In my blog of Feb. 7 about a meeting between local reporters and the new Cape Hatteras National Seashore Superintendent Barclay Trimble, I wrote about the issue of ownership of the beach in areas where there has been erosion since the park was established.
Trimble said that the National Park Service considers that it retains jurisdiction over the foreshore. the wet beach between the mean high and mean low tide lines ? in northern Rodanthe, even though the land has eroded to the west and the original park boundaries are now out in the ocean.
Trimble said he based his view on a 2009 opinion from the Park Service’s solicitors’ office.
The opinion has been seldom, if ever, mentioned in the past and came to light only after questions arose over whose responsibility it is to clean up the debris on the beach when structures fall into the ocean.
Park Service staff members have described the opinion to reporters, but Trimble has declined to release the document to the media. The National Park Service, he says, considers the opinion is not public because of attorney-client privilege.
After requests by three reporters for the opinion, on which the park is basing public policy, were denied, the issue was handed over to the office of U.S. Rep. Walter Jones, R-N.C.
The congressman’s staff found out that the opinions of Park Service solicitors are posted on a national website, but that this particular 2009 opinion, entitled ? Jurisdiction over the Foreshore within Cape Hatteras National Seashore,? was not listed in the database.
When Jones? staff asked the Park Service why it wasn’t there, here is the answer they got:
The opinions to which you are referring to in the website are considered ?M-Opinions,? which are signed by the Solicitor in Washington, D.C. They address matters of significance, are intended to carry with them some degree of authority, and therefore are written with the intention of being published and are not expected to be privileged.
On the other hand, opinions written and signed by the Regional Solicitors and are for the specific purpose of giving advice to a park are considered confidential and are not for wide publication and hence not published in the website.?
The Park Service offered to provide the congressman a summary of the opinion, which was written by a solicitor in the Southeast Regional Office.
After several weeks of asking about the summary, Jones got this e-mail from the National Park Service:
After further consideration, we have decided to provide the requested Opinions in full.?
The opinions were attached.
There are actually two of them the 2009 opinion that addresses jurisdiction over the foreshore on eroded parts of the beach in the northern villages of Rodanthe, Waves, Salvo, and Avon. There is also a second opinion dated Feb. 7, 2013 — that addresses whether the 2009 opinion applies to beaches in front of the villages of Buxton, Frisco, and Hatteras.
We’re publishing the opinion on the Island Free Press website today because we believe that such documents on which the government is basing public policy and acting accordingly, should be available to the public.
It may not be exciting reading, but it’s important that you can see it if you want to.
Dare County manager and attorney Bobby Outten said today that he has had the document in his files for some time.
?They (the Park Service) trot it out every time we talk about who’s going to do what,? he said.
He said the opinion has been referenced in conversations between the county and park officials about law enforcement jurisdiction on the eroded northern Rodanthe beaches, a project in Buxton, and the concession agreement with the owners of the Hatteras Island Fishing Pier in Rodanthe.
Outten acknowledged that public bodies can ask for advice from their attorneys and that the advice can be confidential under attorney-client privilege. However, he said, once the document was handed over to him and shared with the commissioners, it became a public document.
In a nutshell, the two opinions say that the state of North Carolina ceded certain property rights to the federal government when it was acquiring land for the national seashore.
Some of the land has eroded over time, leaving the original park boundaries out in the ocean.
However, the park?s solicitor, Horace Clark, says that where the mean high and low water marks have moved westward in front of the Hatteras Island villages, the seashore continues to have jurisdiction over the ?wet sand? beach ? the foreshore. The new western boundary of the park, he writes, is the mean high water line.
That certainly raises some interesting questions in areas such as the Mirlo Beach development in north Rodanthe.
Some of those houses on the beach stand in water or on wet sand more often than not in recent years.
So does that mean the Park Service owns the houses or the land on which they sit? Would a homeowner need an off-road vehicle permit to pull into his or her driveway?
The 2009 opinion does address that issue, though it?s difficult for a non-lawyer to interpret what it does mean. Here is what it says:
?We understand this conclusion is not without controversy. The movement of the foreshore westward has left a number of private dwellings stranded in the wet beach, which is owned by the United States. Those dwellings on stilts may eventually be taken by the Atlantic Ocean, but at the present are habitable. This memorandum will not address the legal status of these dwellings. However, inasmuch as they are located on lands owned by the United States and administered as part of the National Seashore, they are subject to the authority of the Park Service as expressed in laws and regulations applicable to the National Park Service.?
Outten says he has not put on his lawyer hat and studied the opinion in detail, but he said he is ?not so sure? he agrees with it.
Though the current interest in the opinion originated with responsibility for the debris from a collapsed house on the beach, it could come into play in other issues we face down the road.
For instance, the Dare County Board of Commissioners wants to nourish beaches in Rodanthe and Buxton. Can the Park Service stop this effort ? and would it try to stop it?
In the recent past, though not always, the Park Service has said that it intends to let nature take its course on the seashore. For instance, park officials rejected renourishment at the old Lighthouse Beach and instead moved the Cape Hatteras Lighthouse away from the ocean in 1999.
Outten says that he can see that there are reasons for the Park Service to have such policies on land that it owns, such as at the lighthouse.
?But,? he asked, ?why would they be opposed to our protecting our infrastructure??
That, he says, makes no sense.
And maybe if and when it comes down to issuing permits, the Park Service will not oppose nourishment of beaches in the villages to protect the private property that is the county?s tax base.
We hope.
FOR MORE INFORMATION
Click here to read the opinions of the National Park Solicitor on jurisdiction over the foreshore within the Cape Hatteras National Seashore.
