Beach season may have ended, but conflicts over shoreline access have not. ecoRI News reporters Colleen Cronin and Rob Smith break down pending and settled lawsuits, and explain recent legislation that determines where the public beach begins and where private property ends.

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This transcript was edited for both clarity and length:

Colleen Cronin 

Welcome to The Blab Lab, a twice-monthly podcast from reporters of ecoRI News, where we unpack the critical environmental issues faced in southern New England. I’m reporter Colleen Cronin. And today I’m here with my colleague Rob Smith to talk about a story you might have thought was over, but is really just entering its second act. Shoreline access.

Colleen Cronin 

Hi, Rob. How are you doing today?

Rob Smith 

I’m pretty good.

Colleen Cronin 

I was hoping that we could talk a little bit about shoreline access, its history. And then also some of the interesting stuff that’s been going on this summer. For anyone who doesn’t understand the shoreline access history or issue, could you give us a little summary?

Rob Smith 

So, if you’re a Rhode Islander, you have a constitutional right to access the shore; it is in the state constitution. It’s been in there since the state constitution was written in the 1840s. Before that, it was in our colonial charter from the king of England. It’s something we’ve had for hundreds of years. There’s been big debate recently, because that right got narrowed in the ’80s due to a state Supreme Court case which limited public access to the mean high-water line, but like over a 20-year period, which no one measures.

The problem of shoreline access rights is that the ocean is constantly moving; the tide goes in and out. It erodes the coastline, beaches, and the dunes. So that boundary line has run into some problems with private property owners because no one can really determine where public access in the constitution begins and where private property ends. So, for 40 years, it’s been legal limbo. Waterfront property owners have private property rights, but how do you square that circle? And you can’t because there was some decision that set everything up at the mean high water and that line just isn’t working. You need scientific surveying equipment. If you want to walk onto the beach, you need to be able to physically see where the boundary is.

Colleen Cronin 

I’m guessing that line also varies based on where you are. And also, climate change.

Rob Smith 

The other twist is no matter what boundary you set, the line is always moving. Some activists will tell you that the ocean really ends not at the tidewater line, it ends actually over the vegetation line. But the vegetation line is where the ocean ecosystem for all intents and purposes really ends. But you know, we live under capitalism, and we have private property. So that doesn’t work for people who — when they buy a home or they have owned their home, they really want a private beach, even though technically, realistically, under the letter of the constitution, and now state law, there’s no such thing as a private beach.

Colleen Cronin 

That brings us to the state law that was just passed.

Rob Smith 

There was a study commissioned a couple years ago. The commission’s original proposal was 10 feet from the seaweed line. So, the original proposal was within 10 feet of that landward, which means 10 feet toward land from the seaweed line. The final law that passed in June made it from the lowest seaweed line, because there can be, in some cases, multiple seaweed lines. I mean, obviously, that’s not a perfect fix, because everything on the beach is constantly moving, and just because there’s a law, there’s still a lot to work out in terms of court cases and how the state will consider it going forward. Obviously, there’s no shoreline access law that can come up with every situation for every inch of coastline or an island. So, some of this will have work itself out.

Colleen Cronin 

So, this summer, have we seen it get tested — this new law?

Rob Smith 

Yes. Obviously, a law like this is going to get some lawsuits. There have been two. The first one was filed in July by the Rhode Island Association of Taxpayers. It is a mostly anonymous group. They sued saying that the law was a “taking” under the federal constitution. They assumed that the state was trampling on their rights and that they had a fear of prosecution. And the suit was dismissed because the judge said, you’re suing the wrong people in the wrong court for basically the wrong reasons. Try again in a different court and try to ask for something that will remedy the problem you are describing in your lawsuit.

There is a second lawsuit that was filed a couple of weeks ago by a married couple and their limited liability company. They own a pair of properties in Westerly. They filed another lawsuit challenging the law in Washington County Superior Court, that charges that it’s an illegal taking without undue compensation. And what they charge in their lawsuit is that the state has taken part of their property by widening the coastal access zone. And they have not been paid by the state. They’ve asked the court to overturn the law because it violates the state and federal constitution. And if the court does not please do that, they have asked the court to compensate them for the loss in value of your property.

Colleen Cronin 

I have some questions. So, when you’ve talked to folks about it, have they put forth maybe alternate argument against this?

Rob Smith 

The case will be handled by the attorney general’s office, which declined to comment. I have not checked this week to see if they responded in court, but I imagine they’re going to be vigorously contested. The attorney general has pledged that he will fight this lawsuit just as vigorously as the first one and protect people’s shoreline access rights.

Colleen Cronin 

I would imagine an argument could be made that the last property perhaps was never their property to begin with under the law. Because the new law was sort of interpreting and clarifying what the Constitution said.

Rob Smith 

It’s complicated. One of the things the new lawsuit also does is it charges the Legislature with overstepping its bounds. So, in Rhode Island we have a specific constitutional amendment called separation of powers where you really can’t have the different branches of government mixing. And what the lawsuit charges is when the state passed this law, it was overturning judicial decision. The advocates who helped the law pass are confident it’s going to withstand any of the legal challenges now or in the future.

Colleen Cronin 

So, one thought is that if the law doesn’t hold up … and say it doesn’t hold up, because the court finds that their argument about the states using their property is valid. And they end up realizing that they should be compensated. That’s a lot of money that could be at stake.

Rob Smith 

But it’s also complicated because the ocean is always moving. And every deed on a case-by-case basis is going to say something different as to the boundary. Some will say the shorelines and will specify the Atlantic Ocean; they will all phrase a similar thing a different way,

Colleen Cronin 

A different boundary than when the person bought the house.

Rob Smith 

And the ocean is always changing. It’s not like if you buy a house say in the suburbs and work at Cranston way inland, that isn’t changing, but the beach is. And the shoreline is constantly changing from erosion from storms. The dunes get bigger, the dunes get smaller. Because of the tide, it’s not really meant for our legal system that expects everything to stay that way in perpetuity.

Colleen Cronin 

Is there any other legislation coming down the pipeline to further clarify the law that was just passed or to address any other issues?

Rob Smith 

No. So, the shoreline access law handles lateral access so you can travel up and down the beach. But how do you get on the beach? You get on the beach via points of access, and in Rhode Island that’s handled usually locally by the towns. But points of access are also a flashpoint. If you can’t get on the beach, it’s another illusory right you have. So, rights of way are on the local level are maintained and identified by the towns. Many have a harbor management plan that identifies the current rights of way that are owned or maintained by the town.

CRMC has a subcommittee that identifies rights of way. I was looking through the minutes for all the ones this year, last night, and I believe it’s only one specific right of way that it is considering this year … And they’re spending their entire year on this and it’s still ongoing. They haven’t had their public hearings for it yet.

Colleen Cronin 

Thank you so much, Rob, for explaining all that stuff, and making it sound interesting even though it is a lot of legalese.

We want to thank Vanessa Carlton for letting use her song “Willows,” which you hear at the beginning and end of each episode. We also want to thank Roger Williams University professor Bernardo Motta for letting us use the recording studio. If you have any questions, tips, or podcasts ideas, email me at [email protected].