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Published in The Providence Journal-Bulletin ( May 1, 1992)

The Rhode Island Supreme Court’s decision that the State owns certain land in Portsmouth created by placing fill in Mount Hope Bay has been hailed by proponents of shorefront access as paving the way for greater public access to the shore. As a result of the court’s decision in Hall v. Nascimento, a legislative task force is now studying draft legislation which would provide sweeping public access over former filled tidal land (land formerly below the mean high tide), even though such land may have been in “private ownership” for generations.

Under the proposal, people who “own” filled tidal land could find either that the state actually owns the land, and they must lease it from the state, or that the public has a perpetual easement or right to cross their property to reach the shore.

The issue focuses on the public trust doctrine, the principle that the state owns all land below the mean high tide in trust for the public for purposes of fishery, commerce and navigation.

Although only the Rhode Island Supreme Court can speak for itself, it would appear that the importance of Hall v. Nascimento has been greatly overstated, and that reliance on it to support access to the shore is misplaced.

Proponents of shorefront access assert the court in Hall mandated that absent a legislative conveyance of title to such filled tidal lands, all filled tidal lands remain in state ownership, even when filled by shorefront owners in the 1800’s with state or municipal authorization. It is further argued that the state may at any time require that such filled tidal lands be used for public trust doctrine purposes, regardless of the current use of the land for homes, businesses, etc. Proponents of shorefront access argue that such access is part of the public’s rights under the doctrine.

However, Hall v. Nascimento is a weak reed on which to lean. First, the issue of the public trust doctrine was not litigated in the lower court and was only argued on appeal to the Supreme Court. This means the court was denied a full record on which to base its decision. Because the law, by nature, is fact specific, it may be expected that the next tidal lands case before the court, fully briefed on a full record, may carry far more specific language regarding the scope of the public trust doctrine.

Secondly, Hall v. Nascimento did not involve filling to a harbor line or its equivalent. This is very significant because prior state supreme court decisions indicate that filling to a harbor line or with permission of a harbor master or commission vested title of the filled land in the upland owner, and extinguished the public trust doctrine rights in such filled land. Such indications by the court were often given in dicta, which are statements of legal principles which do not apply to the specific facts before the court and therefore do not constitute a judicial holding. However, a careful reading of the many older Rhode Island Supreme Court decisions dealing with the doctrine suggest these legal principles were dicta because they were so well accepted that the specific facts, such as title to filled lands, were not litigated.

For example, one decision involving a dispute between abutting shorefront landowners concerned the shared side boundary line to the filled land between such shorefront property owners. It seems implicit that to the extent the court was deciding the location of private property owners common side boundary to filled land, it was accepting such shorefront owners title to the filled land. A reading of the older court decisions leads to the clear conclusion that the shorefront owner had the right to fill adjacent submerged land, which right was only limited if doing so would interfere with navigation or commerce. Such filling occurred frequently in the late 1700’s and throughout the 1800’s and was the subject of either acquiescence or, later, governmental approval.

Additionally, prior state supreme court decisions indicate that the public’s right in public trust lands was extinguished when such lands were filled or so used, built upon or occupied “as to prevent the passage of boats and the natural ebb and flow of the tide,” since the purposes of the public trust doctrine were seen as the rights of passage, of navigation and of fishery.

This would again distinguish the Hall case, because in Hall the court was made aware of the fact that the filled land at issue was unimproved, and was not used or altered in any way inconsistent with its use for public trust purposes. In fact, it was listed on tax assessors records as a public right of way, and the Environmental Advocate for the Attorney General argued that the land was maintained as a type of cost free open space program. This was not a case where filled land was developed for commercial or residential purposes.

Finally, and perhaps most importantly, the public trust doctrine has never been interpreted as providing a right of perpendicular access to the shore. Rather, at most the public trust doctrine is seen as providing a right of lateral access along the shore. In other words, it is a right of passage below the mean high tide line, which marks the boundary between private property and state owned land. Accordingly, reliance on Hall v. Nascimento and the public trust doctrine as a means of providing perpendicular access to the shore is unsupported by case law.

This newspaper’s recent editorial (“Tidal Trauma”) accurately reflects the severe problems to private property owners specifically, and to economic development efforts in the state generally, which would result from enacting the draft legislation now before the Task Force. Although this is an extremely important concern, it is also important that the understandable desire for certain rights, such as shorefront access, not be used to expand beyond the breaking point long standing legal principles never designed to accommodate such purposes.

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