“It’s Navigable in Fact, So I Can Fish It”: The Public Right to Use Man-Made, Navigable-In-Fact Waters of Coastal North Carolina

BY Joseph J. Kalo

An increasingly common amenity of large residential coastal developments in North Carolina is a man-made boat basin or marina connected by a canal to the natural navigable-in-fact waters of coastal rivers, tidal creeks, or estuarine waters. An important question is whether waters of these man-made boat basins, marinas, and canals are privately owned and privately controlled or whether the waters retain their public character and are open to public trust uses. Embedded within that question is the fundamental policy question of whether public trust waters and the living natural public trust resources within them may be appropriated for purely private use. The recent court of appeals Fish House case correctly concludes that these waters retain their public character but does this with flawed reasoning. The purpose of this Article is to show that despite its flawed reasoning the decision of the Fish House court was correct. Prior North Carolina case law, sound public policy, and pragmatic considerations support the conclusion that all man-made navigable-in-fact waters connected to natural navigable-in-fact waters are public trust waters open to public trust use rights.

DOWNLOAD PDF | 89 N.C. L. Rev.2095 (2011)