Legal Terrain

How About a Walk on the Beach?

August 17, 2023


August. Dog days of summer. And also the best time to take a relaxing stroll along the beach. But where? Public beaches are often still crammed if you can find a place to park. But many of us know of a public access path to the beach, perhaps at the end of a public road that dead ends at the shore. Now look to your left and right. Shorefront homes stretch in both directions. But you can walk along the shore, right? The answer is different but no less challenging if your favorite beach is in Massachusetts or Rhode Island.

In Massachusetts and also in Maine, the ownership of the shore was historically based on the Public Trust Doctrine, which establishes that land beneath the ocean waters, those always submerged and those inter-tidal lands that appear at low tide and disappear at high tide, are held in trust by the coastal state for the benefit of the public. Colonial Massachusetts abided by this doctrine until the colonial government transferred the inter-tidal flats to the coastal property owners as private Tidelands to promote wharfing out to support the growth of mercantile sea commerce before the birth of our country. The Colonial transfer of the inter-tidal Tidelands to private owners granted the public the right to continue using those private Tidelands for “fishing, fowling, and navigation.”  Over the years, there has been argument and debate about the nature and limits of fishing, fowling, and navigation along the otherwise privately owned Tidelands. Still, generally, one may walk, swim, fish, and boat along these Tidelands.

In Rhode Island, the view along the shore is different, at least in some respects, but not without controversy. Rhode Island also encouraged “wharfing out” beginning in the early colonial days until the more recent advent of regulation of coastal development; but in Rhode Island, a trek along the shore, while better in some respects, is not all that different. In 1663, King Charles II issued a royal charter that granted the citizens of Providence Plantations the right to freely fish. Rhode Island’s first constitution, in 1842, secured to its citizens the “privileges of the shore.”

In its 1982 decision in State v. Ibbison (448 A.2d 728 (1982)), the Rhode Island Supreme Court stepped up in a criminal trespass case to resolve the dispute over the landward boundary of the Tidal Lands (and the shoreside boundary of the private property) under the state Constitution. Finding that no prior decided case had determined the boundary between private and public trust property at the high tide mark, the Supreme Court determined the average or mean high tide boundary of the public trust Tidelands. Drawing on expertise dating to the 16th century and case law to the 19th century, the Supreme Court found the mean high tide boundary to be located based on an 18.6-year average computed by modern scientific techniques. Still, it acknowledged that this boundary “is not readily identifiable by the casual observer.” This ruling provided the public shore user a ready defense that they could not reasonably recognize the boundary to trespass beyond it intentionally. The controversies continued.

In 1986, a modern Constitutional Convention described those privileges of the shore as “including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore.” While those privileges extended to the Tidelands, revealed during the ebb and flow of daily high and low tides, it did not diminish the controversy arising from public use of those Tidelands along private property, often lapping into the press, town hall, and courtroom.

Fast forward to June 26, 2023, when the Governor of Rhode Island signed into law House Bill H5174 Substitute A to make identifiable the mean high tide boundary of public access by establishing the “recognizable high tide line” as that “… line of seaweed, oil, or scum along shore objects, a more or less continuous deposit of fine shells or debris on the foreshore or berm…”  and other physical markings. The legislation also added as a failsafe the “recognizable high tide line” was established by the line of materials that formed the “most seaward line” or, in the absence of such materials, the “wet line” on the beach, and excluded lines occurring during “storm surges.”  Finally, the legislation set the line for public access along the shore at “… up to ten feet (10’) landward of this “recognizable high tide line.” Rocky shore, vegetated areas, lawns, rocky cliffs, sea walls, and other permitted shoreline infrastructure are excluded from the area open to public access. Under existing state law, it also provided shore owners limitations on liability for public use of the inter-tidal lands.

A noble effort by any measure. But is the issue of where you can walk along the shore without trespassing now resolved? Not based on what is featured in the news and on social media. And certainly not to an organization representing private coastal shore property owners.

Barely two weeks after the legislation became law, on July 7, 2023, the Rhode Island Association of Coastal Taxpayers (the “Association”) filed suit against named state officials in the United States District Court for Rhode Island (the “Court”) for violation of the federal constitutional rights under 42 U.S.C. § 1983, alleging a taking of the property owner’s rights under the Fifth and Fourteenth Amendments to exclusive possession and use of their properties without just compensation, and demanding such compensation as well as injunctive relief. The Association, represented by the Pacific Legal Foundation, has also filed for a preliminary injunction to forestall implementation of the statute pending a determination by the Court.

So, the controversy continues. And don’t ask whether you can set out your beach chairs, blankets, and beach umbrellas. More to come, I’m sure. Meanwhile, tread carefully on your beach walk … and keep an eye on your dog.

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