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Published in Providence Business News (May 29-June 4, 2006)

The simmering battle between public and private rights to the Rhode Island shoreline may once again erupt if legislation pending in the General Assembly is enacted into law.

Under centuries of well-established Rhode Island case law, the State owns all water below mean high tide in trust for the public for purposes of fisheries, commerce and navigation. This is the Public Trust Doctrine, and under the Public Trust Doctrine, Rhode Islanders have long claimed a right of passage along the shore below mean high tide over public trust lands.

The boundary between public and private rights at the shore was clarified in a 1982 decision of the Rhode Island Supreme Court relying on well over 100 years of Rhode Island case law. That court concluded that the boundary between public and private rights was the mean high tide, defined to be the arithmetic average of the high water mark as measured during an 18.6 year Metonic Cycle. A Metonic Cycle is the period during which the full moon begins and ends on the same day of the year.

The court felt that this measurement was preferable to any other measurement, such as the throw of seaweed on the sand, because it was a scientific measurement which could be calculated with precision.

Implicit in the court’s opinion was that where property boundaries are concerned, real estate law loves certainty. This boundary line was later accepted and adopted by the General Assembly and enacted into statutory law as well. However, pending legislation could dramatically affect this boundary.

One pending Bill would make the boundary between public and private property not the average high tide during the Metonic Cycle, but the “highest” high tide during that 18.6 year period. The impact of this would be to dramatically encroach upon private property rights by effectively taking for public use significantly more land along the entire Rhode Island shoreline.

The net result is that private property owners would be told that their formerly private property, as established by the Rhode Island Supreme Court and the Rhode Island General Assembly, was now owned by the state and subject to public use, for example, by those who wanted to go picnicking, sunbathing, fishing or swimming on the former “private property” of these property owners.

Another pending Bill would establish a ten foot “dry sand easement” along the Rhode Island shoreline. The net effect of this would be to provide that where the established boundary between public and private land (i.e., the average mean high tide) does not leave exposed sand available on public property, the state would simply provide that the public had a right of passage over ten feet of dry sand across existing private property.

These measures are well-intentioned, seeking to expand public access to the shore. However, it is difficult to conclude that either of these measure, if enacted, would be anything other than a massive governmental taking of private property rights requiring the payment by the State of “just compensation” to private property owners under the federal and state constitutions.

Given that waterfront property is some of the most valuable property in the state on a square foot basis, the impact to the state treasury for these measures could run well into hundreds of millions of dollars. Additionally, it would inevitably generate thousands of lawsuits and create personal turmoil and financial expenses for the waterfront property owners involved.

These two proposed measures would, after all, affect virtually all land throughout Rhode Island boarding tidal waters, whether they be personal residences or businesses, including land on tidal rivers.

Indeed, not only would state taxpayers and private property owners lose, but one may expect private property owners may not graciously relinquish their private property rights to those they see as “trespassers”, thereby putting the public “beach goers” squarely in the center of the dispute.

In fact, the only beneficiaries of the passage of these bills would appear to be lawyers. And even a lawyer would have to say that when the only beneficiaries of proposed legislation are lawyers, it’s time to rethink the legislation!

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