Group of Rhode Islanders believe they own the coast
By Frank Carini / ecoRI News
columnist
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Under a lawsuit filed
July 7 in federal court, this group of shoreline property owners — dubbed the
Rhode Island Association of Coastal Taxpayers, a title they no doubt believe
sets them apart from the taxpayer riff-raff that exists inland — is asking that
state officials be stopped from enforcing the Ocean State’s new shoreline
access law. The group alleges the law violates their constitutional private
property rights.
Last month, lawmakers, after years of deliberation,
debate, and delays, passed the state’s first public lateral shoreline
access law, clarifying where
residents can walk along Rhode Island’s 420 miles of shoreline without
trespassing.
Under the legislation, signed into law by Gov. Dan McKee
on June 26, the public can walk up and down the shoreline 10 feet landward of
the wrack line, where seaweed and flotsam and jetsam collect after a high tide
recedes. In places where there are multiple wrack lines, the lowest one counts
as the legal boundary. Anything further than 10 feet landward is private
property.
Despite the law being conceived by a special legislative
commission made of Rhode Islanders, approved by lawmakers elected by Rhode
Island voters, signed by the state’s 76th governor, and being an issue of state
constitutionality, the group of self-identified special taxpayers, which goes
by the clever acronym RIACT, bypassed state court in hopes of getting a better
ruling at the federal level. (The constitutional amendment referred to in
RIACT’s complaint relies on state definitions of private property.)
“The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore,” according to Section 17 of the Rhode Island Constitution.
The document, however, doesn’t specify how much of the
coast is available for public enjoyment. A 1982 Rhode Island Supreme
Court decision set the
dividing line at the mean high-water line, a boundary that is difficult to
discern and frequently underwater.
Every summer since, the dispute over the literal line in
the sand that divides public access from private property has returned. In
hopes of putting this annual debate out to sea, the shoreline access study
commission was created in 2021. Its members spent eight months
studying the contentious issue, releasing a final report in
March 2022. Those who helped craft the state’s revamped coastal access law have
said Rhode Island has strong constitutional shore access protections. Their
work also included how to shore up the legislation against anticipated legal
challenges.
Sen. Mark McKenney, D-Warwick, predicted as much.
“Litigation is expected,” McKenney said during a Senate
committee hearing in May. “Some shorefront owners will contend this is a taking
of private property, but the fact is the shoreline was not theirs in the first
place. The Rhode Island Constitution charges the General Assembly with the duty
to protect shoreline access rights.”
The complaint filed against state Department of
Environmental Management director Terrence Gray, Coastal Resources Management
Council executive director Jeffrey Willis, and Attorney General Peter Neronha
asks a judge for a declaratory order ruling the law unconstitutional and
stopping state agencies from enforcing it.
It frames the law as an expansion of coastal access and a
“taking” of private property. It refers to beachgoers who tread above the
seaweed line as trespassers. The entitled property owners say this
state-sanctioned shoreline change “deprives them of their right to exclude
non-owners from private beachfront property without just compensation.”
The law’s “landward extension of the public beach
authorizes members of the public to access, occupy, invade, and use private
property,” according to the lawsuit. It goes on to claim the legislation
“allows the public to access and occupy their private, residential ‘backyard’
areas, and opens their residential life to the constant presence of strangers,
destroying privacy and raising safety concerns.”
When these faint-hearted taxpayers leave their sand
castles, they must be chaperoned by lifeguards. They must consider a public
beach to be the scariest place on Earth. I know when the unsavory walk by my
house and stop to look at the ducks or muskrats in the brook that cuts through
our property, I lock myself in the basement, waiting for the threat to pass.
“While public beach access may be important to state
legislators and officials, they may not simply redefine private shorelands as a
‘public beach’ by the stroke of a pen,” according to the 19-page lawsuit. “The
Act constitutes a taking of property in violation of the United States
Constitution, and enforcement of the law amounts to an ongoing constitutional
violation.”
RIACT members include those who “own beachfront property
along Rhode Island’s Atlantic coastline and Narragansett Bay” and people who
are associated with coastal homeowner associations or fire districts that
control or own shoreline property. Most of the group’s members reside in South
Kingston and Westerly. The group is being represented pro bono by the Pacific
Legal Foundation, a California-based libertarian organization.
A Pacific Legal Foundation webpage is
devoted to the cause. It took the case for free because, of course, freedom,
and disturbing visions of occupying marauders making Robert Mapplethorpe-like
sand sculptures in front of its clients’ summer retreats.
“The law doesn’t limit what the public can do on the
strip of private coastal land [sic] Coastal landowners are stuck paying taxes
on property now enjoyed by countless strangers who may be able to enter,
occupy, and use their private shoreland however and whenever they wish,”
according to the webpage.
The Pacific Legal Foundation has made it abundantly clear
RIACT members want to be compensated for their loss of public space. The second
sentence in the first paragraph reads: “If the government takes your property,
it must pay just compensation — even when it is taking the property for a
‘good’ purpose.”
The last sentence in the third paragraph reads: “In
short, the state legislature illegally grabbed a 10-to-20-foot-wide ribbon of
private land, granted its use by the public, and didn’t pay for it.”
The sixth paragraph reads: “These owners want to keep
their property — and they have a constitutional right to keep their property,
unless and until the government pays the fair market value of that coastal
land.”
The foundation ends its eight-paragraph freedom rant with
this:
“The State of Rhode Island is declaring that what you
thought was yours now belongs to everyone. If the government can give the
public private land simply by passing a law that changes property lines, no
private property is safe.”
Last month Neronha announced his
office had petitioned to intervene in the matter of the Spring Avenue Extension
in Westerly — a case, the attorney general said, that affects the state’s
coastal and environmental resources.
“The time has come to turn back the tide on private
encroachment on the public’s right to access our coast and waterways, a right
that is enshrined in our state’s constitution,” Neronha said.
Frank Carini can be reached at frank@ecori.org. His
opinions don’t reflect those of ecoRI News.