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Amicus Brief NO. 409PA15 THIRD DISTRICT ******************************************************** SUPREME COURT OF NORTH CAROLINA ******************************************************** GREGORY P. NIES and DIANE S. ) NIES, ) ) Plaintiff-Petitioners, ) ) v. ) ) TOWN OF EMERALD ISLE, a North ) Carolina Municipality, ) ) Defendant-Respondent. ) ************************** BRIEF OF AMICI CURIAE GRAHAM KENAN PROFESSOR OF LAW EMERITUS JOSEPH KALO, THE NORTH CAROLINA ASSOCIATION OF COUNTY COMMISSIONERS, THE NORTH CAROLINA BEACH, INLET & WATERWAY ASSOCIATION, THE COUNTIES OF BRUNSWICK, CARTERET, NEW HANOVER, ONSLOW, AND PENDER, NORTH CAROLINA, THE TOWNS OF ATLANTIC BEACH, CAROLINA BEACH, CASWELL BEACH, HOLDEN BEACH, INDIAN BEACH, KURE BEACH, NORTH TOPSAIL BEACH, OAK ISLAND, OCEAN ISLE BEACH, PINE KNOLL SHORES, SUNSET BEACH, SURF CITY, TOPSAIL BEACH, AND WRIGHTSVILLE BEACH, NORTH CAROLINA, AND THE VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA ************************** - i - TABLE OF CONTENTS Page INTRODUCTION ...................................................................... 1 INTEREST OF AMICI .............................................................. 3 A. Joseph Kalo, Graham Kenan Professor of Law Emeritus ......................................................... 3 B. North Carolina Association of County Commissioners ....................................................... 4 C. North Carolina Beach, Inlet & Waterway Association ............................................................. 4 D. Southern Coastal Local Governments ................... 5 ARGUMENT.............................................................................. 6 I. The public has made frequent, uninterrupted use of the full width of the ocean beaches of North Carolina from time immemorial. ..................................... 6 A. The full width of our State’s ocean beaches have historically and currently been used for a variety of purposes. ............................................. 6 B. The State of North Carolina has taken the position that, as a matter of customary law, all natural dry sand beaches are open to public trust uses and that any title to that area is subject to the right of the public to make such uses. .................................................... 11 II. Private title to natural dry sand beaches in North Carolina is encumbered by a customary public right of use. ..................................................................... 16 - ii - A. The public has acquired a legal right to use our State’s dry sand beaches pursuant to the public trust doctrine. ............................................ 17 B. The public has also acquired a legal right to use our State’s dry sand beaches pursuant to the doctrine of custom.......................................... 21 III. The public’s legal right to access and use the dry sand beach does not infringe upon private property rights. .............................................................................. 23 IV. Denying public access and use of North Carolina’s dry sand beaches would diminish the quality of life and strong coastal economies that North Carolinians have long enjoyed due to the traditional recognition of such access and use. .............. 24 A. Plaintiffs’ position, if adopted, would dramatically transform the way that our citizens and visitors use our ocean beaches. ........ 24 B. Plaintiffs’ position, if adopted, would also have devastating impacts on our State’s economy and tourism industry. ............................ 25 CONCLUSION ........................................................................ 27 - iii - TABLE OF AUTHORITIES Cases Bost v. Mingues, 64 N.C. 44 (1870) ................................................................. 21 Concerned Citizens v. Holden Beach Enterprises, 95 N.C. App. 38, 381 S.E.2d 810 (1989) ............................. 20 Concerned Citizens v. Holden Beach Enterprises, 329 N.C. 37, 404 S.E.2d 677 (1991) ............................. passim Etheridge v. Jones, 30 N.C. 100 (1847) ................................................................. 8 Fabrikant v. Currituck County, 174 N.C App. 30, 621 S.E.2d 19 (2005) .............................. 17 Fish House v. Clarke, 204 N.C. App. 130, 693 S.E.2d 208 (2010) ......................... 18 Gwathmey v. State of North Carolina, 342 N.C. 287, 464 S.E.2d 674 (1995) .............................. 1, 17 Hest Technologies, Inc. v. State of North Carolina, 366 N.C. 289, 749 S.E.2d 429 (2012) .................................. 15 Nash v. Morton, 48 N.C. 3 (1855) ..................................................................... 8 Nies v. Town of Emerald Isle, __ N.C. App. __, 780 S.E.2d 187 (2015) ..................... 2, 6, 17 Peele v. Morton, 396 F. Supp. 584 (E.D.N.C. 1975) ......................................... 8 Penland v. Ingle, 138 N.C. 456, 50 S.E. 850 (1905) ........................................ 21 Peterson v. South & Western R.R., 143 N.C. 260, 55 S.E.2d 618 (1906) .................................... 21 - iv - State ex rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969) ................................................. 21, 22 State v. Anderson, 123 N.C. 705, 31 S.E. 219 (1898) ........................................ 21 State v. Vick, 213 N.C. 235, 195 S.E. 779 (1938) ........................................ 7 Storm v. Town of Wrightsville Beach, 189 N.C. 679, 128 S.E.2d 17 (1925) ...................................... 7 Town of Emerald Isle v. State of North Carolina, 320 N.C. 640, 360 S.E.2d 756 (1987) ...................... 18, 19, 26 West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985) ...................................... 8 Winder v. Blake, 49 N.C. 332 (1857) ............................................................... 21 Statutes N.C. Gen. Stat. § 113-131(e) .............................................. 11, 17 N.C. Gen. Stat. § 113A-134.1(b) .............................................. 12 N.C. Gen. Stat. § 146-6(f) .......................................................... 6 N.C. Gen. Stat. § 160A-205 ..................................................... 23 N.C. Gen. Stat. § 77-20 ...................................................... 12, 13 N.C. Gen. Stat. § 77-20(a) .......................................................... 1 N.C. Gen. Stat. § 77-20(d) .............................................. 1, 12, 13 N.C. Gen. Stat. § 77-20(e) .............................................. 1, 12, 13 N.C. Gen. Stat. §§ 153A-145.3 ................................................ 23 N.C. Gen. Stat. 1-45.1 .................................................. 11, 12, 17 - v - Other Authorities Arthur Barlowe, Traffic with the Savages, from THE PRINCIPAL NAVIGATIONS VOYAGES TRAFFIQUES & DISCOVERIES OF THE ENGLISH NATION, vol. 8, 299-301, rd 304-306 (Richard Hakluyt, ed., 3 ed. 1903) excerpted in AN OUTER BANKS READER, 5 (David Stick ed., 1998) [App. 40-42] ................................................................. 7 David Brower, Lisa Buckley and Kate Eschelbach, Univ. of N.C. at Chapel Hill, Dep’t of City & Reg’l Planning, North Carolina Traditional Beach Use Pilot Study (2005) (“Beach Use Pilot Study”) [App. 49-76] .......... 9 Giovanni da Verrazzano, Contact, from Susan Tarrow, Translation of the Celere Codex, in LAWRENCE C. WROTH, THE VOYAGE OF VERRAZZANO, 1524-1528, 135-36 (1970) excerpted in AN OUTER BANKS READER, 3-4 (David Stick ed., 1998) [App. 38-39] ............................... 7 Gregory Seaworthy (George Higby Troop), Antebellum Nags Head, from NAGS HEAD; OR, TWO MONTHS AMONG “THE BANKERS”, 22-26, 37-39, 79-80, 159-161 (1850), excerpted in AN OUTER BANKS READER, 13, 16 (David Stick ed., 1998) [App. 43-48] ..................................... 8 LEGISLATIVE RESEARCH COMMISSION, COASTAL SUBMERGED LANDS REPORT TO THE 1985 GENERAL ASSEMBLY OF NORTH CAROLINA, at 2 (Dec. 13, 1984) ........ 13 N.C. Sess. Law ch. 67, § 13.9(a)(3) ........................................... 5 NCDENR, North Carolina Beach Inlet Management Plan: Final Report (April 2011) [App. 1-36] .............. 5, 6, 10 Opinion of Attorney General Re: Advisory Opinion Beach Renourishment Projects, N.C.G.S. § 146-6(f), 1996 WL 925134 (Oct. 15, 1996) ...... 14 The Changing Face of the Shoreline: Public and Private Rights to the Natural and Nourished Dry Sand - vi - Beaches of North Carolina, 78 N.C. L. Rev. 1869 (2000) ...................................................................................... 4 Regulations 15A NCAC 7H .0209(d)(5) ...................................................... 14 15A NCAC 7H .0306(a)(10) .................................................... 14 15A NCAC 7H .0309 ............................................................... 15 15A NCAC 7M .0301(a) .......................................................... 14 - 1- INTRODUCTION For many generations, North Carolinians have enjoyed free and open access to all the dry sand ocean beaches in our State.1 On those beaches, the public has sunbathed, played beach sports, engaged in recreational and commercial fishing activities, exchanged marriage vows, driven along the beach, or just taken a peaceful stroll. Historically, these activities have occurred even on the natural dry sand ocean beaches in which oceanfront property owners may hold fee title. For many generations, it has been inconceivable that these public uses of the dry sand beach are “trespasses” or in any way infringe on any private property rights of any oceanfront property owner. Recently, however, Plaintiffs attempt to assert complete control over any part of the
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