Here's the amicus brief we filed yesterday on behalf of lawprof David Callies and our colleagues at Owners' Counsel of America in an important case involving ownership and use of the "dry sand" beach, now pending in the North Carolina Supreme Court.
In Nies v. Town of Emerald Isle, No. COA15-169 (N.C. App. Nov. 17, 2015), the court of appeals held that the dry sand portion of the beach -- the part between the mean high water mark and the dune or vegetation line -- is subject to the public trust. Consequently, the Town was not liable for a regulatory taking when it allowed the public, for a fee, to drive on the beach. The Nies family, which thought it owned the property inland of the MHWM under long-standing North Carolina law, and that the public trust only applied to property seaward of the MHWM, sought compensation. The North Carolina Supreme Court granted discretionary review.
The ownership of the dry sand beach isn't an issue limited to North Carolina, and indeed is a burgeoning question nationwide, as state and local government seek to expand the public beaches, but want to do so without condemning and paying for the private rights impacted.
Our brief argues:
The Court of Appeals permitted the Town of Emerald Isle (Town) to impress into public service the portion of the Nies family’s property above the mean high water mark as a road and park. North Carolina law has never subject this dry sand to public ownership, through the public trust doctrine or otherwise. The Court of Appeals, however, ignored this distinction, holding that the Town’s permitting the public to use the Nies’ dry sand was not a taking because the Nies never owned the right to exclude the public. This Court should reverse, and reconfirm—in accordance with its existing precedents and the vast majority of other jurisdictions—that the public trust is limited to land below the mean high water mark, and cannot be extended by the legislature or by a court to insulate the Town from avoiding its constitutional obligations to condemn the property and pay just compensation under the law of the land clause and the Fifth Amendment. Simply put, the public trust doctrine isn’t a means to transform what has always been private property under North Carolina law into a public resource, without compensation.
Affirming the court of appeals would put North Carolina into a distinct minority: Every state, with a handful of exceptions, limits the public's rights at the mean high or low water marks. See Br. at 11-15.
We'll put up the property owners' merits brief and the other amicus brief, in a separate post.