Ibbison Never Decided Anything-Part 3 of 3
The previous discussion (on this page in earlier editions) of how our constitutional “privileges of the shore” have been undermined by the erroneous assumption that only ownership of the shore matters, and the use of a “special definition” of what the word “shore” encompasses, illustrate the primary reasons why this case has no place in deciding issues of our shore rights and privileges. The Constitution, keep in mind, makes no mention of high tide, low tide, or any other reference relating to the location of those rights. It’s easy to figure out.
The public enjoys an easement…an easement across the seaward edge of the shore front properties. That is what the citizens of RI voted to make part of their state’s constitution. A moments thought makes it clear that the recognition of this easement benefits all Rhode Islanders, including the shore front owners. Without it the owners of beachfront homes could not go for a walk down the beach. Without it they are “prisoners of their property lines”. If we all can’t pass along the shore, nobody can.
Unfortunately many of our state agencies which have jurisdiction over coastal activities have also been misled by the errant “only ownership matters” misinterpretation and ambiguity associated with the Ibbison case. In a book by Patrick T. Conley and Robert J. Flanders discussing the Rhode Island State Constitution,the point was raised that Judge Shea intentionally left the matter blurred, leaving future situations to be interpreted in the future.
But a blurred basis for societal discussions is not what serves the citizens of Rhode Island. The agencies need to operate with a clear and coherent competency on our behalf. The people of Rhode Island expect their agencies to pick up the mantle of responsibility assigned to them by the constitution which states that protecting our shore rights and privileges “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.” [Sect. 16 R.I. Constitution]
To shift their viewpoint from the misguided focus on state ownership to the recognition of our easement across private property, the state agencies will have to invest both time and energy. Perhaps that is one of the reasons why there has been a focus on the Ibbison ruling… it’s easier that way. But it’s not right.
As sea level rise makes profound changes everywhere on our coastline, these agencies will be determining what the coast of tomorrow will look like. Every commercial or residential endeavor along the shore will have to apply for permits to make the adjustments to rising sea level. The Rhode Island Constitution should be seen as necessitating that any applications for alterations to the shoreline must include design and planning for the easement on which Rhode Island citizens will exercise their shore rights and privileges. And that easement is along the dry land.
Fortuitously at this point in time, Rhode Island is in the middle of a reevaluation of the state’s coastal regulations. The Special Area Management Plan (SAMP) is a multi-year and in-depth evaluation process ending in the promulgation of new coastal guidelines and policies. It is a great opportunity for us to make sure that the government bodies in charge of our coast follow our Constitution in administering their duties, and do not get tangled in a confused and misinterpreted ruling from an isolated criminal trespass case more than thirty years ago.
In closing, I will stretch a bit and use a quote from Nelson Mandela, “It always seems impossible until it’s done”. There is no doubt that recapturing our full citizens’ rights is a long row to hoe. Hopefully a committee of all stakeholders will be involved with deciding the details of implementing this deserving return to our complete coastal inheritance. But make no mistake; there are some powerful people with tremendous financial, social, and political resources who are perfectly happy with the Ibbison ruling. Its misinterpretation limits the use of the shore to only a select few. Is it possible that our Constitution guarantees “rights and privileges of the shore” to only some of us? I don’t think so…not in Rhode Island.
In the Ocean State we can all use the edge of the land bordering the large body of water.