COASTAL OBSERVER

The Belle W. Baruch Foundation’s claim to about 8,000 acres of marsh adjacent to Hobcaw Barony will resume following a ruling by the state Court of Appeals last week that allows property owners at DeBordieu a role in the legal proceedings.

A three-judge panel overturned a Circuit Court judge’s 2020 ruling that the DeBordieu Colony Community Association could not intervene in the suit.

The court rules “set a liberal standard for intervention. Denying intervention here was inconsistent with that standard,” Judge Blake Hewitt wrote in the opinion. Chief Judge Bruce Williams and Judge Letitia Verdin concurred.

“We appreciate the court’s analysis of our arguments and their decision,” said Blanche Brown, the executive director of the association.

George Chastain, the Baruch Foundation’s executive director, pointed out that the issue was procedural. “We’re glad to have that resolved and ready to move forward,” he said.

The foundation filed suit against the state in the fall of 2019 seeking a ruling that it has a king’s grant title to the marshlands within North Inlet adjacent to about 8,000 acres of uplands at Hobcaw.  The property is the site of research by the University of South Carolina’s Baruch Marine Lab and the federal North Inlet-Winyah Bay National Estuarine Research Reserve.

“The marine biology is core to the foundation’s mission, to Belle Baruch’s mission,” Chastain said. “Protecting the ownership is the goal that allows them to do that. That’s crucial to our mission.”

The state asked the court to deny the foundation’s claim or to declare that the public had a prescriptive easement over the marsh.

The DeBordieu association sought to intervene, saying that the state could not adequately represent its members, who have an economic interest in the outcome of the suit. It also claimed a prescriptive easement to the marsh.

Judge Paul Burch denied the association’s motion because its claims are not “a ripe controversy” because the Baruch Foundation had not  “and may never” exclude its members from the marsh.

The foundation had argued that even if the court upholds its claim to ownership the right to use the navigable waters of North Inlet would not be impaired. 

The judge agreed.

The Appeals Court found that the judge erred in applying the rules that allow third parties to intervene in lawsuits. 

“First, it is undisputed that DeBordieu timely filed its motion. Second, through its counterclaim for a prescriptive easement, DeBordieu is unquestionably claiming an ‘interest’ in the disputed property. Third, barring DeBordieu impairs or impedes DeBordieu’s ability to protect its claimed interest,” Hewitt said in the decision.

A fourth factor – whether the outcome of the case might impair a party’s ability to protect its interest – “is not designed to be a difficult standard,” he said.

It would be “contrary to the mandate of judicial economy” to deny  DeBordieu a role “in a suit that is meant to determine the rightful property owner over a parcel over which DeBordieu claims an easement,” Hewitt said.

Even though the state and the association both claim prescriptive easements, the former is for the general public and the latter is for association members.

“The State’s and DeBordieu’s easement claims are independent of one another, and are different claims requiring different proof,” according to the Appeals Court decision.

While the Baruch Foundation argued that DeBordieu could not intervene because it was not claiming ownership of the marsh “we do not see how any statute or precedent supports this being a meaningful distinction,” Hewitt said.

He noted that there are many examples of cases where adjoining landowners were able to intervene without claiming ownership of disputed property.

“DeBordieu’s participation many prolong the litigation by adding an additional party, but trying to keep them out of the case seems to have already done that,” the judge said.

The judges also agreed the fact that the Baruch Foundation had not tried to exclude anyone from the marsh did not mean the DeBordieu association’s claim was not ripe.

“The law does not require an easement holder to idly sit, waiting to be ejected, before making a claim,” Hewitt said. “Not only is there a live controversy between Baruch and DeBordieu, but DeBordieu is a real party in interest by the mere fact that it claims an interest in the marshlands.”

“We were pleased with the way the decision was written,” Brown said. “Not only for DeBordieu, but everyone who recreates in the North Inlet estuary.”

Before the association filed its appeal in August 2020, the Baruch Foundation filed a motion to dismiss two of the state’s counterclaims.

It argued that a prescriptive easement could not be established because access had been over navigable waters and not over a defined area. 

To say it applied to all 8,000 acres “would constitute adverse possession,” which it said the state had not established.

“The public has a constitutional right to use navigable waters and such right is not adverse to the title of the owner of the land under those waters,” the foundation said in its filing.

That also applies to the state’s claim of “implied dedication” of the marsh to the public, the foundation said.

The claim is based “on the public’s alleged recreational use of the navigable waters over the property in question. Implied dedication cannot arise from recreational use as a matter of law,” the foundation argues.

That motion is still pending.