Dennis Nixon is a professor emeritus of marine affairs at the University of Rhode Island and was on a special House commission that drafted the bill. He spoke with The Public’s Radio South County Bureau Reporter Alex Nunes at Beavertail State Park in Jamestown. Listen to the interview or read the transcript below.
NIXON: This has been an issue the state has struggled with. We are the Ocean State, and yet every summer we’re known as the state that has fights along the shore. We should be advertising our friendliness of the shore and the things that you can do with the shore, not the fact that you’ve got to worry about being yelled at by coastal property owners.
NUNES: So a lot of people are familiar with the issue of shoreline access, the disagreements between beachgoers and property owners, but they probably don’t know that it all relates back to this 1982 case, the Rhode Island Supreme Court case Ibbison.
NIXON: Right. Up until relatively recently, about 40 years ago, the public’s rights, which were given to us in the King Charles II charter in 1672, extended all the way to the high watermark. And that’s a very loose term. It’s generally defined as that mark on the shoreline where the last high tide came. And it’s also known as the wrack line. And yet the Supreme Court in 1982, in a case called State vs Ibbison, decided to adopt the mean high water[line], because they thought it felt more scientific. This mean high water is not something you can look at a beach and tell where it is. You have to look at the entire lunar cycle of tides, which is an 18.6 year length of time, and then determine with that elevation, where on the shore that should be on that day and time. If you have a storm event that night, that moves the line inward. The boundary you determined yesterday is useless the following day. So that has thrown us into turmoil for 40 years. Prior to this case, people were not routinely getting arrested along the shoreline for trespassing in front of somebody’s property.
NUNES: So the House bill that you helped formulate and draft as part of this House commission on shoreline access, you could say that that bill was intended to clarify or clear things up that have happened since that Rhode Island Supreme Court case and make it easier for people to understand where they can be or can’t be?
NIXON: Yeah. This is really my most important point. Because the only argument against this is that it’s a taking of private property. And I must aggressively respond to that and say this is a restoration of rights that were there since we took this land from the Indians tribes that were here already, and that’s another whole story in terms of the crime that they have to fight to get to the shore to practice their normal religious beliefs. But yes, this is a restoration. This is not something new. But it is a way to get past this annual struggle with the coastal communities being under attack really from the coastal property owners saying, “We don’t like people walking in front of our homes.” And most property owners, it’s been my experience in working with them for all these years, aren’t aware of the fact that the public has substantial rights at the shore.
NUNES: I mean, what if a private property owner says, they make the point, you know, “I bought this property after 1982. I thought I was getting land down to that mean high tide line, multi year mean high tide line. The State Supreme Court already decided this. You know, what gives? I should be able to tell you not to go there.”
NIXON: This is really an issue involving the Rhode Island Supreme Court. They made a mistake. And either they have the ability to fix that mistake or the General Assembly can overrule them. Even the Ibbison case says: Because we don’t have adequate guidance from the General Assembly, we’re gonna make up this new standard. So they clearly said in their own opinion that if the General Assembly decides otherwise, we’ll go with that.
NUNES: I would have to imagine, too, that coastal property owners want to use some of those rights. I mean, no one just paces back and forth in front of their own property. I assume they walk on the beach, too.
NIXON: That’s exactly right. And they like getting down to their neighbors. And this happens all the time. I’ve heard this many times: “Well, they come all the way up on our lawn. They’re throwing frisbees and footballs. We’re having to dodge stuff.” Well, that’s not legal. You can’t go up on somebody’s private property to do these things, and that’s where it’s appropriate to call the police. But if you’re below the high watermark that I would like to see the law read today, if you’re below the high watermark, the public has constitutional rights, and they trump any claim that a private property owner has to privacy.
NUNES: How do we compare to other coastal states in terms of laws like this, you know, dictating access to the shore where you can be on the shore?
NIXON: We’re not the best. We’re not the worst. At polar extremes on the West Coast, Oregon is by far the most liberal. The public owns all the way up to the vegetation line and can do whatever they want. Somebody tried to fence off a sandy beach there that was allegedly owned by a hotel, and their Supreme Court told them to take it down. All beaches are open to the public. You can’t charge for them or anything. And they used an old common law doctrine called custom. That custom doctrine was later adopted by decisions in Hawaii and the Virgin Islands, both of which have completely open beaches that you cannot restrict anywhere on dry sand. On the other end, Massachusetts and Maine tell property owners they can own down to mean low water[line], way down there subject to public easements for fishing, fouling and navigation. But simple walking, you’re not allowed to do. So former Attorney General Bellotti of Massachusetts, back in the 70s and 80s, actually published a brochure for the people of the state saying, “I want you to be able to walk on the beaches of Cape Cod, but you’re gonna have to carry a fishing rod with you and say, ‘I have the intention to fish.’”
NUNES: Advocates for shoreline access have been pretty focused on this topic for the last two years after COVID restrictions on beach access or access to the shore. And it seems like they have stamina. They’ve kept with it for two years. Do you expect that this is going to continue being a perennial issue?
NIXON: Until we get this to the point where we have an understandable boundary. I think we will be able to defuse this issue if we settle the law down the way it used to be.
NUNES: Dennis Nixon, professor emeritus of marine affairs at the University of Rhode Island, thanks very much for speaking with me.
NIXON: Thank you for having me.
Alex Nunes can be reached at anunes@thepublicsradio.org
