Six years ago, upon first reading those words, my reaction was similar to that of seeing the climatic scene in “Unforgiven,” when Clint Eastwood’s William Munny finally gives Gene Hackman’s Little Bill Daggett his fatal comeuppance: “Yeah, take that.”
The words belong to then-Attorney General Mike Easley. Their boldness and identification with average North Carolinians were pretty inspiring stuff, especially in a world of cautious political-speak.
Easley was responding to a lawsuit filed by oceanfront homeowners in the exclusive Whalehead Club subdivision in Currituck County. The property owners wanted to exclude the public from the sand behind their homes, from the high-tide line to the vegetation or dune line.
The attorney general’s office, first under Easley and more recently under Roy Cooper, twice has had the lawsuit dismissed.
The state Court of Appeals recently upheld the second dismissal, although it didn’t rule on the merits of the homeowners’ claims. Instead, a three-member panel of the court declared that the lower court properly dismissed the lawsuit based on the principle of sovereign immunity. The principle holds that governments, unless they consent to the lawsuits, can’t be sued for acts that happen in the normal course of carrying out their duties.
It’s not yet known whether the property owners will appeal the ruling to the state Supreme Court.
Don’t be surprised if they do. After all, anyone arrogant enough to try to dismantle North Carolina’s longstanding tradition of public use of our beaches will probably spare no expense in trying to exclude us “mere commoners.”
But as it has for seven years, success may prove elusive.
Many legal scholars believe the public’s historic use of free and open beaches has established a common law right. Others hold that precedent and tradition have placed the beaches within a public trust. An Environmental Bill of Rights, put into the state constitution in 1972, may have helped codify the public trust doctrine.
The legislature also passed a law in 1998, in response to the lawsuit, asserting the public’s right of access to North Carolina beaches. But because the law came after the homeowners sued, it probably carries little weight in this case.
The Supreme Court has sided with the public before while addressing some of these issues in a 1991 case involving property in Holden Beach.
Putting aside legal principles, it’s hard to imagine an elected Supreme Court overturning long-held assumptions by native North Carolinians in favor of people who don’t live here year-round and don’t vote here. (Four of the five plaintiffs aren’t residents of the state. Currituck County is their vacation play land.)
So perhaps these highfalutin folks should reconsider some of Easley’s advice back in 1999: “Get over it.”
If they can’t, I understand some nice private beaches can be found a bit north of Currituck — along the southern Jersey shore.
Scott Mooneyham writes for Capitol Press Association. Contact him at smooneyh
@ncinsider.com
