Seaweed collector’s arrest in Rhode Island revives age-old debate on beach access; Massachusetts laws date to Mayflower days
When Charlestown, Rhode Island, resident Scott Keeley went to the beach on a sunny Sunday, he thought he had state law on his side: the Rhode Island Constitution says he’s allowed to collect seaweed along the shore, and, he believes, nothing in there prevents him from sitting down to shake out the sand from his haul.
But a private security guard, hired by nearby beachfront property owners, had little interest in his arguments about rights under Article 1, Section 17, Keeley said. The paper copy Keeley had printed out didn’t work, either.
And when the South Kingstown police officer showed up, things really went “pear-shaped,” Keeley said. The officer, too, told him that the area parallel to the stretch of private homes on Charlestown Beach Road was private property and that he had to move along, he said.
Keeley disagreed, but he didn’t want to get arrested, so as he prepared to leave and bent down to pick up the bag of seaweed, he saw another “really nice chunk” on the ground and picked that up too.
A video with tens of thousands of views on Facebook now shows what happened next: The officer arrested Keeley for trespassing. Keeley really did want that seaweed, but he also was there to make a point, and launch a protest.
“The only way this is going to change is through civil disobedience right now,” Keeley said.
Keeley’s arrest is an unusually vivid example of a debate that’s long burbled just below surface in Rhode Island, periodically crashing ashore and into public view: Where do the public’s rights begin and private landowners’ rights end along the water in the Ocean State?
Where it ended for Keeley was in custody for about a half hour on Sunday afternoon. On a positive note, Keeley commended the South Kingstown officer for his professionalism. As a bit more of a negative, he has no idea what happened to the bag of seaweed he was going to use to fertilize his garden.
But this, Keeley says, will not be the end of it: He is considering challenging not just his arrest but the way that coastal rights are enforced in Rhode Island at a time when beach erosion, climate change and the increasingly aggressive tactics of private landowners, like hiring private security guards, are chipping away at Rhode Islanders’ rights to access the beach.
For now, Keeley won’t have a chance to fight it out in court, at least in this venue: The police chief in South Kingstown, Joseph Geaber, said in response to a request for comment from The Providence Journal that the department would not be pursuing the charge against Keeley, noting the challenges in figuring out where the property boundary lies.
“It would be very difficult to prove the case beyond a reasonable doubt when it cannot be determined how to accurately determine the line itself,” Geaber said. “We apologize to Mr. Keeley but feel the officer was acting within the scope of his duties.”
At first, it seems like a straightforward issue: “The people shall continue to enjoy and freely exercise all of the rights of fishery, and the privileges of the shore,” Article I, Section 17 reads, with usages “including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim and passage along the shore.”
But how those rights are enforced plays out in a way that, like the clumps of ocean plant life Keeley was collecting, can be tangled, stringy and difficult to swallow.
Massachusetts Beach Access Laws
Beach access laws in Massachusetts differ drastically from those in neighboring Rhode Island.
The laws give much property owners of coastal properties more control over the beaches. The state wesbsite cites “Colonial Ordinances of 1641-1647” in defining beach access rights. It states ownership extends to the “mean low-water line, or 100 rods from the mean high-water line, whichever is less.” Another law guarantees “access to fish or fowl” with an “easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.”
The website www.mass.gov directs readers to a 2012 post by attorney Richard D. Vestein explaining the law. He writes:
“In most coastal states, there is unlimited public access to beachfront areas and you can walk unfettered along the beach. In Massachusetts, however, that is not the case. Here private coastal property owners own the beach area adjacent to their properties down to the mean low tide area, with some limited public access exceptions. This is how the concept of “private” beach areas have been established.
“The general rule is that with some limited exceptions ... beach-goers in Massachusetts cannot access any private beach area down to the low tide water mark without the permission of the beachfront property owner.
“The Colonial Ordinance reserved three specific and important rights of public use within the private tidelands for ‘fishing, fowling and navigation,’” Vestein writes. “Those permissible uses have been broadly interpreted by Massachusetts courts to include: (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to float on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. (Though there is no court decision on point, the Attorney General maintains that this right also covers bird-watching.)
“Accordingly, the public has access to any so-called “private” beach or any private tideland area as long as you are legitimately engaging in ‘fishing, fowling, or navigation.’”
Where is the boundary between public and private, and how do you calculate it? If people are on the right side of that line, can they sit in a chair? Can they stand there for an hour? If they can’t, how is one supposed to fish, or set down a towel after a swim? If that line is 15 feet out to sea in some areas, as the homeowners near the Charlestown Town Beach assert, how are people supposed to pass along and collect seaweed in neck-deep water?
A state Supreme Court case, the State vs. Ibbison case of 1982, set the boundary for the purposes of the public’s constitutional privilege of shore access as the “mean high tide line.”
With beaches shrinking or growing with the forces of tides, erosion and rising sea levels, that’s a difficult concept to pin down.
Some people assume that the mean high tide line is wherever the farthest landward seaweed is. After all, it got there somehow. But measuring the mean high water line involves much more than that. It can’t be done with the naked eye, or in a day. The mean high tide line mentioned in the Ibbison case is measured in years, not days: You’d need 18.6 years and specialized equipment to separate the actual tide from the waves’ farthest reach to see where the highest place the tide — not the water — reaches on average.
“It’s something that’s really not visible at all,” said Janet Freedman, coastal geologist at the Coastal Resources Management Council. “You can’t put a permanent line, unless you want to be surveying every day.”
According to Keeley, the police told him that the private landowners at the beach where he’d been arrested have surveyed the property and determined that the mean high tide line is actually several feet out in the ocean water at all times, meaning the entire beach, and on into the water, belongs to the private homeowners.
The latest series of tide observations from the National Oceanic and Atmospheric Administration was collected from 1983 to 2001. But the beach has changed since then — in some areas, it’s shrunken significantly.
Nobody in the area where Keeley was arrested has worked with the Coastal Resources Management Council, part of the state government, to get a scientifically rigorous measurement of where the mean high tide line is with recent data, Freedman said.
The homeowners who’d hired the security guard either didn’t respond to requests for comment or, in one case, declined to comment in a hotly contested dispute with neighbors.
The state has really good data about the ebb and flow of water in the area of Charlestown Beach, Freedman said, but that’s not the data the state uses to determine where the public’s right begins and private landowners’ rights end.
“In my opinion,” Freedman added, the mean high tide line “is not an appropriate way to determine where the water flows on the beach.”
Freedman’s recommendation for people who want to access the coast?
“Download a copy of Article 1, Section 17 of the state constitution,” Freedman said. “Laminate it, and bring it with you. Not that it made any difference for the guy who got arrested.”
James Bedell, a Narragansett resident and longtime advocate for the rights in the Constitution for coastal access, said that the issue is so difficult it essentially means there is no beach boundary where people can’t go to collect seaweed, pass through or take a swim.
Bedell’s argument is that the state Supreme Court purposefully set the boundary at something unknowable to guarantee access to the coast.
“This is an impossible situation to tease apart,” Bedell said. “But remember, they did write that in the Constitution. This was a precious gift for Rhode Islanders.”
Whether the rules should give people the right to stop and set up a chair, or merely pass through, is a question for another day, Bedell said. Right now, private property owners are encroaching on those rights, Bedell said, hassling him sometimes even when he’s just walking through.
“There is no boundary,” Bedell argued. “The Constitution guarantees the right to do things. It doesn’t define where you do them.”
On the morning of July 6, Keeley is planning a demonstration on that same strip of land, inviting people to walk, swim, fish, gather seaweed, and calmly, civilly protest. It is something of a line in the sand, moving farther inland than before.
“How can you possibly perform the actions in our Constitution with the way they’ve interpreted this law?” Keeley said before picking up some more seaweed. “You only have these rights if you’re a scuba diver.”