The Rhode Island Superior Court this week is expected to issue a decision on the validity of a mediated agreement between the state Coastal Resources Management Council and a marina owner on Block Island. The town of New Shoreham, local environmental groups, and the state Attorney General contend that the mediation cut out the public and violated state law. 

The case dates back to 2003, when Champlin’s Realty Associates asked the CRMC for permission to extend its marina an additional 240 feet into the Great Salt Pond, increasing its capacity from 225 to 365 boats.

Champlin’s is one of three commercial marinas on the pond, providing docking space for yachts 35 feet to over 250 feet long. The company argued the expansion would be a more efficient use of waters that are already set aside for intensive use. 

The town of New Shoreham and several local environmental groups opposed the plan from the start. They said it would cut into the town’s mooring field, create navigational hazards, restrict public access and threaten the pond’s ecology. 

The Great Salt Pond “is one of the most beautiful resources on this island,” said Cheryl Moore, president of the Committee for the Great Salt Pond, an environmental group. “It's used for all kinds of recreation: swimming, boating, fishing, aquaculture, shellfish. A lot of people make their livelihoods on the pond.”

“I would think the top [concern] is the taking of public waters for private use,” said Barbara MacMullan, chair of the Block Island Land Trust. “And then the second one is the impact on the pond itself of that increased development.”

CRMC staff called the proposal “excessive.” The agency’s engineering review said the expansion was inconsistent with state policy and would “result in negative impacts to existing public resources.” After dozens of public hearings, the CRMC in 2006 denied Champlin’s application. 

The company appealed, and the case has traveled up and down the court system since then.

“I think the remarkable thing is that for almost 20 years, the entire community has been opposed to this project,” said Clair Stover Comings, director of the Block Island Conservancy.

The CRMC twice re-affirmed its denial of the application, and the Superior Court in 2020 upheld that denial, which seemed like a victory for the agency. 


Decision to mediate raises concerns over transparency

Champlin’s asked the Supreme Court to review the case. But, while that review was pending last year, the company and the CRMC went into mediation, and emerged with a settlement for a more limited expansion.

Agency and court documents show the CRMC voted to approve the deal without public input, without including opponents of the proposal the Supreme Court had recognized as parties to the case, and without addressing some of the reasons the agency had previously denied the application.

“The whole concept of mediation was bizarre,” said Dennis Nixon. 

As a young lawyer, Nixon helped write the rulebook the CRMC uses to regulate the coast. And he worked closely with the agency during his four decades teaching marine affairs at the University of Rhode Island. 

“It's just such a violation of procedure that when I heard about this mediated settlement, I said, ‘But how could you have mediation when only two of the four parties were there?’” he said. “That's not how it works.”

The attorney for Champlin’s, Robert Goldberg, argued that the CRMC and Champlin’s were trying to bring the “eighteen-year-saga” to an end and pointed out that the Rhode Island courts encourage parties to settle disputes through mediation. 

But environmental groups and the town of New Shoreham called foul. The recently retired director of the CRMC, Grover Fugate, questioned the mediation. And Rhode Island Attorney General Peter Neronha intervened in the case, arguing that the agreement violated state law and the agency’s own policies. And because the case was pending before the Supreme Court, Neronha said the CRMC didn’t have authority to revisit its earlier decision. 

The heart of the criticism of the mediation is that it took a public process and moved it behind closed doors. 

“I think if they could go forward with this mediation in the way that they did, it would turn agency decision making on its head,” said Tricia Jedele, who represented the attorney general’s office in this case and now works for The Nature Conservancy. 

In a post-trial memo, the attorney general’s office argued that if the mediation is allowed to stand it would mean that “[an] agency could exclude the public, cancel public hearings, circumvent judicial review, and act with impunity and complete disregard for its regulatory framework and its statutory mandates.”

“You could hide behind anything as a mediation,” Jedele said in an interview after leaving her position leading the attorney general’s environmental unit. “You could label it a mediation, say it's confidential, say no one has the right to ask questions about it. No one can look at anything you considered. And you could just make decisions that way.”

CRMC Executive Director Jeffrey Willis and Acting Chair Raymond Coia denied requests for interviews. But attorneys for the CRMC and Champlin’s argued in court that the town and environmental groups knew about the mediation and had a chance to participate, and argued that the deal reached through mediation is valid. 

The lawyer representing those groups, Daniel Prentiss, argued that he and his clients were not given proper notice, and that even if they knowingly chose not to participate, the settlement still wasn’t valid. 

Prentiss and the attorney general argued the agreement is flawed in part because the CRMC failed to provide justification to back up the deal reached through mediation. The attorney general specifically criticized the agency for failing to explain how the agreement resolved the agency's previous concerns -- including that Champlin’s failed to demonstrate that the expansion wouldn’t harm the ecology of the Great Salt Pond. 

Jonathan Gutoff, a professor of marine and administrative law at Roger Williams University, said the requirement that state agencies provide written justification for their decisions exists “so a judge, a reviewing court can tell whether they've been following the law.”

“That is, if an agency doesn't explain why it's done what it's done, it's impossible to tell whether it's acting within the scope of the law, which is in itself problematic,” Gutoff said.  

The state Supreme Court refused to ratify the agreement and instead asked the Superior Court to determine the validity of the mediated agreement. A decision in that case is due any day now. 

Legal observers say the court’s decision could ripple well beyond this marina -- raising larger questions about the transparency required of state agencies. 

“I think it will be interesting to look at the Superior Court's decision as guidance for agencies about how, when and if mediation is appropriate for the disputes that are before them,” said Bruce Kogan, a professor emeritus at Roger Williams University School of Law who previously ran the law school’s mediation clinic. 

The case hinges on dense, complicated administrative law. 

“So boring,” Jedele joked. “You don’t want to talk about it at a picnic.”

But she said these questions about process -- of how agencies make decisions, and who gets to participate -- do matter. 

“In the 22 years I've been doing environmental law, I've come to really appreciate that most of our ability to protect the environment comes from adherence to process,” Jedele said. The guardrails on state agencies to act transparently “are just key concepts that if they don't exist generally result in decisions that are bad for the environment, not only substantively, but also because it undermines the public trust in the work that the agencies are doing.”


Calls for reform 

When it comes to the CRMC, public trust in the council of political appointees is already in short supply. 

Commercial fishing industry representatives contend that Gov. Daniel McKee stacked the council in favor of offshore wind development. Former Gov. Gina Raimondo drew criticism for removing council members who were viewed as environmentally-friendly, some of whom later raised concerns over the council's handling of cases in the Port of Providence. The Rhode Island Saltwater Anglers Association has called for changes to the make-up of the council, and some shoreline access activists express skepticism about the council's impartiality.

“We've seen a steady decline in the public's confidence that the appointed members of the council are really upholding the purposes of the law,” Nixon said. 

He lives in Jamestown, where the CRMC is under fire for approving a separate marina expansion in the face of local opposition. The state attorney general also raised concerns about the CRMC’s approval process in that case. 

“The CRMC has zero reputation here in Jamestown after that case," Nixon said. "They have zero reputation on Block Island after the Champlin’s case. And you just go around, community after community, and you see that there is a sense that the original founding principles have eroded like our shoreline.”

The cast of characters in the Champlin’s case is full of powerful figures. 

“It's the nexus of power and money,” said John Marion, director of Common Cause Rhode Island, which advocates for government accountability. 

The lawyer representing Champlin’s, Robert Goldberg, is one of the state’s most powerful lobbyists and is married to a state Supreme Court justice. Last year Champlin’s marina was purchased by Procaccianti Companies, a Cranston-based real estate firm that claims to be one of the largest in the United States. And the mediator in the case was Frank Williams, a former chief justice of the state Supreme Court.

“Champlin’s has had the financial wherewithal to litigate this for more than a decade,” Marion said. “And when it would seem that this expansion has been dead on numerous occasions, they've been able to bring it back to life by using their money, and the influence that money buys.

“You begin to feel like if you don't have your own personal lobbyist, you're not going to get anything done,” Nixon added.

The CRMC’s professional staff of scientists and engineers advise a council of political appointees who are not required to have any expertise in coastal issues. CRMC spokesperson Laura Dwyer said that two-part structure has value to the agency’s mission.

“A major theme that's reoccurring at CRMC is the idea of balance. It's in our enabling legislation that we are supposed to preserve, protect and, where appropriate, develop,” she said.  “And part of that balance is also having a professional staff with a council of laypeople. So they come from all walks of life... and that's deliberate.”

But lack of trust in the council has fueled calls for reform. Kendra Beaver, staff attorney at Save The Bay, said the questions raised by the Champlin’s case demonstrate why this structure needs to change.

“It's a travesty. If there was an executive director, that would have to go up the line, and you would know who's accountable,” Beaver said. “Well, who did this? A couple members of the council? All the council? Where's our accountability? Why did this happen? We just don't know. So it's an example of the need for short term and long term reform.”

A Rhode Island House commission assembled to look at restructuring the agency is set to hold its first meeting September 15th. 


Reporter Sofie Rudin can be reached at srudin@thepublicsradio.org.