A new bill on Beacon Hill wants to add one new word to a colonial ordinance from the 1600s to open up public access to Massachusetts’ extensive beaches.
The Senate bill, S.511, and its House counterpart, H.908, seek to add the word “recreation” to section one of Chapter 91. Recreation is being defined as “the use of land for relaxation, exercise, watersports, or other enjoyable pastimes.”
The proposed legislation would not get rid of private beaches, or take land away from waterfront property owners, it would only open access to the intertidal zone for people to sunbathe or walk along the water.
Every coastal state governs its use of tidelands, the legal term for all the land beneath the waters of the ocean, by the Public Trust Doctrine, a legal principle with roots in the Roman law that certain natural and cultural resources are preserved for public use and that the government owns and must protect and maintain the resources for the public’s use. The doctrine is commonly used in relation to bodies of water.
In colonial times, the Massachusetts Bay Colony followed the doctrine until colonial legislators decided to transfer ownership of certain tidelands to coastal landowners, to encourage private wharf construction on the areas dubbed “intertidal flats,” or the area between the high and low tide lines, through “colonial ordinances in 1641–47.”
The ordinances “moved the line between public and private property to the low-water mark, but not farther seaward of the high-water mark than “100 rods,” or 1,650 feet.
“This intertidal area (now called ‘private tidelands’) is presumed to belong to the upland property owner, unless legal documentation proves otherwise for a given parcel,” the Massachuestts state website reads.
These ordinances give private citizens the ability to own land all the way to the low-tide line, allowing them to exclude the public from the intertidal zone — creating private beaches.
Members of the public do have certain rights on private tidelands, such as fishing, fowling, and navigation, but are barred from any recreation like walking or sunbathing.
There is one narrow exception to the rule — the public is allowed to swim in the intertidal zone provided the swimmer “does not touch the private land underneath, or use it to enter or leave the water,” according to the state’s website.
Massachusetts’ colonial ordinances are significantly more restrictive than beach access rights in states like Oregon, Hawaii, Texas, and North Carolina, among others.
Oregon established a permanent public easement for access and recreation along the ocean shore regardless of ownership with its 1967 Beach Bill, barring anyone from owning the beach. That bill was mimicked on the Texas Open Beaches Act, which gives the public the free and unrestricted right to access Texas beaches.
All beaches in Hawaii are public property, and no part of them can be privately owned. Landowners are even required to maintain vegetation on their property to ensure the public has access to the shoreline.
Speaking to the Times by phone, state Sen. Julian Cyr, D-Truro, said the intent of the bill is to update the colonial acts for modern times.
“What we’ve ended up with today is a bit of a perversion of the colonial ordinances,” Cyr said. “By clarifying the intent of the law, we’re hoping to continue that very proud tradition of access to the ocean … We need to be safeguarding the public’s access to shared resources, and that’s particularly true on the Island, and my neck of the woods.”
He added that the climate crisis is redefining what the boundaries of beaches actually are.
Local angler Doug Asselin, who also works at Dick’s Bait and Tackle, told The Times situations can be tricky, and he’s had some bad experiences with people telling him to get off their property, even when he’s carrying his fishing pole, but said use of beaches is a two-way street.
He stressed the importance of the fishermen being respectful of people’s property, and to use common sense, like not tearing down dirt roads and leaving headlights on. Additionally, he said, there are plenty of times when he goes out to fish and will be picking up trash and empty beer cans. “Keep in mind we’re lucky to go to these places,” Asselin said. “We want it to work for everybody.”
Jeremy Talcott, an attorney for the Pacific Legal Foundation, a nonprofit law firm that specializes in property rights, told The Times people should be skeptical of how the law could change property lines, and that landowners could be owed compensation. “I think the most important issue for coastal landowners is it’s a complete redefinition of their property rights,” Talcott said. “By adding recreation, you are vastly expanding the scope the public has on this private property.”
Access to tidelands are at the center of an over-two-decades-long litigation between the Harborside Inn in Edgartown and the Massachusetts Department of Environmental Protection. The Harborside Inn does not believe it needs to allow for public access on a path abutting its property. Portions of the Harborside Inn are built on filled tidelands, which, under Chapter 91, allow for public access.
The proposed bill was last referred to the committee on Environment, Natural Resources, and Agriculture. It has not had any hearings.
Also speaking to The Times by phone, state Rep. Dylan Fernandes, D-Falmouth, said it is crazy how restrictive the ocean access laws are in Massachusetts compared with other states like Oregon and Hawaii, and that the bill he and Cyr are trying to get through was all about recognizing how most people use beaches nowadays.
He said he’s heard horror stories of people using dogs to scare people off their property, or berating someone on a casual walk.
“I firmly believe that no individual person should own the ocean or the sand beneath the waves, and unfortunately in Massachusetts, because of this colonial ordinance from the 1650s, we have the most restrictive ocean access laws in the nation,” Fernandes said.