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.”