Lawsuit: Rhode Island Law Illegally Seizes Private Beachfront For Public Access
An attorney for the group representing the homeowners criticized the law because it ‘injects . . . uncertainty into coastal landowners’ rights and potentially subjects large areas of previously private lands to public access.’
Rhode Island homeowners have sued over a new law that grants public access to the homeowners’ private beachfront property. The law allegedly violates the Fifth Amendment’s Takings Clause, which prohibits government taking of private property for “public use, without just compensation.”
The Pacific Legal Foundation (PLF) brought suit on behalf of the Rhode Island Association of Coastal Taxpayers (RIACT), “a group of Rhode Island citizens who own coastal residential property in the state’s South Kingston and Westerly region.”
The defendants are the Rhode Island Attorney General, the Executive Director of the Rhode Island Coastal Resources Management Council, and the Director of the Rhode Island Department of Environmental Management.
Defendant Attorney General Peter Neronha took to his personal Twitter account to respond to the lawsuit:
“Get off my sand”? Please. And when some ask why we need (or actually oppose) a well-resourced, top-notch AG Office, this is why we need one Because it is only this Office that can/will take on this kind of high-stakes litigation for the people of Rhode Island. We’re ready. https://t.co/zEUkbZrSCY
— Peter Neronha (@PeterNeronha) July 7, 2023
The law, signed on June 26, grants the public access to private beach property within ten feet of the “recognizable high tide line.” Previously, the beach landward of the mean high water (MHW) line was not open to the public, and the beach seaward of the MHW line was public land.
Under the law, property owners still own this ten-foot strip of property abutting the “recognizable high tide line.” According to the suit, the law creates an easement allowing the public to access private land.
This easement “injures RIACT members’ right to exclude non-owners and the privacy, value, use, and marketability of their properties” without compensation.
The law defines the “recognizable high tide line” as “a line or mark left upon tidal flats, beaches, or along shore objects that indicates the intersection of the land with the water’s surface level at the maximum height reached by a rising tide.”
“The recognizable high tide line,” as defined by the law, “may be determined by a line of seaweed, oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics.”
The complaint takes issue with the law’s definition of the “recognizable high tide line”:
[B]ecause the public easement imposed on private beach lands by the Act is bounded by migratory lines (such as the seaweed line), the easement itself is also migratory. This means that, when natural events push the seaweed line farther inland, the public beach area created by the ACT will also move farther inland onto previously unburdened parcels of private, coastal property.
Try to address these concerns, the law excludes an abnormal “recognizable high tide line” due to extreme weather events, “such as those accompanying a hurricane or other intense storms.”
Jeremy Talcott, a PLF attorney, told Legal Insurrection this exemption of extreme weather events is insufficient to address the RIACT homeowners’ concerns:
Using the visible line of seaweed, scum, etc. on the beach necessarily bypasses the true high tide mark. . . . Any or all natural forces that push waves or those visible markers further landward will also move that visible line. Further, the act does not define what constitutes a “departure from the normal or predicted reach of the water’s surface level” or when winds are so “strong” that the visible line should be ignored. This injects further uncertainty into coastal landowners’ rights and potentially subjects large areas of previously private lands to public access.
Despite the movability of the new demarcation line, the law exempts from public use “land above the vegetation line, or on lawns, rocky cliffs, sea walls, or other legally constructed shoreline infrastructure” as well as “amenities privately owned by other persons or entities, including, but not limited to: cabanas, decks, and beach chairs.”
The previous demarcation line, the MHW line, was “derived from an arithmetic average of high-water heights measured over an 18.6-year metonic cycle,” which is the period “after which the Moon’s phases recur on the same days of the solar year,” according to Britannica.
The law’s legislative findings section outlines the legislature’s reasons for abandoning this standard:
The MHW line is not a visible feature that can be seen on the beach like a watermark or debris line. . . . It cannot be determined by the naked eye and requires special surveying expertise and equipment, thereby making it impossible for the general public to know where the line is.
The complaint also cites heightened privacy and safety concerns due to the law. “Access by individuals on otherwise-private lands,” Talcott told Legal Insurrection, “raises the potential for a loss of privacy and safety by prohibiting the ability of landowners to protect the boundaries of their private property.”
The complaint:
The law:
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Comments
Why does the state claim the foreshore? What twisted remnant of common law holds this land for general meandering?
Just move the property line to the water.
The water level is not constant (e.g. tides). Even in bodies of nontidal water such as lakes and rivers there is variability in the water level due to rainfall.
The bigger issue IMHO is who accepts liability for the public on the new easement?
When between the high water mark and the water it was clearly at your own risk, now it’s questionable.
The property line IS to the water. That’s what the MHW line is–the highest point the water gets to.
The easement is needed because there are places that, when the tide is in, are impassable
It’s a losing attempt, since zoning seems to be pretty exempt from takings unless the value is reduced to substantially zero. A refusal to get involved with questions of valuation in some ancient SC case or other.
Actually, there is a good argument that this is not a regulatory taking but a physical occupation taking. It allows members of the public to physically invade property that was previously private. It will bear significantly greater scrutiny.
Yep, the right to occupy is the right to exclude from entry. Otherwise a property owner doesn’t control their property which would diminish the incentive to own property in the first place. There doesn’t seem to be a justification for even a constructive easement IMO. Especially since the State is claiming that the reason is that the current publicly accessible portion is ‘too hard to ID’ so they want to expand it at the expense of the owners.
Gee whiz if making it easy to understand is the true goal then how ’bout this for easy; do you have proof of ownership in your pocket of the area you are walking on? How about an accurate map view +simple explanation of the current publicly accessible portion provided by the State? Maybe State provided markers? No, then don’t walk there.
And the Marxists show up to down vote b/c ‘Comrade, it isn’t right that you have what others want. You must share according to their need what you produced with your ability. You do want to be a virtuous member of the Party don’t you Comrade?’
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury.”
Or vote themselves nice bits of private property and all the work the owner has performed to make it nice. Get ready for more of the same.
This Peter Neronha guy is the perfect example. The majority will vote for him because he’s really going to sock it to all those rich people. With the poor easily outnumbering the rich, the end is clear to see.
Ds are not interested in democracy, only in ruling us by their tyrannical hand. The word is a combination of two Greek words, demos, the people, and kratein, to rule. Hence, rule by the people. While the word has a nice ring to it, it’s a terrible system that the founders/framers went out of their way to avoid (the Federalist Papers lays out their reasons). They understood that democracy always results in mobocracy which is then settled by the very powers that caused the mob in the first place, leaving those powers in control. Is this not exactly what the Ds are doing.
For a good explanation of political systems, see Overview of America,
https://www.gaconstitutionparty.org/overview_of_america_cd2019
Republicans are republicans, but Democrats aren’t democrats.
Right, Demorats, fixed it.
The wise Latina probably has an opinion on this. It is reported that she has sought her clerks’ help in understanding if it’s eminent or imminent domain that is somehow involved.
This is not a joke. It has been reported that she struggles to differentiate the two words.
That means she’s a homophobe.
That is a pre-medicated, viscous, ad homonym attack.
Pre-medicated? I could use that as an excuse for a lot of things. Thanks!
“[t]he general assembly also recognizes that its public trust duty to preserve the public’s rights and privileges of the shore is a progressive and evolving doctrine that is expected to adjust to changing circumstances.”
The land seaward of the high-tide line was already public property. The general assembly doesn’t appear to recognize the private property rights of the landowners who have suddenly had ten feet of their property, along a wandering line, times the breadth of their lot, handed over to public access.
Is the assembly going to come back in a year or so and authorize the public to traipse across the landowners’ property to get to the beach or to extend the easement to the use of the owners’ bathrooms to enhance the public’s enjoyment of the beach? (/sarc)
The goal of our elected representatives should be to preserve and protect the citizens’ freedoms and prosperity. When there is a conflict between the power of the state and citizens’ rights, the rights of the citizens, including their private property rights, should take precedence. Unless there is some compelling state interest otherwise, the representatives’ instinctive, knee-jerk reaction should be to side with the citizens and oppose the expansion of government intrusion.
The MHW is legally defensible. It may not be visible on some days but it can be drawn. One has to draw a line somehow. And I endorse that the public owns the land up to that point. That’s how most states do it and the ones who don’t do it that way have all sorts of legal squabbling. The public has an intrinsic right to control the land from the MHW to the water.
The problem is the extra ten feet inland from the MHW — that’s a taking, and that’s covered under the 5A. It’s not clear why Rhode Island needed to define the public access to the beach that way, but having done so the state has to compensate the land owners for the easement. One could fairly argue that the value of the easement is low in most places, and outrageous in a few (next to the Providence Seaside Ritz-Carlton Hotel, for example).
Compensate the land owners for the 10 feet and leave the MHW as is. That’s how I’d vote if I lived there.
If the value of the easement was low there wouldn’t be a call to use State Power, aka force, to compel the taking.
Another consideration is the impact on existing property values under old regime v new regime. How much loss of value will occur within the additional ten feet towards the homes with foot traffic, noise and so on that previously wasn’t present? How many incidents of folks deciding ten feet isn’t enough or misunderstanding where that ten foot limit is and moving towards the homes and onto private property without any easement.
I once owned property along a river on both sides where the closest public assess point to enter the river was about 2 miles in either direction. The pubic could walk or float in the river but couldn’t cross private property to access it. Big problems with trespass. People want what they want and they don’t give a hoot that someone sacrificed, scrimped and saved for years to buy the place they want to walk.
IMO the easiest and simplest thing is for the State to erect monuments every 1/2 mile or mile along the existing line of the easement and put up maps describing where the easement is to assist the public and prevent trespass. Then ruthlessly enforce every incident of trespass.
People who trespass, then when confronted by the property owner are told to exit but refuse (now committing criminal trespass v petit trespass) often get very belligerent. Sometimes violent. I had multiple incidents of folks threatening to burn my house down or harm my family. All b/c they want what they want and don’t give a crap about anything or anyone else’s rights.
Ah, it’s all going to be a moot point anyway as Global Warming swallows up all the beaches right?
Actually wrong. Even if the global warming nonsense turned out to be true, as the sea level rises the public easement would move inland with it.
So, on a legal blog, why isn’t precedent examined, as well as how the law sits in other jurisdictions? It’s not even mentioned, much less di9scussed. My understanding is there is a lot of tort law on this. So why the post, as is?
Constitutionally, all California beaches are public beaches. It’s a nice rule for a zero-day law, but there were never private beaches to take away. (Though lots of lawsuits to enforce it when land owners really, really want a private beach.)
Public beaches are public, unless you’re walking down the beach in front of some Dem politician’s home, in which case you’re going to jail.
All beaches in RI are preserved for public use by the state’s constitution:
Section 17. Fishery rights — Shore privileges — Preservation of natural resources.
The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, 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…
I recall years ago that a small strip of beach was being used by naturists (aka “nudists”). It was actually federal land (there are no federal laws against nudity), but the private property overlooking the beach was owned by then US Senator Claiborne Pell. The federal government closed the beach by declaring it a sanctuary for the endangered piping plover during its breeding/brooding season, effectively closing the beach to all users for a several months each year.
Like Biden’s Delaware beach home?
I’m sure Sheldon Whitehouse will jump in to protect his family ties to the whites only private beach club
So a state can simply redefine a public access easement that is deemed too narrow, inconvenient, whatever. That’s reassuring.
Echoing Ann in LA, all beaches on the West coast are open to the public. There is a very vociferous organization out here, I believe they are called the ‘Surfriders Foundation”. They will file lawsuits against beachfront homeowners that try to ‘privatize’ ‘their’ beaches.
I’m certain that all readers here know of Malibu. There are miles of beachfront homes that are certainly not mansions, but they are right on the beach and command multimillion dollar price tags. They are clustered tightly together, with nary a ten-foot gap between homes. Sometimes they put ‘for rent’ signs outside their homes, demanding $10k/week.
The law demands that there be access to the beach even in these neighborhoods. I do not know the specifics, but something like every half-mile there needs to be a public pathway to the beach from the road. The wealthy homeowners do not like this.
Even when the public pathways are set up, the nearby homeowners will put up ‘No Trespassing’ signs and otherwise discourage their use. The Surfrider Foundation will send out guys to ensure all of these pathways are free from intimidating signs and such and will file lawsuits to forbid the homeowners from engaging in such tactics.
Erronius
There is an exemption for Decks/Piers to remain private. (I have a deck and pier on my property.)
The solution is to build a deck and floating pier at least the width of your house from at least 20ft in the water to the HWM.
No one can cross your private property, deck, pier. they would need to swim at least 20ft out to get to the other side.
Yes, Get off My Sand! I got tired of picking up the trash and as one person mentioned, the liability.
I like it!