Here's the amici curiae brief we filed today on behalf of Owners' Counsel of America, NFIB Small Business Legal Center, Cato Institute, and Professor David Callies in support of a cert petition which we detailed here.
The case is a regulatory takings claim, and involves wet and dry sand beaches, public trust, and other favorite topics. The case arose because the N.C. Legislature by statute moved the "public trust" shoreline landward, and allowed the public to use what had formerly been private beach.
Here's the Summary of Argument from our brief:
The North Carolina 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 subjected this dry sand to public ownership, through the public trust doctrine or otherwise. The court below, however, ignored this distinction, holding that the Town’s permitting the public to use to the Nies’ dry sand was not a taking because the Nies never owned the right to exclude the public from “public trust” areas of the beach. But under North Carolina law—and the law of the vast majority of other jurisdictions—the public trust is limited to land below the mean high water mark, and cannot be extended by the legislature or by a court, and at the same time avoid the constitutional obligation to pay just compensation. Simply put, the public trust doctrine isn’t a means to transform without compensation what has always been private property under North Carolina law, into a public resource.This brief makes three points. First, the just compensation requirement is self-executing, and even if a state may alter its property law by statute, it cannot avoid its constitutional obligation to pay for the change. Second, since its inception, the scope of North Carolina’s public trust doctrine has been strictly limited to state-owned beaches seaward of the mean high water mark; until it was extended to include the dry sand beach up to the vegetation line, the North Carolina public trust was consistent with the law of a vast majority of other jurisdictions. Third, expansion of the “public trust” beyond its traditional scope cannot completely swallow up the Just Compensation Clause.
Br. at 4. Stay tuned.
