Walk This Way: Shoreline Tour Explains Public Access Rights
September 25, 2023
CHARLESTOWN, R.I. — It’s a beautiful Thursday evening; fresh breezes, cool ocean air, and Janet Freedman is leading several dozen Rhode Islanders in the direction of Blue Shutters Beach.
She stops, facing the crowd, in front of a particular stretch of snow fence: thin wooden slats tied together with twisted wire that surround the dunes to capture sand and prevent beach erosion. Behind Freedman is a beach house, of typical construction common to Rhode Island’s south shore, with an American flag posted in between the dunes. On the fence in black and white is another common sight — a sign that reads “Private Property No Trespassing.”
Microphone in one hand, Freedman gestures past the crowd of 50 people gathered around her, toward the ocean.
“Up until about two weeks ago,” Freedman says, “there were [no] trespassing signs much further seaward into the beach, well into the public access zone.”
A chuckle runs through the crowd, which is broadly receptive to public coastal access, and Freedman credits Brian Harrington, a compliance officer for the Coastal Resources Management Council, as the reason the signs along the beach are now back as far as the dunes.
The tide along the beach is going out, just out of sight behind the berm that makes up the middle portion of the shoreline here. Someone in the crowd points out to Freedman they are all more than 10 feet from the lowest seaweed line. She grins.
“Actually, I think we might be technically trespassing now,” Freedman says.
Freedman, a coastal geologist, along with staffers from CRMC, Rhode Island Sea Grant, and Clean Ocean Access — who were bedecked in blue T-shirts and shorts despite the chilly temps — was part of a small band of unique tour guides, giving Rhode Islanders a live demonstration cum explanation of just where and when they have public access rights to the state’s beaches.
Unusual for a trip to the beach, members of the public walking along the shore were treated to quick, informal talks on property law, seaweed, sand dunes, and coastal ecology and how all those topics interact with their newly codified rights to access the shoreline. The group gathered for the walk in the parking lot of East Beach, which is owned and maintained by the state Department of Environmental Management, using its access point to get to the shore.
Freedman, along with her co-guides Nathan Vinhateiro of the Coastal Institute at the University of Rhode Island; Leah Feldman, a coastal policy analyst with CRMC; and Emily Hall, a coastal geologist with CRMC, stopped every so often to field questions from the public on how the new shoreline access law works.
In June, the General Assembly put the question of lateral shoreline access to rest. The state Constitution, which took its cues from the original Colonial charter of the 1600s, has long guaranteed the public access to the “privileges of the shore,” but those rights were winnowed for four decades. Thanks to the 1982 Rhode Island Supreme Court decision in State v. Ibbison, the boundary for public access to the coast was fixed to the mean high water (MHW) line, an almost invisible line determinable only with special scientific equipment and years’ worth of data.
“We’re not going to know where the mean high water boundary line is [tonight] for another 20 or 25 years,” says Vinhateiro. For much of the walk, he held an 8-foot pole, a surveyors’ tool used for measuring the tides.
The old standard pleased no one, not property owners nor members of the public. It left the public with nowhere to access their coastal access rights, and waterfront property owners had no tools to enforce property rights. In the four decades since the Ibbison decision, no member of the public walking on the beach had been successfully charged and prosecuted for trespassing on private property. No one could discern where public access ended and private property began.
The new standard, signed into law June 26, changes the boundary line from the MHW line to 10 feet landward of the lowest seaweed line, a clearly visible line of detritus, or wrack, left over from the previous high tide. Freedman and her colleagues are quick to note the new line won’t apply to storm surges, when tides are super-charged and travel much further inland than they normally would. (The tour was originally scheduled for the prior week, but organizers canceled ahead of Hurricane Lee.)
“There’s no law that can be passed to solve every situation that will come up in shoreline access,” said Sen. Mark McKenney, D-Warwick, who sponsored the Senate version of the shoreline access bill.
McKenney served on a study commission headed by Rep. Terri Cortvriend, D-Portsmouth, who originally sponsored a previous version of the new shoreline access law in 2021. McKenney, who wasn’t in the Senate at the time of the study commission, said he was a “skeptic” on shoreline access when Senate leadership asked him to serve on the commission. By the time the study commission submitted its final report to the General Assembly nearly a year later, McKenney had changed his mind, and had the zeal of a convert for shoreline access.
The new law wasn’t without its challengers — it was strongly opposed by waterfront property owners, beach clubs, and fire districts before, during, and after its consideration by the Legislature.
A week after the new law was signed, the Rhode Island Association of Coastal Taxpayers, an organization that claims dozens of waterfront property owners in its membership, sued the state in Rhode Island District Court, naming Attorney General Peter Neronha, CRMC director Jeff Willis, and Terry Gray, DEM director, arguing the new law amounted to an illegal seizure of private property under the U.S. Constitution, and that property owners now had a “fear of prosecution” from the law.
Two days before the Sept. 21 tour, a federal judge dismissed the lawsuit, saying the plaintiffs had no standing to sue the state under the grounds listed in the legal complaint. McKenney said he was pleased when he heard the case was dismissed, and that he wrote the law with Cortvriend with an eye on legal precedents.
“I’m satisfied that when a case comes to the Rhode Island Supreme Court, the shoreline access bill will be upheld on its own merits,” McKenney says.
Enforcement of the new law will remain up to CRMC, but the agency famously has a tiny budget ($5 million) and only has two enforcement officers to cover 420 miles of Rhode Island shoreline. The agency has also long had a goal of designating one right-of-way (ROW) — the overland access points that allow members of the public to get onto a beach without trespassing — per mile of coastline, but with only 230 CRMC-designated ROWs, that goal is a long way off.
CRMC has also pledged to designate more ROWs in urban and underserved communities, and for the past three years has embarked on a public education campaign on shoreline access, including the walking tour, webinars, and improved signage and infrastructure at ROWs.
As the sun goes down behind some beach houses to the west, and the crowd’s shadows are lengthening on the sand, Freedman, together with Feldman and Hall, lingers in front of another patch of snow fencing in front of some dunes. Someone in the crowd asks what they can do to support the shoreline access work performed by CRMC.
“Call your local representative!” Freedman says.