Entrenched in the common law, North Carolina's public trust doctrine applies to waterways and their underlying riverbeds-protecting them from misuse and adverse possession-so long as the waterways are navigable in fact. In North Carolina v. Alcoa Power Generating, Inc., the United States Court of Appeals for the Fourth Circuit veered away from the North Carolina common law rules governing navigability and instead applied the more stringent federal test. The differences between the current North Carolina common law and federal navigability tests for waterways illustrate the state's sovereign interests, and why the Fourth Circuit erred in applying the federal regime. This Comment explores the present and future ramifications of the Alcoa decision on public trust jurisprudence in North Carolina and other original states.
Public trust doctrine cases implicate unique choice of law considerations. By disregarding common law precedent dating back to the American Revolution, the Fourth Circuit's decision disrupts the delicate balance of federalism between state and federal courts. The present consequences of the Fourth Circuit's decision include public policy concerns and clouded land titles in North Carolina. The future ramifications include an expansion of federal question jurisdiction and an upheaval of common law navigability rules in the original thirteen states.
Cassie A. Holt, Just Around the Riverbed: Reconciling Navigability Rules in North Carolina, 41 Campbell L. Rev. 503 (2019).