LEGAL TIDES - From the North Carolina Coastal Resources Law, Planning and Policy Center - Winter 2016

Oct 12, 2026

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“Legal Tides” examines the North Carolina Court of Appeals’ unanimous 2015 decision in Nies v. Town of Emerald Isle and explains its legal significance for public use of all North Carolina dry-sand beaches. The article outlines the public trust basis for common law access rights, the impact of beach nourishment projects, and how private landowners may not exclude the public from dry-sand areas. It also reviews the case background, including ordinances restricting beach equipment within 20 feet of frontal dunes.

LanguageEnglish

CategoryLetters

FormatPDF

Pages4

Reading Time2 min

AccessFree to download

Background of Nies vs. Town of Emerald Isle

The Public Right to Use All the Dry-sand Beaches in the State of North Carolina

Common law right confirmed by the Court of Appeals

Effect of beach nourishment on public access

Ordinance restricting beach equipment and the taking claim

LEGAL TIDES From the North Carolina Coastal Resources Law, Planning and Policy Center • Winter 2016 A Judicial Affirmation of the Public’s Common Law Right to Use All of North Carolina’s Dry-sand Beaches BY JOSEPH J. KALO, GRAHAM KENAN PROFESSOR OF LAW EMERITUS AT THE UNC SCHOOL OF LAW Thanks to NCCRLPPC Advisory Board members Allen Jernigan, N. C. Department of Justice, Ret. , and Merri Jo Alcoke, Ward and Smith, P.A. , for their review and comments on this article; and to NCCRLPPC law fellow James King for his research assistance. Nov. 17, 2015, was a very important date for the people of North Carolina and the legal community. In a unanimous North Carolina Court of Appeals opinion issued on that day, the court expressly confirmed a common law right that the people of North Carolina long knew existed. InNies v. Town of Emerald Isle, the Court unqualifiedly held that the“ocean beaches of North Carolina…are subject to public trust rights.” In late January 2016, the plaintiffs petitioned this case to the N.C. Supreme Court. For now, what this case means is that all the dry-sand beaches, whether natural or nourished, are open to public use for purposes related to the enjoyment of the State’s ocean waters and shorelines. Private oceanfront landowners cannot exclude the public from any portion of the dry-sand beach even if the private landowner’s legal title includes the drysand beach. Until the Court’s decision in theNies case, no North Carolina court opinion directly addressed the question of whether all dry-sand beaches of the State were, in fact, open to public use. The question had arisen in past cases but each time, for different reasons, the court did not have to answer it in order to resolve the litigation before it. Now the question has been answered. This article will examine theNies decision and its implications for other litigation in which the public’s right of use may play a role in the outcome. Background of Nies vs. Town of Emerald Isle The Nies litigation has its origins in the 2001 purchase by a New Jersey couple, the Nieses, of an oceanfront lot located in the Town of Emerald Isle (Town). According to the deed received by the couple, their title extended seaward to the mean high water mark, which meant that it included the dry-sand beach area lying between the foot of the dunes or first line of vegetation and the water. Not long after the couple purchased the property, the Town engaged in oneof its many beach nourishment projects. When the project was completed in 2003, the dry-sand beach in front of the Nieses’property had been extended from the pre-project mean high water mark to a new mean high watermark. As a result, the dry-sand beach in front of the Nieses’property consisted of an area that included the pre-project dry-sand beach and a new post-project beach created by the nourishment project. Legally, there was no dispute over the ownership of these two parts of the drysand beach. Title to the portion landward of the pre-project mean high water mark was, and remained, with the Nieses. Title to the newly created portion seaward of the pre-project mean high water mark was owned by the State and held by the State as public trust lands. North Carolina General Statute 146-6(f) specifically provides that lands raised by a beach nourishment project paid for with public funds are the property of the State and not that of the adjacent oceanfront property owner. And the statute makes clear that such raised lands are open to public use. InNies v. Town of Emerald Isle, it was the Nieses’contention that the public did not have a right to use that portion of the dry-sand beach to which they held title. Their contention was that the public only had the right to use the area to which A Collaboration of North Carolina Sea Grant, UNC School of Law and UNC Department of City and Regional Planning [www.nccoastallaw.org](www.nccoastallaw.org) the State held title—the raised lands seaward of

FAQs

What right did the Court of Appeals confirm in the Nies case?

The court expressly confirmed a common law right for the public that North Carolina’s ocean beaches are subject to public trust rights.

How does beach nourishment affect who can use raised dry-sand beach areas?

The article explains that lands raised by a beach nourishment project paid for with public funds are property of the State and are open to public use.

Why did the Nieses sue the Town of Emerald Isle?

They challenged ordinances that prohibited placing beach equipment within 20 feet seaward of the base of the frontal dunes, arguing it was an unconstitutional taking without compensation.

Oct 12, 2026

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