Environmental Matters

Water and Land Part 2

Water and Land
In Part I, we discussed the lawsuit between the State of North Carolina and Alcoa which determined that Alcoa owns a 45 mile portion of the Yadkin River riverbed. State of North Carolina v. Alcoa Power Generating, Inc., 5:13-CV-00633 (E.D.N.C.) (September 28, 2015).    In Part II, we turn our attention to the North Carolina public trust doctrine.
Part II:  Ocean Beaches and the Public Trust Doctrine
As noted in Part I, Federal law holds that the public trust doctrine is governed by state law.  Traditionally, North Carolina’s public trust doctrine establishes public access in inland waters, but not to inland waters.  In other words, the bank of a river may be exclusively owned a private citizens and the public has no right to access the river by traveling over this private property. 
But what is the law where there is no defined bank, like an ocean beach of shifting sand where the surface of the water expands and contracts according to tides and storm events? 
A North Carolina beach, the area from the high water mark of the storm tide waterward is composed of two areas – the wet sand beach and the dry sand beach.  Generally, the wet sand beach or foreshore – the area from the mean high water markto the ocean – is owned by the State of North Carolina.  The dry sand beach – the area landward from the mean high water mark to the high water mark of the storm tide is frequently owned privately. 
In Nies v. Town of Emerald Isle, ___ N.C. App. ___, ___ S.E.2d ____(2015 WL 8272743), private property owners claimed that they owned the dry sand ocean beach exclusively.  Instead of bringing a civil action of trespass against members of the public using this portion of the beach, the Nies sued the Town of Emerald Isle because the Town regulated this area and had issued beach driving permits entitling permittees to drive on this portion of the beach.  Therefore, the Nies claimed the Town had taken their property and sought just compensation. The trial court entered summary judgment in favor of the Town against the Nies’ inverse condemnation claim and the North Carolina Court of Appeals affirmed the trial court.  Writing for the Court of Appeals, Chief Judge McGee noted that the “public right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness.”  Relying upon statutes adopted by the General Assembly addressing public rights to use ocean beaches, the North Carolina Court of Appeals held that “ocean beaches of North Carolina include both the wet sand beaches – generally, but not exclusively publically owned- and the dry sand beaches – generally, but not exclusively, privately owned” and the entire beach is generally subject to public trust rights.   Accordingly, the Town did not take the Nies’ property by regulating driving on the dry sand beach and issuing beach driving permits.   
The North Carolina Court of Appeals did not uncover any prior North Carolina holding establishing the landward extent of North Carolina ocean beaches.   Why might that be?  In the past, beaches were transitory areas always subject to high winds and sea water.  But places where water and land intersect have become important.  As environmentally sensitive and valuable recreational and water usage areas, these places receive special attention.  This trend is unlikely to abate.  To the contrary, these special places are likely to receive more attention.  
Is there another reason that cases concerning places where land and water meet might be important? These cases illustrate a division between two strong policy concerns which are polar opposites.  On the one hand, preserving and protecting private property rights from unreasonable and unfair governmental intrusion is an important policy concern, but, on the other hand, preserving and protecting public resources and public access to these resources is an important policy concern.  Reconciling these principles is a difficult and dynamic process, not unlike the places which give rise to these cases.  Therefore it is unsurprising that the losing parties in both cases are appealing.
One phenomenon is reasonably clear.  As the State of North Carolina grows and more people live, work and play within the same geographical boundary, places where land and surface water meet will continue to grow in importance.    

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