SOUTH KINGSTOWN, R.I. — The elusive and mysterious mean high-water line — akin to the Loch Ness monster that is never easily seen by the average person — is another quirky and lovable part of Rhode Island.
But this important yet vague boundary to casual beach goers along the state’s shorefront determines where the public can walk, sit, put up an umbrella and perhaps even picnic on private beaches.
However, there’s much debate about where technical calculations and a nearly two-decade average — called the mean — put the actual line. And, it evokes serious state constitutional questions for those advocates wanting unfettered access when pushed back by private property owners telling them to stay away.
“The constitution is on the side of the public. It’s very clear they can go on the shore line,” said State Rep. Blake Filippi, who represents all of Block Island and Charlestown, and portions of Westerly and South Kingstown.
Using a long-standing state Supreme Court technical calculation – including the average mean high water line over 18.6 years – gets difficult and often puts in the line under water except for certain times of the day. It’s not easily detectable to the naked eye, say experts and others involved.
Coming to the rescue, like lifeguard, of the average person is the Rhode Island State Constitution.
It says in part, people are guaranteed a right to “enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore.”
There’s nothing in those words or even the rest of Article I, Section 17, using any numbers for measuring tides whether high, low or average.
Robert Zarnetske, town manager of South Kingstown, who recently found his town in a dust up over the demarcation and a challenge to it, said reasonableness, not exactness, should rule the circumstances.
People can use private property beaches for activities, such as swimming, picking up shells and seaweed, evening hanging out, but they cannot encroach on the private property owner, he said.
And that’s where the rub is – what does encroaching mean?
In South Kingstown, the challenge by Scott Keeley of Charlestown resulted in a charge of trespassing, was later dropped because the accurate average high-water mark is hard to define, South Kingstown officials said.
The reasonableness approach finds agreement with Sean Corrigan, Narragansett town manager and police chief.
Both he and Zarnetske said the people going on private beaches should stay as close to the water as possible to avoid encroaching on the use by property owners.
Corrigan noted that in Narragansett he advises homeowners to have signs, but the signs must account for current state laws pertaining to public access.
Both town officials also said they prefer to have their police officers work out conflicts when disputes arise rather than make arrests. Prosecution only should occur when the situation becomes contentious and those involved test the limits of civility, they explained.
They added that reasonableness on everyone’s part is the key to making this rather vague – and not easily defined –use of private beaches work to everyone’s satisfaction.
The state’s Coastal Resources Management Council, which oversees the preservation and protection of the state’s coastline, understands the difficulty of finding the line.
“I would say stay on the wet beach and you have a good argument that you think you are in a safe area,” Janet Freedman, CRMC coastal geologist.
Advocates for ensuring there are no hassles for people using the public portion of private beaches say a more definite rule would be clearer.
“This should not be tied to some high-tide average or anything tied to the tide, it should be simply 20 feet of dry sand. You take a 20-foot ribbon and stick one end of it wet and the other end of it dry and exercise your constitutional rights between the two ends of that 20-foot ribbon,” said Keeley, who lives in Charlestown.
Property owners “have a deed and someone told them they own the land from right up to their front door to 15 feet out into the water because of this 18.6 mean high tide line. I understand they have a deed. But we the people have a constitution,” he added.