The right to exclude: the RI study panel on riparian rights hears the owners’ side
“You don’t have to allow strangers to come onto your property and hang out in your yard where your kids are playing,” Boehnert said.
Any effort to shift that balance in favor of greater access would be costly, as it would involve what is called a “take” under the US Constitution, Boehnert argued. If people’s private property is used for public use, they should be compensated for it.
Advocates of more open access to the coastline often refer to the state constitution, which guarantees rights such as collecting seaweed, walking along the shore, fishing along the shore, and leave the shore to swim. As the law currently stands, they can only do this in some cases for about an hour a day, if that is the case, according to experts.
But, Boehnert cautioned: “All the constitutional rights that I know of have been limited and restricted, some more or less than others.
Boehnert’s presentation to the committee – made up of subject matter experts, lawyers and two members of the House of Representatives, but apparently in favor of greater access based on recent meetings – drew a reprimand immediate and silent defender of coastal access. in the audience in the House lounge, who put their thumbs up without a word as Boehnert spoke.
After Boehnert’s presentation, several members of the committee examined his point of view with more volubility. Some of the members are lawyers, and it was like a cross-examination or a law school symposium.
“I totally disagree with your interpretation of the way things have turned out” since a landmark case on coastal rights in 1982, commissioner Dennis Nixon, a professor at the Commission, told Boehnert. retired and legal expert from the University of Rhode Island, as part of a long, but respectful, round trip.
The issue of riparian rights has become more important in recent years. Much of it goes back to that 1982 State Supreme Court ruling, which people simply call Ibbison.
The decision sets the boundary between public rights and private property at what is known as the mean high tide line. That’s a measurement taken over 18.6 years, and for complicated reasons related to ocean geology, the line offers less access than you might think, experts say.
The mean high tide line is the mark where the average high tide over nearly 20 years crosses the coastal plane. Since south-facing beaches can change with erosion, they are subject to frequent displacement, not in the line itself, but where it actually touches the earth. It’s too confusing and too limited, according to supporters, who would prefer something like the algae line.
Almost four decades after this decision, the question of riparian rights is more important than ever. Stay-at-home orders and take-out advice sent Rhode Islanders to beaches near their homes and presented disputes with nearby landowners.
For two years in a row, state lawmakers have proposed decriminalizing trespassing when people exercise their constitutional rights – collecting algae, for example – within 10 feet of the most recent high tide line. This, they say, would make it easier for people to exercise their constitutional rights. If the average high tide line is often underwater, it would be impossible to pick up seaweed or walk along the shore unless you are prepared to wet your feet and seaweed, a bitter prospect in February.
The bill went nowhere and instead the House called this study committee. And Boehnert said the state Supreme Court in the so-called Ibbison ruling is doing what property law loves: providing certainty. The average high tide line, unlike a dry sand measurement based on the algae line, can be scientifically measured and staked by a surveyor.
It was “absolutely the right decision,” said Boehnert.
Boehnert also rejected a legal presentation that the study commission organized a few weeks ago. New England law professor Sean Lyness argued that the Ibbison decision was not only wrong, but was almost explicitly overturned when the state passed a new constitution a few years later that guaranteed certain coastal rights. If the state really wanted to overthrow Ibbison, there was a more direct way to do it than to indirectly codify new rights, Boehnert said: It could have just chosen a new line. This was not the case, Boehnert said, as it would have been a costly government takeover of private property.
Advocates of access often refer to another part of the state’s constitution, which says that the state regulating and controlling land to protect the rights of people on the shore is not a “take”. (This section comes just before the algae part.) This, some advocates say, shows that the state might be able to redefine “shore” without having to compensate private landowners.
It might not be constitutional, as it could conflict with other parts of the state constitution or parts of the US constitution, Boehnert argued.
Nixon, for his part, was skeptical that he was not aware of any court ruling that would make one part of a constitution unconstitutional on the basis of another part.
Boehnert has long argued against the bill that ultimately led to this study commission. A well-known coastal property lawyer, his clients have included the Buttonwoods Fire District, a fire district that does not actually fight fires but rather operates a private coastal community. Two Buttonwoods residents sit on the commission.
The commission also heard Thursday from interest groups that use the shore a lot: fishermen. Peter Jenkins, owner of the Saltwater Edge bait shop in Middletown, and Richard Hittinger, vice-president of the Rhode Island Saltwater Anglers Association.
They pointed out any obstacles people face, whether it be no parking signs or rocks or a confusing medium high tide line that will only get worse as the level rises. of the sea.
“The right to exclude – you can’t rule out the reality of it,” Jenkins said. “The water will continue to rise.”
When it concludes its work early next year, the committee is expected to make a recommendation to the General Assembly on action to be taken. Its next meeting will be a community forum in South County.