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The right to exclude: R.I. study panel on shoreline rights hears property owners’ side

Coastal property attorney tells study commission current law provides certainty, but at least one member took issue with his view.

Two residents of Buttonwoods in Warwick, a fire district that doesn’t actually fight fires but instead manages a private shoreline community, are members of a study commission examining the issue of beach access.Brian Amaral

Over several meetings, a Rhode Island House study commission has heard testimony about why the state’s law around coastal access is problematic and what ought to be done to fix it.

The commission heard a decidedly different view on Thursday at the State House, from a real estate lawyer who often represents coastal property interests.

To John Boehnert, Rhode Island’s law does a good job of balancing interests of people who want to access the shore and people who own private property. A cornerstone right of private property is the right to exclude.

“You do not have to allow strangers to come on your property and hang out in your backyard where your children play,” Boehnert said.

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Any effort to change that balance in favor of more access would be costly, because it would involve what’s called a “taking” under the U.S. Constitution, Boehnert argued. If people’s private property is taken for public use, they have to be compensated for it.

Advocates for more open shoreline access often point to the state’s constitution, which guarantees rights including seaweed collection, walking along the shore, fishing along the shore and leaving the shore to swim. As the law stands now, they can only do that in some cases for about an hour a day, if that, experts say.

But, Boehnert cautioned: “Every constitutional right with which I am familiar has been limited and restricted, some more or less than others.”

Boehnert’s presentation to the commission — made up of subject-matter experts, advocates and two members of the House of Representatives, but seemingly tilted in favor of more access based on the last few meetings — drew an immediate and silent rebuke from a coastal access advocate in the audience in the House lounge, who gave a wordless thumbs-down as Boehnert spoke.

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After Boehnert’s presentation, several commission members scrutinized his views more volubly. Some members are lawyers, and it seemed like a cross-examination, or a law school symposium.

“I disagree completely with your interpretation with how things have gone on” since a landmark shoreline rights case in 1982, commission member Dennis Nixon, a retired University of Rhode Island professor and legal expert, told Boehnert as part of a lengthy, but respectful, back and forth.

The issue of shoreline rights has become more prominent in recent years. Much of it goes back to that 1982 state Supreme Court decision, which people simply call Ibbison.

The decision fixes the boundary between public rights and private property at what’s called the mean high tide line. That’s a measurement taken over 18.6 years, and for complicated reasons having to do with ocean geology, the line provides less access than people think, experts say.

The mean high tide line is the mark where the average high tide over nearly 20 years intersects with the coastal plane. Since south-facing beaches can change with erosion, though, it’s subject to frequent shifts, not in the line itself, but in where it actually hits the land. It’s too confusing and too limited, according to advocates, who would prefer something like the seaweed line.

Nearly four decades after that decision, the issue of shoreline rights is more prominent than ever. Stay-at-home orders and take-it-outside guidance sent Rhode Islanders to the beaches close to home, and presented conflicts with nearby property owners.

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For two years in a row, state legislators proposed decriminalizing trespassing when people are exercising their constitutional rights — the seaweed collection, for example — within 10 feet of the most recent high tide line. That, they say, would make it simpler for people to exercise their constitutional rights. If the mean high tide line is often underwater, it would be impossible to collect seaweed or walk along the shore unless you’re willing to get wet feet and wet seaweed, a bitter prospect in February.

The legislation didn’t go anywhere, and instead the House convened this study commission. And Boehnert said the state Supreme Court in the so-called Ibbison decision was doing what property law loves: providing certainty. The mean high tide line, unlike a measurement of dry sand based on the seaweed line, can be scientifically measured, and staked out by a surveyor.

It was “absolutely the right decision,” Boehnert said.

Boehnert also pushed back on a legal presentation the study commission hosted a few weeks ago. New England Law faculty fellow Sean Lyness has argued that not only was the Ibbison decision faulty, it had been all but explicitly overturned when the state passed a new constitution a few years later that guaranteed certain shoreline rights. If the state really wanted to overturn Ibbison, there was a more direct way of doing it than obliquely codifying new rights, Boehnert said: It could have simply picked a new line. It didn’t do so, Boehnert said, because it would have been an expensive governmental taking of private property.

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Access advocates often point to another part of the state’s constitution, which says the state regulating and controlling the land to protect people’s rights to the shore isn’t a “taking.” (This section comes right before the part about seaweed.) That, some advocates say, shows the state could be in the clear to redefine the “shore” without having to compensate private property owners.

That might not be constitutional, because it might conflict with other parts of the state constitution or parts of the U.S. Constitution, Boehnert argued.

Nixon, for one, was skeptical: He wasn’t aware of any court decision that renders one part of a constitution unconstitutional based on a different part.

Boehnert has long argued against the bill that eventually led to this study commission. A well-known coastal property attorney, his clients have included the Buttonwoods Fire District, a fire district that doesn’t actually fight fires but instead manages a private shoreline community. Two Buttonwoods residents serve on the commission.

The commission on Thursday also heard from interest groups who use the shore quite a bit: fishermen. Peter Jenkins, the owner of the Saltwater Edge bait shop in Middletown, and Richard Hittinger, the vice president of the Rhode Island Saltwater Anglers Association.

They pointed to all the obstructions people face, whether it’s no-parking signs or boulders or a confusing mean high tide line that will only get worse with sea level rise.

“The right to exclude — you can’t exclude the reality of this,” Jenkins said. “The water will keep rising.”

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When it wraps up its work early next year, the commission is expected to make a recommendation to the General Assembly about action. Its next meeting will be a community forum in South County.


Brian Amaral can be reached at brian.amaral@globe.com. Follow him @bamaral44.