PROVIDENCE — That didn’t take long. Just three weeks after the General Assembly passed a new law on shore access, a group of private property owners is suing in federal court to block it.
“The government can’t take private property without paying for it, and this basic principle applies even when the government pursues popular goals, like public access,” J. David Breemer, a senior attorney at Pacific Legal Foundation, said in an e-mailed statement accompanying news of the suit.
In mid-June, the General Assembly passed a law giving people the right to exercise their constitutional shore privileges if they were no more than 10 feet inland of the recognizable high tide line. The recognizable high tide line is also known as the seaweed line. In drawing this new boundary, the recently passed law rejected the use of what’s called the mean high tide line. The law doesn’t include compensation for adjacent landowners.
That’s a violation of the US Constitution, a group of property owners says in its new lawsuit. The suit was filed Friday by the Rhode Island Association of Coastal Taxpayers, a recently formed group of, well, coastal taxpayers. RIACT is being represented for free by the Pacific Legal Foundation, a libertarian group that’s gotten involved in these sorts of disputes around the country. They’re suing Attorney General Peter Neronha, Coastal Resources Management Council Executive Director Jeffrey Willis, and Department of Environmental Management Director Terrence Gray, whose offices have roles in carrying out the law.
Neronha fired back on Twitter in a message that concluded with: “We’re ready.”
“Get off my sand”? Please. And when some ask why we need (or actually oppose) a well-resourced, top-notch AG Office, this is why we need one Because it is only this Office that can/will take on this kind of high-stakes litigation for the people of Rhode Island. We’re ready. https://t.co/zEUkbZrSCY— Peter Neronha (@PeterNeronha) July 7, 2023
The lawsuit was as inevitable as the tide. Opponents had threatened to sue over the legislation all along, and the name of the new group — which can be pronounced as an acronym, “react” — gave a hint, intentional or not, as to who might be filing it.
The new lawsuit does, however, open a new chapter in the state’s long-running fight over shore access, one that will involve staid legal briefs rather than shoreline shouting matches.
Supporters say the state has strong constitutional shore access protections and a long tradition of practicing them with gusto, which could help defend the law from legal challenges.
It is not the first time the issue has been to court. In 1982, a state Supreme Court decision in a trespassing case over a beach cleanup in Westerly put the boundary between public shore access and private property rights at what’s called the mean high tide line.
Just a few years later, in 1986, the state explicitly added certain shore rights to its Constitution, including but not limited to passage along the shore, fishing from the shore, leaving the shore to swim, and collecting seaweed. Those rights are difficult or impossible to exercise when using the mean high tide line as a public-private boundary, supporters of the new law say. The mean high tide line is farther seaward than people think, and it’s also impossible to measure with the naked eye. And the state’s constitutional shore rights mean little if you have to wear knee-high waders to use them, supporters of the law say in not so many words.
In fact, some have argued that those 1986 changes to the Constitution actually did away with the use of the mean high tide line as a boundary from four years earlier. That theory won a receptive audience at the General Assembly, which incorporated it into its new law. Supporters said the legislature was merely restoring and clarifying the public’s access rights, not exactly expanding them.
The view from a beachfront home is much different. In fact, the mean high tide line is the traditional boundary between private and public, they say. It’s often what’s in their deeds. They bought their properties with the expectation of using their property for their private, exclusive use, they say. Though the new law doesn’t purport to change the actual ownership of beachfront property, it does say the public has rights on that property. That, in the property owners’ view, deprives them of a fundamental private property right: the right to exclude others. It also harms the “privacy, value, use, and marketability of their properties,” they argue.
The US Constitution protects against such takings without compensation, they say.
Members of RIACT include beachfront property owners and people who are associated with coastal homeowner associations or fire districts that control or own beachfront property.
David Welch, the president of RIACT, owns a beachfront home in the Charlestown area that’s close enough to the water that the new public access area is effectively his backyard, the suit argues. Using this new law, members of the public have “trespassed” — the suit’s word for it — on his and other parcels in Charlestown and South Kingstown, the suit says.
“For many RIACT members, the Act’s creation of a public beach 10 feet inland of the seaweed line 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,” the suit alleges.
The suit is seeking an injunction, which would prevent the state agencies from enforcing it while the litigation develops.
The lawsuit, one supporter said, is no surprise.
“Although it is disappointing that private property owners are seeking to overturn the democratically passed shoreline access legislation, Rhode Islanders should welcome the opportunity for their constitutional rights to the shore – as clarified by the new law – to be vindicated in court,” Sean Lyness, a professor at New England Law, said in an e-mail. “At present, the shoreline access law remains in effect and Rhode Islanders can continue to exercise their constitutional rights to the shore.”