High court case could reshape what we consider ‘our’ beach

By Russ Lay | Outer Banks Voice on September 12, 2016

Public beach or private rights? First of four parts

You’ve rented a house just far enough from the oceanfront that it’s too far for the family to walk to the beach.

Everyone piles into the car and heads for the Beach Road, checking out public access parking lots and hoping to score an empty space. Or at least one with a bathhouse or maybe a port-o-john.

After several tries, you finally find one.

The kids pile out and rush to the beach as the adults schlep enough gear over the dune to survive a week on a desert island.

You scan the beach looking for an empty spot close enough to the water to keep an eye on the kids, but far enough away to avoid being be forced to move as the tide rolls in.

Umbrellas and canopies are planted, beach blankets spread out, toys unpacked, volleyball nets and court laid out, chairs turned to catch the sun and coolers with sand wheels strategically placed in what has now become your stake of dry sand.

Then, as you settle in your chair and pop open a cold one, a representative of the owners of the rental home behind you approach and order you to pack it all up and move.

You’re trespassing on private property.

Locals and visitors to the Outer Banks take one thing for granted: Once you walk onto the sand, the entire beach is usually available for your enjoyment.

But a lawsuit filed by an Emerald Isle couple and heading to the N.C. Supreme Court could significantly impact, even restrict, the public’s right to set up camp on what is commonly called the “dry sand beach.”

And that suit, filed by Gregory and Diane Nies, has made county and municipal governments as well as an odd assortment of unlikely interest groups nervous enough to come to Emerald Isle’s aid with financial and legal support.

The concern is amplified because the Nies’ are being represented by the Pacific Legal Foundation, one of the nation’s largest and most successful property rights law firms.

On their web page they have vowed to take this case as far as the U.S. Supreme Court.

So far, the Nies’ have lost each of their court cases, with the North Carolina Court of Appeals handing them their most recent defeat.

Based upon some recent decisions handed down from the state’s highest court, the decision by the state Supreme Court to hear the case has left many believing that the jurists will agree with the appeals court decision.

But more disconcerting is the Pacific Legal Foundation’s vow to move onto federal court if the Nies’ lose at the state level.

The PLF has extensive experience in the federal system, including the U.S. Supreme Court. In fact, their web site boasts that the “PLF has had an unprecedented eight wins in its last eight direct High Court appearances for its clients, including three in the last two years.”

All of which has led Currituck, Dare and Hyde counties, five Dare municipalities, and the North Carolina Beach Buggy Association to join Emerald Isle in sending money to help fund their Supreme Court case costs.

Municipal law specialist Ben Gallop of Hornthal, Riley, Ellis and Maland was also tapped by the nine entities to file an amicus curiae, or “friend of the court,” brief in support of Emerald Isle.

These special briefs are only allowed to be filed in state and federal Supreme Courts, and their presence typically signals interested parties feel such cases have ramifications that extend far beyond the plaintiff’s and defendant’s immediate interests.

The nine entities have been joined by the state’s four other oceanfront counties, all 16 other coastal municipalities as well as unlikely allies such as the N.C. Coastal Federation, the N.C. Wildlife Federation, the Surfrider Foundation and other users of beaches and waterways.

In fact, this is perhaps the oddest arrangement of allies ever put together on one side of a court case involving the state’s beaches.

More often than not, groups like the Surfriders, Wildlife Federation and Coastal Federation are lined up against coastal county and local governments when litigation is involved.

Even stranger is the law firm and lawyer chosen to write and submit the combined N.C. Coastal Federation/NC Wildlife Federation amicus brief — Derb Carter and the Southern Environmental Law Center.

This may mark the first time in history Dare Country and the SELC were on the same side of a lawsuit where the state’s natural resources and access to them were in play.

In our next installment, we will look at the history of North Carolina’s public beach doctrines. Following that we will visit the argument from the Nies’ and the PLF’s point of view, followed by a final installment covering the Emerald Isle position.