United States District Court, E.D. North Carolina, Western Division
FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO NAVIGABILITY
TERRENCE W. BOYLE, District Judge.
Plaintiff, the State of North Carolina, instituted this civil action seeking a declaratory judgment that it owns the riverbed of a roughly 45-mile segment of the Yadkin River (the Relevant Segment) on which four of defendant Alcoa's hydroelectric dams sit. Until recently, Alcoa operated these facilities without title-based objection by North Carolina. The State was well aware of the facilities' existence on the riverbeds as various state agencies had participated in the federal licensing proceedings for these hydroelectric projects in the 1930s and 1950s. Following a 2013 proceeding in which the State allegedly learned that Alcoa claimed title to the riverbed, the State commenced this action. The State asserts that because the Relevant Segment was navigable at statehood, special property rules for determining title apply, while Alcoa asserts that the Relevant Segment was not navigable at statehood, and therefore regular property principles apply. Because navigability plays a key role in the progression of the case, the Court held a bench trial solely on the issue of whether the Relevant Segment was navigable-in-fact at the time of statehood on April 21-22, 2015, in Elizabeth City, North Carolina. After the close of evidence, the Court ruled from the bench that the Relevant Segment was non-navigable at statehood. In support of its ruling, the Court makes the following findings of fact and conclusions of law as to the Relevant Segment's non-navigability.
FINDINGS OFF ACT
If you were to travel down the Yadkin River today, you would begin on the eastern slope of the Blue Ridge Mountains in North Carolina, at the Yadkin's headwaters. You would then travel east out of the mountains before turning south where the Yadkin forms the border between Yadkin and Forsyth County. After the confluence of the Yadkin and the South Yadkin, you would travel roughly 20 miles before reaching a series of dams owned by Alcoa. From north to south, the dams are High Rock Dam, Tuckertown Dam, Narrows Dam, and Falls Dam. Just beyond Falls Dam, the Yadkin meets the Uwharrie and flows into the Pee Dee River. Continuing south on the Pee Dee, you would pass through Blewett Hydroelectric Plant and Tillery Hydroelectric Plant, both owned and operated by Duke Energy, down through Cheraw, South Carolina, and ultimately, to the Pee Dee's mouth at Winyah Bay, near Georgetown, South Carolina.
The parties stipulated that the relevant segment for purposes of navigability is the 45-river-mile segment of the historic riverbed lying between River Miles (RM) 233.1 and 279.7, with the mouth of the Pee Dee being RM 0. The Relevant Segment is in present day Stanly, Montgomery, Davidson, Rowan, and Davie Counties and encompasses all four of Alcoa's hydroelectric power facilities. The facilities were constructed in the 20th century. If you were to graph the turbulence of the Yadkin River prior to the dams' construction, however, the graph would loosely resemble a parabola, with the most turbulent point being from approximately RM 233.0 to 236.2, at what was historically known as the Falls and the Narrows (now the Falls and Narrows Dams). Given the turbulence of the Falls and Narrows, it is perhaps unsurprising that absolutely no evidence was presented in support of the navigation of this portion of the Relevant Segment. The State conceded in closing argument and in its proposed findings of fact that neither the Falls nor the Narrows was ever navigated for purposes of commerce, nor were they susceptible to navigation for commerce.
In making its findings regarding the physical characteristics of Relevant Segment, the Court relies on the unrebutted testimony of Alcoa's fluvial geomorphologist, Dr. Michael Harvey. Dr. Harvey reviewed geological data, water flow and depth data, engineering and surveying records, photographs, and physical descriptions of the Relevant Segment in order to analyze its physical characteristics and geology and the corresponding effects on navigability at statehood.
Generally speaking, the lower half of the Relevant Segment was more turbulent than the upper half. In its natural condition, RM 233.0 to 236.2 was characterized by the Narrows, which was a gorge that compressed 1000 feet of riverbed to a channel roughly 100 feet wide, creating whitewater and bedrock above the surface of the water. At the foot of the Narrows (RM 233.5 and 234.2) were two waterfalls, each with a roughly seven-foot plunge, known collectively as the Falls. The Narrows and Falls were widely recognized to be the most treacherous part of the Relevant Segment and a significant portion of the testimony and evidence related to these sections of the Relevant Segment. Above the Narrows were five named shoals which spanned from RM 237.5 to 254.4: Flat Swamp Mountain Shoal, Bald Mountain Shoal, Milledgeville Shoal, Pennington Shoal, and Bull Island/Beaver Shoals. Each shoal ranged in length from half a mile to slightly over two miles. Also above the Narrows was Motts Falls, which consisted of a a 13.5 foot drop in 0.8 miles with six vertical falls over bedrock. These sections all were characterized by steep drops, bedrock outcrop, large boulders, sections of whitewater, and falls.
The entirety of the Relevant Segment lies within the Carolina Slate Belt, which represents the steepest profile of the Yadkin River. The riverbed is characterized by hard and erosion-resistant metavolcanic rocks and as well as less erosion-resistant metasedimentary rocks. The metavolcanic riverbed creates steep slopes, narrow valleys, rapids, falls, ledges, and exposed rock, which are present throughout the Relevant Segment, although they are more prevalent in the bottom half. The less erosion-resistant rocks create bedrock shoals and shallows, which are also present throughout the Relevant Segment, though again, more prevalent in the bottom half.
Rainfall also had a dramatic effect on the flow of the Relevant Segment. At statehood, flash floods (freshets) were unpredictable and could radically change the condition of the river in a matter of hours. The geology of the Relevant Segment magnified this problem, as freshets increased water velocity and turbulence in the narrow channels, while the bedrock became exposed quickly during dry periods. In times of low rainfall, there was significant exposed bedrock throughout the Relevant Segment, while storms led to very turbulent whitewater.
2. Marine Archaeology
Alcoa presented the testimony of marine archaeologist Dr. Mark Newell. Dr. Newell discussed the typical types of watercraft used for commercial navigation at statehood. The State presented no similar testimony. The Court finds Dr. Newell's testimony persuasive and relies on it to make the following findings of fact.
Pole boats or bateaus and flats were the primary means of commercial navigation in the Piedmont around the time of statehood. Pole boats required a channel of 36 to 58 inches deep to operate in steep, rocky rivers, and flats were wider vessels with shallower drafts that were typically used in shallower waters. Pole boats and ...