Will the new wrack line law set things straight on shoreline access once and for all?
Rhode Island beaches and shoreline were unquestionably public assets nearly 400 years ago. Then the cultural and legal lines shifted.
A fan of the singer Taylor Swift poses on the narrow stretch of beach in front of Swift’s home, High Watch, located on the highest point in Watch Hill, Rhode Island. (John Layton for Rhode Island Current)
Rhode Island has always had an existential relationship with the sea. The ocean has been a transportation route, a place for trade and commerce, a food source, and an arena for recreation and enjoyment. Our earliest settlers recognized this and sought to ensure all Rhode Islanders were able to use the shoreline and the sea. Rights associated with access to the ocean were first outlined in our 1663 Charter.
The Charter defines the public space as the “waste land” abutting the water. They meant the shoreline and the beach, as it these areas could not be cultivated or built on. This was to be available to all for fishing, processing whales, gathering seaweed, launching boats and other uses. These provisions make it clear that what the drafters of the Charter intended to do was preserve the ocean and the beach as a public asset – to prevent individuals from “taking” needed resources away from the public.
Things were changing quite a bit when the 1843 State Constitution was drafted. It too, referencing the Charter, continued to affirm the rights of Rhode Island’s residents to have access to the water, as did subsequent changes to our Constitution in the 20th century. This principle has been persistent, even as our culture continued to change. Today, we are using the beaches in almost entirely different ways than in the 17th century. The shore is not waste land at all – it is among the most expensive property available, and the sale of land and development of residences has had the effect of limiting public access to the waterfront.
Until this summer, the most recent laws limited public access to the “mean high tide line,” which was very scientific, but also changed year to year — faster than ever now as sea levels rise. Most problematically, it was also impossible to determine by eye when you approached the beach. This allowed property owners, in practice, to have enjoyed the private use of their beaches for quite some time.
The law was practically unenforceable because of two things: a lack of clarity on where public access ended, and our reflexive respect for property rights. If law enforcement is called because someone is gathering seaweed at Newport’s private Bailey’s Beach, or surf fishing in front of Taylor Swift’s Watch Hill mansion, and there is a question about where the public right begins and ends, the course of least resistance is for the police to ask that person to leave.
Today, we are using the beaches in almost entirely different ways than in the 17th century. The shore is not waste land at all – it is among the most expensive property available, and the sale of land and development of residences has had the effect of limiting public access to the waterfront.
A new law was just passed to clarify this situation. It defines the public area of the beach as being 10 feet inland from the “wrack line,” or the line of debris that high tide leaves along the beach, which is almost always clearly visible. This is a less scientific definition, and almost returns us to an older way of looking at our beaches. No longer economic assets that belong to some, Rhode Island seems to want to reassert its original notion, now for the 21st century, that beaches are for everyone to use. Almost instantly, and somewhat ironically given the history, the Rhode Island Association of Coastal Taxpayers, who are property owners on the shoreline, have challenged the law as an unconstitutional “taking” of private property.
This case will be interesting to watch. For some Americans, property rights are the most important of all our rights. For others of us, it is religious freedom, speech, or the right to vote. In Rhode Island, the right to use and enjoy the sea has been important enough to survive almost 400 years of culture change and jurisprudence. But none of our rights are absolute, and all are in some kind of balance with each other.
Where that balance lies – where one person’s rights end and another set of rights takes precedence — changes as our culture and practice does, in an ebb and flow that is remarkably like the tide.
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