Updated at 6:46 p.m.

EMERALD ISLE | Town officials in Emerald Isle say the North Carolina Supreme Court’s decision to dismiss a beachfront property rights complaint against the town is a win for public beach access across the coast.

The court on Wednesday issued an order indicating the appeal of the complaint filed by Gregory and Diane Nies against the Town of Emerald Isle is dismissed “ex mero motu,” which means the court dismissed the case of its own will and not at the request of either party. It does not give a specific reason for the action.

The dismissal comes just weeks before the court was to hear the appeal on Jan. 10.

Town Manager said the dismissal means the North Carolina Court of Appeals ruling in the town’s favor stands. “As a result of this dismissal, the November 2015 opinion of the N.C. Court of Appeals is now the definitive law on public beach access in Emerald Isle, and everywhere in North Carolina,” Rush said in the town’s statement regarding the decision of the state’s highest court. “The town is pleased with the court’s decision, which clarifies the public’s historical and continuing right to use the dry-sand beach, from the base of the dunes to the water, everywhere in North Carolina.” 

The case put private property rights versus public use of the dry sand beach up for debate.

The Nies, who have since sold their Emerald Isle home, contend in the lawsuit that the town took for its use a 20-foot-wide “driving lane” across the sandy beach that is part of the private property, and has did so without compensation.

The “driving lane” they said resulted in beach driving traffic and damage to the private dry beach.

The town has argued otherwise and says the ordinance creating the alleged “driving lane” applies to the entire beach strand and is intended to ensure an unobstructed pathway for emergency vehicle to access the beach.

In its responses to the legal challenge, the town said the practical use of the beach is the same now as it was before the Nies case and had the backing of North Carolina’s other beach towns and counties in the fight to protect public access to the beach.

Rush thanked the town’s legal team and the municipalities and organizations that have backed the town in its defense of the legal challenge.

“The North Carolina Supreme Court’s dismissal represents a victory for the Town of Emerald Isle in this specific case; however, it represents a much more important victory for current and future generations of North Carolina residents and visitors who will continue to enjoy the ocean beach experience and build lasting family memories along our beautiful coastline,” Rush said.

The Nies have been represented by Pacific Legal Foundation, a donor-supported organization that defends property rights nationwide.

J. David Breemer, a principal attorney with the foundation, said their attorneys and the Nies will be weighing potential options regarding the future of the case, including possibly appealing to the U.S. Supreme Court.

Breemer said it is disappointing to see North Carolina’s highest court reverse course with no explanation after agreeing in April to hear the case, which PLF has argued is an “unconstitutional taking” of property by the Town of Emerald Isle.

“After litigating this case for five long years and finally getting it accepted by the state’s highest court, it is very disappointing for the Nies to have that court reverse itself and decline to hear the matter, without any explanation for the switch,” Breemer said. “The disappointment shouldn’t be confined to the Nies. Everybody who values property rights, no matter where you live, has a stake in the outcome of this case, because it involves the fundamental principle that that government can’t take private property without paying for it. So far, the Town of Emerald Isle has been able to get away with defying that constitutional principle, and we were hopeful that the North Carolina Supreme Court would call the city out on its unconstitutional behavior. Now, we are considering an appeal to the Supreme Court of the United States – the ultimate tribunal for protection of all Americans’ property rights.”

While the right to appeal is not automatic in the case, the Nies can petition the U.S. Supreme Court to review the case as was done at the state level.




RALEIGH (AP) — North Carolina's Supreme Court is dismissing a lawsuit that challenged how much of the state's beaches are free for anyone to stroll or whether parts of it could be closed off by private owners.

The court on Wednesday issued an order saying it was dropping the case on its own initiative but did not explain why.

Justices were scheduled to hear arguments next month in the case that could have decided whether the public can use entire beaches between surf and dunes along all 300 miles of North Carolina's shoreline.

Gregory and Diane Nies sued Emerald Isle over an ordinance creating a 20 feet passage on beach property they own for public vehicles to travel anytime necessary. The New Jersey couple sold their $1.3 million beachfront home this fall.