Rhode Island's new shore access law creates a new boundary line at a point 10 feet landward of the recognizable high tide line on a sandy or rocky beach.
R.I.’s shore access bill is now law. Will it survive court challenges?
By Brian Amaral Globe Staff,Updated June 27, 2023, 4:37 p.m.
Rhode Island's new
shore access law creates a new boundary line at a point 10 feet landward
of the recognizable high tide line on a sandy or rocky beach.Stan Grossfeld/ Globe Staff
PROVIDENCE
— The Rhode Island shore access bill became the shore access law with
Governor Dan McKee’s signature Monday, and now people can exercise their
rights to the shore if they’re within a certain distance of the water.
But what does that actually mean? And will it survive court challenges?
The
Boston Globe spoke to legal experts about how the law will work — and
some of the arguments we’ll likely hear on both sides when property
owners file lawsuits over it.
On
the pro side, supporters said the law simply gives Rhode Islanders the
space to exercise the strong constitutional shore access rights they
already have.
“The
General Assembly didn’t do this crossing their fingers hoping it would
be legal,” said Sean Lyness, a law professor at New England Law and a
supporter of the law. “The reason why so many members of the General
Assembly supported these bills is because it really does pass legal
muster.”
Opponents,
however, said the state can’t do what it did without paying up — it’s a
so-called “taking” of their right to control their property, which runs
contrary to the US Constitution’s Fifth Amendment, they say.
“We
live in a system in which the ends don’t justify the means,” said J.
David Breemer, a lawyer at the libertarian-leaning Pacific Legal
Foundation, which has represented plaintiffs in similar cases. “The
constitution requires things to be done a certain way, even good things.
If you want a bigger beach, the proper way to do it is to buy it.”
In
the absence of those principles, Breemer said, “We don’t really live
under the rule of law, but ‘the majority does whatever it wants.’”
Here’s how the law works: It
creates a new boundary line for Rhode Island’s shore access rights at a
point 10 feet landward of the recognizable high tide line on a sandy or
rocky beach. The recognizable high tide line is recognizable by things
like seaweed, shells, or other debris left by the tide. If there’s more
than one seaweed line, you use the one closest to the water. If there is
none, you use the wet mark. Add 10 feet. There’s your new access line.
Seaward of it? Cool. Landward of it? Watch your step.
For
decades, shoreline cities and towns, property owners, and coastal
regulators pointed to a different line: the mean high tide line. That’s
based on a 1982 state Supreme Court case called Ibbison. But that line
is actually much more limited and unclear than people may think, critics
said.
In
recent years, an argument has emerged that the Ibbison decision was not
only bad as a practical matter but defunct as a matter of law. When the
state changed its constitution in 1986, it added specific shore access
rights, including collecting seaweed, passage, fishing from the shore,
and leaving the shore to swim. That effectively did away with the mean
high tide line from the court case four years earlier, some legal
experts argue. Because, after all, how can you have the right to collect
seaweed or pass along the shore if the line to do it is underwater much
of the time?
The General Assembly, in this telling, is just clearing things up by explicitly adopting that argument.
Supporters
also point to those strong constitutional shore access protections for
things like collecting seaweed and fishing, which set Rhode Island apart
from other states.
This
textualist, originalist approach, grounded in what the constitution
says, may hold appeal for certain judges, said Monica Teixeira de Sousa,
a Roger Williams University School of Law professor who teaches
property law.
“This is already a robust doctrine” in Rhode Island, she said.
Not so fast, said John Boehnert, a Rhode Island attorney and critic of the law.
“No
constitutional right is absolute,” Boehnert said, pointing to the First
Amendment, which doesn’t offer absolute protection against slander, for
example.
Boehnert
said the state Supreme Court was doing a thoughtful balancing act when
it adopted the mean high tide line in the Ibbison case. Any argument
that the 1986 constitutional amendments overturned that line, Boehnert
has argued, would have to rest on the notion that shore rights were
absolute — a unfettered right of dry-foot access. But like other rights,
they’re not, he’s argued.
Opponents
like Boehnert also point to a recent US Supreme Court case Cedar Point
Nursery v. Hassid, which found that a California regulation giving
unions the right to access an agricultural employer’s property to
solicit unionization was a physical taking of property that triggered
constitutional protections.
In Rhode Island, “This has become a political matter, not a legal matter,” Boehnert said.
It’s soon likely to become a legal matter yet again.
Property
owners argue it’s so obviously unconstitutional that wherever it ends
up, state or federal court, it’ll get quickly enjoined, or prevented
from taking effect. That was the view of Steven Filippi, the owner of
Ballard’s Beach Resort on Block Island. Ballard’s is one of the
higher-profile instances where the law will have a direct effect;
Filippi said property surveys show he owns the whole beach, down into
the water, one of several points of contention he’s had with the town of New Shoreham.
Filippi
said he won’t himself sue over the changes that would give people an
explicit right to access the property, but knows people who will.
“Suppose
you bought a house, and you said, OK, that’s my property line, and then
the government comes in and takes it away and puts an easement across
your property,” Filippi said in an interview just before the General
Assembly gave the legislation final passage. “That’s considered a taking
— there’s no way a judge is going to let that happen.”
The
law does include a couple of measures to accommodate property owners’
concerns. For example, it explicitly says it doesn’t give people the
right to use privately owned cabanas or decks. It solidifies
already-existing liability protections (sorry, Heavy Hitter: no
slip-and-falls on the shore). It also says the right doesn’t exist if
there’s no passable shore, like on seawalls (sorry, Swifties: no boombox
serenades after a rock scramble up to Holiday House).
Another
wrinkle: The newly passed law spends time establishing where people can
exercise their constitutional rights, and lists what those rights
include. It doesn’t dwell much on what those rights don’t include. It
doesn’t say one way or the other whether people can, for example set
down a cooler and a towel. That’ll be the next thing to argue about.
But
to supporters like Dennis Nixon, a University of Rhode Island emeritus
professor who served on a study commission that crafted early versions
of the law — and worked on the constitutional convention that gave rise
to the 1986 changes — the new law will provide a whole lot of clarity.
For both sides, at that: Since Ibbison, no trespassing conviction has
ever been upheld, because the line is so unclear. Now it’ll be as clear
as the throw of seaweed and measurable as 10 feet.
“I
think this is going to reduce conflict along the shore,” Nixon said.
“It gives everyone a rule they can understand. I think that’s a really
important change.”
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