Coastal property owners seek temporary block of new shoreline access law

Preliminary injunction request comes on the heels of constitutionality complaint

By: - July 27, 2023 2:41 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)

Waiting for a federal court judge to rule on the constitutionality of Rhode Island’s new shoreline access law will take too long, according to some coastal property owners.

Which is why the group known as the Rhode Island Association of Coastal Taxpayers is also seeking immediate relief from what it claims is the “irreparable harm” caused by the clarification of public beach access.

The group on Tuesday filed a new motion with the U.S. District Court for the District of Rhode Island, asking a federal court judge to temporarily stop state agencies from enforcing the new law. The request for a preliminary injunction comes three weeks after the initial complaint challenging the law’s constitutionality.

“Every day that goes by, under the color of this law, there’s the possibility of trespass on virtually every coastal property,” Jeremy Talcott, an attorney with Pacific Legal Foundation, the libertarian group representing the property owners, said in an interview.

Throughout the 2023 legislative session, state lawmakers anticipated, and spoke openly about, the likelihood of lawsuits in their attempt to clarify a decadeslong dispute over public beach 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 available for enjoyment. 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 new law, signed by Gov. Dan McKee in June, set the literal line in the land at 10 feet in from the high tide or “wrack” line, as recommended by a legislative panel that met for eight months to study the issue.

While public access advocates framed the law as a clarification of an existing legal right, the lawsuit contends that it expands shoreline access, “taking” private property from homeowners. In the weeks since the law took effect, property owners have already faced “trespassers” traversing the strip of beach in question, according to the complaint.

Just ask David Welch, a seasonal resident with beachfront property in Charlestown and president of the taxpayers group.

In new, written testimony included with the preliminary injunction, Welch recounted how a local “coastal activist” entered his neighbors’ property above the seaweed line, encouraging others to join him while citing the protections of the new shoreline access law. The neighbors’ private security guard attempted to stop the man from setting down beach equipment, prompting the activist to call the police. Police also cited the new law as the reason why they could not oust the activist from the space, according to Welch’s testimony.

“I am concerned that members of the public can and will continue to enter and occupy my property and station themselves immediately around my home, at any time of day or night,” Welch said in his written statement. “This harms the privacy of my beach home and raises safety concerns.”

Moreover, there’s no way for property owners like Welch to recoup payment for the “loss of their property,” according to the new motion. Hence, why a preliminary injunction is needed, and “the sooner the better,” said Talcott.

“Issuing such an injunction will not harm the public interest,” the motion stated. “Since the public never had a beach easement on private property located landward prior to the Act, an injunction will take nothing from the public. It will simply return property interests along the coast to the pre-Act status quo and ensure that countless coastal owners do not have their property rights and investments suddenly and unconstitutionally injured.”

The lawsuit names Rhode Island Attorney General Peter Neronha as a defendant, along with Rhode Island Coastal Resources Management Council Executive Director Jeffrey Willis, and Department of Environmental Management Director Terrence Gray, whose agencies are charged with enforcing the new law. Brian Hodge, a spokesperson for Neronha’s office, said in an emailed response Thursday that Neronha “stands ready to defend the shoreline access law.”

Michael Healey, a spokesperson for the DEM, referred inquiries for comment to Neronha’s office. The CRMC did not return requests for comment on Thursday.

A preliminary conference, which is not open to the public, has been scheduled in the case for Aug. 1, Talcott said.


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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.