June 29th, 2016 — By — In News & Events

OCA Files Amicus Brief In Support of Property Owners in NC “Public Trust Doctrine” Case

Along our country’s shores, a historical legal principle known as the “public trust doctrine” allows members of the public to access the beach beyond either the mean high or low water mark, even where this section of the beach (as well as the land above the water mark) is private property.

This is the law in most states; and, until recently, it was clear that the public trust doctrine did not – and was not intended to –provide local governments the authority to interfere with landowners’ rights in the “dry sand” areas of their private property.

However, a case currently pending in the North Carolina Supreme Court is threatening to change that. In Nies v. Town of Emerald Isle (No. 409PA15), two lower courts have held that private “dry sand” property is also subject to the public trust. This is an unprecedented application of the public trust doctrine, and one that Owners’ Counsel of America (OCA) and property rights advocates around the country are fighting vigorously to have overturned.

The Case of Nies v. Town of Emerald Isle

The case arose after the Town of Emerald Isle, a small town on a barrier island on North Carolina’s Atlantic shore, passed an ordinance in 2010 that created a 20-foot wide “unimpeded Town vehicle lane” on all dry sand areas seaward of the first line of dunes. The “unimpeded” nature of the vehicle lane meant that even the property owners who owned the beachfront land on which the new lane existed could not occupy this portion of their private property.

Then, in 2013 the Town passed another ordinance that allowed members of the public to drive on all privately-owned “dry sand” areas. This effectively turned the Nies’s (and other owners’) private beachfront property into parking lots for the public.

The Nies family sued, alleging that the 2010 and 2013 ordinances amounted to takings without the payment of just compensation (the family had owned their land prior to 2010). The Town fought back, and cited the public trust doctrine as authority for making public use of the family’s land.

Despite the fact that the public trust doctrine had never previously been used in such a fashion – and in fact had only ever been used below the mean high water mark and in North Carolina’s state-owned beach areas – the trial court and the North Carolina Court of Appeals both sided with the Town of Emerald Isle.

OCA’s Amici Brief

On May 23, 2016, Owners’ Counsel of America and professor David L. Callies filed an amici brief urging the North Carolina Supreme Court to reverse the lower courts’ decision. The brief asks the Supreme Court to reconfirm that the public trust doctrine does not extend beyond the mean high water mark, and that any public use of private “dry sand” beach areas thus remains subject to the law of eminent domain. Such an interpretation of the public trust doctrine would be consistent with the doctrine’s application in other states around the country.

You can read OCA’s brief below.

Owners’ Counsel of America | Leading Eminent Domain Attorneys Nationwide

If you would like more information about Nies v. Town of Emerald Isle, or if the government is attempting to take your private property without payment of just compensation, contact Owners’ Counsel of Americaby phone (877) 367-6963 or  online. To locate an OCA attorney in your state visit our website here.


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

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