## Facts

- Joseph A. Huber applied to the North Carolina Marine Fisheries Commission for a lease of public submerged lands in Core Sound to grow clams on public bottom under N.C. Gen. Stat. § 113-202.
- Clyde Mason, Jr., an adjoining upland (riparian) owner, filed an administrative protest to the proposed lease.
- Mason argued the lease should be denied because (1) the leased area contained a prohibited “natural shellfish bed,” and (2) the lease interfered with his riparian access rights and therefore amounted to an unlawful taking without compensation.
- Commission rules defined a “natural shellfish bed” as an area of public bottom where ten bushels or more of shellfish per acre are found growing.
- A Division of Marine Fisheries investigation in 1982 described the site as sand-and-mud bottom with little rooted vegetation, exposed to wind, and reported clam density below ten bushels per acre.
- Before a later investigation, Huber planted a large quantity of clam seed and placed protective mats and stakes on the proposed lease area; the mats prevented staff from sampling within the lease boundaries, so the later survey sampled only outside the proposed lease.
- After an administrative hearing and review of staff investigations, the Commission approved the lease with multiple conditions aimed at protecting public use and Mason’s riparian interests, including conditions addressing boating access, recreation, and Mason’s access to deeper water and reasonable use of water along his shoreline.
- Mason sought judicial review in superior court. The trial court reversed the Commission, concluding (1) the record did not support the Commission’s determination that the area was not a natural shellfish bed, and (2) the lease amounted to a taking because Mason’s riparian rights extended to the nearest federally maintained channel, regardless of lease conditions.
- The Commission appealed to the North Carolina Court of Appeals.

## Issues

1. Whether the administrative record contained sufficient evidence to support the Commission’s finding that the proposed lease area did not contain a “natural shellfish bed” under the Commission’s ten-bushels-per-acre definition.
2. Whether the superior court erred by treating the lease as a taking of Mason’s riparian rights without compensation based on a claimed right of access extending to the nearest federally maintained channel, despite conditions intended to protect Mason’s access and use.

## Decision

- The Court of Appeals affirmed the superior court’s reversal of the lease on the natural-shellfish-bed issue because the Commission lacked adequate evidence, tied to its own quantitative definition, to support the finding that the leased area was not a natural shellfish bed.
- The court held the Commission could not rely on qualitative site characteristics (such as bottom type, vegetation, and wind exposure) as a substitute for evidence addressing the ten-bushels-per-acre standard, especially where the later investigation could not sample within the proposed lease area due to the mats and stakes.
- The Court of Appeals reversed the superior court’s takings ruling, rejecting the trial court’s per se approach that Mason’s riparian access necessarily extended to the nearest federally maintained channel and that any overlapping lease automatically constituted a taking.
- The court treated the lease conditions as material protections for public rights and Mason’s reasonable access and use and concluded those protections defeated the trial court’s categorical takings reasoning.
- Disposition: affirmed in part and reversed in part (with the lease still set aside due to the natural-shellfish-bed evidentiary failure).

## Legal Principles

- When an agency adopts an objective, quantitative definition in its rules (e.g., ten bushels of shellfish per acre), its factual findings must be supported by record evidence that addresses that standard; the agency may not effectively substitute a different, qualitative test.
- Under N.C. Gen. Stat. § 113-202, the Commission may not issue a shellfish lease over public bottom that includes a known or suspected natural shellfish bed, as defined by applicable Commission rules.
- On judicial review, a court may set aside an agency decision when a material finding is not supported by substantial evidence (sufficient competent evidence) in the record.
- Riparian rights protect reasonable access to and use of adjacent waters, but they do not automatically create an exclusive corridor to a federally maintained channel; a lease of public bottom conditioned to protect reasonable access and water use does not, by that fact alone, amount to a taking requiring compensation.

## Conclusion

In re Protest of Mason held that the Marine Fisheries Commission’s approval of Huber’s clam lease could not stand because the record did not support, under the Commission’s own ten-bushels-per-acre definition, the finding that the leased area was not a natural shellfish bed; however, the Court of Appeals rejected the superior court’s categorical takings theory based on an asserted riparian right extending to the nearest federally maintained channel, emphasizing that the lease conditions were designed to preserve public use and Mason’s reasonable access and shoreline water use.


In re Protest of Mason, 78 N.C. App. 16, 337 S.E.2d 99 (1985)