Summer beach scene in Kitty Hawk. If a case before the NC Supreme Court overturns years of public access to the beaches, on one is certain what that will mean.
A case that the NC Supreme Court has on its docket is worth watching. Nies v Emerald has the potential to change how the public uses the our state’s beaches, changing what is now public access for all beach goers to a confusing jumble of private ownership.
At the heart of the legal wrangling is North Carolina’s public trust doctrine—a doctrine that right now allows the public access to all of the state’s beaches.
The Public Trust doctrine is a very old concept—it’s roots are found in Roman law, although how we view public trust is a legacy from our the country’s British Colonial period. Basically public trust doctrine says that certain lands that the government holds are for the benefit of everyone and within those areas the public is granted full access.
Here’s where it starts to get a little confusing. The state owns the land between the ebb tide and average or mean high water mark calculated over a period of time. The dry sand area between the mean high water mark and the base of the dunes is owned by the property owner, but North Carolina public trust doctrine holds that the public must be granted use of the dry sand portion of the property.
In 2010 Emerald Isle passed an ordinance prohibiting obstructions in a 20’ wide area at the foot of the dunes. The purpose of the cleared area was to allow “… unimpeded vehicle travel lane for emergency services personnel and other town personnel providing essential services…”
In an interview the Nies family said what Emerald Isle did was to create what was, in fact, a road and that there was constant 4WD traffic on it. In 2011 the family sued claiming the 20’ taken from their property was an illegal taking and they were owed eminent domain compensation. The Superior Court denied the claim 2014 and the Appellate Court upheld the lower court ruling in 2015.
The Nies appealed to the State Supreme Court and the court agreed to a discretionary review of the case-which means the court agreed with the lower court rulings but there is probably a point of law that needs to be clarified or reviewed.
The Nies lawyers claim that simply saying land is in the public trust is insufficient and the state is still obligated to negotiate the use of the land with the property owner.
Emerald Isle, noting a long history of public trust use rights, feels the Appellate Court especially, spelled our in very strong, specific language how the public trust doctrine is to be applied on North Carolina beaches.
If the Supreme Court decides for Emerald Isle it would clarify an important part of public trust doctrine in the state, removing any doubt that the public is granted complete access to state beaches.
If Nies prevails it will be very confusing—and possibly expensive. Some property owners would probably grant easements, recognizing that the success of the North Carolina beaches is based on access. Other property owners may seek compensation under eminent domain procedures.
And there would certainly be property owners who did not want anyone on their land. If one property owner allows access and the next door neighbor doesn’t, how would that be enforced?
The uncertainty about what would happen if the public trust use of the beaches is overturned is why every—yes, every—jurisdiction in coastal North Carolina has filed an amicus brief with Emerald Isle. It is also why Attorney General Roy Cooper who is running for Governor and Governor Pat McCrory his opponent have filed amicus briefs. There are also amicus briefs from the North Carolina Coastal Federation, NC Beach Buggy Association and others.
There is no date set for when the Supreme Court will hear the case.