Same arguments. Different court: Shoreline access debate to play out in state system

ATTORNEYS WITH the R.I. Attorney General Peter F. Neronha’s office have until the end of January to respond to two separate complaints in Washington County Superior Court, each challenging the constitutionality of the state’s shoreline access law. And while a prior federal lawsuit was quickly tossed out due to lack of jurisdiction [among other reasons], these state court cases might inspire a more fiery, and substantive, discussion. / PBN FILE PHOTO/DAVID LEVESQUE

Rhode Island’s beaches are quiet, with only the hardiest braving the frigid temperatures for a walk along a desolate shoreline.

But inside the state court system, debate over public shoreline access is about to enter peak season.

Attorneys with the R.I. Attorney General Peter F. Neronha’s office have until the end of January to respond to two separate complaints in Washington County Superior Court, each challenging the constitutionality of the state’s shoreline access law. And while a prior federal lawsuit was quickly tossed out due to lack of jurisdiction [among other reasons], these state court cases might inspire a more fiery, and substantive, discussion.

“It’s sort of déjà vu in terms of a similar case making similar legal arguments,” said Sean Lyness, assistant professor of law at New England Law Boston. “The choice of state versus federal court is an important distinction.”

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Important because a new law, signed by Gov. Daniel J. McKee last June drew upon the Rhode Island Constitution in attempting to clarify what part of the shore is open for public swimming, fishing, walking and other recreation. The newly enacted boundary, 10 feet in from the high tide or “wrack” line, was recommended by a legislative panel that met for eight months to study the issue, with advice from experts including Lyness.

Legal challenges were anticipated, even expected. But some, including Lyness, were surprised by where the group of coastal taxpayers behind the first lawsuit chose to take their case – not to state court, but to federal.

“Federal court is tricky because of the limited jurisdiction,” Lyness said in an interview on Monday. “Federal judges are very circumspect about maintaining that jurisdictional boundary on state issues.”

Indeed, a U.S. District Court judge last September threw out the Rhode Island Association of Coastal Taxpayers’ complaint, explaining that, among other problems, federal court is not the right place to hear a challenge to the state’s constitution. Less than a month later, a limited liability company owned by one of the leading property owners in the association filed a new appeal, this time in Washington County Superior Court.

The Oct. 6 complaint filed by Stilts LLC, whose sole member David Welch owns four beachfront lots along Charlestown Beach Road in South Kingstown, centers on the same objection as the prior, federal complaint. Namely, that the new law amounts to an unconstitutional “taking” of private property, violating the Fourth, Fifth and 14th amendments to the U.S. Constitution.

Arguments focused on private property rights also featured prominently in a separate state court complaint filed last September by Westerly homeowners David and Linda Roth and their limited liability company.

The two lawsuits are similar, but not identical; the Roth lawsuit also includes alleged violations of separation of powers, while the Stilts case attempts to wield a legal concept called inverse condemnation to seek compensation for “trespassing” on private property.

“They’re sort of throwing what they can against the wall seeing what sticks,” Lyness said.

Yet the lynchpin of both cases is private property rights, which is where Lyness expects to see more counterarguments made by Neronha’s office. In the prior, federal case, much of the state’s response entered on jurisdiction and the agencies named as plaintiffs, not the “merits” of the case.

Getting to the meat of the matter, in Lyness’ eyes, is the only way to finally stop the lawsuits.

“The kinds of people who would want to be plaintiffs in these kinds of cases want to have this heard on the merits,” he said. “We really haven’t had that yet. In one way, shape or form, the courts are going to have to deal with the merits of these issues.”

Lyness added, “Regardless of which case goes forward, and on what ground, that’s really what the court needs to grapple with and wrestle with.”

Daniel Procaccini, the attorney representing Stilts LLC, agreed that “reaching the merits” would prove useful in settling debate over the shoreline access law “for everybody.”

Procaccini declined to share details of his legal strategy, but expressed confidence that the state-level complaint would lead to a “successful” outcome, either in the complaint from his client, or the Roths, who are represented by a separate attorney.

“In this set of claims, I think a victory for any one plaintiff is a victory for everybody,” Procaccini said.

Gerald Petros, the attorney representing the Roths and their LLC, has not responded to prior requests for comment.

Based on the length of time between when the respective complaints were filed, and the Jan. 31 deadline by which Neronha’s office has to respond, Lyness suspected the state’s top prosecutor was building a “robust” defense that would again ask for the complaints to be thrown out.

No matter which way the state superior court decides, Lyness also expected the losing side to appeal to the Rhode Island Supreme Court, prompting the much-anticipated topical discussion about constitutional legality of shoreline access.

“If for some reason we did not reach merits, and it’s an appealable decision, I think we would,” Procaccini said regarding the prospect of an appeal.

Brian Hodge, a spokesperson for Neronha’s office said in an emailed response, “The Attorney General remains grateful that the General Assembly codified Rhode Islanders’ constitutional rights to shoreline access into state law, and the Office is committed to protecting those rights against any legal challenge, as it successfully did in a recent challenge to the law brought in federal court.”

Hodge did not offer further comment, citing the pending litigation.

The Rhode Island Coastal Resources Management Council, which is named as plaintiff in both cases, declined to comment.

Nancy Lavin is a staff writer for the Rhode Island Current.

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