PROVIDENCE — It’s fair to say that Charlestown resident Scott Keeley helped spark the most-recent round of a debate that has raged for generations in Rhode Island.
His 2019 arrest on the beach in South Kingstown while collecting seaweed kicked off a full-on media spectacle, complete with a Fourth of July protest, seaweed tote bags and a $25,000 legal settlement. Last year, the state House of Representatives formed a study commission to figure out what to do about shore access. The commission, made up of two lawmakers and 10 people representing a broad range of interests, has been getting closer to legislative recommendations.
But Keeley is concerned about some of them. The commission has focused on guaranteeing the right to pass along the shore, while either ignoring or outright rejecting the right to stay there to enjoy it. In doing so, they could cast doubt on people’s ability to stop, sit, or linger, which Keeley and other activists believe are likewise guaranteed in the state constitution. That’s what much of this whole dispute has been about. After all, the South Kingstown police officer only took out the cuffs that day in 2019 when Keeley sat down to shake some sand out of his seaweed haul.
“If they’re only going to let us walk on the shore, then we’re better off with nothing, because that’s going backward to pre-2019,” Keeley said. “This passage-only is 100 percent of what the shoreline property owners want.”
The divisions that are emerging are not entirely surprising: It’s been said that in a state with more than a million people, there are more than a million different opinions about shore access, all of them vigorously held. But it gets to the complicated task at hand: Not just determining where people can access the shore outside the confines of public beaches, but what they can do when they get there. After all, a day at the beach and a long walk on the beach can be two very different things.
House Minority Leader Blake Filippi, a Republican of Block Island and co-chair of the commission, noted the group has not yet come out with its recommendations. He believes they should focus mainly on the geographic area people can access, rather than what they can do there.
“I’m not telling people not to engage with us until they see the final product. I’m saying withhold ultimate judgment until the commission produces a final product,” Filippi said in an interview.
Indeed, any legislation would still have to get through not just the House, which convened the panel, but also the Senate, and then head to the governor.
Right now, the state constitution says people have certain rights to the fishery and the shore. That includes – but is not limited to – fishing and swimming from the shore, passing along the shore, and collecting seaweed. But a controversial 1982 state Supreme Court case called the Ibbison decision fixed the line for public access at the mean high tide line, which is a measurement taken over more than 18 years. It’s more limited than people realize.
That has led to conflicts along the state’s expansive coast. Beachgoers would wave around the constitution. Property owners would wave around the Ibbison decision.
The commission that set out to resolve those disputes last met on Feb. 10. After weeks of information-gathering meetings, they considered two different legislative proposals, and discussed them for an hour, while trying to figure out how to do it in a way that wouldn’t get the state sued by property owners.
One proposal was from environmental group Save The Bay, which would decriminalize trespassing within 10 feet of the recognizable high tide line – the physical mark that a high tide makes on the shore – when people were exercising their constitutional rights to the shore. It was similar to previous legislation first introduced in 2020, which Keeley, for one, considers a fair compromise.
The other was from Mark McKenney, an attorney and resident of the Buttonwoods fire district in Warwick. McKenney agreed that there was too much uncertainty around the mean high tide line. Like others, he pointed to the seaweed line, a visible line in the sand generally further inland, as a better mark. He suggested passing a law that said “passage along the shore is allowable” up to the seaweed line.
It added a caveat: The law wouldn’t give people the right to set up chairs, tents, umbrellas, grills or boomboxes, and “no entitlement is created for persons to remain on the shore indefinitely.”
Setting up chairs and umbrellas is indeed a major concern of private property owners. And the commission’s focus on passage came as a relief to at least one of them, even though he noted that it would still face legal challenges.
“None of my neighbors have a problem with people walking along the shoreline,” Keith Wilcox, a South Kingstown beachfront homeowner, said in an interview. But “keep moving, as we’ve been saying. You don’t sit on my beach, you don’t put a towel down – that’s what the constitution already says.”
Because the commissioners are considering setting out the factual background on the issue for their proposed legislation, as a roadmap for future judges, these distinctions would matter immensely. And throughout the last few meetings, the subject has often turned back to passage, with the shore often compared to a sidewalk. You can use it to pass, and to rest briefly if you’re, say, running a marathon, but not to stay indefinitely.
“This really is the right to pass, and that’s what’s guaranteed in the constitution now,” said Dennis Nixon, a professor emeritus at the University of Rhode Island and former director of the Rhode Island Sea Grant. “The language that Mr. McKenney suggested is a useful addition to the discussion here – this is about the right to pass, within reasonable, recognizable areas.”
The only pushback came from Representative Terri Cortvriend, a Democrat representing Portsmouth and Middletown who’s the chair of the commission. How could people fish if they had to keep moving?
McKenney said he didn’t think people had to keep moving if they were fishing.
“I think most of the time, when you’ve got difficulties, it’s people thinking they can do whatever they want there,” McKenney said.
The commission will next meet in early March.
McKenney said in an interview that he felt the commission was doing a good job balancing private rights with public access. On both sides, people can try to take too much, whether it’s the homeowner hassling passersby or the passerby who’s basically up on someone’s porch.
“Every right we refer to, the Bill of Rights, everything else that’s been viewed as a right, has certain limits on it,” McKenney said. “Usually those limits come into play when they impact somebody else.”
But seaweed collector Scott Keeley is not alone with his concerns about the direction the commission is headed in. Jim Bedell, a longtime activist, called the paragraph barring chairs and tents “more than inappropriate.” Recreation, too, is protected, Bedell said.
And Anthony Palazzolo, who’s from Rhode Island and has been following the commission, said after watching the most recent meeting: “This doesn’t expand public access, it limits it.”
To Palazzolo, the commission would be making a big mistake if it went out of its way to say what people’s constitutional rights did not include. Unlike Keeley, Palazzolo is not sure if there is a constitutional right to set up a chair and lounge along the shore, sunbathing for hours.
But “I do know potential constitutional rights shouldn’t be foreclosed by the state legislature. They should be addressed on a case-by-case basis, by the courts,” Palazzolo said.
Ben Weber, a Westerly resident and shoreline activist, has been following the meetings with growing alarm. Access to the shore, he said, is about more than just passing along.
“What if you want to sit there and dig clams or gather mussels at low tide?” Weber said. “What if you want to build a sandcastle? You’re not allowed to sit there and enjoy the view? This is just ridiculous. We have every right to sit there and put a towel or a chair down.”
Brian Amaral can be reached at firstname.lastname@example.org. Follow him on Twitter @bamaral44.