Legal Terrain

Public Access to and Along the Shore – Update

January 25, 2024


In Rhode Island, public access advocates, as well as local and state officials, continue efforts to secure access for the public to and along the shore. My August post, “How About a Walk on the Beach,” summarized the history and boundaries of shoreline property rights and efforts by the Rhode Island General Assembly to set the boundary between public access along the shore and private property, often bounded by the Atlantic Ocean or other coastal waters. In 1982, the state Supreme Court established the high tide line boundary between private property and public access based on an 18.6-year running average of scientific measurements. That line had proved indistinguishable from your average person on a shore walk and even the shore property owners.

The General Assembly passed, and the Governor signed into law legislation on July 26, 2023, setting the mean high tide boundary for access along the shore as up to 10 feet landward of the “recognizable high tide line” of seaweed and other objects deposited along the shore. The 10-foot access zone is the 10-feet landward of shore deposits accumulated along the “most seaward” line of deposits or the “wet line.” Within weeks of enactment, the Rhode Island Association of Coastal Taxpayers filed suit against certain state officials in the United States District Court for Rhode Island, alleging taking of the portion of their shoreline properties in violation of federal constitutional rights and 42 U.S.C. §1983, based on the taking of their property rights in violation of the 5th and 14th Amendments to the United States Constitution. As I predicted in my August blog post, more was to come.

In September, United States District Court Judge Smith rejected the claim of unconstitutional taking of private property without reaching the claim’s mertis.  Judge Smith concluded that the Plaintiff Coastal Taxpayers’ Association “seeks the wrong relief from the wrong defendants before the wrong court,” and therefore lacked the standing to sue, requiring dismissal of the complaint. The finding of lack of standing was based on the authority of the named public officials to enforce the beach access law. The judge found those officials lacked authority to undo the passage of the shore access law and also noted that the state General Assembly and Governor of Rhode Island could not be sued under the federal doctrine of “sovereign immunity.”

The shoreline property owners, now in their names, separately filed suit in state Superior Court against the State of Rhode Island and its Coastal Resources Management Council (“CRMC”).  One suit claims the new state shore access law “imposes a public easement on (the Plaintiff) Stilts’ property amounting to “a taking and seizure of Stilts’ property” in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, without just compensation. The prayer for relief includes a declaration the law is unconstitutional and an order prohibiting its enforcement. The basic premise of the complaint is that the ten feet above the mean high tide line is generally dry land or sandy beach that is part of the upland private property and includes privately owned property landward of the mean high water line and the wet beach area reserved for public use under the state Constitution.  The Stilts’ suit seeks declaratory and injunctive relief to prevent taking their land for public use without just compensation.

The disputes over public access along the shore have settled into the state rather than federal court litigation process and timelines. The parallel disputes over access to (as distinguished from along) the shore, pursued through the CRMC procedures for “designating” access paths to the shore, may be starting down a similar state court path.

The CRMC is authorized under RIGL 46-23-6(5) to “designate” public access or rights of way to tidal waters in Rhode Island. The purpose of the designation is to clearly identify publicly available access paths to the shore and ensure the preservation and protection of those paths for public use now and in the future. The CRMC designation process disclaims any authority to determine property ownership or establish new public access rights. The CRMC designation process “… merely places an official designation …” on public access rights previously created by a private property owner or a city or town. See CRMC Coastal Briefings- Public Right of Ways:  CRMC’s Designation Process  here.

One such dispute under review by CRMC involves a claimed public access path on the Weekapaug Fire District (WFD) property in Westerly, Rhode Island. The designation of access to the shore has been promoted by individual public access advocates and groups, which petitioned the Town of Westerly and the CRMC to make the designation. In response, the WFD recently filed a state Superior Court civil action to quiet title to the slip of waterfront land owned by WFD and declared it had not been dedicated for public use.  This action will likely result in a stay or pause in the CRMC proceeding to designate the slip of land as a public right-of-way to the shore, at least pending the outcome of the litigation to determine whether the slip of land is strictly private or public access.

As reported in my August post, the controversy over public access to and along the shore continues, but now it is in the Rhode Island Superior Court. Still, more to come, I’m sure. However, it will be a while before the court and appellate processes determine the boundaries of public access along the shore and resolve any new claimed access paths to the shore in Rhode Island.

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