Public water access endangered in South Carolina

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B.A.S.S.

GEORGETOWN, S.C. — Thousands of acres of South Carolina coastal waters could be cut off to public access after a private foundation filed a lawsuit against the state to confirm it owns rights to all the property, both on land and in water, through a king’s land grant. Opponents worry the lawsuit could set precedence elsewhere in a state where navigable marshlands are the size of the state of Rhode Island.

At stake is access to 8,000 acres of marshland owned by the Belle W. Baruch Foundation. The overall tract, called Hobcaw Barony, spans 16,000 acres along the Atlantic Ocean and near the city of Georgetown. Specifically, the foundation intends to claim ownership of any land subject to tidal flow through its property.

“The implications are bad and it’s very concerning to me, and it should be to all sportsmen, and anyone else that appreciates the ideals and values of public lands and waters,” said Stephen Goldfinch, a South Carolina state senator.  

In recent years, B.A.S.S. has held numerous tournaments out of Georgetown, including Bassmaster Elite Series events at the Carroll Ashmore Campbell Marine Complex, specifically designed for hosting large scale events. 

For centuries, the navigable waterways in question have been used by commercial and recreational boaters, hunters and anglers. Hobcaw Barony was created 55 years ago to support forestry and marine biology research and teaching for universities in South Carolina. Throughout that time, the waterways have been open to public use, dating back to the days of the owner’s king’s grant titles. 

“The problem with asserting one at this point in time is they never did in the past, even prior to when settlement happened,” said Goldfinch. “At some point in time the public gained what I think was a constructive easement of that property, even if they own a king’s grant.”

That is why the motives being taken after so many decades, even centuries, by the foundation are unclear. The foundation has not declared why after so many years that it wants to clarify ownership of water crossing its property, including North Inlet, the entrance from the Atlantic Ocean to the vast area of waterways.

“Nobody from the foundation has been able to tell me why they are doing this just now,” said Goldfinch. “They say they are just defining their rights, not really going to keep people out.”

Goldfinch added the property cannot be sold or developed, but if made private the foundation could enforce trespassing laws. He believes the only reason why the foundation would want to keep people out is for the research purposes set up through the trust. That lines up with the foundation’s support of its benefactors, which are the universities and research scientists wanting a pristine, undisturbed area of salt marsh for their purposes.

“That is real concerning that they are going to take care of the universities and their researchers, but not the public that has an interest in fishing and recreation,” he said. “To do what they are doing to the detriment to the citizens that pay the taxes is really a shame.” 

The State of South Carolina, listed as defendant in the case, asserts a presumption of ownership as to any lands below mean high water. The foundation wants the court to dismiss the state’s claims for a prescriptive easement allowing public access to the marshlands. 

“The State alleges that it has prima facie fee simple title, in public trust, of all lands now or formerly lying below the mean high-water mark of all tidal navigable waters in the State, including, but not limited to the Atlantic Ocean,” according to its counterclaim filed with the court.

Goldfinch cited the state’s constitution that gives South Carolinians the right to access public waters for fishing and hunting.

“Even if they have a king’s grant, they do not have the right to shut off what is a public water and especially a major public waterway,” he said. “We are not talking about something you can put a gate across like a canal, this is a giant area.”

The foundation has already summoned the South Carolina Department of Natural Resource to enforce trespassing laws, even though there are none posted on the property. Goldfinch cited the case of a wading fly fisherman approached by a DNR officer about leaving the property. No citation was issued, however, after the angler asked the officer to write the ticket. 

The issue raised flags with the Coastal Conservation Association (CCA), which filed court documents challenging positions made by the foundation about the public’s rights to water access. CCA has 12,000 of its 100,000 members in South Carolina. CCA requested rights to appear as a friend of the state in court.

The timeline for the case is unclear at this time, due to court backlogs due to the COVID-19 pandemic.