Digging deeper: Public access in Rhode Island
A closer look at recently proposed legislation
by Save The Bay’s Policy Team
Save The Bay’s vision of “a fully swimmable, fishable Narragansett Bay,” concludes with a critical detail: “accessible to all.” While there is no doubt that the Rhode Island Constitution specifically protects the public’s right to access and use the shore, the exact location of that public shoreline is harder to locate than you might think.
In the state constitution, Art. I, § 17, reads:
“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 this state, 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; and they shall be secure in their rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values […]”
The “shore,” generally speaking, refers to the land between the high and low water mark. However, since coastal tides can vary from cycle to cycle, it can be challenging to pinpoint where private property ends and the public shoreline begins.
Currently, the Rhode Island Supreme Court cites the mean high water line as the starting point of the public shoreline. According to the law, this line is determined by calculating, the “arithmetic average of high water heights observed over an 18.6 year Metonic (or lunar) cycle.”[1]
This technical definition is all but impossible to calculate in real time. A good faith beach-goer cannot be expected to know the 18.6-year average of high water heights, and therefore can’t properly identify the boundary while accessing the shore.
The location of the mean high water lines across the state is not publicly available—and would certainly be a daunting thing to try to assess. Even if a property owner was to independently pay for a survey to calculate the daily high tides for the last 18.6 years along the edge of their property, the constantly changing shorelines could alter the results on a day-to-day basis.
With all this uncertainty, waterfront property owners and shoreline users alike face confusion. Well-meaning residents exercising their right to the shore can, through no fault of their own, be charged with trespassing for wandering over the elusive mean high water mark. In effect, the confusion creates a barrier for the average Rhode Islander interested in exercising their constitutional right to access the shore.
During the 2021 legislative session, Save The Bay supported proposed legislation that would have clarified the existing law; the bill would have prevented people from being criminally responsible for participating in the activities listed in Art. I, § 17, provided they are doing so within 10 feet of the most recent high tide line.
WHAT THE BILL DID:
- IT DID offer clarity and supports Rhode Islanders’ right to access the shore.
The bill simply clarifies that a person cannot be criminally prosecuted for fishing, gathering seaweed, swimming or passing along the shore when that conduct “occurs on a sandy or rocky shore and within ten feet (10′) of the most recent high tide line.” The proposed legislation is a pragmatic solution to the confusion that surrounds the application of Art. I, § 17, it upholds the rights conveyed by Art. 1, § 17, and gives the public a visually recognizable way to respect adjacent private property interests. - IT WOULD HAVE saved taxpayer resources.
The reality is that shoreline access-related trespass cases are almost universally dropped before the case goes to court or are promptly dismissed once in court. Thus, the cost of unnecessary arrests and futile prosecutions will no longer have to be paid by municipal taxpayers. Taxpayers will also be spared the cost of having to pay out money for damages when towns are found to have made unconstitutional arrests—like what took place recently in a South Kingstown case (Keeley).
WHAT THE BILL DID NOT DO:
- IT DID NOT conflict with existing rights under our Constitution.
- IT DID NOT expose property owners to liability for injuries.
Private property owners are protected from civil liability by the R.I. Recreational Use Statute, which was enacted “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for public purposes” (R.I. Gen. Laws § 32-6-1). The statute protects private property owners from claims by people on their property for recreational purposes (with or without their knowledge), as long as there is no charge for the use (R.I. Gen. Laws § 32-6-3). - IT DID NOT take private property.
The legislation would not result in a change of property ownership. - IT DID NOT make it more difficult to enforce the law.
In fact, it offered clear direction to coastal municipalities about what conduct is permissible on sandy or rocky shores, within 10 feet from the last high water mark. Under existing law, there is not a single example of a successful criminal conviction for trespass in close proximity to the visual mean high tide line. This is because it’s almost impossible for police to prove, beyond a reasonable doubt, (1) where the mean high water line was on the given day and (2) that the alleged trespasser knew where the line was and intended to trespass over that line—both of which would be necessary for conviction. (Even in Ibbison, the Rhode Island Supreme Court case that established the existing rule, the court ultimately dismissed the charges for trespass.)
While this bill did not pass, we applaud its sponsors, Sen. DiMario and Rep. Cortvriend, for trying to establish a visually recognizable boundary that would help Rhode Islanders both access the shoreline AND respect private property rights.
Save The Bay looks forward to continuing to advocate for Rhode Islanders’ right to the shore and to supporting measures, like this one, that will clarify our rights and decriminalize simple confusion.
[1] State v. Ibbison, 448 A.2d 728, 732 (R.I. 1982).