On January 30, 2026, a second appeal was dropped ending the contested case that challenged the rights of the public to recreate on sections of the Boone Fork and Watauga River in North Carolina. It has been a long time since American Whitewater reported on the case brought by a private development that borders short sections of both streams, but the primary focus of the case was whether the North Carolina Wildlife Resources Commission had a duty to enforce fishing and wading prohibitions in the adjacent stream segments. However, the development also initially alleged that the stream segments were non-navigable and, therefore, not open to public trust recreational uses of any kind.
American Whitewater, represented by North Carolina attorney Tom Blue and his firm, Ellis & Winters, intervened in the case and, with the help of many American Whitewater members, provided the tribunal with substantial evidence that these stream segments are regularly boated, legally and physically navigable, and thus should remain open to the public for boating.
On August 1, 2024, at American Whitewater’s urging, the tribunal clarified that the temporary restraining order it issued early in the case was not applicable to kayakers. The tribunal amended its previous order, stating that “[t]his Order is not intended to, and does not, prohibit or limit navigation of the stream segments by individuals in kayaks or other recreational watercraft.”
A major hearing in the case took place on September 20, 2024, but all parties agreed to a brief pause after Hurricane Helene devastated the North Carolina mountains a week later. Thereafter, the case took a lengthy and protracted course, including two petitions to a higher court for review. The January dismissal of the second appeal ended the case and the continued right of the public to navigate the upper reaches of the Watauga and the Boone Fork remain unaffected.
While this is the end of this particular challenge, it did not bolster or reinforce the existing law in North Carolina that navigable streams are open to the public. We must remain vigilant. It is entirely possible that additional challenges may be mounted. Without your support and the efforts of pro bono counsel, we would be hard pressed to mount such strong and swift challenges as we did in this case. Please consider renewing your membership, or making an additional donation today to ensure we can continue to stay engaged in cases like this, and be prepared to respond when new threats arise.