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
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.