Protecting Shoreline Access is a top priority for the Rhode Island BHA team in 2023. Alongside a growing cohort of shoreline access advocates and organitations, BHA’s team remains energized following a momentous campaign during last year’s Legislative Session that saw a shoreline access bill introduced by Rep. Terri Cortvriend (Middletown, Portsmouth) pass the House of Representatives by unanimous vote, only to be held up in the Senate. In the last 12 months we have published articles, spoken on local panels, ), and even participated in a water access policy seminar at BHA’s 2023 North American Rendezvous in Missoula, Montana. We’re excited to continue moving this issue forward by supporting this year’s shoreline access bills, H5174 & S417, and we need your help!
A hearing has been scheduled for H5174 on Tuesday, March 28th at the Rise of the House (usually around 4:45 PM) in Room 101 of the RI State House. All interested BHA members, and the public, are encouraged to attend the hearing and share their stories, and reasons why shoreline access is important and should be protected.
Written testimony can also be submitted, both by sending a message to your Representative using BHA’s Action Alert and by following the instructions at the bottom of the hearing agenda and emailing the Judiciary Committee at [email protected]. Written testimony should include (at a minimum) your name, a bill number, and a clear position (for/against).
At the heart of Rhode Island’s shoreline access issues lies the 1982 RI Supreme Court case Ibbison v. State, in which Justice Donald F. Shea determined that the boundary where criminal trespass could be contested was the “mean high tide line”. In his decision, Justice Shea applied the standard from a 1935 US Supreme Court case, Borax Consolidated, Ltd. v. Los Angeles, because he felt this boundary could be determined precisely by averaging 18.6 years of tidal elevation data and projecting that datum on to the face of the beach, and that it balanced the interests of the public and of upland proprietors adjacent to the shore.
In practice, though, the “mean high tide line” is not a workable boundary. According to experts from URI’s Coastal Institute who conducted surveys to determine exactly where the mean high tide line projected on to Rhode Island’s sandy shore the boundary is actually underwater almost all the time – even at low tide. In a detailed presentation to a 2021-22 Legislative Study Commission and a summarizing letter coastal geologists detailed factors that Justice Shea hadn’t accounted for in 1982, including gradual sea level rise over time, the shifting nature of the sandy shore, influence of wind and weather on the tide’s actual projection on the shore.
Of additional concern is the fact that the mean high tide line is not readily identifiable to any person on the beach, whether they are seeking to exercise their constitutionally protected right to public access or to exclude the public from their property. While the elevation of mean high tide can be determined scientifically with great accuracy the actual projection of this datum onto shifting sand results in a transient boundary that cannot be accurately marked for any period of time. This has proven to be problematic to a different part of Justice Shea’s ruling in Ibbison – that successfully prosecuting criminal trespass along the shore requires proof beyond a reasonable doubt that the accused actually knew the boundary and crossed it. As a result, attempts to bring trespassing charges have been made but never won, including the allegations that brought Ibbison and his friends to court in the late 1970’s.
H5174 & S417 reflect the consensus recommendations of the Legislative Study Commission on Shoreline Access, which was chaired by House bill sponsor Rep. Terri Cortvriend (Middletown, Portsmouth). Senator Mark McKenney (Warwick), who was also a Study Commission member, has taken up this initiative in RI’s Senate. The bills do not seek to re-define property boundaries, but do ensure the public’s rights are protected while accessing the beach for activities described in Rhode Island’s Constitution, Article 1 Sections 16 & 17.