Government

Mean High Tide or High-Water Mark? House Shoreline Study Commission Needs to Figure That Out

The line between private property and public shore is befuddling and an annual exercise in disagreement. A Rhode Island study commission is hoping to resolve the matter. (ecoRI News)

Walking on the beach usually doesn’t include a lecture spanning hundreds of years of legal history unless you live in Rhode Island. The 12-member House commission to study shoreline access heard from experts Thursday afternoon as part of a process to make recommendations to the General Assembly.

The right to shore access makes headlines every year in the Ocean State, as property owners try to square — and sometimes physically block — the constitutional provision with their own rights. The study commission was created by legislation sponsored by Teri Cortviend, D-Portsmouth, last session, as part of the Legislature’s attempts to resolve the ongoing conflict.

Shoreline access is enshrined in Article I, Section 17 of the Rhode Island Constitution, but a court case in 1982, State v. Ibbison, affixed property boundaries to the mean high-tide line. It is an average that changes every 18.6 years, and most beachgoers have no idea where that line is.

During the commission’s Sept. 23 meeting, its second, members hosted Sean Lyness, a faculty fellow at New England Law in Boston. Lyness prefers the average high-water mark.

“You have precision, in terms of being identifiable to the casual observer, the high-water mark is better,” he said.

Ibbison was a case when a beach cleanup crew — complete with Rhode Island Department of Environmental Management supervisors — were cleaning up the shore in Westerly, before they were arrested for trespassing on private property. The attorney for the cleanup crew argued that according to case precedent, the property line extended only to the high-water mark, identifiable from seaweed drift on the beach. The property owner, who had called police, disagreed, arguing the property line extended to the mean high-tide line. The state’s high court sided with the property owner, affixing property lines along the Rhode Island shore to the mean high-tide line.

Commission member Rep. Blake Fillipi, R-New Shoreham, asked if there was any way, based on the Ibbison standard, for a person to walk on dry sand without trespassing on possible private property. He asked if the right as laid out in the Rhode Island Constitution is in conflict with the Ibbison ruling?

“That’s what we’re all here to figure out,” said Cortviend, the commission’s chairwoman.

Shoreline access is part of Rhode Island’s public trust doctrine. The idea is there are some resources, in this case the shoreline, that are fundamental to society and must be protected. The government holds them in trust and has the responsibility for maintaining the resources. This thinking started in 1663, when fishing rights along the shore were written into the Colonial charter. Those rights stuck around quietly, until the state formally adopted a Constitution in 1841, when its writers added the phrase “privileges of the shore.”

Rhode Island put the phrase to test a century later, in Jackvony v Powell.

The General Assembly passed a law in 1940 allowing the Easton’s Beach Commission to erect fences on Easton’s Beach in Newport. The commission wanted to keep non-residents off the beach. The attorney general disagreed and sued, arguing it went against the state’s constitutional rights. The state Supreme Court sided with the attorney general, and found the law unconstitutional.

Negotiating perpendicular access to the shore, more commonly known as public rights of way, was given to the Coastal Resources Management Council (CRMC) in the early 1980s. The agency’s job is to work with municipalities to rediscover these public access points. They are affixed with a designation from CRMC and maintained through a network of partners.

CRMC can’t create new public rights of way, it can only analyze already-existing public access points that have been lost over time. The state agency does not determine ownership of a right of way; if a right of way is on private property then the right of way acts as a sort of easement. But what if a property owner blocks a public right of way the agency has designated?

“CRMC has legal authority to enforce, to go after violators of folks who block CRMC designated rights of way,” said the agency’s executive director, Jeffrey Willis, who is also a study commission member. “It could be someone put up a shed or fence, make it look like their side yard, but if they’re blocking it we can enforce to have it removed.”

Willis said a CRMC subcommittee works with Rhode Island’s 21 coastal communities on finding lost access points. Since starting the process in 1980, he said CRMC has designated 230 official shoreline rights of way. Another 71 sites lack sufficient evidence for CRMC to award a designation, and nine sites are in review.

The other members of the House study commission are: Michael Rubin, a retired attorney who used to work in the attorney general’s office; David Splaine, Rhode Island Realtors Association; Julia Wyman, Marine Affairs Institute and Rhode Island Sea Grant legal program at Roger Williams University; Dennis Nixon, Marine Affairs Department at URI; Jonathan Stone, executive director of Save The Bay; Mark McKenney, a land-use attorney; Mark Boyer, Rhode Island Society of Professional Land Surveyors; Francis X. Flaherty, a retired Rhode Island Supreme Court justice; and Alison Hoffman, special assistant attorney general in the Environmental Unit.

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