Supreme Court denies State’s Alcoa appeal

Badin Lake & Morrow Mountain State Park in a 2007 file photo | M Fletcher CC

ALBEMARLE — The Supreme Court of the United States denied a petition by the state of North Carolina to review a ruling at the 4th Circuit Court of Appeals related to ownership of the riverbed along the Yadkin River at the site of four hydroelectric dams owned by Alcoa. The ruling appears to clear the way for Cube Hydro Carolinas — which purchased the hydroelectric operations of Alcoa — to operate the facilities. Cube Yadkin Generation LLC, a part of Cube Hydro Carolinas, is now listed as the owner of a Federal Energy Regulatory Commission license that dates to Alcoa’s original FERC license.

The challenge to Alcoa’s ownership of the riverbed dates back several years. A federal trial court and the U.S. Court of Appeals for the 4th Circuit both side with Alcoa. The state of N.C. challenged Alcoa’s ownership, claiming that the Yadkin River was owned by the state since the original 13 colonies declared independence. Under the state’s theory, title to the navigable waters of the state — and the soil underneath them — passed directly from the British royalty to these states.

The 4th Circuit sided with Alcoa on the question of ownership in a 2-1 decision. On April 3, 2017, the Court of Appeals held “Alcoa has title to the bed of the Relevant Segment.” That opinion was written by Judge Paul V. Niemeyer, a nominee of President George H.W. Bush, and was joined by Judge Steven G. Agee, a nominee of President George W. Bush. Judge Robert B. King, a nominee of President Bill Clinton, wrote a lengthy dissent arguing that the state should retain ownership of the riverbed.

As part of the re-licensing process with FERC, Stanly County stands to benefit from economic development activities around Badin Lake. The settlement agreement between Alcoa, and now Cube Hydro as a result of their purchase and assumption of the license, requires the company to pay $3 million to the county with $1 million earmarked for economic development and the remainder to be used at the discretion of the county.

Responding to the Supreme Court’s decision to not take up the State’s appeal, County Commission Chairman Joseph Burleson said, “While litigation between the State and Alcoa has been divisive, the Supreme Court has spoken. Our Commission will continue to be good stewards of the county’s funds and the settlement proceeds will be put to good use for the benefit our citizens.”