The somewhat technical reason it was dismissed in federal court may not be as much of a barrier in state court: The federal lawsuit was dismissed because the judge found the group of property owners — the Rhode Island Association of Coastal Taxpayers — was suing the wrong people, in the wrong court.
Part of the issue is that you can’t sue the entity of “the state of Rhode Island” itself in federal court due to a concept known as sovereign immunity. To get into federal court, the property owners tried to make a case against the heads of various state departments instead, trying to block them from enforcing the law. The federal judge ruled they couldn’t actually tie the heads of those departments to the alleged harm of their property being taken.
That same sovereign immunity barrier isn’t an issue in state court, where plenty of people do indeed sue “the state of Rhode Island.” And now, Stilts LLC, an LLC that owns property on Charlestown Beach Road in South Kingstown, is doing just that, suing the state of Rhode Island and the Coastal Resources Management Council.
The new shore access law, Stilts says in its state court suit, first filed in October, “imposes a public easement on Stilts’ parcels, authorizes a public invasion of its land, and destroys its right to exclude others from its property. This amounts to a taking and seizure of Stilts’ property in violation of the United States Constitution.”
The new suit claims the law violates Fifth Amendment rights against taking property without compensation; Fourth Amendment rights against unreasonable seizures; and a legal principle called inverse condemnation. Stilts is is asking the court to declare the law unconstitutional, and for an order prohibiting any enforcement of it.
The state is being represented by the office of Attorney General Peter Neronha, who has described a previous legal challenge as “get off my sand.”
Though they might not put it in exactly these words, some property owners argue that they can, indeed, tell people to get off their sand, so long as the sand is included within their property boundaries.
Such is the case with Stilts LLC, where a two-bedroom house sits on dry sand itself. The property is bound by “the Atlantic Ocean” and the “high water line,” the suit says.
Lawmakers and supporters of the legislative change say it will hold up in court. Rhode Island has robust constitutional protections for shore access. But a 1980s state Supreme Court decision drew the boundary for those rights at what’s called the mean high tide line — a line that, supporters of change said, provided much less shore access than people thought.
Drawing a new line in the sand at 10 feet from the recognizable high tide line, supporters argue, was a way of ensuring the public could actually exercise its rights. The new law didn’t actually change the lines in anyone’s deeds, but gave people the rights they already had under the Constitution. The legislation explicitly adopted the argument that changes to the state’s Constitution had actually done away with the mean high tide line as the boundary for public access.
The Stilts lawsuit is at least the second one to challenge those arguments in state court. In September, Westerly property owners David Roth, Linda Roth and ES710 LLC argued that the new law takes their property. The suit also goes on to argue, as the Stilts suit does not, that the law violates the separation of powers doctrine, with the law overruling a state Supreme Court decision that the proper boundary is the mean high tide line. That suit was filed in September and has just started getting litigated.
Brian Amaral can be reached at brian.amaral@globe.com. Follow him @bamaral44.
