Today, the Civitas Institute Center for Law and Freedom (CLF) moved the North Carolina Supreme Court for leave to file an amicus brief in the matter of Nies v. Town of Emerald Isle. CLF’s motion was accompanied by a proposed brief.
North Carolina has long protected private property rights, which include the ability to exclude non-owners from one’s land. In coastal areas of the state, this right of exclusion is subject to the “public trust doctrine” — meaning that the government and public may use certain portions of private beaches. However, North Carolina’s public trust doctrine has never been extended to include private, dry sand beaches — i.e. beach areas between the “wet sand” and the dunes. Such private “dry sand” areas have always been considered private property subject to no special encumbrances or easements.
The Town of Emerald Isle has argued that the public trust doctrine in North Carolina extends to private, dry sand beaches, and that it can therefore make use of private dry sand property without having to compensate private citizens for such use. Late last year, the Court of Appeals agreed with the Town. The Plaintiffs — represented by the Pacific Legal Foundation — appealed to the North Carolina Supreme Court.
In CLF’s proposed brief, we seek to inform the Court on three issues, summarized in our motion for leave to file:
First, [CLF] proposes to inform the Court about North Carolina’s Anglo-American common law tradition of protecting private property rights. The State of North Carolina protects the right to own, maintain, and exclude others from private property. These protections are rooted in the Anglo-American common law, and they survive in North Carolina’s modern constitution and laws.
Second, CLF seeks to inform the Court as to how this common law tradition shapes North Carolina’s public trust doctrine. Amicus proposes to do so by distinguishing the common law public trust doctrine from its civil law counterpart. It then seeks to explain how the differences between the two are relevant and dispositive in this case.
Third, amicus seeks to argue that the Court of Appeals’ finding that North Carolina’s public trust doctrine applies to private, dry sand beaches is inconsistent with the common law tradition. It seeks to do so by showing that the Defendant has physically occupied the Plaintiffs’ property, and that this physical invasion goes beyond the scope of public trust rights in North Carolina, making the Defendants’ actions a taking requiring compensation.