§ 113-206. Chart of grants, leases and fishery rights; overlapping leases and rights; contest or condemnation of claims; damages for taking of property.
§ 113‑206. Chart ofgrants, leases and fishery rights; overlapping leases and rights; contest orcondemnation of claims; damages for taking of property.
(a) The Secretary mustcommence to prepare as expeditiously as possible charts of the waters of North Carolinacontaining the locations of all oyster and clam leaseholds made by theDepartment under the provisions of this Article and of all existing leaseholdsas they are renewed under the provisions of this Article, the locations of allclaims of grant of title to portions of the bed under navigable watersregistered with him, and the locations of all areas in navigable waters towhich a right of private fishery is claimed and registered with him. Chartingor registering any claim by the Secretary in no way implies recognition by theState of the validity of the claim.
(a1) If a claim is basedon an oyster or other shellfish grantor a perpetual franchise for shellfishcultivation, the Secretary may, to resolve the claim, grant a shellfish leaseto the claimant for part or all of the area claimed. If a claim of exclusiveshellfishing rights was registered based upon a conveyance by the LiteraryFund, the North Carolina Literary Board or the State Board of Education, andthe claimant shows that the area had been cultivated by the claimant or hispredecessor in title for the seven‑year period prior to registration ofthe claim, the Secretary may, to resolve the claim, grant a shellfish lease tothe claimant for all or part of the area claimed, not to exceed ten acres. Ashellfish lease granted under this subsection is subject to the restrictionsimposed on shellfish leases in G.S. 113‑202, except the prohibitionagainst leasing an area that contains a natural shellfish bed in G.S. 113‑202(a)(2).This restriction is waived because, due to the cultivation efforts of theclaimant, the area is likely to contain a natural shellfish bed.
(b) In the event of anyoverlapping of areas leased by the Department, the Secretary shall recommendmodification of the areas leased as he deems equitable to all parties. Appealfrom the recommendation of the Secretary lies for either party in the samemanner as for a lease applicant as to which there is a recommendation of denialor modification of lease. If there is no appeal, or upon settlement of theissue upon appeal, the modified leases must be approved by the Marine FisheriesCommission and reissued by the Secretary in the same manner as initial orrenewal leases. Leaseholders must furnish the Secretary surveys of the modifiedleasehold areas, meeting the requisite criteria for surveys established by theSecretary.
(c) In the event of anyoverlapping of areas leased by the Department and of areas in which title orconflicting private right of fishery is claimed and registered under theprovisions of this Article, the Secretary must give preference to theleaseholder engaged in the production of oysters or clams in commercialquantities who received the lease with no notice of the existence of anyclaimed grant or right of fishery. To this end, the Secretary shall cause amodification of the claim registered with him and its accompanying survey toexclude the leasehold area. Such modification effected by the Secretary has theeffect of voiding the grant of title or right of fishing to the extentindicated.
(d) In the interest ofconservation of the marine and estuarine resources of North Carolina, theDepartment may institute an action in the superior court to contest the claimof title or claimed right of fishery in any navigable waters of North Carolinaregistered with the Secretary. In such proceeding, the burden of showing titleor right of fishery, by the preponderance of the evidence, shall be upon theclaiming title or right holder. In the event the claiming title or right holderprevails, the trier of fact shall fix the monetary worth of the claim. TheDepartment may elect to condemn the claim upon payment of the establishedowners or right holders their pro rata shares of the amount so fixed. TheDepartment may make such payments from such funds as may be available to it. Anappeal lies to the appellate division by either party both as to the validityof the claim and as to the fairness of the amount fixed. The Department in suchactions may be represented by the Attorney General. In determining theavailability of funds to the Department to underwrite the costs of litigationor make condemnation payments, the use which the Department proposes to make ofthe area in question may be considered; such payments are to be deemed necessaryexpenses in the course of operations attending such use or of developing orattempting to develop the area in the proposed manner.
(e) A person who claimsthat the application of G.S. 113‑205 or this section has deprived him ofhis private property rights in land under navigable waters or his right offishery in navigable waters without just compensation may file a complaint inthe superior court of the county in which the property is located to contestthe application of G.S. 113‑205 or this section. If the plaintiffprevails, the trier of fact shall fix the monetary worth of the claim, and theDepartment may condemn the claim upon payment of this amount to him if theSecretary considers condemnation appropriate and necessary to conserve themarine and estuarine resources of the State. The Department may pay for acondemned claim from available funds. An action under this subsection isconsidered a condemnation action and is therefore subject to G.S. 7A‑248.
The limitation period for anaction brought under this subsection is three years. This period is tolledduring the disability of the plaintiff. No action, however, may be institutedunder this subsection after December 31, 2006.
(f) In evaluatingclaims registered pursuant to G.S. 113‑205, the Secretary shall favorpublic ownership of submerged lands and public trust rights. The Secretary'saction does not alter or affect in any way the rights of a claimant or theState. (1965, c.957, s. 2; 1969, c. 44, s. 69; c. 541, s. 11; 1973, c. 1262, s. 28; 1977, c.771, s. 4; 1985, c. 279; c. 762; 1989, c. 423, s. 3; c. 727, s. 102; 1989 (Reg.Sess., 1990), c. 869, ss. 1, 2; 1993 (Reg. Sess., 1994), c. 717, ss. 1‑3;1998‑179, s. 1; 2006‑79, s. 11.)