellfish-lease statutes. Chapter 113 of the General Statutes contains a detailed leasing program for shellfish cultivation. The legislature created it as an exception to the public trust doctrine for the limited purpose of encouraging commercial shellfish production. Lease holders get an exclusive right to cultivate shellfish on a specific tract of non-productive bottom and (under § 113-202.1) the superjacent water column. The statutes require productive use; non-productive leases revert to public status under § 113-202(p).

The research-authority exception. G.S. § 113-261 authorizes the Division to conduct research and pilot programs, including activities that would not otherwise be legal under the regulatory framework. The AG read § 113-261 broadly enough to cover a personal-use shellfish pilot study to test the practical implications.

Common questions

Q: My waterfront neighbor put oyster cages under his dock without a lease. Is that legal?

A: It depends on the size, purpose, and location. Personal-use harvest of up to one bushel per day from public or private shellfish grounds is permitted under G.S. § 113-169.2 without a license or lease. Cultivating shellfish in cages for personal use is a different question, and based on this opinion the Marine Fisheries agencies had no authority to grant an exclusive lease to support such activity. Without a lease, no exclusive right exists, and other members of the public have public-trust rights in the same waters. Specific facts vary; a coastal-zone attorney or the Division of Marine Fisheries is the right place to check.

Q: Could a coastal town pass a local ordinance creating personal-use shellfish leases under docks?

A: That gets into preemption. Shellfish management is heavily regulated by the State, and the State's lease program is set by statute. A local ordinance attempting to create new property rights in State trust waters would likely fail under either preemption analysis or the public trust doctrine itself.

Q: What about the pilot study? Did it actually happen?

A: The AG opinion authorized the Division to conduct one. Whether the Division acted on that authority is outside the scope of the opinion and would require checking the Division's records. The opinion specifically blessed studying the management, enforcement, and public-acceptance aspects of a potential private non-commercial oyster harvesting program.

Q: How does the public trust doctrine affect activities other than shellfish?

A: Broadly. The doctrine extends to navigation, fishing, hunting on water, swimming, and other recreational uses of navigable waters. A riparian owner cannot, for example, fence off the water in front of a private dock to exclude boaters or anglers. The doctrine has been applied to disputes about beach access, fishing rights, and aquaculture.

Citations

Statutes:
- N.C. Gen. Stat. § 113-201 (shellfish lease program)
- N.C. Gen. Stat. § 113-202 (shellfish bed leases)
- N.C. Gen. Stat. § 113-202(p) (forfeiture of non-productive leases)
- N.C. Gen. Stat. § 113-202.1 (water column leases over leased bottom)
- N.C. Gen. Stat. § 113-169.2 (personal use shellfish take limit)
- N.C. Gen. Stat. § 113-261 (Division research authority)

Cases:
- Capune v. Robbins, 273 N.C. 581, 160 S.E.2d 881 (1968) (riparian pier privilege does not enlarge water rights)
- RJR Technical Co. v. Pratt, 339 N.C. 588, 453 S.E.2d 147 (1995) (riparian rights extension)
- Bell v. Smith, 171 N.C. 116, 87 S.E. 987 (1916) (no exclusive right to fish off private waterfront)
- Gwathmey v. Hogarth, 342 N.C. 287, 464 S.E.2d 647 (1995) (presumption against alienation of public trust rights)
- McKinney v. Deneen, 231 N.C. 540, 58 S.E.2d 107 (1950) (strict construction against the public trust)
- State ex rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E.2d 825 (1988) (preservation of valuable public shellfish beds)
- State ex rel. Blount v. Spencer, 114 N.C. 770, 19 S.E. 93 (1894) (historical public shellfish protection)
- Morrison v. Sears Roebuck & Co., 319 N.C. 298, 354 S.E.2d 495 (1987) (expressio unius canon)
- Campbell v. Church, 298 N.C. 476, 259 S.E.2d 558 (1979) (expressio unius canon)
- Walla Walla v. Walla Walla Water Co., 172 U.S. 1 (1898) (U.S. Supreme Court statement of statutory exclusion canon)

Source

• Landing page: https://ncdoj.gov/opinions/authority-to-grant-leases-for-cultivation-of-shellfish/

Original opinion text

REPLY TO: James C. Gulick
Environmental Division
[email protected]
Telephone: 919/716-6600
Fax: 919/716-6767

September 22, 2003

Preston P. Pate, Jr., Director
North Carolina Division of Marine Fisheries
Post Office Box 769
Morehead City, North Carolina 28557

James A. Johnson, Jr., Chairman
North Carolina Marine Fisheries Commission
121 North Reed Drive
Washington, North Carolina 27889

Re: Advisory Opinion; Authority to grant leases or similar exclusive proprietary rights to the water column beneath docks and piers for the cultivation of shellfish for private consumption or use; N.C. Gen. Stat. §§ 113-202 and 113-202.1; Authority to conduct pilot study.

Dear Messrs. Pate and Johnson:

You have requested an Attorney General's opinion on the question of whether the Division of Marine Fisheries or the Marine Fisheries Commission has authority to grant leases or similar exclusive proprietary rights to the water column beneath docks and piers to individuals for the cultivation of shellfish for personal consumption or use. We are of the opinion that the Division and Commission do not have this authority; such exclusive, personal use of the water column beneath docks and piers would impinge upon long recognized public trust rights without clear and explicit authority from the legislature. You also ask whether the Division has the authority to conduct a temporary, pilot project to test the feasibility of private, non-commercial oyster harvesting program from a fishery management, enforcement and public acceptance perspective. In our opinion, it has that authority.

Under the public trust doctrine, the citizens of North Carolina possess public trust rights in the State's navigable waters which extend beneath privately held docks and piers. The common law privilege of constructing a pier to gain access to navigable water does not grant the riparian owner any greater rights in the water or bottom beneath the pier or dock than that held by his fellow citizens. Capune v. Robbins, 273 N.C. 581, 160 S.E.2d 881 (1968); RJR Technical Co. v. Pratt, 339 N.C. 588, 453 S.E.2d 147 (1995). In addition, ownership of riparian lands and piers extending over the water does not cloak the riparian owner with any exclusive right to fish in the waters fronting his property. Bell v. Smith, 171 N.C. 116, 87 S.E. 987 (1916).

Public trust rights in the State's waters, including, among others the right to boat and to fish, arise from the common law. Gwathmey v. Hogarth, 342 N.C. 287, 296, 464 S.E.2d 647, 679 (1995). In the context of construing statutes and legislative grants of land, the public trust doctrine operates as a rule of statutory construction creating a presumption that the Legislature did not intend to alienate public trust rights in the State's navigable waters and the lands beneath. This presumption may be overcome only by the Legislature's clear and specific words stating otherwise. Gwathmey v. Hogarth, 342 N.C. 287, 304, 464 S.E.2d 647, 684 (1995). Therefore, statutes that create exceptions to the common law public trust doctrine should be strictly construed against an interpretation that invades or diminishes public trust rights. McKinney v. Deneen, 231 N.C. 540, 542, 58 S.E.2d 107, 109 (1950).

The Legislature has pervasively regulated the cultivation of shellfish in the State's waters. The State's statutes regulating shellfish allow an individual, who does not hold a State issued shellfish or standard commercial fishing license, to take up to one bushel of oysters per day for personal use from public or private shellfish grounds. N.C. Gen. Stat. § 113-169.2. A license is required before a person may take shellfish from public or private grounds in quantities greater than that allowed for personal use, or by use of mechanical means. Id.

To encourage the cultivation of shellfish, the Legislature has provided for the leasing of non-productive submerged bottom and the superjacent water column for shellfish culture. N.C. Gen. Stat. §§ 113-202 and 113-202.1. At the same time, the Legislature has long sought to preserve for public use those natural beds where oysters are found in sufficient quantities to be valuable to the public. State, ex rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E. 2d 825 (1988), State, ex rel Blount v. Spencer, 114 N.C. 770, 19 S.E. 93 (1894). The Legislature has limited the program for granting exclusive leases of private shellfish beds and the superjacent water column to the cultivation of shellfish in commercial quantities for commercial purposes. N.C. Gen. Stat. §§ 113-201, 113-202, 113-202.1. Conspicuously absent from the shellfish bed leasing statutes is any reference to such leases being granted for cultivating shellfish for personal consumption and use, as distinguished from commercial production and use. The Legislature reinforced its intention to limit the leasing of private shellfish beds for the purpose of commercial production by declaring it to be against public policy as of January 1, 1966 for leased shellfish beds that do not produce in commercial quantities to continue to be held by private individuals. N.C. Gen. Stat. § 113-202(p).

In the absence of clear, express and specific language in the statutes authorizing the grant of exclusive leases of the bottom or water column for the cultivation of shellfish for personal, as distinguished from commercial, consumption or use, the Division and Commission have no authority to grant such exclusive leases in derogation of public trust rights. Alternatively, we note that application of the rule of statutory construction, expressio unius est exclusio alterius, i.e., the mention of specific exceptions [to a general rule] implies the exclusion of other exceptions, would produce the same result. See, Morrison v. Sears Roebuck & Co., 319 N.C. 298, 354 S.E. 2d 495 (1987); Campbell v. Church, 298 N.C. 476, 482, 259 S.E. 2d 558, 563 (1979); Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 43 L.Ed. 341 (1898).

You also ask whether the Division has the authority to conduct a temporary, pilot project to test the feasibility of private, non-commercial oyster harvesting program from a fishery management, enforcement and public acceptance perspective. We understand the Division wants to see how manpower-intensive supervision of such a fishery will be, and that they also want to identify and evaluate any associated issues and problems, such as access to private piers and docks, accountability for the oysters, sources of the oysters, polluted area issues, harvest issues, and conflicts.

In our opinion, the Division has ample authority to conduct a research project for the purpose of studying the fishery management and enforcement aspects of the noncommercial growing of shellfish in cages under piers, even when it is otherwise inconsistent with authority for an ongoing regulatory program of general application. Gen. Stat. § 113-261.

Very truly yours,

James C. Gulick
Senior Deputy Attorney General

J. Allen Jernigan
Special Deputy Attorney General

Francis W. Crawley
Special Deputy Attorney General