Attorney General Seeks to Dismiss Shoreline Access Lawsuit
August 28, 2023
PROVIDENCE — Where does the ocean end, and private property rights begin?
That’s a question a Rhode Island District Court judge may have to ponder later this year if the court allows a lawsuit over shoreline access rights to proceed.
Earlier this month state officials, represented by the office of Attorney General Peter Neronha, filed for a motion to dismiss a lawsuit brought against the state by the Rhode Island Association of Coastal Taxpayers (RIACT), which alleges the new shoreline access law is an illegal seizure of property.
The shoreline access law, passed in the 2023 legislative session, gives the public access to the shore starting 10 feet landward from the lowest wrack line, where the seaweed is left after high tide.
In their filing, state officials said the lawsuit should be dismissed for a lack of standing, arguing that RIACT could not trace a legal injury to unlawful conduct performed by the state. Despite passing the shoreline access law in June and empowering the Coastal Resources Management Council and attorney general’s office with enforcement power, state officials have not actually acted on any of their new authorities to warrant the lawsuit.
“Nowhere in the Second Amended Complaint does the Association claim either that the State Defendants have yet done anything to implement the provisions of the Act, or that the alleged violation of Association members property rights is contingent on any future action by state defendants,” Neronha wrote.
In the filing, state officials also noted that any injunction against the state for using its enforcement powers as granted in the law would not apply to members of the public for using the expanded shoreline access rights.
Meanwhile, in a rebuttal filed in District Court last week, RIACT maintained it had standing so long as the state has the powers granted to it by the law, not whether they have used it or not. It still remains, according to the association, an illegal taking of private property.
In its filing, RIACT quotes the boundary lines listed in the deeds of two of its members, Joseph Simonelli of Westerly and Stilts LLC of Charlestown — a private company that owns the home known to be occupied by RIACT president David Welch at least part-time — which list their boundary line as the Atlantic Ocean and mean high water line, respectively.
“A declaration and injunction against the Officials will provide RIACT members with relief by preventing the Officials from applying the Act to their land,” wrote J. David Breemer, an attorney from the Pacific Legal Foundation representing RIACT. “Allowing them to exercise their constitutionally protected property right to exclusive possession free from the risks of violating the Act — risks that include civil penalties and criminal prosecution.”
The lawsuit is the latest legal battle over shoreline access rights in Rhode Island. Long enshrined in the state Constitution, rights to the “privileges of the shore” date back to the Colonial charter granted by King Chares II in the 17th century. For decades, if not centuries, people had fairly free access to the Rhode Island shoreline, to fish, collect seaweed, or enjoy other activities.
But a 1982 Rhode Island Supreme Court decision, State v. Ibbison, winnowed the access rights to the shore to the mean high-water mark or mean high-tide line, defined as the average of nearly 20 years’ worth of data derived from tidal gauges. The result was a boundary line that was frequently underwater and almost impossible to discern with the naked eye, leading to years of use conflicts between waterfront property owners attempting to assert their private property rights and members of the public attempting to assert their public access rights.
A 2022 General Assembly study commission, led by Rep. Terri Cortvriend, D-Portsmouth, and Rep. Blake Filippi, D-New Shoreham, recommended restoring the boundary line to 10 feet landward of the seaweed line, the clearly visible boundary of debris left on the shore from high tide.
The shoreline access law passed in June, more than a year after the study commission forwarded its recommendations to the General Assembly. The new law set the boundary line 10 feet landward from the lowest wrack line is almost identical to the report filed by the study commission last year.
RIACT, which had long mobilized against any legislation changing the boundary lines, filed its lawsuit in July, weeks after the bill was signed into law.
A judge is scheduled to hear arguments on the state’s motion to dismiss on Sept. 6.
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