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Wednesday, February 14, 2024

Where is the line in the sand?

Shoreline access in the R.I. Constitution? Dennis Nixon was in the room where it happened

By Nancy Lavin, Rhode Island Current

Photo by Will Collette
In 1986, Dennis Nixon was a young assistant professor and marine lawyer, tapped to help research and write that year’s Rhode Island Constitutional Convention report on shoreline access. 

Little did he know, nearly 40 years later, the discussions that played out in those chaotic sessions would be the backbone of legal arguments defending Rhode Island’s new shoreline access law against challenges in state courts. 

And Nixon’s recollection of the once-in-a-decade constitutional overhaul is not exactly how Rhode Island Attorney General Peter Neronha’s office is describing it – although it’s not too far off, either.

Neronha’s office in motions filed in Washington County Superior Court on Jan. 31 argues that the 1986 convention essentially set the public access boundary along the shoreline; the 2023 law that has prompted new lawsuits by private property owners simply clarifies what was already on the books.

Nixon, a professor emeritus in the University of Rhode Island’s Department of Marine Affairs who now lives in St. Thomas, doesn’t quite agree.

“In my view, we got two-thirds of the way there,” Nixon said. “We didn’t have that strict ‘from the wrack line’ definition because we just couldn’t get it done with all the lobbying and filibustering going on.” 

Nixon described the convention itself as a kind of organized chaos — attorneys representing private property owners would waltz into delegate sessions and threaten lawsuits if they felt the changes went too far.

“Someone would walk into the room, and say, ‘I am the lead partner of so-and-so firm in Providence and if I don’t like what you do, I’ll take you to court,’” Nixon said. 

Nixon also had Convention President Kevin McKenna in his ear, urging him “get all you can for the people of Rhode Island,” Nixon recalled.

Left unanswered: Where is the line in the sand? 

Nixon felt pulled in two directions: protecting public access and protecting the state against lawsuits. Hence, why the resulting constitutional changes approved by voters focused narrowly on public access in areas already upheld by the state Supreme Court: specifically enshrining people’s rights to the shore for fishing, walking, swimming and gathering seaweed. The question of where the line in the sand should be drawn went unanswered. 

Thirty-seven years later, that answer came, thanks to the tidal wave of subsequent legal challenges and a surge of advocacy around shoreline access. The 2023 law signed by Gov. Dan McKee, based on research and discussion that included testimony from experts like Nixon, sets a public access line 10 feet landward from the seaweed, or wrack line.

Predictably, legal challenges surfaced soon after, first in federal court and then, after that challenge was tossed for technical reasons, in the Washington County Superior Court, where property owners in Westerly and South Kingstown have filed separate complaints.

Both complaints, which are similar but not identical, argue that the shoreline access law amounts to an unconstitutional “taking” of their private property by expanding public access beyond what was allowed previously — including under the 1986 constitution. 

Neronha’s office, which is representing the state in both lawsuits, argues just the opposite, leaning heavily on the constitution as amended in 1986, along with commentary explaining each amendment, and archived transcripts from the sessions that took place. 

“That commentary explains at length that the changes to Section 17 were meant to provide a ‘constitutional definition of the “privileges of the shore” to which Rhode Islanders are entitled,’” one of the motions filed by Neronha’s office states.

Focus on 1982 R.I. Supreme Court decision

Neronha’s office goes on to say that the changes made in 1986 were intended to supersede a 1982 state Supreme Court decision referred to as the Ibbison case, which set the public access boundary at the mathematically precise, but difficult to eyeball “mean high tide line.”

“Taken as a whole, the only reasonable interpretation of that commentary is that the framers of the 1986 Amendments did not view Ibbison as the final word on the scope of the public’s ‘shore privileges’; if they did, there would have been nothing to leave for future determination, and no legal effect to their decision to amend,” the motion states.

In the other motion, Neronha’s office goes as far as to argue that the 1986 amendments “rendered obsolete” the Ibbison determination.

That interpretation might be a bit too strong, according to Nixon.

“It was a rebuttal, but not a direct reversal [of Ibbison],” he said of the convention’s sessions on shoreline access.

But, Nixon also said the Ibbison decision left the door open for the Rhode Island General Assembly to set its own boundary on public access.

Which is exactly what lawmakers did in 2023, with a law Nixon supported as legally defensible. He even welcomed the lawsuits, which he hoped would put the decades of debate to rest.

“We would have been disappointed if they hadn’t filed lawsuits,” Nixon said. “If there weren’t a legal challenge, we wouldn’t get to have the court weigh in and say ‘what the General Assembly and what the Attorney General has done is indeed, correct.’”

Especially because Neronha’s office is pulling out all the stops, with the recently filed motions offering a preview of the kind of “full-throated defense” for public shoreline access, said Sean Lyness, assistant professor of law at New England Law Boston.

“Given the length, the depth of research that went into the motions, it just shows they are taking these cases really seriously and putting in a substantial amount of work,” Lyness said.

Meanwhile, Gerald Petros, the attorney representing Westerly property owners David and Linda Roth and their limited liability company, appears equally convinced in his arguments against the new law. 

“The state has taken the Roth’s private property, and the property of hundreds of other Rhode Island residents, without just compensation under a legislative scheme that is unconstitutional,” Petros said in an email on Monday. “We remain confident that the Rhode Island Judiciary will correct this injustice, and nothing in the Attorney General’s papers diminishes that confidence.”

Daniel Procaccini, the attorney representing a limited liability company called Stilts LLC whose sole member David Welch owns four beachfront lots along Charlestown Beach Road in South Kingstown, did not return inquiries for comment.

While pre-trial hearings in both cases are set for May 20, Lyness expects that the subsequent decision and appeal process to the state Supreme Court will leave shoreline access on shifting sands until early next year.



Rhode Island Current is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Rhode Island Current maintains editorial independence. Contact Editor Janine L. Weisman for questions: Follow Rhode Island Current on Facebook and Twitter.