It came as a surprise to few when, soon after shoreline access advocates celebrated the law’s passage in June, a group of coastal property owners filed a lawsuit challenging the legislation that advocates say solidifies a long-held right.
“With these types of cases where you have private property owners who have waterfront property, there are usually challenges,” said Monica Teixeira de Sousa, a professor at the
Roger Williams University School of Law.
The lawsuit, filed by a nonprofit group known as the
Rhode Island Association of Coastal Taxpayers on July 7 in federal court, alleges that the law illegally seizes private property without compensation to landowners.
Rhode Island’s shoreline access debate has gone on for decades, and the origins of shoreline access go back even further, Teixeira de Sousa says – specifically to a concept known as the public trust doctrine, which predates the Rhode Island Constitution.
Since the 1800s, the concept – which requires federal and state governments to preserve public access to certain natural resources – has been recognized by the U.S. Supreme Court as law in every state. But the Ocean State has a particularly deep tie to this doctrine, Teixeira de Sousa says.
“Rhode Island is in a unique position because it’s one of only a handful of states that actually has this public trust doctrine enshrined in its constitution,” she said. “Basically, what that means is the state holds the shore in trust for the people of Rhode Island, and this access to the shore.”
Over the years, the state’s Supreme Court and constitution have generally adapted to strengthen shoreline access, Teixeira de Sousa says.
Advocates for access often highlight a specific portion of the Rhode Island Constitution that states, “The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore …. 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.”
The Rhode Island Association of Coastal Taxpayers did not respond to a request for comment when contacted. But the Pacific Legal Foundation, a Sacramento-based nonprofit providing pro bono representation to RIACT, argues that federal constitutional law overrides the public trust doctrine and Rhode Island’s state constitution.
“The Fifth Amendment to the U.S. Constitution says very broadly that you can’t take private property for public use unless you pay just compensation,” said Jeremy Talcott, an attorney with the Pacific Legal Foundation, which often represents property owners nationwide and is known for its advocacy for libertarian and conservative causes.
Talcott also disagrees with the idea that the recent legislation clarifies existing law, and says he doesn’t believe Rhode Island’s codification of the public trust doctrine stands as a significant obstacle to overturning the law.
“Here we have property that’s been private traditionally, where delineation between public and private [land] has been the mean high-water line, and the state has … intentionally decided to change it by moving it substantially more landward,” he said.
Prior to the passage of the shoreline access legislation in June, members of the public were typically allowed access to the Rhode Island waterfront, up to the mean high tide line. But this measurement is impossible to visually determine and frequently underwater, according to Rhode Island Sea Grant, a group based at the
University of Rhode Island’s Graduate School of Oceanography that advocates for responsible use of coastal and marine resources.
Under the current legislation, the public can access the shore up to 10 feet landward of the high tide line, as delineated by seaweed or other ocean debris.
Private property owners have some protection in the sense that the law only allows for lateral access, Texeira de Sousa says, meaning that members of the public can’t cross private property to access the public shoreline.
Texeira de Sousa believes there’s a strong probability the U.S. District Court will uphold the new shoreline access law. And in late July, R.I. Attorney General Peter F. Neronha – one of the defendants in the lawsuit, which also named
Coastal Resources Management Council Executive Director Jeffrey Willis,
R.I. Department of Environmental Management Director Terrence Gray – filed a motion to dismiss the lawsuit entirely, which could potentially end the legal challenge where it stands.
The Pacific Legal Foundation is still awaiting an additional briefing on that motion, Talcott says, but has already amended its complaint. A hearing for that motion will be held on Sept. 6.
Given the commonality of legal challenges in shoreline access cases, Teixeira de Sousa says, it’s possible other lawsuits could arise against the law. But if the case does proceed before the federal court, a decision against RIACT could have a ripple effect on the state’s shoreline access opponents.
“I expect it will be important to see what the court does here, depending on how soon a message is sent that the courts aren’t going to entertain these cases,” she said. “That may have a chilling effect on the willingness of other property owners to bring these challenges.”
