A right isn’t a right when it’s been taken away. When it’s “practically nonexistent.”

Even before Roger Williams’ 1663 colonial charter (per Native Americans … long before), Rhode Islanders’ shoreline rights were recognized: for fishing, swimming, gathering seaweed, drying fish, traversing the coast and more. 

Under the Public Trust Doctrine, rooted in English common law, the King (later, colonies and states) held the shore in trust, to benefit the people. Our 1843 Constitution stated: “The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of the state.”  

But in 1982, those rights were taken away. Rhode Island’s Supreme Court (mistakenly relying on an inapplicable California case) said Mean High Water (“MHW”) should be considered the public access boundary, thereby restricting people’s rights on the shore.

The MHW hasn’t worked. It’s not a line, but an 18.6 year average of tidal elevations - and scientific expertise and equipment are needed to find it. It changes frequently. So trespass prosecutions have been few and unsuccessful. 

The MHW is often under water. With sea level rise and erosion, access can be impossible or available for mere minutes at low tide. 

The Court said it didn’t want the public’s rights to be diminished - rendered “practically nonexistent”. But that’s what happened. 

It’s time to restore those rights - restore the shore to the people. 

Traditionally, Rhode Islanders haven’t stayed below any MHW (who knows where that is?) or seaweed line. They’ve enjoyed the whole shore. 

But some shorefront owners, believing they own everything, harass beachgoers. Conversely, owners are upset (understandably) when people feel entitled to go up on seawalls and lawns. This confusion and confrontation has had a chilling effect on use of the shore. 

A 2022 commission addressed access on and along the shore (access to the beach is separate issue, for another day). After considering much evidence, the commission determined a reasonable mark to work from - the seaweed line. It’s generally recognizable to casual observers. Evidence showed a long-established common law right to use the shore, at least 10’ feet above that seaweed. As the basis for a recently-passed House bill (6’ above), that’s a reasonable view. 

But we can do better. Restricting people to that line doesn’t restore their rights. Our Constitution doesn’t limit people to just part of the shore, or some area around seaweed. 

Senate bill 417 is a clarification the public’s rights. In other states, access to the shore means citizens can enjoy it fully - to the vegetation line. In the Ocean State, we should, too.

Contrary to owners’ arguments, the bill doesn’t allow illegal acts. It addresses ”where” folks can go on the shore. Local authorities address “what” they can do.  

Landowners claim people will trespass on seawalls and lawns. But the bill is explicit: access is allowed only on sandy or rocky beach. Not on seawalls or other legally constructed shoreline infrastructure, and not where there’s vegetation – such as dune grasses or lawn. 

Some activists want to be able to traverse the shore even when seawalls or piers or marinas preclude it. But the bill makes it clear that “the public’s rights and privileges of the shore shall not be afforded where no passable shore exists”.

Shorefront owners will sue, claiming their property’s being taken. But the shore isn’t theirs. RI’s Constitution (especially 1986 amendments), strongly protects access rights. Our legislature is charged with protecting those: that power must be “liberally construed” and “shall not be deemed to be a public use of private property.” 

Landowners will claim “takings” under the US Constitution. But other states have given similar access, and shorefront owners’ lawsuits have had little success. Moreover, recent federal decisions support greater access.

This bill clarifies rights which are now “practically nonexistent”. Crafting a solution to a thorny problem, it simply restores what the people had before 1982 – a shore that’s been theirs all along. 

The Senate Judiciary Committee will hear Sen. McKenney’s bill this evening following the rise of the Senate.