Beach Access, Legal
July 28 2016

Surfrider Defends Public Beach Access Rights at the North Carolina Supreme Court

by Angela Howe

The Surfrider Foundation North Carolina Chapters banded together this month to weigh in on a seminal beach access case that is going up before the Supreme Court of North Carolina.  In the Nies v. Town of Emerald Isle case, beachfront homeowners Diane and Gregory Nies have sued the Town of Emerald Isle because they want to exclude the public from the sandy beach in front of their home.  The Town heroically has taken action to defend the beach access rights of North Carolinians by zealously advocating for public beach access rights to walk over and enjoy the dry sand, without encroachment, including beach equipment within 20 feet seaward of the dunes.  The lower court and appellate court agreed with the Town, but the Nieses have appealed the matter up to the state Supreme Court

Specifically, the Plaintiff Nieses, a New Jersey couple who vacation at a home in North Carolina, allege inverse condemnation taking of private property by the Town. However, in November, the Court of Appeals of North Carolina delivered justice when they expressly confirmed the common law right of the public to access the dry sand beach, even if it is held under the title of a private landowner.  The court clarifies that the dry sand beach is the portion of the beach landward of the mean high tide line to the high water mark of the storm tide, which is normally where dunes and vegetation begin. The court acknowledges that property ownership extends seaward to the mean high water line; however, the right of the public to use the beach extends over the dry sand to the foot of the dunes or line of vegetation, even if it is owned by private citizens.  The Appellate Court cited both to the North Carolina General Statutes and to an Attorney General opinion stating that the doctrine of custom operated to preserve public access to North Carolina dry sand beaches.  It goes on to state: “we take notice that public right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that is has become part of the public consciousness.”

On July 27, 2016, Surfrider Foundation, as represented by Ryke Longest (Director of the Duke Environmental Law and Policy Clinic), filed an amicus brief in support of the Town of Emerald Isle and their efforts to protect the public’s right of access to dry-sand beaches.  In the brief, we argue:  

  • The beach-going public has customarily used and accessed the dry sand beach,  
  • The Public Trust Doctrine in North Carolina protects the public’s usage right of the dry sand beach,
  • First responders, such as the U.S. Life Saving Service, have used this public right of way to protect the health and safety of public, and
  • Because the Town has properly used it’s police powers, there is no cognizable takings claim. 

Having submitted this powerful brief, we now await the North Carolina Supreme Court hearing and hope that they rule in line with the wisdom of the lower courts.