Road Worrier: Maybe wishful thinking will fix Oregon Inlet
08/11/2014 5:01 PM
08/12/2014 1:58 AM
One section of our new state budget includes some wishful thinking as a means of keeping Oregon Inlet open.
North Carolina leaders have tried for decades to secure the shifting, sand-clogged boat channel through Oregon Inlet on the Outer Banks. They have been stymied at every step by the federal government, which owns the land on both sides of the inlet.
Now, following the recommendations of a special task force dedicated to this age-old quest, the new state budget offers a long-shot fix. The state will take control of Oregon Inlet by simply taking title to 710 acres of federal park and wildlife refuge lands.
North Carolina’s preferred remedy was authorized by Congress in 1970: a channel to be dredged 400 feet wide and 20 feet deep, protected by long, twin stone jetties and a sand bypass system.
But it never happened. The Interior Department owns the Cape Hatteras National Seashore and Pea Island National Wildlife Refuge lands that border Oregon Inlet, and the department has repeatedly vetoed the jetties for a long list of environmental reasons.
The new state budget sketches a simple scheme for getting control of this land. State officials are instructed to tell Interior that we’re ready to swap some of our acres for their acres. We’ll give them until July 2015 to make a deal.
After that, we won’t ask. We’ll seize what we want from the federal government.
On July 1, the budget law says, the state Department of Administration “shall commence condemnation proceedings on all federally owned property that are (sic) necessary to manage existing and future transportation corridors on the Outer Banks.” That’s the law. Gov. Pat McCrory signed it last week.
Coastal dwellers know how difficult it is to sustain a state highway on barrier islands that are continually moving on the stormy shore of a rising sea. But it has been even harder and more expensive to maintain a safe passage between the Atlantic and Pamlico Sound for commercial fishing boats, sport-fishing charters and other vessels.
The U.S. Army Corps of Engineers spent $9 million in emergency funds last fall to dredge the inlet. But that investment quickly washed away.
Malcolm Fearing of Manteo, a state Board of Transportation member, displayed a series of color-coded sonar images at a board meeting last week. The Oregon Inlet channel was 12 to 16 feet deep in mid-December, after the dredging. By mid-April it was impassable for large boats, just 4 to 8 feet deep.
“In December we had deep water, and in just a few months all that work was gone,” Fearing said. “It’s just not sustainable.”
Is there any power behind the state’s declaration that it will condemn 710 acres of prime OBX real estate owned by the federal government? The Road Worrier can’t find any.
“The state’s just chasing rabbits,” said Derb Carter of the Southern Environmental Law Center, the state’s antagonist in a lawsuit involving the N.C. 12 bridge over Oregon Inlet. “It’s been well established, probably over a century ago, that states cannot condemn federal property, just as a matter of law. So that’s going nowhere fast.”
An Interior Department spokeswoman said likewise: “Under our federal system of government and the United States Constitution, states do not have the authority to condemn federal lands.”
State Department of Administration spokesman Chris Mears hedged on the subject of condemnation: “It’s an action of last resort.”
The state Department of Transportation referred the Road Worrier to the primary author of the budget law’s provision on Oregon Inlet: state Sen. Bill Cook, a Chocowinity Republican whose district includes the Outer Banks. Cook won his last election by just 21 votes; in his campaign for re-election this year he talks up his efforts to rebuild the Oregon Inlet bridge and stabilize the boat channel.
Asked if he could cite any precedents for the state’s threat to condemn the federal parkland, he demurred.
“I don’t know if there are legal precedents or not,” Cook said. “I certainly hope there would be.”
When North Carolina transferred this Outer Banks land to the federal government in 1958, the state did claim the right to condemn parts of the land in the future – but only if it was needed to protect the existing public highway or a new road.
Cook and Fearing served on the Oregon Inlet Land Acquisition Task Force, whose report to the legislature offered thin hope that the state could claim power to seize the federal property bordering Oregon Inlet.
The report said it was “at least theoretically possible to attempt a condemnation of property interests necessary to build the required jetties based on an alternative legal meaning of ‘public highway’ as a navigable watercourse.” In other words, by persuading a judge that the inlet channel is actually a highway.
Government leaders and coastal advocates agree that the need for a dependable navigation channel is huge, but nobody has found a plausible solution for making it happen.
Carter said continued dredging is a good idea. Fearing said there’s only about $1.3 million available for dredging this year.
State officials talk of swapping land with the feds, but they haven’t compiled a list of parcels they might offer in trade. That July 1 condemnation deadline will probably come and go without notice.
“This whole project is a long shot – I’ll be frank with you,” Cook said. “But I keep telling folks: I’m one of those kind of guys who’s an optimist.”
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