To the editor:
Once again this year, the General Assembly is considering bills to clarify one of the oldest and most cherished Rhode Island constitutional rights — the “rights of …
To the editor:
Once again this year, the General Assembly is considering bills to clarify one of the oldest and most cherished Rhode Island constitutional rights — the “rights of fishery, and privileges of the shore,” which includes the right of access along the shore. It is time to correct the flawed 1982 Rhode Island State Supreme Court decision in State v. Ibbison, which effectively nullified many of those rights.
The Ibbison Court, setting aside long-settled Rhode Island common law, adopted the Mean High Tide Line as the definition of the shoreline. This is a technical, scientific definition determined by an average of high tide elevations over an 18-½-year period projected upon a dynamic, constantly-moving shoreline. The Ibbison line causes uncertainty for law enforcement and encourages litigation since no beachgoer or property owner can easily determine the line’s location. Testimony from shoreline mapping experts conclusively showed that this scientifically-created line is often submerged offshore, even at low tide, rendering Rhode Islanders’ “privileges of the shore” practically nonexistent.
Building on the work of a House Legislative Commission that she co-chaired, Rep. Terri Cortvriend of Portsmouth has again introduced a bill to clarify the chaos caused by Ibbison. The Commission achieved a common-sense consensus: that the “Mean High Tide Line” boundary is obsolete and unenforceable and that it should be replaced by an easily recognizable, observable, and traditional reference line that allows dry lateral shoreline access throughout the normal tidal range. Sen. Mark McKenney of Warwick, a Commission member, has introduced a similar bill.
Last year’s bill by Rep. Cortvriend would have made the Commission’s recommendations law. The underlying wisdom in this consensus solution was validated when the bill cleared the Rhode Island House by a unanimous vote of 64-0. This year’s bill, H-5147, is identical to the bill passed unanimously 10 months ago. The bill clarifies a constitutional right that already exists and is a common-sense return to the historical norm in understanding where one has a right to exercise these privileges — where there is a right to be — without interference.
It is equally important to recognize what the bill does not do. First, the bill does not take private property. The bill clarifies the location of the boundary that defines where the public can exercise their rights, including lateral access along the shore, under Rhode Island’s unique history of public access to the shore.
Second, the bill does not expand the activities included in the “rights and privileges of the shore.” If an activity is allowed now under the Constitution, then that activity is allowed after the bill becomes law. If an activity is not allowed, it will still be impermissible after the bill becomes law. Only the courts can interpret which activities are within the scope of the rights granted under the state constitution.
Third, the bill does not limit or restrict the police powers of local communities, which retain all of their powers to maintain safety, health, and welfare while people exercise their rights at the shoreline. Ordinary municipal anti-nuisance and anti-disorderly conduct laws continue to apply to the public shoreline.
The Ibbison Court never “took” any of the public’s rights away or granted them to private property owners for their exclusive enjoyment. The Ibbison Court created confusion and conflict instead of certainty. The Ibbison Court acknowledged that it was acting without guidance from the General Assembly, opening the door for the General Assembly to bring certainty to the situation by speaking to the issue. The General Assembly must act this year to do just that.
Thoms J. Gibson, Jr.
Vice president, Friends of the Waterfront