New shoreline access law faces first legal challenge

Lawsuit contends unconstitutional ‘taking’ of private property

By: - July 7, 2023 3:40 pm

The wrack line is shown at Goosewing Beach Preserve in Little Compton. Public access to the beach, owned by The Nature Conservancy, is through the town’s South Shore Beach, which charges an entrance fee during the summer months. (Janine L. Weisman/Rhode Island Current)

The ink on Rhode Island’s newly signed shoreline access law barely dried before facing its first legal challenge.

A group of coastal property owners are asking a federal court judge to stop state agencies from enforcing the public shoreline access delineation under a complaint filed in U.S. District Court for the District of Rhode Island on Friday. The lawsuit by a group known as the Rhode Island Association of Coastal Taxpayers alleges that the recently enacted shoreline access law – delineating public beach access up to 10 feet landward from the high tide line – violates constitutional private property rights.

“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, consistent with the Takings Clause of the Fifth Amendment,” the complaint stated. “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.”

The legislation approved in the 2023 session and signed into law by Gov. Dan McKee on June 26 aims to settle a decadeslong debate over the literal line in the sand between public and private access. 

The state constitution enshrines the right for people to “enjoy and freely exercise… the privileges of the shore” but doesn’t say how much of the shore is up for enjoying. A 1982 Rhode Island Supreme Court decision set the boundary at the mean high water line, a marker which can’t be determined without extensive scientific measurements and expertise, and, as climate change intensifies, has shifted underwater.

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, including how to shore up against anticipated legal challenges. 

Indeed, Rep. Terri Cortvriend, a Portsmouth Democrat who headed the study commission and sponsored the legislation, wasn’t surprised by the lawsuit.

Rep. Terri Cortvriend of Portsmouth

“I thought it was going to happen last week,” she said in an interview Friday. “Of course, I hoped that didn’t happen but my assumption was this would end up in the courts.”

That property owners are not seeking money is “favorable,” Cortvriend said.

Jeremy Talcott, an attorney with the Pacific Legal Foundation, a California-based libertarian group representing the property owners, said that’s because the new state law doesn’t offer a way to pay property owners for loss of private property.

“There’s no just compensation so the goal is to try to invalidate it,” Talcott said in an interview.

I thought it was going to happen last week. Of course, I hoped that didn’t happen but my assumption was this would end up in the courts.

– Rep. Terri Cortvriend, a Portsmouth Democrat and legislation sponsor

The complaint filed against Attorney General Peter Neronha, Coastal Resources Management Council Executive Director Jeffrey Willis, and Department of Environmental Management Director Terrence Gray, whose agencies are charged with enforcing the law, asks a judge for a declaratory order ruling the law unconstitutional and stopping state agencies from enforcing it. It frames the new law as an expansion of shoreline access and a “taking” of private property, accusing beachgoers who tread on the strip of beach in question as “trespassers” on their privately titled land.

“The Act’s creation of a public beach 10 feet inland of the seaweed line 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,” the complaint states.

Sean Lyness, a visiting assistant professor of law at New England Law Boston who advised lawmakers on the bill, sees it differently. The legislation was specifically written to frame the boundary as a clarification of existing shoreline rights, not an expansion, he said in an interview Friday.

It’s not enlarging anything,” Lyness said. “It’s clarifying what has existed for centuries.”

Sen. Mark McKenney, the Warwick Democrat who sponsored the Senate version of the bill, put it more bluntly.

“You can have a deed that says you own out to Block Island, but it doesn’t trump the Rhode Island Constitution,” McKenney said. 

Lyness also questioned the choice to appeal to federal, rather than state court, given what he sees as an issue of state constitutionality.

Even the constitutional amendment referred to in the complaint, which covers private property rights, relies on state definitions of private property, Lyness said.

“I wouldn’t be surprised if this gets moved from federal court to state supreme court,” he said.

Especially because the Ocean State’s constitutional rights to shoreline access are unlike anywhere else, limiting applicability to other state or national laws, according to Lyness.

Talcott disagreed.

When the government decides to try to redefine the boundary between public and private lines along the shoreline, it does raise this constitutional question,” he said in an interview Friday. “The general principles here are applicable everywhere.” 

The good thing, in Lyness’ eyes, is that the newly clarified boundary still stands until or if a judge rules against it, meaning Rhode Islanders can continue to enjoy the sand beneath their feet as long as they’re within the bounds of the access boundary.

Cortvriend was also optimistic.

“I am confident in our AG,” she said.

Further evidence supporting the strength of shoreline access, in McKenney’s eyes, is the U.S. Supreme Court decision last fall not to hear arguments from property owners along Indiana’s Lake Michigan who claimed the beach belonged to them, rather than the public. The highest court instead upheld the 2018 ruling of the Indiana Supreme Court that the shoreline was open to the public.

“When the highest authority clarified that confused situation, I think that would seem to be a very strong argument for its constitutionality,” McKenney said.

Brian Hodge, a spokesperson for the attorney general’s office, said in an emailed statement that the office was still reviewing the complaint but “stands ready to defend the law.”

Evan LaCross, a spokesperson for DEM, and Willis both referred inquiries for comment to the attorney general’s office. 


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Nancy Lavin
Nancy Lavin

Nancy Lavin is senior reporter covering state politics, energy and environmental issues for the Rhode Island Current.