Battle on the Beach: Owners’ Counsel of America Files Amicus Brief in Important Property Rights Case

Recently, the Owners’ Counsel of America filed an amicus brief in a property rights case currently pending in the North Carolina Supreme Court. The case, Nies v. Town of Emerald Isle, No. COA15-169 (N.C. App. Nov. 17, 2015), concerns the ownership and right to use the “dry sand” beach.  OCA joined with Hawaii Law Professor David Callies as amici on the brief.

Who Owns the “Dry Sand” Beach?

The Nies case involves the question or who owns the upland portion of the beach – the “dry sand” beach.  The “dry sand” beach is generally defined as the area between the mean high water mark (where the sand is wet) and the dune or vegetation line.  Emerald Isle claims that all private beachfront land between the dunes and the mean high water mark (MHWM), including property owned by the Nies, is subject to the “public trust.” according to this argument, the Town and public may utilize the “dry sand” area without taking the property or an easement across it using the power of eminent domain or paying just compensation for the taking.

The Nies argue that the deed to their beachfront property lists the seaward boundary to be the mean high water mark (MHWM).  In the Nies view, the “dry sand” beach between the dunes and the MHWM is their private property, which they have the right to use and enjoy and have the right to exclude others from accessing it.

What is the Public Trust Doctrine?

The public trust doctrine is a legal principle that preserves certain natural and cultural resources for public use.   Under the public trust doctrine, these resources are owned by the government and must be protected and maintained for use by the public.  For example, the public trust doctrine holds that the government owns all of the submerged lands under navigable waters.  Case law has held that the public trust doctrine preserves for public use the “wet sand” beach area seaward of the mean high water mark. Under the public trust doctrine, however, the state does not own the “dry sand beach.”

Background of the Case

The property owners filed an inverse condemnation lawsuit in 2011 alleging that the Town of Emerald Isle violated their state and federal constitutional rights by taking their property rights without following eminent domain procedures and paying just compensation for the rights acquired.  The inverse condemnation complaint followed the Town’s enactment of ordinances that established a 20-foot-wide “driving lane” for both public and municipal uses across the dry sandy beach area owned by the Nies family.  The lawsuit argues that these ordinances effectively established an easement across private property without paying just compensation to the owners.

The trial court agreed with the Town finding that the Town was not liable for a regulatory taking when it allowed the public to drive on the dry sand beach.  The Nies family appealed to the North Carolina Court of Appeals.  Again, siding with the Town, the Court of Appeals held that the public has the right to access all dry sand beaches in North Carolina. While oceanfront owners hold title to the dry sand beach, the Court of Appeals concluded that their title does not give landowners the right to deny the public access to the dry sandy beach.  The Nies family appealed to the North Carolina Supreme Court which granted discretionary review.   The Pacific Legal Foundation (PLF) represents the Nies family.

OCA’s Amicus Brief: If the Government Moves the Public Shoreline Onto Private Property, It’s a Taking

OCA urges the NC Supreme Court to reverse the Court of Appeals decision.  OCA’s brief argues the Court of Appeals permitted the Town of Emerald Isle to press into public service the portion of the Nies family’s property above the MHWM as a road and park. OCA believes the Court of Appeals decision conflicts with existing North Carolina law. OCA urges the N.C. Supreme Court to confirm that the public trust doctrine only relates to land below the MHWM and cannot be extended by legislation or by a court to the dry sand beach.  Should the Court of Appeals decision stand, the government can avoid its constitutional obligations to condemn private property for public use and pay just compensation to the affected landowners.

This issue is not limited to North Carolina, but has surfaced around the country in states such as Michigan, Indiana, New Jersey and Florida.  therefore, OCA feels that this issue is not only important to the citizens of North Carolina but to all Americans.

Contact an Inverse Condemnation Attorney with Owners’ Counsel of America

The eminent domain and inverse condemnation attorneys affiliated with Owners’ Counsel of America (OCA) represent private landowners in condemnation proceedings and property rights matters. If the government has impacted your property rights, an OCA attorney in your state can help you protect your legal rights. Contact us for more information online or call (877) 367-6963.

[Proposed] Brief of Amici Curiae Owners’ Counsel of America and Professor David L. Callies, Nies v. Town of… by robert_thomas_5 on Scribd

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