By Russ Lay | Outer Banks Voice on September 15, 2016
After reading the arguments by Gregory and Diane Nies in their legal action disputing the public’s right to use the beach on their oceanfront lot, many seem to find it easy to support their cause.
A non-scientific sampling of comments posted on other news sites that have covered this story reveal more than a few sympathizers to the Nies’ cause.
After all, either you own the property you paid for, or you don’t.
As in all law suits, there is another side, and the Town of Emerald Isle has built a diverse and impressive team of allies who have taken the time to file briefs with the state Supreme Court.
At stake is the entire foundation of the public’s beach access and its recreational uses, according arguments filed by Emerald Isle and in amicus curiae briefs.
Directly tied to the litigation is the state’s multi-billion coastal tourism economy.
As the Town of Emerald Isle notes in its brief, the beach access situation in North Carolina is far different than that in New Jersey, where the Nies are from.
There, many beaches are privately owned, and beachgoers must wear what is described in the brief as “badges” to prove they are allowed to access the dry sand beach, typically by being a guest of the hotel or club or other accommodation that owns the land.
In North Carolina, while some towns make access difficult by failing to provide parking and walkways to the beach, no local government or private property owner can deny the public the right to use the dry sand beach.
So, even in Southern Shores, which does not provide public beach access within its town limits, beachgoers can still “hike in” from points north and south of town and enjoy the beaches.
This concept plays a significant role in the development of beach communities here.
Residents don’t have to pay to use the beaches in their town, so swimmers, surfers, sunbathers and others are free to use the dry sand beach and a “beach culture” revolves around that access. With open beaches, it becomes a way of life.
Of even greater importance to the tourism economy if property owners like the Nies’ were to prevail at the Supreme Court and essentially close off the dry sand beach within their property boundaries. How would a tourism economy develop beyond the first row of oceanfront homes?
Would visitors rent a home two rows back, in the case of the Outer Banks, between the highways, if each oceanfront owner had the right to prevent those visitors from using the dry sand beach? Would the rules change daily depending on the whim of that oceanfront owner? It’s quite possible a crazy patchwork quilt would evolve, with one owner allowing access while the next denies it.
Without the development of non-oceanfront accommodations, it is probable that the number of tourists willing to visit would drop dramatically, and with that decline, the rest of the local economy would struggle to survive or develop.
Who would visit the restaurants and stores if only oceanfront tenants had guaranteed access to the beach? And if there weren’t any other things to do because of that restricted access — no restaurants, no boutiques — would tourists even want to pay $5,000 a week to stay in the Nies’ oceanfront home?
Another common thread running through the eight friend of the court briefs filed in support of Emerald Isle is that public access to the dry sand beach and the government’s right to ensure and regulate that access is firmly rooted in common law tradition dating back to the time North Carolina was still a colony governed by the Crown.
Those briefs were filed on behalf of over 50 entities and individuals, including groups such as the N.C. Travel and Tourism Coalition, the North Carolina Attorney General, the Surfrider Foundation, the North Carolina Coastal Federation and the North Carolina Association of County Commissioners, which represents the lead executive officer of every county in the state.
A brief filed by the Southern Environmental Law Center on behalf of its clients, the N.C. Coastal Federation and the N.C. Wildlife Federation argues, “The position taken by Plaintiffs in this case, if adopted, would upend North Carolina’s established law, substantially and adversely affecting members of the Coastal Federation and Wildlife Federation who use the State’s beaches to fish, swim, hunt shells, walk, and vacation with their families.”
The brief further argues: “The public’s right to use the dry sand beach in North Carolina is rooted in common law, acknowledged as part of our common heritage in our Constitution, and firmly established in our General Statutes. As this Court has recognized, “[t]he concept of the ‘public trust’ doctrine evolved from the theory that presumed that the Crown held title to tidal lands and waters for the benefit of the public.”
Emerald Isle’s filing cites public use of beaches for fishermen and others as a common practice that dates back centuries.
The town notes it adopted driving ordinances as far back as the late 1950s when Emerald Isle was incorporated, and says the General Assembly adopted regulations for beach driving in the area between Beaufort Inlet and Bouge Inlet in a defined area as “south of the dune line to the Atlantic Ocean,” a corridor that includes both the wet and dry sand beaches.
Emerald Isle also states that the Nies’ admit in their own brief they often visited Emerald Isle as vacationers for two decades prior to purchasing their oceanfront home.
The town contends the Nies’ were well aware of the beach driving ordinances when they purchased their property and took title to their land.
The town further contends “though it apparently never bothered them in previous decades when they visited the Town (and presumably used the dry sand beaches), the Nieses have become unhappy with the public’s access and use of the dry sand beach near their beach house.”
Finally, the town says the Nies’ complaints that such access diminishes the value of their property is offset by the fact their home rents for $3,000 to $5,000 per week and is currently listed for sale at $1.6 million.
In short, the general consensus is that the Nies’ never had the property right they claimed in the first place: The dry sand beach portion of their lot has always been in the public trust and common law practice, tradition, and prior local government and state law has that concept, so they lack any valid claim that the government is taking their land and must compensate them or gain their permission for its use.
In the brief filed on behalf of Dare, Currituck and Hyde counties, all of Dare’s oceanfront municipalities and the N.C. Beachbuggy Association, attorney Ben Gallop cites the same common law traditions. But he also points to laws passed by the General Assembly that clearly demonstrate the state believes the public trust doctrine applies to the entirety of what most people would commonly refer to as “the beach.”
Gallop uses the following to make his point: “The North Carolina General Assembly has established that “[n]atural indicators of the landward extent of the ocean beaches include, but are not limited to, the first line of stable, natural vegetation; the toe of the frontal dune).
Gallop writes, “Thus, the entire area of an ocean beach in North Carolina is subject to public trust rights. See N.C.G.S. § 77-20(d) and (e). Such rights ‘include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State’s ocean and estuarine beaches and public access to the beaches.’ N.C.G.S. § 1-45.1”
Another interesting point Gallop raises is one of terminology and how two different terms, the “Mean High Water Mark” and the “Mean High Water Line,” have become confused in the case law.
Gallop defines the two different concepts, then applies them to the case at hand, pointing out the Court of Appeals, in rejecting the Nies’ appeal, applied the correct definition in affirming the dry sand beach as part of the public trust.
His analysis of the two terms also helps explain why, in some cases, local governments must obtain property owners’ permission or compensate them for use of the dry sand beach, while in other cases, such as everyday use of the beach, none is required.
The environmental groups that are lining up behind Emerald Isle are focusing their concerns on the wider aspects of traditional beach use for the general public.
Likewise, the Surfrider Foundation is also primarily concerned with the issue of access for its members and the surfing public.
There is much at stake here for Dare County and perhaps every beach community in the United States if the court decides in the Nies’ favor.
And even if the state Supreme Court upholds the Appeals Court rejection of the Neis’ case, the Pacific Legal Foundation has vowed to take the fight to the federal court system.
It may be some time before this legal issue is resolved.
Photo by Pat Morris