PROVIDENCE — The General Assembly on Thursday passed a bill to improve public access to the shore, a historic measure that seeks to address a longstanding source of tension in the Ocean State.
“I do think this is historic,” said state Representative Terri Cortvriend, who shepherded the bill through the House.
The legislation got its final passage from the House of Representatives on Thursday, expected to be the last day of the legislative session. The Senate had previously passed it.
The bill now goes to Governor Dan McKee for his approval or veto, although it passed by veto-proof margins.
The legislation creates a new line for public shore access at 10 feet landward of what it calls the recognizable high tide line. The recognizable high tide line is the mark left on a sandy or rocky shore by the maximum water height of a rising tide, and you can recognize it by seeing things like seaweed, fine shells, oil, scum, or, in the absence of those things, wet sand or rocks. If people were seaward of the recognizable high tide line, plus 10 feet, they’d be able to exercise their state constitutional rights. Those rights include but aren’t limited to passage along the shore, collecting seaweed, fishing from the shore, and swimming from the shore.
The legislation is all but certain to invite legal challenges. A group calling itself the Rhode Island Association of Coastal Taxpayers — RIACT, for short — will react accordingly, its lobbyist and lawyer said. Many coastal property owners have argued that the legislation deprives them of their right to control their property without compensating them for it, called a “taking.” That’s a constitutional no-go, they argue.
“RIACT and other organizations have consistently offered to work with this legislation’s supporters to find a solution to concerns about public access that do not require the government to exceed the limits established by our state and federal constitutions,” RIACT’s representative, Dan Procaccini, said in an e-mail. “The legislature chose to pursue this bill instead. RIACT is assessing all options if the bill becomes law,” he said earlier Thursday.
Supporters say the shore access legislation is on firm legal ground, and that the real “taking” is the taking of the public’s constitutional rights to access for the past few decades. A state Supreme Court decision in 1982 called the Ibbison case fixed the line for public access at what’s called the mean high tide line, or an average of high water heights over a nearly 20-year period.
That gives people much less right to access the shore than they may think, and isn’t readily visible with the naked eye. That’s a source of great frustration from people who point to the state Constitution’s shore access guarantees.
The General Assembly has now taken a crack at resolving this issue. Indeed, the bill that got final passage Thursday goes so far as to say that when the state changed its Constitution in 1986, it rejected the use of the mean high tide line as the boundary for public access to the shore. That legal theory has gained prominence in recent years, but hasn’t been tested — yet — in court.
One supporter argued that the 1982 Ibbison decision came in the absence of direction from the General Assembly. Now that direction is coming, and it’ll make it clearer for everyone, even property owners, state Senator Mark McKenney said.
“Property rights are very important in this country, but clearly, they have to be subject to what our Constitution says,” said McKenney, a Warwick Democrat who introduced the bill. “I think what we’ve done here is a great service in terms of clarifying what’s meant by the shore. The important thing is that it’s now going to be a line that can be readily observed to the casual beachgoer.”
The issue of shore access has become more prominent in recent years for a few reasons. That includes the arrest of Charlestown resident Scott Keeley while collecting seaweed; shifting shore access rules in towns including Narragansett; and a new appreciation during the COVID-19 pandemic for taking it outside, which, combined with an influx of new shoreline property owners, at times lent that last phrase its more menacing meaning.
Early proposals would have decriminalized trespassing on the shore. In 2021, the House largely punted the issue to a study commission. The conventional wisdom (including, ahem, in the media) is that study commissions are where ideas go to die, but not this one: This study commission — including both Cortvriend and McKenney, the latter of whom was originally a skeptic — developed the proposal that largely matches what passed the General Assembly Thursday.
There were a few tweaks and different versions along the way. McKenney at one point proposed a much more expansive proposal that would have provided access to the vegetation line, but he said it didn’t have the support to pass.
The bill that ended up passing explicitly says people don’t have the right to use other people’s beach chairs and cabanas, for instance. It also defines the recognizable high tide line slightly differently than the original proposals. If there are multiple seaweed, oil, or shell lines, the one closest to the water is the one that’s used as the starting point for a 10-foot buffer. Like previous proposals, the law also would not allow people to access the shore where no passable shore exists, or on lawns, seawalls, or above the vegetation line. And the legislation emphasizes other parts of the law that already provide property owners with liability protections.
One thing that’s left unclear in the legislation — purposefully — is what people can actually do if they’re under the recognizable-high-tide-plus-10-feet line. The legislation points to the state Constitution, which says people have the rights including collecting seaweed, passing along the shore, fishing from the shore, and leaving to swim. But the Constitution itself says the rights aren’t limited to just those rights. Does that mean people can put down a towel and stay for a day? The legislation doesn’t address that, potentially leaving those questions for another venue. Such as the state’s 400 miles of coastline — or maybe a court of law.
The legislation, assuming McKee doesn’t veto it, takes effect on passage. Just in time for summer.