Bill would use a more practical definition of where people could be charged with trespassing on private property along the shore.

State lawmakers are proposing a bill that they say will finally bring clarity to the age-old question of access to the shore in Rhode Island.

A bill introduced in the House last month would carve out a new exemption in state criminal trespassing law: People wouldn’t be arrested or charged if they were trying to exercise their constitutional privileges within 10 feet of the most recent high tide line on the sandy or rocky shore.

"We’re not shrinking anyone’s property," said state Rep. Blake Filippi, R-New Shoreham. "We’re just saying the state is not going to come in and criminally enforce things on that property. I think it’s a smart way of preserving our constitutional rights while respecting private property."

Its proponents say the legislation would, once and for all, bring some clarity to the long-debated question of where private rights end and public access begins on the Rhode Island coast, while avoiding costly lawsuits if they tried to take the property or declare it public.

The current law marking the public-access boundary on the shore isn’t a visible point on the sand on a particular day. Instead it’s an average measurement of high water heights taken over a nearly two-decade cycle. Under current law, if people are knowingly on the landward side of the so-called mean high tide line, they could be arrested for trespassing.

The state constitution gives people the right to fish from the shore, gather seaweed, leave the shore to swim in the sea and pass along the shore. But, without a readily visible indication of where that line is, those privileges are too hard to use, some lawmakers argue.

So the legislation, introduced last month in the House, would provide what its proponents say is a more practical boundary where people could go without being arrested: 10 feet from the most recent high tide line. The most recent high tide line is generally visible by looking at the wet sand line or the seaweed line, said Filippi, who called it imperfect but an improvement over the mean high tide line.

State Rep. Terri Cortvriend, a Democrat of Portsmouth, introduced the legislation.

"With sea level rise, this is going to be an issue we need to clean up," Cortvriend said.

Companion legislation has been introduced in the Senate.

Under the proposal, private landowners could still own to the mean high tide line, and they could still sue people for trespassing in the area above that line in civil court. But trespassing there would no longer be a crime.

"They still own it," Cortvriend said. "They just can’t block access."

By leaving the actual property lines alone, and declining to provide some sort of easement, the lawmakers are hoping to avoid costly lawsuits over the government taking people’s private property.

But if the bill became a law, those lawsuits would be as inevitable as the tide.

"This bill, if enacted, is most likely dead on arrival as an unconstitutional taking of private property," said William Landry, an attorney who has represented a number of private property owners along the shore. "It would effectively wrest 10 feet of dry sand beach area above the mean high water line from private ownership and place it in the public domain without compensation."

The assessed value of that property around Rhode Island "would easily be in the hundreds of millions of dollars," Landry said in an email.

Since the days of Roger Williams, Rhode Island law has recognized a robust right to access the shore. But in three and a half centuries, the state still hasn’t come to an agreement on what that access means and where, precisely, the line ought to be drawn.

Under current case law, the public has access below the mean high tide line. If someone is on the landward side of the boundary and they know it, they could be charged with trespassing

The mean high tide line is calculated not by looking at the highest place where waves deposited some seaweed. Instead it is an average of high water heights measured over an 18.6-year cycle. It stems from a 1982 Supreme Court decision, called the Ibbison case.

Ibbison didn’t end the debate. There are still arguments over how to measure the line, what the measurements mean, how it can be marked, what sorts of signage or fences might be appropriate, and what sorts of activities people can carry out on either side of the line.

People who argue for more shoreline access say the mean high tide line in Ibbison is too difficult to spot for the average beach walker or seaweed collector. Plus, they say, it changes every single day as a new tide rolls in. That puts people in an untenable position: They have these constitutional access rights in Rhode Island, but no way of knowing, without specialized equipment and a time machine, where they might be able to exercise them.

Private homeowners, on the other hand, say the line can be definitively measured — and in some cases have argued that their property, as their surveyors have told them, is now in the water at all times (access advocates dispute this is possible). That gives them the right to boot people from the beach.

Such was the case when Scott Keeley, a Charlestown resident, was arrested in June of last year while collecting seaweed. He was just to the east of the Charlestown Town Beach, in front of private homes in South Kingstown. Property owners there hired a security guard to patrol the area, who summoned the local police, who arrested Keeley. Keeley had sat down, he said, to shake sand out of his seaweed before putting it in his bag.

Police dismissed the charge, apologized to Keeley and noted the uncertainty surrounding how to fix the boundary line. Keeley sued South Kingstown. The town’s insurer settled for $25,000, and Keeley, who acknowledged he was out there in part to make a point, is now planning to run for Charlestown Town Council.

The issue is always roiling under the surface, except when it crests into public view. In places like South Kingstown and Charlestown, tensions are in a waxing phase. One Charlestown resident recently likened a beachfront home’s no-trespassing sign to one you might see in North Korea. A South Kingstown resident said that Keeley’s arrest was a "staged event," intended to provoke exactly what it provoked, and after seeing media coverage of it, she understood for the first time "what fake news is."

Rhode Island has a tradition dating to its founding of respecting the privileges of the shore, said Dennis Nixon, a lawyer and University of Rhode Island professor of marine affairs and the director of the Rhode Island Sea Grant.

From the King Charles II Charter to the state’s early constitution to the 1986 convention, those rights were recognized and developed. As a staffer advising a delegate to the 1986 convention, Nixon worked to propose laying out explicitly what privileges people have on the Rhode Island shore, and voters approved it by a more than two-to-one margin.

But beaches are dynamic places, and much has changed since 1986 — legally, geologically, socially. With sea level rise, the problem is not going away.

"Properties are just being lost to the ocean, and the boundary is moving landward, and there is nothing a property owner can do about it," Nixon said.

When Cortvriend, the state lawmaker, asked for Nixon’s take, Nixon knew that trying to change property lines would prompt a flurry of lawsuits. So instead, he proposed to Cortvriend a different solution, which state lawmakers will now start debating: decriminalizing trespassing in a more readily defined area.

"If the ‘privileges of the shore’ is to have any vitality in the constitution," Nixon said, "you have to make it easier to discover where the shore is."

bamaral@providencejournal.com

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