Court Ruling has Misled Shore Rights in Ocean State
October 10, 2014
In discussing Rhode Island’s shore rights and privileges one must revisit the State v. Ibbison ruling. If the topic isn’t familiar to you, here is a quick primer.
In the 1970s, four members of a fishermen’s group were cleaning up the beach in Westerly. They were arrested for criminal trespass at the behest of the man whose property they were cleaning up — free of charge. They were convicted in a local court, but in an appeal to Rhode Island Supreme Court, the case was dismissed. The men, in the end, weren’t found to be guilty of trespass.
But the method used and the approach taken in deciding the appeal has had a disastrous effect on the citizens of Rhode Island, with respect to the state’s constitutionally guaranteed rights and privileges of the shore.
The reason this ruling deserves a second look is that it has changed the fundamental principles that were incorporated into the Rhode Island Constitution about shore rights. The Constitution gave us citizens the right to do things along the shore — not unlike the U.S. Constitution ensuring us the right to pursue life, liberty and happiness.
Going back to Roman days, and still in early Colonial days, it was recognized that access to the sea was crucial for a society living on the coast. People’s welfare and their livelihood, in fact much of their existence, was linked to the ability to use the dry land along the edge of the water to build a better life. It was not an ownership issue. No matter who owned the land, it was the citizens’ right to use a narrow swath of that land along the coast.
Well, things change. One thing that has changed is that in times gone by no one built right on the coast. It’s a transitory environment, an environment in which change is natural, and unforgiving. Now, with the availability of federal flood insurance, substantial houses are being built almost at the water’s edge. The advent of federal flood insurance reimbursing people for losses in that unstable and uninsurable — by rational standards — environment has helped create the accelerating disappearance of our inherited rights.
Also driving that acceleration is the reality of sea-level rise. Sea level has been rising since the end of the last glacial era, about 10,000 years ago, but it had slowed significantly until the coming of the industrial age. Now, sea-level rise is again accelerating.
Now let’s take another look at the Ibbison case. The misunderstanding and misinterpretation of this case has been a confusing and misguiding factor in the discussion of our shore access rights ever since.
The problem is that in the Ibbison case Justice Donald Shea assumed that the issue of property ownership was the sole arbiter of where our constitutional shore privileges were located. While it’s absolutely true that the state of Rhode Island owns all of the land underneath the salt water that borders its coasts, our Constitution gives us the right to do certain activities at the shore, and the location for those activities isn’t constitutionally linked to ownership.
In fact, the state Constitution specifically states that Rhode Islanders exercising their shore privileges shall not be deemed a “taking” from private property owners. There would be no need for this clause in the Constitution if we citizens only enjoyed our rights on the land unequivocally owned by the state.
In his efforts to use state ownership as the deciding factor to determine our rights and privileges Justice Shea focused on the word “shore,” which appears in section 17 of the Constitution in the phrase “rights and privileges of the shore.”
The court’s ruling made a declaration that “the word shore has its landward boundary at the high tide line.” One issue with that declaration is in trying to answer the question, what happens if there is a seawall? Or if the sea level rises to bring the water to meet a previously existing wall?
The problem that presents itself is that on a wall the sea level simply rises and falls up and down the vertical surface. There would never be any area below the high tide line available to us citizens for our shore privileges. Is it acceptable that the Rhode Island judicial system can create the situation where one citizen builds a wall, and by doing so disenfranchises all of his/her fellow citizens of their inherited constitutional rights? I don’t think so.
The court’s emphasis on the definition of the word “shore” deserves a further inspection. I have looked up the definition of shore in eight dictionaries and they all give the same definition: “the land bordering a usually large body of water.” I spoke with an attorney working for the state about this discrepancy between the definition of the word “shore” I had found and the definition declared by the court. The answer I got was that there were “special legal dictionaries” that would agree with Justice Shea. That is a big problem.
The problem is that the words of the Constitution were voted into law by the people of Rhode Island who didn’t have special legal dictionaries. The wording of the Constitution was voted on in the 1980s, section by section, during our last Constitutional Convention. The section which received the highest popular support was section 17, the section that dealt with shore rights and privileges. Sixty-seven percent of the Rhode Island electorate voted to accept the wording in the Constitution as it was presented to them, which included the word “shore.”
They voted with their common understanding of the word, perhaps the definition offered in one of the eight dictionaries they might have had on hand. They had no referral to, nor guidance from, “special legal dictionaries.” By their vote the citizens of Rhode Island themselves defined the location of their shore privileges. They made the word “shore” a part of their Constitution with the everyman’s understanding that it meant “land bordering a large body of water.” The land is dry. Whether there is a seawall or not, the “shore” they voted on is along the edge of the sea — not under it.
As a further bit of evidence concerning what we citizens understood the word shore to encompass, if you consult any text on oceanography you will find that the word shore in the diagrams clearly includes land area above high tide along the edge of the sea.
Another way to look at this semantic situation is the official government use of the words “shore leave,” “going ashore” and “shore duty.” None of these activities occur in the place below the high-tide line. When sailors step on to a dock, which is above high tide, they have gone “ashore.” When a sailor goes on “shore leave,” he isn’t going to spend the weekend below the high-tide line. In the same fashion, a sailor assigned to “shore duty” doesn’t get time off because it’s high tide at the pier and there is no place below the high tide line to be on duty.
Could this twisting of the definition of the word “shore” have turned out to be some kind of Machiavellian legal bait and switch? Could it be that the people voted to accept the word “shore” in an ordinary voting process with their ordinary definition of the word meaning “the land bordering a large body of water” and now they are being duped? That years later the officers of the courts in Rhode Island, state agencies and certainly some shorefront owners are using a definition from “special dictionaries” to squeeze the citizens into the water and off of the land on which they have the right to exercise their privileges?
The above discussion of the erroneous assumption that only ownership matters, and the use of a “special definition” of the word shore, illustrate the primary reason why this case has no place in deciding issues of our shore rights and privileges. The Constitution, keep in mind, makes no mention of high tide, low tide or any other reference relating to the location of those rights. It’s easy to figure out.
The public enjoys an easement — an easement across the seaward edge of the shorefront properties. That is what the citizens of Rhode Island voted to make part of their Constitution. A moment’s thought makes it clear that the recognition of this easement benefits all Rhode Islanders, including the shorefront owners. Without it, the owners of beachfront homes couldn’t go for a walk down the beach. Without it, they are “prisoners of their property lines.” If we all can’t pass along the shore, nobody can.
Unfortunately, many of our state agencies that have jurisdiction over coastal activities have also been misled by the errant “only ownership matters” misinterpretation and ambiguity associated with the Ibbison case. In a book by Patrick T. Conley and Robert J. Flanders discussing the Rhode Island Constitution, the point was raised that Justice Shea intentionally left the matter blurred.
But a blurred basis for societal discussions is not what serves the citizens of Rhode Island. The agencies need to operate with a clear and coherent competency on our behalf. The people of Rhode Island expect their agencies to pick up the mantle of responsibility assigned to them by the Constitution which states that protecting our shore rights and privileges “shall be an exercise of the police powers of the state, shall be liberally construed, and shall not be deemed to be a public use of private property.”
To shift their viewpoint from the misguided focus on state ownership to the recognition of our easement across private property, the state agencies will have to invest both time and energy. Perhaps that is one of the reasons why there has been a focus on the Ibbison ruling — it’s easier that way. But it’s not right.
As sea-level rise makes profound changes on our coastline, these agencies will be determining what the coast of tomorrow will look like. Every commercial or residential endeavor along the shore will have to apply for permits to make the adjustments to a rising sea. The Constitution should be seen as necessitating that any applications for alterations to the shoreline must include design and planning for the easement on which Rhode Island citizens will exercise their shore rights and privileges. And that easement is along the dry land.
Fortuitously, at this point in time, Rhode Island is in the middle of a reevaluation of the state’s coastal regulations. The Special Area Management Plan (SAMP) is a multiyear and in-depth evaluation process ending in the promulgation of new coastal guidelines and policies. It’s a great opportunity for us to make sure that the government bodies in charge of our coast follow our Constitution in administering their duties, and don’t get tangled in a confused and misinterpreted ruling from an isolated criminal trespass case more than 30 years ago.
Jim Bedell runs the Rhode Island Shoreline Access Coalition.
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Using a soil perspective the definition of the term "shore" is as follows: shore – The narrow strip of land immediately bordering any body of water, esp. the sea or a large lake; specifically the zone over which the ground is alternately exposed and covered by tides or waves, or the zone between high water and low water. Source is the Glossary Of Landform and Geologic Terms in the National Soil Survey Handbook. In RI these areas are mapped as beaches on soil survey maps – the entire coastal zone for RI has been recently re-mapped. Consider RI soils!
Jim is on the money on this one. His research and understanding on "rights of the shore" reflect the greater historical understandings and opinions by the court. It doesn't matter that the line which separates private property from public property along the shore is defined as the average high tide over a 16.6 year period. The key here is that all residents have a fundamental right, a prior right of easement, on all property adjoining the ocean and waters affected by the ebb and flow of the tide. Those relatively new property owners who purchased what was formerly waist land, or farm land, or those lands that bordered the shore are subject to that prior easement. Shoreline property owners contain a bundle of rights associated with their property. The inconvenience caused by the loss of one of those rights does not constitute a taking. But it goes further. The people have a fundamental right to get to the shore. Without the the right a access, the fist right becomes illusory. That means that if there is no designated "public right of way" within reasonable distance of a point along the shore, an individual has the right to traverse private property to get to the shore so long as he does not cause willful damage to the property. If the property owner complains loud enough or complains that the numbers of people have alter his property, the state has the obligation, the duty to take the property or pathway through eminent domain and designate it a public right of way. Shoreline property owners should use prudence when attempting to exercise their private property rights and give due consideration those exercising their prior right of easement.
Another possibility is that the proposed constitutional convention could attempt to clarify this and proetct the public activities and bring it to the voters