Ibbison
Never Decided-Part 1of 3
By
Jim Bedell*,
Progressive Charlestown guest columnist
In
discussing Rhode Island's shore rights and privileges it is time to revisit the
Ibbison ruling. If the topic isn’t familiar to you, here is a quick primer.
In
the 1970’s four members of a fishermen’s group were cleaning up the beach in
Westerly. They were arrested for criminal trespass at the behest of the man
whose property they were cleaning up (free of charge!).
They were convicted in
a local court, and then in an appeal to the RI Supreme Court the case was dismissed.
The devil being in the details, the method used and the approach taken in
deciding the appeal has had a disastrous effect on the citizens of Rhode Island
with respect to the state’s constitutionally guaranteed rights and privileges
of the shore.
The
reason this ruling deserves a second look is that it has changed the
fundamental principles that were incorporated into the Rhode Island
Constitution about our shore rights and privileges. The Rhode Island
Constitution gave us citizens, Freeman as we were called in colonial days, the
right to do things along the shore. Not unlike the federal Constitution
insuring us the right to pursue life, liberty and happiness.
Well,
things change. One thing that is changed is that in times gone by no one built
right on the coast. It is a transitory environment, an environment in which
change is part of the process going on continually, and only a fool would make
a substantial investment in a place like that.
Now, with the availability of
federal flood insurance, very substantial houses are being built almost at the
water’s edge. The advent of federal flood insurance reimbursing people for
losses in that unstable and uninsurable (by rational standards) environment has
helped create the accelerating disappearance of our inherited rights.
Also
driving that acceleration is the reality of sea level rise. Sea level has been
rising since the end of the last glacial era about ten thousand years ago, but
it had slowed significantly until the coming of the industrial age. Now sea
level rise is again accelerating, and is expected to increase its acceleration
in the near future, bringing profound changes to our coastline.
Now
let's take a look at the famous, if
not infamous, Ibbison case. The misunderstanding and misinterpretation of this
case has been a major confusing and misguiding factor in the discussion of our
shore access rights.
Let's
look at the major, and crucial, flaw of a misguided entering assumption. The
problem, and the error, is that in the Ibbison case Justice Shea assumed that
the issue of property ownership was the sole arbiter of where our
constitutional shore privileges were located.
While it is absolutely true that
the state of Rhode Island owns all of the land underneath the salt water that
borders its coasts, our Constitution gives us the right to do certain
activities at the shore, and the location for those activities is not
constitutionally linked to ownership.
In fact the Rhode Island Constitution
specifically states that Rhode Islanders exercising their shore privileges
shall not be deemed a “taking" from private property owners. There would
be no need for this clause in the Constitution if we citizens only enjoyed our
rights on the land unequivocally owned by the state.
Because
the constitution does include that clause, the constitution establishes the
foundational concept that our shore privileges include the right to exercise
those privileges on privately owned property, and that doing so does not
violate any property laws…it is instead a sharing of the edge of the land by
all citizens.
The
next step in this discussion will focus on the court’s use and misuse of the
word “shore” in its argument. Stay tuned
in for the continuation of the analysis in later editions.
* Jim is the driving force behind the Rhode
Island Shoreline Access Coalition that seeks to protect the right of people
to the use and enjoyment of Rhode Island’s shoreline, as is supposedly
guaranteed in Rhode Island’s Constitution.
