Ibbison
Never Decided - Part 2 of 3
By
Jim Bedell*,
Progressive Charlestown guest columnist
Click
here to read Part 1.
Any
effort to understand the confusion and controversy swirling around the issue of
our constitutionally guaranteed rights to use our shoreline has to include a
look at how the word “shore” has been adulterated in the now infamous Ibbison
court case.
In
his efforts to use state ownership of the coastal area below the high line as
the deciding factor to determine our coastal rights and privileges, Justice
Shea focused on the word "shore," which appears in section 17 of the
Constitution in the phrase "rights and privileges of the shore.”
The
court’s ruling made a declaration that "the word shore has its landward
boundary at the high tide line. The problem that presents itself is that at any
place with a sea wall the sea level simply rises and falls up and down the
vertical surface. There would never be any area below the high tide line
available to us citizens for our shore privileges.
Is it acceptable that the
Rhode Island judicial system can create the situation where one citizen builds
a wall, and by doing so disenfranchises all of his/her fellow citizens of their
inherited constitutional rights? I don't think so.
The
problem is that the words of the Constitution were voted into law by the people
of Rhode Island who did not have special legal dictionaries. The section which
received the highest popular support was section 17, the section that dealt
with shore rights and privileges. Sixty-seven percent of the Rhode Island
electorate voted to accept the wording in the Constitution as it was presented
to them, which included the word "shore."
They
voted with their common understanding of the word, perhaps the definition
offered in one of the eight dictionaries they might have had on hand. They had
no referral to, nor guidance from, "special legal dictionaries."
By
their vote the citizens of Rhode Island themselves defined the location of
their shore privileges. They made the word “shore” a part of their constitution
with the everyman’s understanding that it meant “land bordering a large body of
water." The land is dry. Whether there is a seawall or not, the “shore”
they voted on is along the edge of the sea...not under it.
Furthermore,
if you consult any text on oceanography you will find that the label “shore” in
the diagrams clearly includes land area above high tide along the edge of the
sea.
Another
way to look at this semantic situation is the official government’s use of the
words “shore leave,” “going ashore,” and “shore duty.” None of these activities
occur in the place below the high tide line. When sailors step on to a dock,
which is above high tide, they have gone "ashore". When a sailor goes
on "shore leave," he is not going to spend the weekend below the high
tide line. In the same fashion, a sailor assigned to “shore duty" does not
get time off because it is high tide at the pier and there is no place below
the high tide line to be on duty.
Could
this twisting of the definition of the word “shore” have turned out to be some
kind of Machiavellian legal "bait and switch"? Could it be that the
people voted to accept the word "shore" in an ordinary voting process
with their ordinary definition of the word meaning “the land bordering a large
body of water” and now they are being duped?
That
years later the officers of the courts in Rhode Island, state agencies and
certainly some shorefront owners are using a definition from "special
dictionaries" to squeeze the citizens into the water and off of the land
on which they have the right to exercise their privileges. Would that be
justice? I don't think so.
So
how do we fix what is wrong with the misuse of the Ibbison ruling? Fortunately
there is an opportunity on the horizon which can address this issue with input
from all concerned and well intended parties. Stay tuned in for the wrap up of
the analysis of the shore access controversy in a later edition.
* 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.
