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CityState : Reporter
“ Who is going to lose as the sea comes up the beach ? Does the public lose that right ?” she asks . “ We can ’ t change that ‘ mean high tide ’ because the court ’ s decision says people own to the mean high tide line . So , there ’ s a conflict in what the property owners think they own and our constitution . It ’ s like threading the needle with language that clarifies where the public can be , while not having it be considered a taking . That ’ s the hurdle .”
The clash of the centuries-old public trust lands doctrine and more recent property law has sent lawyers armed with magnifying lenses and tweezers to pick through case law and common law for intent and the plain meaning of English words . This renewed attention has not really clarified much .
Sean Lyness of New England Law Boston , who made a presentation about the Public Trust Doctrine before the commission , believes that Ibbison was wrongly decided and left the promises enshrined in the state constitution unfulfilled .
“ It ’ s just one case in a common law system — but it is monumentally significant , and it casts a long shadow over Public Trust Doctrine and shoreline access . It ’ s my opinion the General Assembly and the state of Rhode Island thought the court got it wrong and the changes in the 1986 constitutional convention can been seen as a real response to that .”
Providence real estate attorney John Boehnert , who also testified , argues just as persuasively that the Ibbison decision was entirely correct and well supported by a chain of decisions . Any legislative attempt to change it would lead to “ a challenge to it as a taking and there would be litigation .”
The fight for perpendicular access is no less intense . The CRMC has 230 designated public access points , but increasingly , they are under assault from sea level rise and erosion in the wake of more intense storms , says David Prescott , Save the Bay ’ s South County coastkeeper .
“ The General Assembly has always wanted to have one shore access point per mile , but looking at 400-plus miles of coastline , we are barely halfway there ,” he says . “ They are getting challenged from the land side . A lot of these access points will be underwater by the end
36 RHODE ISLAND MONTHLY l APRIL 2022