In recent years, a growing number of Rhode Island’s state legislators have taken up the debate over where, specifically, constitutionally protected “privileges of the shore” — such as fishing, passage along the shore, and collecting seaweed — may be exercised. Legal, scientific, and historical experts have been consulted. A legislative study commission was convened and recommendations were published. Bills have been crafted and introduced. There’s only one thing left for our General Assembly to do: Enact a law that protects and restores the people’s right to use and enjoy Rhode Island’s shoreline.
The need for clarification is obvious. Rhode Islanders’ rights are diminished by using the “mean high tide line” as the shoreline boundary. Try going to the shore and locating the “mean high tide line,” which is defined as the average elevation of 18.5 years of high tides projected on the beachfront. Coastal geologists with advanced equipment have actually located the “mean high tide line” and found that in many areas it is underwater for most of the day, and that it moves over time.
Because it is not fixed and cannot be practically located, beachgoers seeking to exercise their rights can’t know where they’re allowed to be, and landowners seeking to exclude others from near-shore property are unable to fulfill the burden of proof required by the courts to successfully prosecute trespass.
This was never the intention of Rhode Island’s Constitution. After all, how can someone be guaranteed “passage along the shore” if the boundary line is underwater?
The reason for the current predicament is due, at least in part, to the fact that the Constitution does not define where “privileges of the shore” may be exercised. Our state courts have periodically ruled on the boundary’s location as it relates to specific disputes, with specific facts, that appear before them. But they have not considered amendments made to the Constitution in 1986 that codify at least four unique “privileges of the shore” and clarify that protection of those rights is an exercise of the state’s police power rather than a public use of private property (Article I, Sections 16 and 17). The judiciary has also clearly signaled that securing rights is a job for the General Assembly, and indeed this duty is specifically outlined in Article VI, Section 1 of RI’s Constitution.
Legislation has been introduced in both Rhode Island’s House of Representatives (H5174) and Senate (S417) that seeks to finally clarify where shoreline privileges may be exercised. Each bill approaches the issue differently, but the distinctions are not insurmountable and their intent is the same — to write a practical, identifiable “line in the sand” into Rhode Island’s General Laws. The bills seek to secure the rights of Rhode Islanders on both sides of the line. But neither bill can be enacted without the approval of the opposite chamber, because Rhode Island’s legislative process requires a unified proposal approved by both chambers to create new law.
Achieving Assembly-wide consensus on the shoreline boundary question — and subsequently protecting historical rights that have been “heretofore entitled under the charter and usages of the state” — must be a priority for both chambers in 2023. The need for legislation is clear, and there are actionable proposals primed to move through the legislative process right now.
For beachgoers and coastal property owners alike, it’s time for Rhode Island’s General Assembly to finally come together and write a clear boundary into General Laws.
Topher Hamblett is director of advocacy for Save The Bay. Michael Woods is the board chair for the New England Chapter of Backcountry Hunters and Anglers.