Fifth Amendment takings case erupts over new Rhode Island beach law

By Bonner Cohen, Ph. D. | July 18th, 2023 | 20 Comments @ CFACT

 Opponents of a new shoreline-access law in Rhode Island that allows the public to enter parts of private beachfront property are taking the state to federal court, arguing the statute violates homeowners’ constitutionally protected property rights.

“While public beach access may be important to state legislators and officials, they may not simply redefine private shorelines as a ‘public beach’ by the stroke of a pen, consistent with the Takings Clause of the Fifth Amendments,” the lawsuit argues.

Until the new law was enacted this summer, Rhode Island had relied on common law, rooted in a 1980s court case, to determine the boundary between a public beach and private property. That boundary was the mean high-water line, an admittedly imperfect definition because the mean high-water line could be underwater at times, such as when high tides coincided with a full moon. The new law says the public has beach access “up to 10 feet inland from the seaweed line.”

“Suddenly and Dramatically Alters Rhode Island’s Common Law”

Spearheading the lawsuit against the state is the newly formed Rhode Island Association of Coastal Taxpayers (RIACT), some of whose members own beachfront homes. By establishing a different boundary, the new law “suddenly and dramatically alters Rhode Island’s common law related to beach property boundaries, with the effect of extending the public beach into traditionally private areas,” the RIACT lawsuit alleges, the Providence Journal (July 7) reported.

“For many RIACT members, the act’s creation of a public beach 10 feet inland from the seaweed line allows the public to access and occupy their private, residential ‘backyard’ areas and opens their residential life to the constant presence of strangers, destroying privacy and raising safety concerns,” the lawsuit says.

The lawsuit adds: “RIACT beachfront property owners purchased their residentially developed coastal property with the understanding, right, and expectation of using their property for private, exclusive use, including for private family beach gatherings.”

For its part, the state plans to fight the lawsuit. Attorney General Peter Neronha (D), who is named as a defendant in the lawsuit, along with the Department of Environmental Management and the Coastal Resources Management Council, signaled on Twitter that he was prepared the fight the lawsuit, the Providence Journal reported.

“The attorney general is grateful that the General Assembly recognized Rhode Islanders’ constitutional rights to shoreline access and further codified that right into state law,” spokesman Brian Hodge said. “We are still reviewing today’s filed lawsuit, but the office stands ready to defend the law.”

PLF Enters the Fray

The state will have its hands full. In addition to local attorney Daniel J. Pocaccint of Adler Pollock & Sheehan P.C., RIACT will be represented by the California-based Pacific Legal Foundation (PLF). PLF is fresh from a high-profile victory before the U.S. Supreme Court in Sackett v. EPA, in which an Idaho couple – after 16 years of court battles – thwarted EPA’s efforts to keep them from building their dream house near Priest Lake in northern Idaho.

EPA had claimed that the couple’s bone-dry property was a wetland and subject to federal regulation. Not only did the Supreme Court slap down EPA’s overreach. It limited EPA’s regulatory authority to wetlands with a “continuous surface connection” to a navigable water of the United States. In the world of takings cases, PLF is a force to be reckoned with.

Author

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  Bonner Cohen, Ph. D.

  Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.

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A Teachers Union Is Suing A Rhode Island Mom To Stop Her From Seeing Her Local Public School District Critical Race Theory Curriculum

Virginia Allen / @Virginia_Allen5 / August 05, 2021

The National Education Association, America’s largest teachers union, is suing a Rhode Island mom for seeking information about what her kindergartener will be taught in school. 

Both the National Education Association Rhode Island and National Education Association South Kingstown, the union’s local branch, are suing Nicole Solas after she filed public record requests with the South Kingstown School District to learn what students are being taught regarding critical race theory. 

“It appears … [the teachers union wants] a court to say I can’t get the public information that I’m requesting because it will somehow harm teachers,” Solas told The Daily Signal in a phone interview Thursday. ..........To Read More....

My Take - Another good reason to ban public employee unions, especially these corrupt leftist teacher's unions. 

 

Providence Teachers Union Confirms Affinity Group Segregation, Historical Books Destroyed, Holocaust Education Ended (Ramona Bessinger Update)

Union president: “So there’s people of color in one group and white folks in another group…. both the people of color and our teachers of color and our white teachers have said that they’re uncomfortable with it … some people feel like this is further segregationist and feel like it’s more divisive than helpful.”

William A. Jacobson Friday, July 16, 2021 8 Comments

Ramona Bessinger is the Providence, Rhode Island, middle school teacher who went public in a post at Legal Insurrection about the negative impact of Critical Race teaching, I’m A Middle School Teacher And See How Critical Race Curriculum Is Creating Racial Hostility In School:

This past 2020/21 school year was a sad and worrisome turning point for me as an educator. Providence K-8 teachers were introduced to one of the most racially divisive, hateful, and in large part, historically inaccurate curriculums I have ever seen in my teaching career.

Yes, I am speaking about the controversial critical race theory that has infiltrated our public schools here in Rhode Island under the umbrella of Cuturally Responsive learning and teaching, which includes a focus on identities. You won’t see the words “critical race theory” on the materials, but those are the concepts taught. The new, radicalized curriculum and materials focuses almost exclusively on an oppressor-oppressed narrative, and have created racial tensions among students and staff where none existed before….To Read More....

Decriminalizing 'Sex Work': Protecting the Prostitute or the Pimp?

May 12, 2019 By Rylee Free

Is decriminalizing sex work a way to protect women from oppression and abuse?

Rhode Island is considering a proposal to decriminalize prostitution. The proposal is supported by the ACLU and various sex work advocacy groups like the SOAR institute and COYOTE ("Call off your tired old ethics"). Their argument is that decriminalizing prostitution reduces violence against sex workers and empowers women.

It would seem that elected officials have short memories — Rhode Island has already experimented with decriminalized sex work, and the consequences were disastrous.

For 29 years (1980–2009), because of a legal loophole, Rhode Island banned outdoor solicitation — seeking clients by standing on street corners or walking the streets. But it legalized indoor prostitution — sex work that takes place through brothels, strip clubs, massage parlors, escort agencies, and the online market.

During that period, Rhode Island became a sex tourist destination, functioning as the red-light district for all of New England. In addition to outright prostitution, sex businesses concealed as spas, nail salons, health centers, modeling agencies, and other "thinly veiled houses of prostitution" posed as legitimate businesses, offering "acupressure," "body work," or "table showers." The state became a Petri dish for all sorts of crime— sexual assault, murder, and armed robbery, to name just a few.

Given this history, how is it possible that legislators are even considering going down this road again?  The Rhode Island experiment debunks the claimed benefits of legalization........To Read More

My Take - Once again we see that if the ACLU is for something, that in itself is good reason to be against it. At least until more information becomes available. 

Rhode Island flooding not West Virginia’s fault

Whitehouse is misguided on sea level rise: seacoasts won’t be flooded due to coal burning

Tom Harris & Bob Carter

It must have taken the patience of Job for West Virginia Senator Joe Manchin to participate in Rhode Island Senator Sheldon Whitehouse’s climate change tour of the Ocean State on October 10. Whitehouse promised Manchin that he would go to West Virginia to learn about the coal industry if Manchin would come to Rhode Island to view the supposed effects of global warming on sea-level.

It is important to put the concerns of the two senators in perspective.

On the one hand, Manchin is fighting for the survival of West Virginia’s coal sector, his state’s most important industry, the source of 95% of its electricity, and the foundation for thousands of jobs in dozens of communities. The state’s use of abundant, domestically mined coal gives West Virginia the 7th lowest electricity costs in America – at about one-half the price in California, New York, Rhode Island and several other states.

But West Virginia’s coal sector is under siege from increasingly damaging Environmental Protection Agency (EPA) rules. Those rules have meant total coal production in West Virginia declined 9% between 2012 and 2013, a period during which 17% of the Mountain State’s coal mines closed, and coal employment decreased 6.4% for a loss of 3,457 jobs already. Even before the EPA’s new Clean Power Plan regulations, which Whitehouse promotes, come into force, the EPA and Obama Administration’s “war on coal” has already cost West Virginia billions of dollars.

Senator Manchin, in other words, is concerned about the immediate, real-world impacts of climate change regulations on real people, families and businesses in his state.

Senator Whitehouse has a different perspective and is apparently not concerned about the cost of EPA emission regulations. Rhode Island gets none of its electricity from coal, having chosen less-carbon-intensive natural gas as its preferred source of power.

As a result, the state has the 7th highest electricity prices in the continental United States. The impact of these high prices on hospitals, schools, churches, businesses and families is significant.

The White House, of course, shares Senator Whitehouse’s perspective. Neither seems worried that, under the EPA rules, electricity prices will “necessarily skyrocket,” as Obama put it when describing his energy plans as Democratic candidate for president in 2008.

Mr. Whitehouse is, however, worried about the hypothetical future impact of carbon dioxide (CO₂) emissions from coal-fired power stations on “global temperatures.” He believes this will cause “dangerous” sea-level rise along Rhode Island’s coast. Mr. Whitehouse does not hide the fact that, because of these beliefs, he sees his mission as “more or less” to put the coal industry out of business.

If it were known with a high degree of probability that dangerous human-caused sea-level rise was right around the corner, then Mr. Manchin might have reason to sacrifice his constituents’ livelihoods to help save Rhode Islanders from being submerged. But this is not the case.

The September 2013 report of the Nongovernmental International Panel on Climate Change states: “Sea-level rise is not accelerating. The global average sea-level continues to increase at its long-term rate of 1–2 mm/year [0.04-0.08 inches/year] globally” – or four to eight inches over the next century.

As it happens, sea-level rise on the coast of Rhode Island is slightly faster than the global rate – about a tenth of an inch per year in Newport, for example – or ten inches over the next 100 years. Nonetheless, such a slow rate of rise is relatively easy to adapt to, and certainly not worth ruining West Virginia’s economy on the off-chance that it would make any difference to coastal conditions in Rhode Island.

Bear in mind that sea levels have already risen nearly 400 feet since the end of the last Pleistocene Era ice age some 12,000 years ago.

The conflict between the two senators arises because of Mr. Whitehouse’s outmoded belief that rapid CO₂-driven global warming is occurring. This, he believes, will cause accelerated glacial melting, the ocean volume to expand, and global sea-level to rise quickly. That in turn would subject low-lying coastal areas of Rhode Island to increasingly intense peak-tide or storm-surge flooding.

Drastically reducing our CO₂ emissions is necessary to avoid this looming crisis, he asserts.

However, every step in Whitehouse’s chain of reasoning is either wrong or misleading and based on computer models that falsely assume rising atmospheric CO₂ levels will cause rapid global warming. In reality, no global (atmospheric) warming has occurred for the last 18 years, even though CO₂ levels have risen 9% during this time.

Neither has there been significant ocean warming since at least 2003. As a consequence, the ocean is not expanding and cannot be causing extra sea-level rise. In fact, the global rate of sea-level rise has actually decreased over the last decade.

The only way the sort of sea-level rise feared by Mr. Whitehouse is possible is if massive quantities of the Antarctic and Greenland ice-caps melted. Not only did that not happen even during the two-degree warmer Holocene Optimum, five to nine thousands years ago, but both the Greenland and Antarctic ice fields have been expanding in recent years.

Moreover, rates of modern sea-level change are controlled by the volume of water in the ocean (which is dependant on worldwide volumes of land ice at any given time), by dynamic oceanographic features such as movements in major ocean currents, and by the uplift or subsidence of the solid earth beneath any measuring station. Humans control none of these factors.

Senator Whitehouse should recognize that Rhode Island’s coastal management problems are his own state’s responsibility, not those of West Virginians. As sea-level continues its natural slow rise along Rhode Island’s coast, flooding due to peak tides and storm surges will continue much as it has for the past century. The way to cope with any small increase in the magnitude of these events is to apply and strengthen current strategies that increase coastal resilience.

In his June 4, 2008 speech on winning the Democratic primaries, President Obama said, “If we are willing to work for it, and fight for it, and believe in it, then I am absolutely certain that, generations from now, we will be able to look back and tell our children that this was the moment ...when the rise of the oceans began to slow and our planet began to heal.”

Senator Whitehouse may still believe this pious dream. However, Senator Manchin must resist the nonsensical demand that West Virginians sacrifice their livelihoods and living standards in a vain and King Canute-like attempt to stop the seas from rising.

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Tom Harris is Executive Director of the Ottawa, Canada-based International Climate Science Coalition (www.ClimateScienceInternational.org). Bob Carter is former professor and head of the School of Earth Sciences at James Cook University in Australia.