Would R.I. lose lawsuits if it expanded shore access? Probably not, an expert says. - January 27, 2022 - Brian Amaral/Boston Globe →

BUT THAT’S PROBABLY NOT TRUE, A LEGAL EXPERT TOLD A STATE STUDY COMMISSION LOOKING AT WAYS TO GET RHODE ISLANDERS MORE LATERAL ACCESS TO THE SHORE.

RHODE ISLAND LAWMAKERS COULD ACTUALLY REDEFINE THE RIGHTS OF THE “SHORE” FURTHER LANDWARD THAN THE LAW DOES NOW, SAID MICHAEL C. BLUMM, PROFESSOR AT THE LEWIS & CLARK LAW SCHOOL.

IF IT DID, “THE STATE LEGISLATURE WOULD NOT SEEM TO OPEN THE STATE UP TO SUCCESSFUL TAKINGS CLAIMS,” BLUMM WROTE TO THE COMMISSION.

IN FACT, IN FOUR OTHER STATES THAT HAVE TAKEN STEPS TO ENSURE PUBLIC ACCESS — NEW JERSEY, OREGON, NORTH CAROLINA AND MAINE — NO LANDOWNER HAS BROUGHT A SUCCESSFUL CLAIM OVER TAKING PROPERTY RIGHTS AWAY, BLUMM SAID.

THAT WAS WELCOME NEWS TO THE 12-MEMBER STUDY COMMISSION, WHICH IS EAGER TO RECOMMEND CHANGES TO THE LAW IN RHODE ISLAND, BUT IS NOT EAGER TO PUT THE STATE IN A POSITION TO BE SUED.

“IT’S EXTREMELY INSTRUCTIVE,” SAID JAMES BOYD, REPRESENTING THE RHODE ISLAND COASTAL RESOURCES MANAGEMENT COUNCIL ON THE PANEL.

THE COMMISSION, MADE UP OF TWO LAWMAKERS AND EXPERTS FROM AROUND THE STATE, MET AT THE STATE HOUSE ON THE LAST THURSDAY OF JANUARY — DECIDEDLY NOT A BEACH DAY FOR ANYONE BUT THE MOST HARDCORE ENTHUSIASTS OF FRIGID SALT SPRAY — FOR THEIR SECOND-TO-LAST MEETING. BORN OUT OF A PROPOSAL TO DECRIMINALIZE TRESPASSING IF SOMEONE’S WITHIN 10 FEET OF THE MOST RECENT HIGH TIDE LINE, THE COMMISSION IS GOING TO PREPARE A REPORT ABOUT THEIR FINDINGS. LEGISLATIVE PROPOSALS WILL COME OUT OF IT, TOO.

WHETHER THAT LEGISLATION CAN GET THROUGH THE GENERAL ASSEMBLY IS ANOTHER QUESTION, BUT A LIMITED CONSENSUS EMERGED THURSDAY: THE CURRENT LAW IS TOO MUDDLED AND LIMITED FOR PEOPLE TO ACTUALLY ENJOY THEIR RIGHTS UNDER THE STATE CONSTITUTION, WHICH INCLUDE WALKING ALONG THE SHORE, LEAVING IT TO FISH OR SWIM AND COLLECTING SEAWEED.

“IF THERE’S ANY CONSENSUS HERE AT ALL, IT’S THAT THE CURRENT MEAN HIGH WATER MARK IS NOT PRACTICAL, IT’S NOT VIABLE, FOR THE PUBLIC GENERALLY AND FOR PROPERTY OWNERS,” SAID TOPHER HAMBLETT, DIRECTOR OF ADVOCACY AND POLICY FOR SAVE THE BAY. “SO THAT NEEDS TO BE CHANGED.”

A 1982 STATE SUPREME COURT DECISION FIXED THE LINE BETWEEN PRIVATE PROPERTY RIGHTS AND PUBLIC ACCESS AT WHAT’S CALLED THE MEAN HIGH TIDE LINE. THAT CAN’T BE MEASURED WITH THE NAKED EYE OR JUST BY LOOKING AT THE FARTHEST PLACE THE SEA TOSSED SOME SEAWEED, THOUGH. IT’S THE AVERAGE OF ALL THE HIGH TIDES OVER 18.6 YEARS.

THE SCIENCE IS COMPLEX BUT DOES NOT FAVOR ACCESS, CRITICS SAY. THE LINE ITSELF DOESN’T CHANGE DAY BY DAY, BUT WHERE IT INTERSECTS WITH A DYNAMIC AND SHIFTING SHORE DOES: THINK OF THE LINE LIKE A LASER POINTER LOCKED INTO PLACE AND THE BEACH AS A PLATE OF MASHED POTATOES. THE BEAM OF LIGHT MIGHT NOT MOVE, BUT IF YOU MOVED THE MASHED POTATOES AROUND WITH YOUR FORK, OR REMOVED THEM FROM YOUR PLATE ALTOGETHER — EROSION, IN THIS METAPHOR — IT WOULD LAND ON A DIFFERENT SPOT ON THE MOUND.

THROUGH A HALF-DOZEN MEETINGS, THIS 12-MEMBER COMMISSION HAS SCRUTINIZED THE IBBISON DECISION AND OTHER PARTS OF THE SCIENCE AND THE LAW — INCLUDING WHETHER THE IBBISON DECISION HAD BEEN EFFECTIVELY OVERTURNED BY A STATE CONSTITUTIONAL AMENDMENT IN 1986 WITHOUT ANYONE REALLY NOTICING — WHILE ALSO COLLECTING THE VIEWPOINTS OF PRIVATE PROPERTY INTERESTS.

“I DO THINK IT IS WISE FOR US TO KEEP IN MIND THE CONCERN ABOUT GOING TOO FAR,” COMMISSION MEMBER AND ATTORNEY MARK MCKENNEY SAID. BUT, HE ADDED: “IT’S BEEN MADE EXCEEDINGLY CLEAR THAT TRYING TO USE AN 18.6-YEAR LINE THAT NO ONE CAN IDENTIFY IN WALKING ON THE BEACH ON A GIVEN DAY PROBABLY IS NO LONGER THE BEST WAY TO ENSURE THE PEOPLE KNOW EXACTLY WHAT THEIR RIGHTS ARE.”

SOME QUESTIONS REMAINED: WHAT WOULD BE A BETTER LINE THAN THE MEAN HIGH TIDE LINE? THE “WRACK LINE,” OR THE FARTHEST PLACE WHERE THE OCEAN TOSSED SOME DEBRIS? WHAT ABOUT THE MOST RECENT HIGH TIDE LINE? SHOULD YOU ALSO ADD SOME MORE SPACE FOR DRY SAND ON THE OTHER SIDE OF THE NEW LINE? IF SO, HOW MANY FEET? SIX? 10? AND SHOULD YOU DO IT BY DECRIMINALIZING TRESPASSING, AS THE BILL LAST YEAR WOULD DO, OR WOULD YOU SIMPLY REDEFINE THE PRIVATE PROPERTY BOUNDARY? OR, TO GET EVEN MORE GRANULAR, COULD YOU DECLARE THAT A CERTAIN AMOUNT OF PROPERTY ALONG THE WATER CAN BE PRIVATELY OWNED, BUT ACCESSIBLE TO THE PUBLIC BY RIGHT? PLUS, WHAT WOULD YOU BE ABLE TO DO ON EITHER SIDE OF THAT LINE? SET DOWN A TOWEL? TURN ON A BOOM BOX? OR JUST COLLECT SEAWEED AND KEEP MOVING?

MANY OF THESE QUESTIONS ARE NOT NEW TO SHORE ACCESS DEBATES IN RHODE ISLAND.

“RHODE ISLAND LAW IS A LAW AT WAR WITH ITSELF,” SAID MICHAEL RUBIN, A FORMER LAWYER IN THE ATTORNEY GENERAL’S OFFICE.

OPINIONS VARIED INSIDE THE COMMISSION ON HOW TO FIND A WAY TO PEACE. OUTSIDE, THEY VARY EVEN MORE: SOME SAY THE MEAN HIGH TIDE LINE IS PERFECTLY GOOD, AND TRYING TO MEDDLE WITH IT IS JUST INVITING TROUBLE.

A GROUP THAT CALLS ITSELF SHORELINE TAXPAYERS ASSOCIATION FOR RESPECTFUL TRAVERSE, ENVIRONMENTAL RESPONSIBILITY AND SAFETY, INC. HAS ENTERED THE FRAY: CHRIS BOYLE, A LOBBYIST FOR THE GROUP, WROTE A LETTER TO THE COMMISSION QUOTING FROM A 2021 U.S. SUPREME COURT DECISION CALLED CEDAR POINT NURSERY: “THE GOVERNMENT MUST PAY FOR WHAT IT TAKES.”

THE LETTER, AND A PREVIOUS WHITE PAPER, ARGUED THAT THE STATE COULD NOT, WITHOUT COMPENSATING THE OWNERS, GIVE THE PUBLIC THE RIGHT TO TRESPASS ACROSS PRIVATE PROPERTY.

ASKED ABOUT THE PROSPECT THAT CHANGES TO THE LAW WOULD SPARK LAWSUITS, BOYLE TOLD THE GLOBE: “THERE’S A HIGH DEGREE OF PROBABILITY THAT IT WOULD RESULT IN LITIGATION.”

BUT DENNIS NIXON, A MEMBER OF THE STUDY COMMISSION AND A LEGAL EXPERT ON SHORE MATTERS, SAID AT THE MEETING EARLIER THURSDAY THAT THESE TYPES OF THREATS RING HOLLOW: EVEN IN THE ONE SUCCESSFUL LAWSUIT OVER LATERAL ACCESS THERE’S BEEN SUCCESSFUL LAWSUITS, THE COURT JUST TOLD THE STATE — CALIFORNIA — TO STOP. NO MONEY CHANGED HANDS. THAT SHOULD GIVE THE STATE THE CONFIDENCE TO GET AGGRESSIVE.

“IF THEY SAY WE’VE GONE TOO FAR,” NIXON SAID, “THERE’S ALWAYS ROOM TO RETREAT.”