If you were among the lucky who got to take a stroll on a North Carolina beach this summer, it probably didn’t occur to you to ponder who owned the sand beneath your toes. After all, aren’t North Carolina’s 300 miles of shoreline the public’s to enjoy?
That’s long been the assumption with our state’s beaches, but the notion is being challenged by two retirees in Emerald Isle. Their lawsuit involves a small patch of shoreline, but at stake is something much larger – the public’s access to what everyone presumed was a public resource.
The case began in 2011 when Gregory and Diane Nies, a retired couple from New Jersey, objected to an Emerald Isle ordinance that bars those who own beachfront property from putting up beach structures or equipment “within an area 20 feet seaward of the base of the frontal dunes.”
That 20-foot lane is part of what’s called the “dry-sand beach.” Commonly, the dry-sand beach is all the land from the dunes to where the water reaches at high tide. The “wet-sand beach” is the area that is covered and uncovered by the tide.
The Nies sued, saying that their property line included the dry-sand beach, and that the public was entitled only to the wet-sand beach. The town says that it helped maintain and improve that 20-foot lane covered by the ordinance, and that it is now essentially public land.
Moreover, the town said that N.C. law allows the public to use dry-sand beaches, and that all 300-plus miles of beach, in eight oceanfront counties, has operated with this understanding for centuries. Attorney General Roy Cooper agreed, and the N.C. Superior Court and Court of Appeals ruled in Emerald Isle’s favor.
Problem is, the rulings have relied on common law and tradition more than specific N.C. statutes, which don’t speak precisely to what happens if the dry sands includes someone’s property. In some states, including the Nies’ home state of New Jersey, property owners are allowed more control in such situations.
Now, the N.C. Supreme Court has taken up the case, an unusual move given that the Court of Appeals’ ruling was unanimous. There’s some worry the Republican-led Supreme Court could rule in the Nies’ favor, given that the couple is supported by the Republican-leaning Civitas Institute for Law and Freedom.
The Nies say that if the ruling goes their way, they don’t plan on banning people from their 76-foot stretch of dry-sand shoreline. But others along the coast could do so, and that would be a disaster, say officials in beach communities where tourism dollars might wash away.
We expect the N.C. Supreme Court will affirm the Appeals Court ruling, which noted that N.C. law has long declared that the “full width and breadth” of beaches are subject to “public trust rights.”
It’s possible, however, that the Supreme Court will put its thumb on the scale for property rights. We’d feel better if the legislature stepped in and made clearer what has long been assumed: The sand you walked on this summer is everyone’s to enjoy.