Is Bodie Island spit owned by the Park Service – or not?

(Editor’s Note:  This article was first published on The Island Free Press website on March 19, 2009.  It’s worth calling attention to it again since a state-created Oregon Inlet Land Acquisition Task Force met last Thursday and released a draft report to the General Assembly. The report says that the State Property Office has contracted for an appraisal of the inlet property to “guide the state in negotiations with the landowner for acquisition or exchange into state ownership.” Specifically, the report said, the state is interested in 530 acres owned by the National Park Service, and 180 acres owned by the U.S. Fish and Wildlife Service.)

Who owns Bodie Island spit?

Most people would answer that the National Park Service owns the spit of land on the north side of Oregon Inlet.

But that is not the answer according to Dare County records.

According to the county, almost all of Bodie Island spit is in private ownership and is not part of the Cape Hatteras National Seashore.

This is an interesting fact, especially in light of the controversy over access to park beaches and large closures for nesting shorebirds and turtles. The Bodie Island spit was closed to off-road vehicles and pedestrians for much of last summer to protect the resources.

No one is claiming that the fact that the spit is a privately-owned parcel of land, according to Dare County tax listings and the Register of Deeds office, has any implication for access to the park’s beaches or for the National Park Service’s ongoing effort to formulate a long-term rule for ORV use on the beaches.

But just the idea that the spit might be privately owned is a curiosity and comes as a surprise to most people who just assume that the Park Service owns the land – and it may.

However, according to Dare County tax records, the Bodie Island spit is Parcel No. 028341000. It is listed as 315.53 acres and is valued at $25,000.  The owners have been regularly paying taxes on it.

The owners, according to county records, are the W.A.Worth Estate, listed as Owner 1, and James C. Fletcher, listed as Owner 2.

Winfield A. Worth was an Elizabeth City, N.C., lawyer, who died some years ago.

James C. Fletcher lives in Manns Harbor and has been involved for decades in fisheries issues, especially the unsuccessful effort to build jetties at Oregon Inlet. He has been a commercial fisherman and does consulting work for the commercial fishing industry.

The Dare County deed history of the parcel, accessible on the county Web site, goes back to 1937 when Gilbert Ferris sold the property to Anita Stopford. In 1945, Anita Stopford Warner and her husband Sherbert Warner sold the property to W.A. Worth.

According to Fletcher and court records, the government filed an action in U.S. District Court in Elizabeth City  to “take” or condemn the land to make it part of the Cape Hatteras National Seashore in June, 1953.

Fletcher says he has been told that some Bodie Island property owners agreed to sell their land to the government, and others, including Worth, resisted.

The federal government prevailed in its lawsuit and the property, including the Worth property, went to form what would become the nation’s first national seashore.

And this is the point at which the ownership becomes murky, to say the least.

In 1953, the end of Bodie Island was considerably north of where it is today.  This is obvious when you drive over the Bonner Bridge at Oregon Inlet.  The north end of the bridge, which once traversed inlet waters now spans marshes and sand flats that did not exist in 1953.

The spit, or southernmost point, of Bodie Island has been building to the south for at least 50 years.  Many acres of land have accreted south of what was the Worth Property in 1953.

That accreted land is the property listed as Parcel 028341000 on Dare County tax maps.

According to law, if the land accreted from the property the government took from Worth, then it is federal property.

However, Fletcher says that’s not how it happened.

Fletcher, who is not a lawyer, says that in 1953, the civil lawsuit to condemn the property and hand it over to the federal government described the exact land area in metes and bounds – legal language for spelling it out in feet and inches and compass directions.

He says that some property belonging to Worth was not included in the taking by the government and remained in his ownership – including several islands and shoals in the inlet. He named Big Tim Island, Little Tim Island, Clam Shell Shoal Island, and Heron Shoal Island.

“I honestly believe,” he said, “that when they (the government) took the property that they did not take all of the property.”

Thus, he says, accretion that has occurred at the southern tip of Bodie Island has occurred on land that was still owned by Worth after the 1953 action.

So, the question of who owns Bodie Island Spit seems to come down to how the additional land area on the spit accreted – from the Worth property that the government got in its lawsuit or from other property still owned by Worth.

Fletcher got involved in this issue when he began working to get a jetty approved at Oregon Inlet to stabilize the inlet’s channel for recreational and commercial fishing vessels.

After Worth’s death, he got his heirs to agree to deed a portion of the property to the now defunct Oregon Inlet Users Association. That happened in 1989.

The idea was that perhaps if the inlet property was privately owned, the state could overcome objections by federal agencies to building the jetty.

That didn’t happen and legal opinions about the ownership were apparently not persuasive one way or another.

In 1993, the Oregon Inlet Users Association disbanded and was ready to give up its stake in the ownership of the spit.

Fletcher persuaded to the association to deed that portion of the property to him.  He says it is a one tenth interest.

Meanwhile, taxes have been paid on the property, and Fletcher says he still believes it is privately owned.  He says that neither he nor the Worth Estate is in a position to take the issue to court for a final ruling.

“My main thing in this,” Fletcher says, “is that I would like to see the jetties.”

The curious conflict over the ownership of the land is a legal quagmire that no specific owner, person, or government entity seems in a big hurry to settle.

Mike Murray, superintendent of the Cape Hatteras National Seashore, was shown a map of Parcel 028341000 in the Dare County tax records.

He said he was unfamiliar with the claim.

This week he confirmed that the Park Service’s Southeast Regional Lands Office and Solicitor’s Office have started a review of the issue.

Bobby Outten, Dare County’s attorney and assistant county manager, said that Fletcher “clearly has title to something.”

“The tax department believes he owns whatever the tax record says he owns,” Outten said. “Whether the tax record reflects what he owns is another matter.”

Outten says that he thinks until the owners of record assert their claims in court, the ownership will remain in question.

Norm Shearin is a lawyer with the law firm Vandeventer Black LLP. He did work for the North Carolina Department of Commerce on the Oregon Inlet jetties issue and specializes in commercial real estate, condemnations, and acquisitions.

Shearin said in an interview that he was familiar with the claim that the Bodie Island spit is privately owned.

“Who owns land (on the Outer Banks),” he said, “is always difficult with erosion and storm events.”

He said he was “skeptical” about claims that the Worth Estate and Fletcher own Bodie Island spit.

“A tax listing,” he said, “is not title.  It just means that you are exerting a claim.”

“In the length of time I’ve been pursuing this issue,” says James Fletcher, “no one has told me that I am wrong.”

And no one has told him that he is right.

So for now, the curious question of who owns the Bodie Island spit is just that – a curiosity.