The document summarizes key legal issues related to shoreline protection in Rhode Island. It discusses how changing shorelines impact expectations of private property owners and state interests. It outlines that the state owns all tidal lands under the public trust doctrine and that the Coastal Resources Management Council has jurisdiction below the mean high tide line. It also reviews how the common law "common enemy" doctrine has been replaced by the reasonable use test regarding water flow, and discusses some cases related to legal challenges of seawalls.

1. Follow
Follow
Beach SAMP Stakeholder Meeting
12/9/13
Susan Farady, Director and adjunct faculty
Marine Affairs Institute, RI Sea Grant Legal Program
Roger Williams University School of Law, Bristol RI

2. Overview of legal issues implicated
by shoreline protection in RI
 Implications of changing shoreline boundaries
 State interests and the public trust doctrine
 Private property owner interests
 Public vs. private property
 Some cases

3. Westerly
Charlestown
Photo: RIDOT
Narragansett
South Kingstown

4. Changing shorelines, legal implications
 Sea
land
 Private
public
 Management expectations and property owner
interests based on past shoreline conditions
 As these conditions change, expectations and interests
change

8. RI ownership of tidal lands
 “The state of Rhode Island, pursuant to the public trust
doctrine long recognized in federal and Rhode Island state
case law, and to article 1, section 17 of the constitution of
Rhode Island…has historically maintained title in fee
simple to all soil within its boundaries that lies below the
high water mark and to any land resulting from any filling
of any tidal area….no title to any freehold estate in any tidal
lond or filled land can be acquired by any private individual
unless it is formally conveyed by explicit grant of the state
by the general assembly for public trust purposes.”

R.I.G.L. section 46-5-1.2

9. CRMC jurisdiction
 “CRMC shall have the exclusive jurisdiction below
mean high water for all development, operations, and
dredging, consistent with the requirements of chapter
6(1) of this title and except as necessary for the
department of environmental management to exercise
its powers and duties and to fulfill its responsibilities.”
 R.I.G.L. section 46-23-6(2)(ii)(A)
 Prevent loss of public rights and access from negligent
or improper conversion to private uses

10. “Public trust doctrine”
 “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.”
 RI Constitution, Article 1, Section 17

11. Public trust doctrine
 Public trust =
 Legal interest +
 Held by state +
 In tidal and navigable waters +
 For public benefit

12. Where is the boundary?
 RI: mean high tide line
 “the state holds title to all land below the high water
mark in a propietary capacity for the benefit of the
public” and “the doctrine preserves the public rights of
fishery, commerce, and navigation in these waters.”

Greater Providence Chamber of Commerce v. Rhode Island, 657
A.2d 1038, 1041 (R.I. 1995).
 “the line formed by the intersection of the tidal plan of
mean high tide with the shore”
 “the arithmetic average of high water heights observed
over an 18.6 year Metonic cycle”

State v. Ibbison, 448 A.2d 728 (1982)

13. Private coastal property owners
 May have following interests:
 Access to water
 Right to wharf out
 Right to acquire accretions
 Right to fill
 Right to continued flow
 Right to waterfront view
 Right to defend against “common enemy”
 “Reasonable investment-backed expectations”

15. Possible legal issues from seawalls
 State may challenge if structure impairs public access




to public lands
Landowner may claim a taking has occurred if the
state doesn’t allow property protection
Landowner could be liable for injuries to others caused
by structure
Neighboring landowners could assert seawall creates a
nuisance or trespass if causes damage to their property
Landowner may assert ‘common enemy’ defense

16. When the “common enemy”
becomes subject to“reasonable use”
 “Common enemy” doctrine:
 old legal principle that considers water to be a “common
enemy” of landowners
 gives landowners the right to repel or capture water, and
not be liable for damage to neighboring properties
 Most states (including RI, Zannini v. Arboretum
Development, 1998 WL 1017288, R.I. Super. July 7,
1988) have replaced this with a “reasonable use test:”
 Landowners can be held liable if their actions are
unreasonable or result in unreasonable harm to
neighboring lands

17. “No Adverse Impact”
 Principle developed by the Association of Floodplain
Managers:
 “an approach that ensures the action of any community
or property owner, public or private, does not adversely
impact the property and rights of others.”

18. Some cases
 CT, 2012: DEP must demonstrate authority over all
portions of seawall, not just those waterward of high
tide line, to properly order removal (Shanahan v. DEP)
 CT, 2013: DEP within jurisdiction to order removal of
seawall in “tidal waters,” and illegal seawall was
properly deemed a public nuisance (Sams v. DEP)
 CA, 1987: Coastal Commission properly required a
homeowner to relocate a temporary seawall granted
under an emergency permit to balance protection of
private property with protecting the public beach
(Barrie v. CA Coastal Com’n)

19. Some more cases
 CA, 1997: City acted properly declaring property owner’s
seawall, riprap and patios a nuisance that obstructed the
public walkway, no taking occurred (Scott v. City of Del
Mar)
 WA, 2005: Landowner can’t use “common enemy” defense
to defend nuisance claim from neighbor because seawater
is not “surface water” (Grundy v. Thurston Cty)
 NY, 2013, ongoing: landowner ordered to stop work on
rock revetment after town zoning board granted permit
when town trustees claimed property was public, not
private; landowner claimed property line moved with
avulsion/erosion (East Hampton Trustees v. Zweig)

20. Resources
 SHIFTING SEAS: The Law's Response to Changing Ocean
Conditions, November 14 & 15, 2012
Roger Williams University School of Law
This Symposium examined the laws and policies that are
implicated as climate change impacts coastal and ocean
environments. http://law.rwu.edu/marine-affairsinstitute/symposiaconferences/9th-marine-lawsymposium
 Congressional Research Report, “Climate Change and
Existing Law: A Survey of Legal Issues Past, Present, and
Future,” Nov. 2012
http://www.fas.org/sgp/crs/misc/R42613.pdf

21. “The human race is challenged more than ever before to demonstrate
our mastery - not over nature but of ourselves.”
– Rachel Carson, Silent Spring, 1962