Nies v. Town of Emerald Isle, North Carolina

May 30, 2017 • Legal Briefs
By Robert H. Thomas, Karen Harned, Luke Wake, Ilya Shapiro, & Trevor Burrus

The Fifth Amendment to the Constitution provides that citizens cannot be deprived of their property unless it is for a public use and they are given just compensation. The Founders understood that the government occasionally needed to acquire private property for public uses, but they also understood the dangers of letting them do so without compensating property owners. Land is attractive to governments, after all, and free land all the more so. Despite the Fifth Amendment, or more accurately because of it, governments are constantly inventing ways to get land for free, including coming up with spurious arguments that the citizens never owned the land to begin with. The town of Emerald Isle, North Carolina did just that when it passed an ordinance redefining land that had long been privately owned as part of the “public trust” beachfront. States may hold certain beach property in public trust, which allows the public and government officials to use the land. In North Carolina, the common law has long held that public trust land begins below (seaward) of the mean high water line. The “dry” beach, above the mean high water line (landward), has generally been allowed to be privately owned. When the Nies family purchased their house in 2001, their property line extended down to the mean high water line. In 2003, the town tried to acquire an easement over their land for a beach renourishment project. The Nies declined to sign the easement, but they did offer the town a temporary easement that would expire in 2005. Unsatisfied with the offer, the town sought to acquire an easement through a “quick take” eminent domain procedure. After a court battle, the town was granted a limited easement to enter the Nies’s land in order to inspect and restore erosion from major storms. The public was not given access. It seems the town wasn’t satisfied, however, because in 2004 it passed an ordinance allowing public driving on the land, and in 2013 it redefined the “public trust beach” as “all land and water area between the Atlantic Ocean and the base of the frontal dunes”—in other words, it eliminated the traditional mean high water property line. The Nies challenged the taking of their property, and the North Carolina Court of Appeals held that the town’s actions were justified because a state law had redefined the public trust portions of beach. The North Carolina General Assembly, the court held, can “modify any prior common law understanding of the geographic limits of these public trust rights” and therefore the Nies were not owed any compensation. The Nies appealed to the North Carolina Supreme Court, which initially agreed to review the case. After the November election changed the composition of the court, however, the case was dismissed without explanation. The Nies now appeal to the Supreme Court of the United States, arguing that North Carolina’s statute redefining public trust beaches is a taking under the Fifth Amendment and therefore the family is owed just compensation for their lost property. Cato, joined by the Owners’ Counsel of America, the National Federation of Independent Business Legal Center, and Professor David L. Callies of the University of Hawaii, has filed in support of the family. We argue that, even if a state can alter its property law by statute, it cannot avoid the Constitution’s just compensation requirement if that statute turns private lands into public ones—and the North Carolina law certainly did that. The cost to a state for the taking of private property should be higher than the price of the paper that the statute was printed upon. If North Carolina is allowed to take the Nies’s property without paying for it, other states are likely to follow suit. After all, it’s free land. The Supreme Court should grant review in order to overturn a dangerous decision that severely undermines property rights.

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