Coupland v. Morton

No. 145-73-N, aff'd per curiam 5 ELR 20507 (E.D. Va. February 26, 1975; July 7, 1975)

The court upholds the validity of Interior Department regulations severly restricting motorized traffic from traversing the beach of the Back Bay National Wildlife Refuge in southeastern Virginia. The United States gained full title and full interest to the refuge beach by condemnation in 1938, and such condemnation obliterated any state public trust protection for passage, at least for such passage as is inimical to the wildlife protective purposes of the refuge. The restrictions are not unconstitutionally discriminatory in permitting passage to emergency and service vehicles and year-round residents of the Outer Banks of North Carolina who established residence prior to January, 1972 while denying it to new beachfront lot and second homeowners. Nor do they exceed the Secretary's authority under the Migratory Bird Conservation Act, or the Recreation Act of 1962. When the Interior Department acts affirmatively to protect the environmental integrity of a refuge it need not promulgate an EIS, and in any event the one prepared in connection with these regulations was acceptable under NEPA. No consideration of alternate access to beach property for those new owners who formerly used the refuge beach as a sand highway is necessary since such use was inimical to the purposes of the wildlife refuge.

Counsel for Appellants
Thomas H. Willcox, Jr.
Willcox, Savage, Lawrence, Dickson & Spindle
1800 Virginia National Bank Building
Norfolk, Va. 23510

Counsel for Appellees
Neil T. Proto
Department of Justice
Washington, D.C. 20530

Edwart R. Baird Asst. U.S. Attorney
Federal Building
600 Granby Street
Norfolk, Va. 23510

[5 ELR 20504]

MacKenzie, J.

MEMORANDUM OPINION AND ORDER

Background

On February 25, 1938, the United States, by condemnation, acquired 4200 acres stretching 4.2 miles along the Atlantic Ocean on the southeast coastline of Virginia. It was taken for use as a migratory wildfowl refuge and is today administered by the Department of the Interior as the Back Bay National Wildlife Refuge.

The property is a small segment of the narrow sand strip that runs north and south along the coasts of Virginia and North Carolina. That strip is often only a few hundred yards in width, but on occasion it may widen to about a mile. Immediately adjacent to the refuge property on the south and extending southerly 7 miles along the Atlantic Ocean to the Virginia-North Carolina boundary [is] property owned and being developed by the Commonwealth of Virginia as False Cape State Park.

In this 11 miles of coastline in Virginia, from the North Carolina line north, there are no other owners or permanent residents, though there may be a few living temporarily in the property being acquired by Virginia and awaiting its formal declaration as a park.

From the Virginia-North Carolina line, south for the next 25 miles, this outer-banks, or barrier strip, has only one small community, at Corolla, North Carolina, which had a population in other years of 20-30 persons. Recently, certainly since 1965, that village has seldom numbered more than 10-15. The remainder of the entire length of the 25 miles south to Caffey's Inlet, before the late 1960's, was largely uninhabited except for an occasional hunt club which came to life briefly for the annual wildfowl shooting season in December and January. A handful of commercial netters with ancient rusty trucks made a sparse living along the shore.

Access to the area from the north, from Virginia, is along the open beach or by boat across Back Bay and Currituck Sound. From Duck, North Carolina, on the south, a sandy trace of a road, largely for the benefit of an occasional Coast Guard communications watchman, wandered around the Bayberry bushes under the telephone line stretching to the north.

But this Eden was not destined to continue. In the face of our expanding population and the dwindling supply of shore property, the pall of progress, as it must to all men, came to the Outer Banks.

In the mid-1960's 95 percent of this 25 mile strip of North Carolina beach was purchased, in different parcels and in separate transactions, by about a dozen competing land developers. Their interest was, and has been since, in the sale of lots. Plats have been put to record subdividing the area into several thousand lots.Hundreds have been sold despite the fact that the streets are paper ways, unpaved, and largely unmarked. And, of far greater importance, these subdivided areas have absolutely no access save the open beach through Virginia from the north, and the cart track leading up from the south.

There are still very few houses of any consequence. In April, 1973 when this litigation began, the Court examined the entire stretch by helicopter and by beach vehicle. Not more than 15 to 20 houses costing as much as $10,000 had been built. Additionally, [5 ELR 20505] from 150 to 200 vintage bus bodies and some newer trailers provided lot owners a weekend retreat.

In the 1950's, and before, there was only a nominal car or so per day. With the advent of four-wheel drive automobiles, there was an increase in vehicular use of the hard beach on low tides and bright days.

However, in the mid-'60's, with expanded advertising campaigns and the lure of lots to be had for small down payments, beach traffic exploded, until a check made on June 6, 1971, showed 1000 cars moving along the beachfront through the Back Bay National Wildlife Refuge, passing the check point at the rate of 150 per hour. By 1972 this number had materially increased. In the three months of June, July and August, 1972, 19,817 automobiles passed along the Refuge beach.

Thereafter, the Department of the Interior determined to close access through its property except on a limited basis. Public hearings were held. Notices were published in the Federal Register. Regulations to severely curtail beach traffic through the Refuge became effective March 30, 1973. Immediately this suit was filed seeking to keep the beach open and, in any event, requesting temporary injunctive relief against the full force of the proposed closure.

A modified injunction was entered by the Court after a two day hearing in April, 1973. It briefly allowed passage by special permit to homeowners and limited passage (one trip per month) to lot owners. This modified injunction has been continued in effect since that time.

The complaint, while including some individual lot owners, is largely pursued by the major land developers. They have assured lot purchasers, who join as parties plaintiff, that such purchasers will not thus be obligated to the fees and costs of this litigation. Plaintiffs seek to declare the closure regulations invalid, (a) as an illegal discrimination under the Fifth Amendment; (b) as being beyond the authority of the Secretary of the Interior in his operation of a wildlife refuge; (c) on grounds that the environmental impact statement, as filed, fails to comply with the National Environmental Policy Act; (d) that the regulations as issued are vague and indefinite; (e) that the issuance of the regulations fails to comply with the Administrative Procedures Act; (f) that the Secretary of the Interior has no authority to issue the closure regulations under the Migratory Bird Conservation Act; and (g) that the United States does not own the beach between high and low water, and its attempts to close it to traffic are invalid.

Intervenors-plaintiffs, seeking to keep the beach open for vacationists, are the City of Virginia Beach and another otherwise unidentified beach buggy group calling itself the Concerned Citizens for Conservation and Recreation.

Intervenors-defendants, seeking to limit traffic on the beach, are the Audubon Naturalist Society, Cape Henry Bird Club, Citizens Against Pollution, Citizens Committee for Virginia State Parks, Conservation Council of Virginia, Defenders of Wildlife, ECOS, Inc., Environmental Action, Friends of the Earth, National Audubon Society, National Parks and Conservation Association, the League of Women Voters, the Virginia Society of Ornithology, and the Wilderness Society.

Title Issue

To thwart the right of the United States to close the Refuge beach to vehicular traffic, plaintiffs assert, with a broad brush, that the beach between the high and low water marks does not belong to the United States.

Generally it appears to be the plaintiffs' contentions that this strip is owned by the State of Virginia, and that it has not been conveyed to the United States; that it cannot be conveyed to the United States; that prescriptive rights have been acquired by historic use of the beach for people walking, or in carts and other vehicles; that it is a common area for "hunting, fowling and fishing and thus a public trust property."

We have no trouble concluding that the United States is, indeed, the owner of all of the Refuge tract, including its beachfront, and that ownership includes the entire beach to at least the low water mark of the Atlantic Ocean.This would include the area between high and low water.

And the reason, plainly and simply put, is that it was so acquired by the United States by order of this Court on February 25, 1938 in the condemnation then pending under the style of:

United States of America v. 3776.76 Acres of Land, more or less, in Princess Anne County, Virginia, Princess Anne Club, a Virginia Corporation, Charles S. McVeigh, B. P. Holland, and wife, if any; and all persons known or unknown interested in this proceeding and whom this proceeding may concern. AT LAW NO. 6378.

The property taken is clearly described as running to the ". . . mean low tide on the Atlantic Ocean Shore; thence along the Atlantic Ocean Shore at mean low tide with the meanders thereof. . . ."

The order of February 25, 1938 complies in every respect with the requirements of 40 U.S.C. § 258a as to a proper declaration of taking, and further provides that "all persons in possession or control of any or any part of said lands . . . shall immediately upon said date surrender the same to the United States of America, as of said date."

The order of taking is in rem and operates on the land itself:

"The power when exerrcised acts on the land itself, not on the titles or the sum of titles if there are diversified interests. On appropriation all inconsistent proprietary rights are divested and not only privies but strangers are concluded." A statement in Ducket & Co. v. United States, 266 U.S. 149, 151, 45 S. Ct. 38, 69 L.Ed. 216, is pertinent to the instant situation. The court stated: "Ordinarily an unqualified taking in fee by eminent domain takes all interests and as it takes the res is not called upon to specify the interests that happen to exist. Whether or not for some purposes the new takers may be given the benefit of privity with former owners, the accurate view would seem to be that such an exercise of eminent domain founds a new title and extinguishes all previous rights." United States v. 19.86 Acres of Land in East St. Louis, etc., 141 F.2d 344, 348 (7th Cir. 1944).

A state's interest in land is subject to the right of eminent domain of the United States for a proper purpose, such as a refuge. Swan Lake Hunting Club v. United States, 381 F.2d 238 (5th Cir. 1967). So also the United States may condemn, for a proper purpose, a portion of a state highway, State of Washington v. United States, 214 F.2d 33 (9th Cir. 1954), or a state park, United States v. State of South Dakota Game, Fish and Parks Department, 329 F.2d 665 (8th Cir. 1964); part of a state road system, Yalobusha County v. Crawford, 165 F.2d 867 (5th Cir. 1947).

Certainly the United States had the right to acquire the property under the Migratory Bird Conservation Act, 16 U.S.C. § 715, et seq. The consent of the State of Virginia required under § 715(f) of the Act, was duly obtained:

. . . [T]hat the assent of the General Assembly of the Commonwealth of Virginia be and is hereby given to the provisions and requirements of the said migratory bird conservation act insofar as is necessary for the purposes of such conveyance, acceptance and acquisition [by federal government of property in Virginia]. . . . Chapter 272 (1930), Virginia Acts of the General Assembly.

Contrary to plaintiffs' contention, Chapter 382 (1936) and Chapter 388 (1938), Virginia Acts of the General Assembly, in no wise limited Virginia's determination to cooperate in implementing the purposes of the Migratory Bird Conservation Act or to limit its consent as manifested by Chapter 272 (1930).

The 1936 Act merely enlarged the general state laws then pertinent to the acquisition by the federal government of lands in Virginia. Whereas formerly certain specific uses were set forth in the statute (for forts, naval stations, etc.), now the statute was broadened to include property within the state for ". . . the conservation of . . . natural resources, . . . and for any other proper purpose of the government of the United States. . . ." Chapter 382 (1936) of the Virginia Acts of the General Assembly. A wildlife refuge, as being a proper purpose, had already been declared in Virginia in 1930.

And on March 31, 1938, after the refuge had been acquired on February 25, 1938, the Virginia Legislature, specifically addressing itself to the Back Bay National Wildlife Refuge, "to the end that it be developed under absolute federal supervisors and control," and describing it by metes and bounds, ceded jurisdiction thereover to the United States as prescribed by § 19-A, Chapter 382 (1936), Virginia Acts of the General Assembly, which is to say, ". . . the [5 ELR 20506] Commonwealth of Virginia hereby cedes to the United States the power and jurisdiction . . . to protect the said lands . . . from damage, depredation, or destruction and to operate and administer the said lands . . . for the purposes for which same shall be acquired by the United States." This language appears unchanged as 7.1-17, Code of Virginia 1950, Amended.

The claim of plaintiffs that in some way title to the strip of beach between high and low water remains in the State of Virginia is without merit.

In open Court in this case, the Attorney General of Virginia, without any equivocation, disclaimed any interest of the State of Virginia in the refuge beach, or any part of it.

In a letter addressed to the City of Virginia Beach, dated October 18, 1971, and an exhibit in this case, the Attorney General of Virginia, acting as such, reported that the 1938 condemnation of the refuge "encompassed the land in the Atlantic Ocean to mean low tide." He also reported that in his opinion the United States held the beach free from any property rights of the public by virtue of any dedication prior to the taking, and that so far as the office of the Attorney General of Virginia could ascertain, the United States had the right to close the beach to vehicular traffic.

Almost with tongue in cheek, plaintiffs make a further assertion that Virginia, from historic times, holds certain areas in trust for the common use of its citizens for "hunting, fowling and fishing" which it cannot alienate to anyone. The expert who was offered testified that in his opinion such "commons land" would extend back from the ocean several miles. Were this the case, the developers among the plaintiffs might win this battle and lose the war. For the land developers, plaintiffs, are the same group that developed Sandbridge Beach, just north of the Refuge in which they have sold thousands of lots — all within a few hundred feet of the ocean. Every hotel, condominium, business property and residence at Virginia Beach, densely developed since 1935, would thus be in a precarious position, titlewise.

Recognizing the foolhardiness of claiming a "commons land trust" belonging to the State of Virginia in all property within two or three miles of the Atlantic Ocean as "hunting, fowling and fishing commons lands," those advancing this tenuous theory would miraculously compress that "commons trust" ownership into a 20-30 foot strip of sand between high and low water. Whatever their compaction equipment is, to thus squeeze their own expert witness's assertion from a trust estate of a depth of miles into only 20 feet, it has not been satisfactorily revealed to this Court. And what sort of hunting, fishing and fowling is to be accomplished in this 20 foot strip at the ocean's edge as it is traversed by thousands of automobiles?

One could only surmise that the existence of the invisible North Carolina-Virginia boundary line would not legally interrupt the application of this mile wide strip of public trust estate for "hunting, fowling and fishing commons land." The two states were developed under English common law at about the same time and subscribed to the same general legal principles. Such being the case, the plaintiffs, landowners of North Carolina coastland, all being within only a few hundred yards ofthe ocean, would be within this margin of "commons land" and in this case would be fighting a certain losing cause.

Suffice it to say that if there ever were a commons land trust in this property extant in the Commonwealth of Virginia, it likewise was acquired in the 1938 condemnation suit. Public trust property is subject to eminent domain, United States v. Carmack, 329 U.S. 230, 67 S. Ct. 252 (1946); Stockton v. Baltimore & N.Y.R.R. Co., 32 F.9 (C.C.N.J. 1887).

Environmental Impact Statement

The plaintiffs raise the issue of whether the environmental impact statement, which was prepared prior to the adoption of the refuge beach closure regulations, was in compliance with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq.

This Court will confess at the outset that it believes that the United States, as the owner of the Back Bay National Wildlife Refuge, should be able to exclude a trespasser without filing an environmental impact statement. Such an impact statement to examine the rights of a plaintiff who finds it convenient to trespass on the land of another in order to reach his own property 7 to 30 miles away does not seem to fall within the spirit of the Environmental Policy Act. And we further confess that after hearing all the evidence, particularly that there is acess to the property from the south, we remain unconvinced that such a statement is necessary.

In fact it would seem that an opposite position of the Secretary of the Interior would be that which would require an impact statement, that is, a position that would allow a stream of vehicular traffic through a wildlife refuge. The National Environmental Policy Act, in its declared purpose, 42 U.S.C. § 4331, says that "The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment," and the population growth, resource exploitation "and recognizing further the critical importance of restoring and maintaining environmental quality" shall use all "practical means . . . to create and maintain conditions under which man and nature can exist in productive harmony . . . ." It would follow that it would be the artificial use of this beach for a stream of vehicular traffic through this wildlife refuge that would require the filing of an impact statement.

But be that as it may, an impact statement was prepared. It is Exhibit Number 18. It is 128 pages long and in our judgment is complete in all respects. We do not find that it fails because it does not specifically tell an owner of a lot on a beach 7 miles southward, or the seller of the beach lots 25 miles distant, that they will have to proceed on an alternative and longer route to reach the property rather than continue to trespass over the refuge beach. Nor do we believe, as is apparently suggested, that in acting to prohibit uses inimical to the purposes of a wildlife refuge and destructive of its property, the Secretary of the Interior must provide some alternate route to the beach property being developed for private profit purposes.

Regulations Issued by the Secretary of Interior

We find as a fact that the closure regulations affecting the Back Bay National Wildlife Refuge beach, as issued by the Secretary of the Interior, were reasonable and fully warranted under all the evidence before this Court.

We find as a fact that the continued and rapidly escalating use of the Refuge beach as a traffic corridor for land developers and land owners of the 25 mile strip of beach in North Carolina, beginning 7 miles below the Refuge, is inimical to the use of the property as a wildlife refuge and is a depredation of the purpose of the property as a wildlife refuge.

We find as a fact that vehicular traffic of the volume now seeking to use the Refuge beach as a highway is destructive of the beach itself. This is readily apparent to anyone who has observed the unencumbered passage on the beach at the north end of nearby Hatteras Island and is clearly shown in the photographs, defendants' Exhibit Number 7 of April 3, 1973.

On these facts we find the closure directions and regulations issued by the Secretary of the Interior in his administration of the Back Bay National Wildlife Refuge to be clearly within the mandate of the Migratory Bird Conservation Act, 16 U.S.C. § 715(i).

Regulations as Discriminatory

Finally, an objection is raised to the regulations as promulgated because they would allow passage to a few on a limited basis. For instance, permits would be issued to those residing temporarily on the False Cape Park property of the State of Virginia and the few residents at Corolla. Temporary permits for limited fishing or hunting access may also be allowed.

The right to walk on the beach is in no wise prohibited.

Emergency vehicles, school buses, service and public utility trucks may move freely.

We do not feel such classification to be unreasonable under the circumstances of this case. Clearly the Secretary of the Interior has the right to make reasonable regulations under 16 U.S.C. § 668dd et seq.

If it is seriously contended that these few temporary uses are an unequal administration of the law, upon application, the Court will examine this issue more closely to see whether a total closure is necessary.

It is utter folly to believe that 30 miles of beach can be divided into 50 and 75 foot lots to be populated by any number of cottages and that passage to such an area can be accomplished along 20 feet of hard sand fronting just behind the breackers of the Atlantic Ocean. While such access might have been used by those on horses and carts at the beginning of the 20th Century and those inured to [5 ELR 20507] long delays and waits for appropriate weather and tide, it is entirely inappropriate for any mass of traffic.

It is apparent that this delaying action against the closure of the beach of the Back Bay National Wildlife Refuge serves no useful purpose except to continue the sale of lots on property to the south and to build up such a pressure of ownership as to politically force a road through the Back Bay National Wildlife Refuge and the adjacent Virginia False Cape Park. While such a course would seem a rape of these facilities, this is not an issue for decision by this Court.

The injunction issued by this Court on April 27, 1973 is dissolved as of midnight, Friday, February 28, 1975. The bond posted by the plaintiffs will be returned.

The regulations promulgated for the beach on the Back Bay National Wildlife Refuge will become totally effective at midnight, Friday, February 28, 1975.