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Town of Nags Head v. Toloczko

United States Court of Appeals, Fourth Circuit

August 27, 2013

TOWN OF NAGS HEAD, Plaintiff - Appellee,
v.
MATTHEW A. TOLOCZKO; LYNN B. TOLOCZKO, Defendants-Appellants.

Argued: May 17, 2013

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Dever III, Chief District Judge. (2:11-cv-00001-D)

ARGUED:

J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Appellants.

Charles Everett Thompson, II, THOMPSON & PUREZA, Elizabeth City, North Carolina, for Appellee.

ON BRIEF:

William J. Brian, Jr., Keith P. Anthony, MORNINGSTAR LAW GROUP, Morrisville, North Carolina, for Appellants.

David R. Pureza, THOMPSON & PUREZA, P.A., Elizabeth City, North Carolina, for Appellee.

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

DIAZ, Circuit Judge:

Reversed and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Shedd and Judge Davis joined.

We heard argument in this case in concert with the related appeal of Sansotta v. Town of Nags Head, F.3d, No. 12-1538, 2013 WL 3827471 (4th Cir. 2013). Both suits involve a slew of federal and state law claims concerning the legality of efforts by the Town of Nags Head, North Carolina (the "Town"), to declare beachfront properties that encroach onto "public trust lands" a nuisance, and regulate them accordingly. The district court adjudicated the claims in Sansotta, but concluded here that it was inappropriate for a "federal court to intervene in such delicate state-law matters, " Town of Nags Head v. Toloczko, 863 F.Supp.2d 516, 519 (E.D. N.C. 2012), and therefore abstained from decision under Burford v. Sun Oil Co., 319 U.S. 315 (1943).

Mindful that the abnegation of federal jurisdiction is a serious measure to be taken only under "extraordinary and narrow" circumstances, Martin v. Stewart, 499 F.3d 360, 370 (4th Cir. 2007), we conclude that the circumstances of this case do not merit abstention. While the claims asserted here do involve a sensitive area of North Carolina public policy, resolving them is not sufficiently difficult or disruptive of that policy to free the district court from its "unflagging obligation to exercise its jurisdiction." In re Mercury Constr. Corp., 656 F.2d 933, 943 (4th Cir. 1981) (en banc) (internal quotation marks omitted). We therefore reverse the district court's decision to abstain, and remand for further proceedings.

I.

The Town of Nags Head is a coastal municipality that has the Atlantic Ocean as its eastern boundary. Its beaches have historically been used by the public for transportation and recreational activities. These activities enjoy legal protection under the "public trust doctrine, " which entitles states like North Carolina to appropriate title to tidal lands in trust for the public. See Gwathmey v. State Through Dep't of Env't, Health, & Natural Res., 464 S.E.2d 674, 677 ( N.C. 1995).

Various natural indicators can demarcate public trust lands from private property. Although the vagaries of beach topography make it difficult to delineate a fixed boundary, the Town and North Carolina both define the relevant area as "seaward of the mean high water mark."[1] Town of Nags Head, N.C. , Code ...


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