Government seized family’s private beach by unilaterally redefining it as public

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.”

Statement by Greg NiesIn 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.”

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.”

The case is Nies v. Town of Emerald Isle.  More information, including PLF’s petition for certiorari and a blog post by PLF Senior Attorney J. David Breemer, is available at PLF’s website:


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Pacific Legal Foundation is a national nonprofit law firm that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 34 states plus Washington, D.C., PLF represents clients in state and federal courts, with 18 wins of 20 cases litigated at the U.S. Supreme Court.

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