Get Off My Beach!
Group of Rhode Islanders believe they own the coast; file lawsuit alleging state’s new shoreline access law violates their constitutional private property rights
July 11, 2023
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It only took a week for a newly formed group of egocentric Rhode Islanders, for at least part of the year anyway, to go running to the feds because they think they own the waterfront.
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 [email protected]. His opinions don’t reflect those of ecoRI News.
What a pompous way to present a serious issue about property owners rights!
First of all, there were already fair and just laws specifying and regulating shoreline access, which were formalized into state law in the 1980’s. The prior access limit for all users of the shoreline was demarcated at the mean high tide line, which for the vast majority of residents has been sufficient and has caused little to no problem for users and owners 99% of the time. Shoreline property owners know that the shoreline is public land and open for all legal use. My neighbors and I welcome beach walkers, fishermen, etc. near our property and have great interaction with the ones that respect the said shoreline access and use.
What non- beachfront property owners and over-zealous legislators don’t want to acknowledge is:
1) Shoreline property owners have deeded ownership of the land being “taken” by our legislators in this latest round of pandering to a few residents who want more beach access than the older law provided. In a nutshell, the state now expects property owners to allow others to use their (often well kept) owned and highly taxed property for public use. If the state wants public access to this private property, fairly compensate the property owner for the taken land and remove it from local property tax roles… but this is not the case. Instead it’s an illegal land grab!
2) The new law effectively creates a public beach in all shoreline owners yards. Though in an ideal world this may seem appealing to non-shoreline owners, it creates an entirely new set of privacy, ecological and law enforcement issues:
– Shoreline property owners are already seeing a blatant disregard by mostly out-of-state persons invading private property, people using owners lawn chairs on the private portion of the property, playing loud music during late at night and early morning, and indiscriminately defacing the beachfront.
– the amount of beer and water bottles, soiled paper plates, discarded baby diapers, fishing line and hooks, toilet paper, etc. being left in shoreline owners back yards is growing precipitously, especially as mutual respect in society declines. Property owners are the ones left to clean up this biological mess after each weekend. There is no police patrolling of most of the shoreline in Rhode Island. DEM, CRMC and others will tell you they don’t have the resources to patrol these areas for violations of our personal rights and public laws.
So Frank, before more accusatory articles are written about the so called “special taxpayers” who are trying to protect their rightly-owned and deeded property from illegal governmental seizure without fair compensation or a plan to regulate/protect the newly provided use of additional fragile costal resources in our state, please do your homework.
Consider the rights of ALL tax-paying state citizens, the impact of such flawed (and illegal) laws on their constitutional personal property rights and the effects of unregulated use of areas not designated as pubic beaches, which are being trashed like never before seen by people that in most cases, don’t even live in RI..
Journalism for the sake of sensationalism and personal recognition doesn’t outweigh the constitutional rights of legal property owners who deserve the same consideration as all other Rhode Island residents.
I couldn’t agree with you more Paul! Very well put. Hopefully this new rule will be overturned.
The Chair of the Misquamicut Fire District joined the suit on behalf of all fire district property owners apparently claiming that the government (the fire district municipality) can represent its people as a private entity. In her private life she is a real estate agent renting out properties to presumably all comers. She should stick to her private business and not sully the good name of the fire district which maintains public beaches. Dragging in fire districts into this suit is unnecessary and very misdirected.
The shoreline owners are simply borrowing land from the ocean. And the ocean wants it back because they burned too much fossil fuel getting to their beach houses. The beach house owners are losing more land every year, they are just too pompous to admit it. The area above the wrack line, all 10 feet of it, is not a place that anything really can grow as it gets salted with every big storm. Maybe what they do is sue the towns to remove the 10 foot strip off their property tax bill.
I think Paul and the rich property owners have it backwards. The “taking” is being done by the shoreline owners who knew the pubic long had a constitutional right to use the shore when they bought their property, but the arrogance of the rich is that they think they can take away the rights of the riffraff who cannot afford their own shore property and they likely think the Feral courts will ultimately decide in their favor thanks to the Supreme Court justices the right-wing has bought.
There was a time where the barons cared about the environment and even helped create national parks. Now it seems all they care about cornering all the money and resources for themselves.
I’m glad we have Neronha as AG, he seems interested in defending the public’s rights even in the face of vested interests
While I don’t necessarily agree with all of the points of the lawsuit, I do agree that this article is unnecessarily snide and can’t qualify as responsible journalism or reporting. A question I’ve posed all along (and most didn’t want to hear) is, what activities exactly are allowed under this interpretation of our state constitution? Walking along the shore? I doubt most coastal property owners would object to that. Fishing? Again, probably not many objections. Gathering of seaweed? Doesn’t seem like a very common practice anymore but likewise probably not objectionable. How about setting up chairs and sunbathing? A picnic? A barbecue? Umbrellas? Hey, what about some games? Our state legislators left a mile-wide hole in this law, practically inviting legal challenges! Again, a question: WHY?
Since childhood I have been profoundly shocked that shoreline anywhere could be owned privately and access to it blocked. That such a base notion was ever allowed to take root is example enough of why the planet and the soul of its inhabitants is in such catastrophic state.
I agree with what Paul has written. This isn’t about property owners wanting compensation as much as it is RESPECT for private property of homeowners beach rights and access. I have no problem with the 10′ from the shore rule and open space for swimming, walking, fishing, etc. but please don’t put up your tent, chairs, and intrude on my property rights. How would you feel if this was in your backyard?
The beach erosion and effects of climate change are largely managed by beach homeowners as the state and town does not provide clean up or repair. There is enough public beach along of the coast of RI for all to enjoy & I think we all need to do whatever we can to protect it.
Regardless of whether you are a rich beachfront snob, or a poor hard working person wanting to enjoy a day at the beach, the 10 feet above the wrack line is private property.
When most of the rich people bought their beachfront property, they were deeded ownership to the mean high water mark, (MHWM). The MHWM is computed based on a 18.5 year, ‘lunar epic’. (It’s just averaged over 18.5 years).
So that’s what they own. If the State wants to allow public access to this land then they are in essence ‘taking’ the land for use through a nonpossessory easement on that property through eminent domain. (Meaning people can use, but they don’t own it).
However, the 5th amendment to the US Constitution states that if the land is to be taken, there needs to be just compensation. There isn’t a lot of interpretation on this matter. The fact is, the State of Rhode Island has not compensated a single landowner and they don’t intend to.
Further, (not in the Constitution), the land owners should be freed from taxes on this property, it should be paid by those using it, (the State).
So, regardless of our stance on the rich snobs…it doesn’t seem right.
Let’s say the state wanted to set up 20’X20’ dog parks all over the state. They come to your front yard and put up caution tape in a 20’ by 20’ square. Then people start bringing their dogs there to poop. What would you do? Would you say it is unfair? Would you demand compensation? Would you throw people off the lawn? Would you buy lots of doggie poop bags, and start picking up, with a smile on your face?
It just needs some thought. I don’t believe the State of RI thought this entirely through.