They want to block the new law right now
By Rob Smith / ecoRI News staff
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The Rhode Island Association of Coastal Taxpayers (RIACT),
a 50-member coalition of beach and waterfront property owners, filed a preliminary injunction July
25 in U.S. District Court to stop state authorities from enforcing the law the
General Assembly passed and the governor signed last month.
The new law moved the rights of legal access for Rhode Island beachgoers — as guaranteed in the state Constitution — from the mean high-water line (MHW) to 10 feet landward of the lowest seaweed line that can be found on the shore.
It only impacts lateral access, allowing people to walk
up and down the shore contiguously. Getting to the shore, called perpendicular
access, is another matter entirely.
The MHW line posed problems for beachgoers and private
property owners, as its only discernible with scientific surveying equipment
and nearly 20 years of tidal data. The boundary was not only impossible to see
with the naked eye, it also was often underwater, and it frequently moved,
making the rights to “enjoy the privileges of the shore” illusory, according to
lawmakers.
In the recently filed brief, part of a larger lawsuit that
seeks to overturn the new law, RIACT’s attorneys Daniel Procaccini and J. David
Breemer argued the new law was an illegal seizure of private property and a
Fifth Amendment violation by the state because of the public easement it placed
on all coastal land. Furthermore, according to the group’s attorneys, RIACT has
no other legal remedy but an injunction until its lawsuit plays out in court.
“Issuing such an injunction will not harm the public interest,” Procaccini and Breemer wrote in their brief. “Since the public never had a beach easement on private property located landward the MHW line prior to the Act, an injunction will take nothing from the public. It will simply return property interests along the coast to the pre-Act status quo and ensure that countless coastal owners do not have their property rights and investments suddenly and unconstitutionally injured.”
The lawsuit names the Rhode Island Department of
Environmental Management and the Coastal Resources Management Council as
defendants.
Rhode Island’s shoreline access law attracted national
attention. Breemer’s employer, the Pacific Legal Foundation,
a California-based libertarian organization, has offered its services pro bono
and assigned two of its attorneys, including Breemer, to the case. RIACT
attorneys said they expect to win their takings claims in court.
In a written declaration attached to the injunction
brief, David Welch, RIACT president and part-time Charlestown resident, alleged
that numerous members of the public used the beach in front of his
three-bedroom summer home during the July 4 holiday weekend. According to
Welch, on July 3 one such activist called the police, who told a security guard
hired by Welch’s neighbors that they could not stop the public usage of the
beach.
“I am concerned that members of the public can and will
continue to enter and occupy my property and station themselves immediately
around my home, at any time of day or night,” Welch wrote. “This harms the
privacy of my beach home and raises safety concerns.”
There is no easement or public access rights attached to
the property deed, according to Welch. A page of the deed for Welch’s
Charlestown home enclosed with the injunction request lists the boundary as
running alongside the mean high-water mark of the Atlantic Ocean.
But coastal access advocates have long maintained there
is no such thing as private beaches in Rhode Island, despite attempts by
private property owners, beach clubs, and fire districts to prove otherwise.
Rhode Island’s history of public shoreline access can be
found in the 1663 colonial charter, that founded the colony of Rhode Island and
Providence Plantations and affirmed the rights of residents to collect seaweed
and fish, in the light of the English crown.
The 1843 Constitution, taking its cue from the charter,
read “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.”
The Rhode Island Supreme Court altered that right in 1982
in its State v. Ibbison decision, moving the public boundary to the MHW line.
The law passed last month, in addition to moving the line
further landward, assigned beachfront property owners certain legal liability
protections for what happens on the public access part of the beach.
The law was the culmination of years of advocacy from
shoreline activists and the result of a study commission on lateral shoreline
access, an off-session study performed by legislators, once famed as the place
where issues went to die.
Meanwhile, the fight over perpendicular access is heating
up. In Westerly, a right-of-way known as the Spring Avenue Extension is
under consideration by the CRMC to be declared a state right-of-way, which
would allow the coastal agency and the attorney general’s office to take legal
action to protect it. The Spring Avenue access point caught the attention of
Attorney General Peter Neronha, who successfully petitioned for intervenor status.
The access point is currently controlled by the Weekapaug
Fire District, which has long maintained it owns the right-of-way and uses it
to police public access to Quonochontaug Beach, a nearly 2-mile barrier beach
in Westerly.
A CRMC subcommittee is expected to schedule hearing dates
later this year.