Press Release

PLF asks U.S. Supreme Court to hear Nies case

Town of Emerald Isle, N.C.; April 27, 2017:  Pacific Legal Foundation is asking the Supreme Court of the United States to hear Nies v. Town of Emerald Isle, PLF’s important property rights case that asks whether public officials can seize private beach land, without compensation, by unilaterally redefining it as subject to government control as a “public trust.”

In the petition for certiorari filed with the High Court this week, PLF attorneys represent Greg and Diane Nies, who are challenging the Town of Emerald Isle for an unconstitutional “taking” of their private property.  At the Town’s command, the Nieses’ private beach in front of their oceanfront home was converted into a roadway for government vehicles, as well as a recreational right-of-way for the general public, including motorists.

The Town did not reimburse the Nieses for imposing a 20-foot-wide roadway and recreational easement on their beach property.  However, the North Carolina courts rejected the couple’s takings lawsuit, ruling that a 1998 state law turned private dry beaches into “public trust” areas available for public use.  This interpretation — the first time the courts ever applied the law — squarely conflicts with common law principles that exclude dry sandy beaches from the “public trust,” limiting it to state-owned beach property that is seaward of mean high tide.

“On behalf of property owners everywhere, the Supreme Court of the United States needs to hear this important case,” said PLF Senior Attorney J. David Breemer.  “North Carolina’s courts have essentially said that it is permissible for public authorities to wash away people’s rights, by arbitrarily and unilaterally redefining their private property, and their control over it, into nothingness.  The Constitution’s sturdy protections for property owners cannot be treated like sand castles worn away by the waves.”

Statement by Greg Nies

Greg Nies and his wife, Diane, are both retired from careers in data management.  They have two grown children and two grandchildren.  Retiring to their Emerald Isle beach home was a dream for them — until the Town took away their property rights.  The Town’s intrusions on their private property confirmed that their later decision to move for health reasons was correct.

“We always understand that the Town had the right to condemn private property for public use, but the Constitution says they had a duty to pay market value,” said Greg Nies.  “We are grateful that Pacific Legal Foundation is standing with us to fight for the basic property rights that we were denied.  In fact, we’re fighting for everyone’s property rights, because if government officials can make up reasons to take ours away, it can happen to other homeowners, wherever they live.”

The government’s — and the NC courts’ — ‘public trust’ doctrine washes away rights

Through a 2010 ordinance, the Town gave itself an exclusive driving lane across the Nieses’ sandy beach property, allowing Town vehicles to cruise across it at all times of the day.  Moreover, a 2013 Town ordinance created a toll road across the same area (and more), allowing the public to drive across it, from September to May, for a fee to the Town.

To justify failing to pay the Nieses for taking over the use of their private beach property, the Town claimed that title to all privately owned beachfront land between the dunes and the mean high water mark, including the Nieses’ land, is subject to an unwritten “public trust” easement.  The state appellate court agreed with this argument — ruling that a 1998 state statute changed the common law to suddenly expand and extend the “public trust” to include privately owned dry beach parcels, areas that had never previously been covered by the doctrine.

“The appellate court essentially said state lawmakers had the right to turn privately owned beaches up and down North Carolina’s coastline into a public beach, without paying a single owner a dime in compensation,” said Breemer.  “If allowed to stand, that astounding political power play in North Carolina threatens the property rights of all Americans.  The Fifth Amendment says private property cannot be taken for public use without ‘just compensation.’  If politicians can get away with avoiding that obligation, by creating new definitions that transform private into public, the potential erosion of people’s rights could extend from coast to coast.”

About Pacific Legal Foundation
Pacific Legal Foundation, America’s most powerful ally for justice, litigates in courts nationwide for limited government and property rights.  PLF represents the Nieses, and all its clients, without charge.

Case Attorneys

J. David Breemer

Senior Attorney

David (Dave) Breemer developed a passion for liberty while reading classics such as John Locke’s Two Treatises of Government and Thomas Paine’s The Rights of Man, as he pursued a … ›

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Meriem L. Hubbard

Senior Attorney

Meriem Hubbard has been an attorney at Pacific Legal Foundation since January 2000.  She litigates cases involving property rights, public finance issues, and preferences in government hiring, contracting, and education. … ›

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Case Commentary

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By J. David Breemer

PLF asks Supreme Court to hear massive beach land grab case

This week, Pacific Legal Foundation attorneys filed a Petition for Certiorari asking the United States Supreme Court to review the case of Nies v Town of Emerald Isle, discussed more here  The Petition presents the important question of “whether the Takings Clause permits a state to statutorily redefine an entire coastline of privately owned dry beach parcels as a “public trust” area open for public use, without just compensation?”

As this blog explained here, and here, this case arising from the Town of Emerald Isle’s enactment of ordinances allowing the public and town officials to use the Nies’ privately owned dry beach land, without any compensation

The state courts held the

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By J. David Breemer

NC Supreme Court agrees to review beach access takings case

Today, the North Carolina Supreme Court agreed to review the case of Nies v Town of Emerald Isle, a beach property rights dispute pitting a couple’s right to limit access to their beachfront land against a local government’s desire to open it up the land to public and town driving

The case arises from Emerald Isle, a barrier island on North Carolina’s Atlantic shore Gregory and Diane Nies own a residential, beachfront lot that extends seaward to the high tide mark Their ownership includes the dry sand beach area in front of their home

After they acquired the property, the Town of Emerald Isle enacted an ordinance that made a 20-foot ribbon of their dry sand beach area

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By J. David Breemer

PLF asks NC supreme Court to decide "public trust" beach takings case

On December 9, 2015, PLF attorneys asked the North Carolina Supreme Court to review the Court of Appeals’  published decision in Nies v Town of Emerald Isle In that case, described more fully here, the Court of Appeals concluded, for the first time in state history, that the public and government may enter and occupy  privately owned dry sand beach areas, without owner consent, under the theory that the “public trust doctrine” applies to such lands

The public trust doctrine, and the public beach uses it allows, has historically been limited to  state-owned wet beach areas below the mean high water mark However, relying on an ambiguous (at best)

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