Changing beach access with ‘recreation’

Cyr, Fernandes file bills to change Massachusetts’ restrictive beach access laws.

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A private beach sign in Vineyard Haven. A new bill proposes to allow public recreation in the intertidal zone. — Brian Dowd

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.

17 COMMENTS

  1. Once upon a time my wife and I were walking on Katama South Beach toward Crackatuxet Pond, as I had done many, many times previously. A gentleman appeared, brandishing a gun, and told us we were on private property. I said we’d stay below the high tide mark (guess I was misinformed) and explained that we were just walking to the pond. He then reached for his weapon and told us we couldn’t do that. Needless to say we immediately turned around and retreated. This bill is long, long overdue.

  2. Caution is required here. If this new proposal fails, the courts will simply establish another legal precedent to restrict beach access. I have a better concept. Instead of adding “ recreation” as a right to the public, claim adverse use because the public has use beaches for recreation and transportation for 300 years. Also, MVY was not regulated by the Colonial Orfdinance as we were part of New York until 1693. What was public in 1693 was suppose to stay public.

    • While it is true that MV was part of New York at the time the Colonial Ordinances were implemented, once Dukes County became part of MA the laws of NY no longer applied.

      • Incorrect. If you read the Charter of William and Mary, 1692-3, when MVY got annexed to Massachusetts, its Says All current public lands ( the beaches) shall continue to remain public.

  3. Mr Talcott makes a good point. There were efforts in the past to revise the law by making property lines end at the mean high tide mark. The proposals were derailed by the fact that a state takeover of the narrow strip of land in the tidal zone would require compensation to the owners at fair market value. The taxpayers of MA would not agree to such an expenditure. Just do the math for MV alone. How many acres, and what are all those acres worth?
    That bit about dogs being used to intimidate beach walkers is a well known story. Many of us know who does it. Hollywood, go home.

  4. I agree with Paul Adler, and I have always been in the same page : MV Beaches should be accessible to island residents. Period.

    • Just Island residents?
      Not property owners?
      Not renters?
      Not hotel guests?
      Not day trippers?
      Island residents are special!!
      Period…..

      • Don’t get them started. Next they’ll tell you that you had to have been born here, but even that’s not good enough. You had to have had several generations born here, and then you are truly entitled. But I do like Jim Belushi stories—to see whose sense of entitlement is greater. The good thing about a sense of entitlement is that you can be poor as a church mouse and still have the biggest one on the block.

  5. This is an important issue, but we need to ban mopeds and I wish these two would put energy into to that. People don’t die by walking on private beaches, people die driving mopeds on sandy roads on the Vineyard.

  6. If this bill ever passes, I hope one of the first things that happens is that Jim Belushi apologizes for his assault on Franz Guest for doing what the new law would permit and the Chilmark Police apologize for his arrest and prosecution.

  7. We should be embarrassed to have private beaches. Even Nantucket has free beach access. Why not Martha?

  8. We are a republic and not a democracy. In a democracy, a majority vote by an outraged mob can do anything it wants – take property, even kill those it does not like. The founders were terrified of this kind of democracy. This issue will have to go to the courts.

    I don’t know why people angrily demand other peoples’ property. Demanding other people pay higher taxes or give up their property. When working people pay taxes, no-one ever says thanks. The mob just keeps baying for more.

    • You say it is taking something away from them, but I say that it was never theirs to begin with. It turns out that in this plutocracy with democratic features, we can still vote to reclaim property stolen from the commons.

  9. The Times article compares beach access laws in Mass with those in Oregon and Hawaii.

    But we have a model of public access to beaches right next door in Rhode Island. “Under Rhode Island law, the public is guaranteed access to all beaches in the state, at least up to the high tide water line. This public access is guaranteed through an easement that a state or municipal organization has on any privately owned property, which includes shoreline.”

    I see no reason why landowners should be compensated for these intertidal areas that they have monopolized for centuries. They never should have had such rights in the first place. Perhaps it is the public that should be compensated for the denial of access to their shoreline for centuries. The idea of allowing swimming if the swimmer’s feet don’t ever touch the bottom reveals the absurdity of this legacy of entitlement.

    it is, however, unfortunately the case that many Americans do not seem to understand the idea of “QUIET enjoyment.”

    BTW I recently saw a plaque that is attached to a concrete revetment type of thing on a bridge over a small coastal pond (on MV) that states: “Public Passage — fishing – Fowling – navigation – strolling — Mass. DEP M.B. L. Ch. 91 License #14697”

    I went online to try to figure out exactly what rights this designation (especially “strolling”) confers, but was unable to find clear information.

    • I’ve heard that fowling includes bird-watching. If so, looking at a seagull or two should give you shore rights.

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