Shore Rights Lost and Found
Remember the spirit behind Gaspee Days in Warwick and the Boston Tea Party. It’s time again for we citizens to ignore the rules. Sort of; at least the illegal rules some people are trying to force on us.
Have you ever had the experience where you lost track of something because you forgot where you put it, lived without it for a while, couldn’t find it when you needed to use it, and then resignedly said, “Oh well, it’s gone,” and wrote it off?
Well, we were given something by our Rhode Island founding fathers that is indeed precious. We were given the right to use our shoreline for four purposes: to gather seaweed (for fertilizer in the old days), to fish from the shore, to pass along the shore, and to swim from the shore.
Unfortunately, we have lost track of what we were given. Shore rights just weren’t an important issue to dwell on because the immediate shoreline wasn’t developed. This situation was generally true right up into the 1900’s. It was OK to live without our shore rights delineated because we could still use the shore for our purposes. There weren’t houses side by side all along the coast, and no one was trying to prevent the masses from accessing the shore.
But that was then, and this is now. NOW we need to find those “misplaced” rights again. There are several major reasons why this is so.
Firstly, the expansion of Federal Flood Insurance in the late 1900’s to include the seacoast has opened the door to intensive development of the shorefront property. Insuring property that sits in the path of hurricanes is insane. Only continual subsidies by our tax dollars make it possible. In a rational world, the coast is an uninsurable location.
Secondly, shore front property owners don’t know what they don’t have. They erroneously think they have exclusive use of their property’s immediate shoreline. They are erecting fences, posting signs, and hiring guards to keep the citizenry of R.I. from enjoying their constitutional rights.
Lastly, the coast is changing. Because of global warming and other long range planetary changes, the world’s oceans are rising. This is due to the thermal expansion of the ocean water and the melting of the great glaciers. A double whammy is in effect for us because the coast of RI is sinking as the earth’s crust in our area adjusts to the disappearance of the ice sheet that covered North America up to about 14 thousand years ago. The subsiding coast adds to the apparent rise of the sea. And, unfortunately, the global warming picture points to a greatly accelerating sea level rise in the future.
As the sea rises it has the effect of shrinking the distance between the shorefront houses and the water’s edge. This phenomenon has both shocked and energized the waterfront property owners to take action to keep other citizens from accessing the water’s edge, which is moving closer and closer to their living rooms.
The above-mentioned reasons compel us to “find” the shore rights of which we have lost track. But we are having a bit of difficulty remembering exactly where our rights and privileges of the shore have been put away. There are reasons for this, too.
One is that the constitutional guarantee, explicitly stated as it is, has not been vigorously publicized. Even though the recent constitutional updating is very true to the original, it has not been widely disseminated.
A second is that many state agencies and legal consultants have focused on the state’s ownership of the intertidal land (the land between the low and high tide lines) to the neglect of the state’s duty to safeguard our constitutional right to conduct our four activities (fish, swim, gather seaweed, and walk) at the shore.
There is an explanation for this errant focus. Some very important issues do, in fact, center on the state’s ownership of the intertidal zone. Believe it or not, most states collect leasing fees for marinas, docks, and port facilities that use that strip of land (In fact, Dennis Nixon of Roger Williams University tried to institute a leasing program in RI, but the bill didn’t make it!). Another issue involves licensing aquaculture operations that might want to include that land in their plans. Also, defining exactly who owns, and who owes for, the intertidal acreage that has been filled in and turned into expensive real estate is like the never-ending story. These are big money concepts, and they have caused the citizen’s shore rights and privileges to be put on a back burner and given short shrift.
Well, this has to change. The development supported by federal insurance, the shorefront property owners aggressively employing exclusionary tactics to prevent the public from exercising their rights to the shore, and the approach by the state of only focusing on the ownership below the high tide line, are all working to keep the public from finding, and enjoying, the constitutional shore privileges which are rightfully theirs.
What we don’t want to happen, what we can’t accept, is we citizens or our state agencies and representatives getting to the “Oh well, it’s gone” state of capitulation.
Nothing is “gone.” We don’t have to accept anything short of our due.
Our position is explicitly stated in the RI constitution, which always was and always will be the ultimate “decider.”
The public use of the shorefront is not a “taking” from private property owners. They never did have the legal right to prevent the public from conducting our four activities on the shoreward edge of their property. In fact, the constitution actually states that the protection of our shore freedoms ”…shall not be deemed to be a public use of private property.” The public doesn’t need to own it to use it. We have an easement (approximately 10 ft wide, or the width of an ox cart, even at high tide) across the seaward edge of the shorefront property.
Also, though the issue of state ownership of the land between the high and low tide lines has been, and will continue to be, an important factor in many serious forums, ownership is not the only arbiter of our citizen rights to the shore. The constitution grants us freedom to conduct our four activities at the coast. Those freedoms do not disappear at high tide!! That the citizens can use the state owned land between the tide lines is a separate and obvious fact.
So what’s a citizen to do? Fortunately, we don’t have to fire up our torches and burn the Gaspee again to protect our rights. (Though, true story, about six years ago in County Cork, in southern Ireland, a German couple bought ocean front property and built a grand home on it. They proceeded to erect a fence down into the water, effectively preventing the locals from using that piece of the shore. The homeowners wouldn’t relent on the topic of the fence. The fence still stands…the irate Irishmen burned the house to the ground.)
What we can do, what we should do is:
- Call and e-mail our legislators and governor to urge them to support the recent legislative effort, which would codify the peoples’ right to use the ten-foot strip above high tide for our protected activities.
- Call and e-mail our state agencies to put pressure on the involved parties to enact this “high tide plus ten” legislation and to prevent the posting of signs that attempt to restrict legal public access to the shore.
- Most importantly, when we are confronted with inappropriate signs or persons that say “Stop,” or “Private Beach,” or “No Trespassing,” unequivocally our response should be…NO! WE’RE NOT STOPPING! We’re walking right past it and you. If challenged, we could answer and explain if we care to, but we don’t have to. We are occupying the moral and legal high ground.
So, be it high tide, low tide, or somewhere in-between, stroll along any shore you please, fish from any rocky coast you like, go swimming at any beach you choose. But also remember that with rights come responsibilities. We must respect the property we are using. Obey all local regulations about dogs, noise, litter, etc. We have the legal rights to use the shore, not to abuse it.
In closing, let’s make sure that our government and our shorefront owning citizens know, unequivocally, that we remember where our rights are kept, and we intend to continue exercising them.
See you at the shore.