The Odyssey of Palazzolo: public rights litigation and coastal change.

• Author: Hatcher, Laura J.

Introduction I. Palazzolo's Regulatory Odyssey II. The Ocean State Conclusion INTRODUCTION

The questions of how responsible and how effective litigation on behalf of public fights is complicated in any of law, but perhaps issues involving property rights on long coastlines in an era of sea rise and climate changes presents an especially difficult problem. First and foremost, there are many forms of property in contemporary society, which already makes determining the contents of the "bundle of sticks" making up property rights complicated. Property structures relations not only between individuals and their government, but also individuals and individuals, individuals and businesses, businesses and businesses, etc., and changes in those relationships have long term consequences. With regard to the case study I will discuss here, the relationship between individuals and their natural environment enters into this mix in ways that, while not at all uncommon to property rights disputes involving land, certainly can provide us with an exemplary case for understanding how complex these relations are.

One can imagine moments when property rights litigation along the coast would be both ethical and responsible. Hypothetically, if a regulating agency is favoring permits from a particular type of business or particular individuals, while denying similar permit requests from similar business or individuals, a closer look at the permitting process is clearly merited. In such circumstances, having a court review the process to ensure that the rules are being followed makes very good sense, indeed. At other times, when the law has been in a process of change for a time, asking a court to determine the rights of disputants in order to clarify the law also makes a good deal of sense. There clearly are other instances that make litigation in this arena important as an avenue for ensuring rights of individuals. Yet, because property rights cases can often take years or even decades to gestate in the administrative process and lower courts, it seems likely that, like Palazzolo, judgments about ethics and responsibilities may very much depend upon where in the timeline of the dispute you look, the particular exercises of state police powers in question, as well as a consideration of the broader contextual factors giving shape to the dispute and litigation.

Unfortunately, this is a much abbreviated version of the story, as space will not allow a full telling of a dispute that took nearly four decades to develop and resolve. Even so, I hope to persuade my readers that the complexities of these problems deserves much more attention than litigation often affords them; and so, I suggest, we need to think about them away from the litigative process to better understand what litigation does to our understanding of rights claims. And I do this, even as I hold to the possibility that at times going to court makes sense while simultaneously asserting that takings litigation aimed at broader social or political change may not be the most responsible and ethical way of ensuring individual rights in the face of natural disasters and coastal change.

This essay will proceed as follows. First, I will briefly recap the story of the court case and the key moments in the decision that, I think, exemplify the problems with this litigation. The goal, here, will not be to produce a careful recounting of the facts of the case. Rather, I want to point out the moments in a well known narrative that deserve some special attention given the broader issues of governance the state of Rhode Island was facing and the changing legal background in which Mr. Palazzolo was operating. In the section following, I will rework the tale of the dispute by placing it into a broader narrative involving the changing regulatory landscape in Rhode Island and the state's goals in making those changes. Here, we find a state struggling in the wake of natural disasters and attempting to create a new administrative response that both draws on but resists certain federal level activities. Focusing on the beginnings of coastal management, and the decision to grant (then revoke) of permits brings to light the messiness of changing regulatory environments and the confusions that result from them. Finally, I suggest that a review of the dispute in this context suggests that the ethics of litigating coastal takings cases may be complicated by the possibilities of natural disasters and sea level change.

1. PALAZZOLO'S REGULATORY ODYSSEY

   The odyssey that produced Palazzolo v. Rhode Island (1) has been recounted in various articles and books. (2) The story of the dispute begins in the late 1950's, when Anthony Palazzolo, a lifelong resident of Westerly (located along the southern shore of the state) and owner of a junkyard, joined in corporate partnership that had bought 18 acres of land along the southern coast of Rhode Island in his native county. (3) The land had been zoned several years earlier for a residential subdivision. The property itself is on a thin bar of land sitting between Winnepaug Pond and the Atlantic Ocean. Mr. Palazzolo was aware that the land was marshy ponds and would require dredging and filling in order to develop for residential use. (4) However, in 1959 and throughout much of the 1960's, the areas adjacent were filled in and dredged back so that in Mr. Palazzolo's mind at the time of purchase, he believed that if he went through the appropriate permitting processes, he would be able to use the land as he hoped. (5) After several years struggling with the permitting process, in 1971, the Division of Harbor Regulation approved an application he had made in 1963, and an application made in 1966, and told Mr. Palazzolo to decide between the two (he could only build according to one of the two plans). (6) However, a few months later the DHR revoked their assent. Mr. Palazzolo never appealed this revocation. (7)

   His difficulties became worse in 1971 after the establishment of the Coastal Resource Management Council ("CRMC"). As discussed below, the state legislature gave the CRMC power to regulate the area, with the two-fold and contradictory mandate to both preserve and regulate development of the coast line. (8) Moreover, the CRMC was granted authority, "over land areas (those areas above the mean high water mark)" and limited "to that necessary to carry out effective resources management." (9) Because the CRMC's jurisdiction is defined by the mean high water mark (i.e., think of the scum line that forms after high tide in tidal zones--this is roughly the line that is used to determine the CRMC's jurisdiction), the state legislature had created one of the most powerful organizations in the state. Since there are 420 miles of coastline in Rhode Island, and tidal waters include parts of the rivers running into various bays, the CRMC is responsible for permitting and regulating a very large portion of the land in our smallest state.

   Over the course of the next decade and a half, while Rhode Island began to work to solve its coastal erosion and pollution problems within the frameworks of federal laws and state regulations, the CRMC's power grew. Mr. Palazzolo, at times with long periods between permit applications, continued to try to develop his land. Finally, in the wake of a state level decision, Annicelli v. Town of South Kingstown, (10) Mr. Palazzolo filed a complaint alleging inverse condemnation, and demanded that the state pay him $3 million for the property. (11) As his case made its way through the Rhode Island courts, Mr. Palazzolo's arguments were rejected again and again, and more than once for lack of ripeness. (12)

   In reviewing a the decision by the Coastal Resources Management Council's ("CRMC") to deny Palazzolo's request to fill in the salt marsh on his land. The decision was upheld by the Superior Court. (13) The CRMC had denied his permit arguing that the eighteen acres of land that Mr. Palazzolo wanted to fill in amounted to 12% of the marshes surrounding the pond--filling this area in would jeopardize the future of Winnapaug Pond. Ultimately, the Rhode Island Supreme Court rejected his appeal, finding that the case was not ripe as Mr. Palazzolo had not yet "explored development options less grandiose than filling eighteen acres of salt marsh." (14)

   The case made its way to the U.S. Supreme Court after the Pacific Legal Foundation stepped in and sponsored the case. The Court decided the case in 2001 and its decision was hailed as a victory by both the State Attorney General and the Pacific Legal Foundation. (15) Much of the decision is focused upon the issue of ripeness, and indeed, if any part of the majority opinion is important for future cases, it is this section of the opinion. For our purposes, one of the more interesting moments in the case had to do with the state's contention that Palazzolo had not...