NC EX REL. NC DEPT. OF ADMIN. v. ALCOA POWER

No. 15-2225.

853 F.3d 140 (2017)

The State of NORTH CAROLINA, BY AND THROUGH its agency, the NORTH CAROLINA DEPARTMENT OF ADMINISTRATION, Plaintiff-Appellant, v. ALCOA POWER GENERATING, INC., Defendant-Appellee. Yadkin Riverkeeper, Inc.; North Carolina Wildlife Federation, Inc.; Michael C. Blumm, Jeffrey Bain Faculty Scholar and Professor of Law, Lewis & Clark Law School, Portland, OR; Mary Christina Wood, Philip H. Knight Professor of Law, University of Oregon School of Law, Eugene, OR; Patrick C. McGinley, Judge Charles H. Haden II Professor of Law, West Virginia University College of Law, Morgantown, WV; Rachael Paschal Osborn, Adjunct Professor, Gonzaga University School of Law, Spokane, WA; Patrick Parenteau, Professor of Law and Senior Counsel for Environmental and Natural Resources Law Clinic, Vermont Law School, South Royalton, VT; Zygmunt J.B. Plater, Professor of Law, Boston College Law School, Boston, MA; William Rodgers, Emeritus Stimson Bullitt Professor of Law, University of Washington School of Law, Seattle, WA; Gerald Torres, Jane M.G. Foster Professor of Law, Cornell Law School, Ithaca, NY; American Whitewater, Amici Supporting Appellant, High Rock Lake Association; Trading Ford Historic District Preservation Association, Amici Supporting Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: April 3, 2017.

Amended: April 18, 2017.


Attorney(s) appearing for the Case

ARGUED: Robert Flynn Orr , Raleigh, North Carolina; Kelly Edward Greene , WYRICK, ROBBINS, YATES & PONTON, LLP, Raleigh, North Carolina, for Appellant. Erin Elizabeth Murphy , BANCROFT PLLC, Alexandria, Virginia, for Appellee. ON BRIEF: Roy Cooper , Attorney General, Donald R. Teeter, Sr. , Special Deputy Attorney General, Ann W. Matthews , Special Deputy Attorney General, G. Mark Teague , Assistant Attorney General, Lewis W. Lamar, Jr. , Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellant. Paul D. Clement , Christopher G. Michel , BANCROFT PLLC, Washington, D.C., for Appellee. James P. Longest, Jr. , Shannon M. Arata , Duke Environmental Law & Policy Clinic, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Amicus Yadkin Riverkeeper, Inc. Patrick C. McGinley , Morgantown, West Virginia, for Amici Michael C. Blumm , Mary Christina Wood , Rachael Paschal Osborn , Patrick A. Parenteau , Zygmunt J.B. Plater , William Rodgers and Gerald Torres . Stephan C. Volker , Jamey M.B. Volker , M. Benjamin Eichenberg , LAW OFFICES OF STEPHAN C. VOLKER, Oakland, California; Thomas D. Blue, Jr. , ELLIS & WINTERS LLP, Raleigh, North Carolina, for Amicus American Whitewater. James L. Conner, II , CALHOUN, BHELLA & SECHREST, LLP, Durham, North Carolina, for Amicus North Carolina Wildlife Federation, Inc. Ashley C. Parrish , Justin A. Torres , KING & SPALDING, LLP, Washington, D.C., for Amici High Rock Lake Association and Trading Ford Historic District Preservation Association.

Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Judge King wrote a dissenting opinion.


The State of North Carolina commenced this action against Alcoa Power Generating, Inc., seeking a declaratory judgment that North Carolina owns a 45-mile segment of the riverbed of the Yadkin River in North Carolina that, over the past 100 years, Alcoa purportedly acquired by deed and developed, with the construction of...

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