In 1966, The Virginia General Assembly authorized the acquisition of several thousand acres of land fronting on the Atlantic Ocean for use as a state park. This $8.5 million purchase was funding jointly by the Commonwealth and the federal government. The tract of land is bordered on the east and west by bodies of water, on the south by North Carolina, and on the north by the Back Bay National Wildlife Refuge. Measures taken by the federal government in the 1970’s, however, reversed this decision, leaving state officials with no vehicular access road to the park.

Attempts at reaching a compromise with the federal government so that some means of vehicular access could be provided were unsuccessful. Consequently, in 1979, Senator Howard P. Anderson, Chairman of the Senate Committee on Agriculture, Conservation and Natural Resources, appointed a subcommittee to study ways of gaining public access to False Cape State Park. Members of the Subcommittee are Senators Joseph To. Fitzpatrick of Norfolk, Chairman, William E. Fears of Accomac, and Wiley F. Mitchell, Jr., of Alexandria.

The Subcommittee has met a number of times during the past two years in an attempt to find a solution to this access problem. During much of this time, N. Bartlett Theberge of the Virginia Institute of Marine Science has served as a consultant to the Subcommittee. Mr. Theberge has prepared a report on title and other legal research he has done with respect to the provision of access into False Cape State Park. The Subcommittee presents Mr. Theberge’s findings to the Governor and General Assembly as its report.

Since the early 1970's the Department of Ocean and Coastal Law at the Virginia Institute of Marine Science, the School of Marine Science of the College of William and Mary has been carrying out research into the nature of private and public rights and ownership of riparian, subaqueous and coastal lands: Smolen, Theodore F. "Historical Overview of Lands Known as Common," Virginia Institute of Marine Science, 1974; Theberge, N. B., 1975. "An Investigation into the History and Ownership of Starling's Island," Virginia Institute of Marine Science, prepared pursuant to Senate Joint Resolution No. 153; Theberge, N. B., 1976. ''An Investigation into the History and Ownership of Adam's Island," Virginia Institute of Marine Science, prepared pursuant to Senate Joint Resolution No. 57. Evidence, information, and theories resulting from departmental research have found its way into litigation and legislation. Coupland v. Morton, 7 ERC 1965 (1975); Commonwealth of Virginia v. The Nature Conservancy and Bradford, Record No. 79-1320; Public Beach Conservation and Development Act, Va. Code Ann. 10-215 et seq. (1978 Repl. Vol.). On the basis of our past association with questions pertaining to governmental, private and public rights in coastal lands, we were requested to examine state law, federal law, and the history of state, private and federal ownership in the area of the Back Bay National Wildlife Refuge (Appendix 1, Figure 1) in order to determine what rights of public access might exist in this area.