A Constitutional Right to Access the Shoreline - The Fisherman

A Constitutional Right to Access the Shoreline

Leading up to this week’s Editor’s Log I ran through at least half a dozen different topics. I’d get an idea, hammer out a few hundred words, run into a dead end and set it aside for another day. Luckily for me a topic eventually fell into my lap, and it is one of great personal interest to me. As a surfcaster, public access to the shoreline is an extremely important subject. I’d like to say that 100 percent of how and where I access the shoreline is on the up and up, but if you hear such phrases uttered by any true surfcaster here in New England then they’re either lying to you or they don’t get out much. While I do not condone the act of trespassing, there is a right and a wrong way to go about it to both keep a low profile and to ensure whatever grey area of access you have is not lost. But today is not about quietly walking the property line of a multi-million dollar shoreline house at 2 AM on a Tuesday to catch the tide, instead it is about a rather not-so-cut-and-dry access issue that has once again surfaced, and that is the constitutional right of Rhode Island residents to access public lands that exist along our shoreline.

A few days ago a cell phone video began making the rounds on social media. In the video a resident of the state of Rhode Island was seen walking a beach, with light waves lapping his feet, as he bagged sea weed for use as fertilizer in his garden. Also seen in the video was a security guard hired by a local resident and a police officer who was instructing the man to stop or he would be arrested for trespassing. Several onlookers could be heard, and at times seen, coming to the beach walker’s defense stating that he was “below the mean high tide mark.” The seaweed collector was handcuffed, placed under arrest and escorted off the beach. He spent a short time in a jail cell before being released, and the police chief eventually made a statement indicating that the department would not be perusing the charge against the beach walker. While the story had a somewhat happy albeit inconvenient ending, why would the charges be seemingly dropped so quickly? Well, among other problems, proving where private land along the shoreline ends and public land begins is a lengthy, and costly, endeavor. But where would such a defense begin? For starters, in this case, one must review the Rhode Island State Constitution. Specifically two sections become of interest as follows:

Article 1, Section 17 of the Rhode Island Constitution:
“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”

Article 1, Section 16 of the Rhode Island Constitution:
“…furtherance of the protection of the rights of the people to enjoy and freely exercise the rights of fishery and the privileges of the shore, as those rights and duties are set forth in section 17, shall be an exercise of the police powers of the state, shall be liberally construed, and shall not be deemed to be a public use of private property.”

Further, in the 1982 Rhode Island Supreme Court case, State v. Ibbison, the concept of the “mean high tide” was set to be defined as the boundary between private and public lands. This average area where the high tide is decided to reach is determined over a lengthy period of time and is, by the nature of the sea, a constantly changing location due to beach erosion and other natural environmental factors. While this case does set in stone a concept of where the demarcation exists, it has proven to be an extremely difficult line to pinpoint in the real world. This has proven to be both beneficial and detrimental to parties on both sides of such cases in the past, and it will likely be so for eternity. As of the time of this writing a peaceful protest/demonstration has been scheduled to take place on July 6 on the very beach where the above-referenced incident occurred.

Related

STATE PARKS FAB Update

Editor’s Log: Talking In Circles

Editor’s Log: Commercial Striped Bass Talk