Get off the beach, you’re trespassing
Most everywhere, private property stops at high tide. Here? It's low.
Now that we have declared our Independence and the peninsula is brimming with bathers and second-home owners once again, if you take a hike along the beautiful shore between high and low tides, beyond the confines of a public beach, be sure you have one of three things with you — or risk arrest for trespassing:
A fishing rod, gun, or boat.
This is because Massachusetts is one of a few states that bestow property owners deeded rights not to high tide, but low far as 100 rods out (that’s 1650 feet). These rights were established well before the nation, in Colonial ordinances in the 1640s that include Maine — the two states were one back then — to encourage Brits to build docks and wharves.
But from the get-go there were exceptions to No Trespassing edicts:
If you are “fishing, fowling (hunting birds), or navigating,” you can meander wherever you please. Without lugging a rod or gun, you also are welcome to swim in tidal waters — provided you don’t let your feet touch bottom.
Those private property rights have led to many confrontations along Cape Cod beaches, the most famous in the late 1970s.
William “Billy” Bulger was president of the Massachusetts Senate back then. “Billy” ran much of the state’s political world while his infamous brother James “Whitey” Bulger ran much of the state’s underworld.
One weekend, Billy packed his family and left South Boston for the Cape, New Seabury. Taking a leisurely walk along Nantucket Sound he was confronted by a landowner who told him he was trespassing, get the hell off private property.
No doubt Bulger responded along the lines of, “Do you know who I am?” or perhaps even, “Do you know who my brother is?” Didn’t matter. He and his children (he had nine) got the boot.
A state agency called Massachusetts Coastal Zone Management had just been created and its first executive director was Richard Delaney — let’s say “Richie” to stay consistent — who later achieved further fame and glory as head of the Center for Coastal Studies in Provincetown, still living in Orleans.
“First thing that Monday morning, I got a phone call,” Richie remembers. “The Senate President says, ‘Come to the State House, I want to talk to you.’”
That’s a scary call politically, personally as well given Whitey in the background. But Billy just wanted legal clarification. Richie explained that like it or not, the homeowner was within his rights.
Bulger, being Bulger, was not taking that lying down. He drafted a bill:
Henceforth and retroactively, property owners along the Massachusetts coast would control to mean high tide, not mean low tide. Therefore, the public would have every right to walk the intertidal zone. Chewing gum or playing catch would be just as good as carrying a rod or gun.
Bulger being Bulger, the bill passed.
But then the Massachusetts Supreme Judicial Court weighed in.
The Commonwealth could enact such a bill, the judges said, but this would be a “taking,” seizing private land for public use. Eminent domain is the process for that, which requires that the state pay full fair market value for whatever property (and property rights) it usurps.
With 1500 miles of zigzagging Massachusetts coastline, about 150 in public ownership, the math didn’t look good. Paying fair market value for 1300-plus miles, even if not buildable, was something taxpayers could not afford — by a longshot.
Bulger was stymied. Years later he would say that not securing public access to the intertidal zone was his most bitter political defeat.
Recently local legislators filed a bill to amend Colonial ordinances to allow “recreation” as well as “fishing, fowling and navigation.” But legal concerns about private property rights remain; the bill did not move.
And so many of us will continue trespassing as we wander the coast this summer. If you want to avoid that illegality, you need to keep a rod or gun handy and accept one piece of advice:
Make sure you have a fishing license, or permit to carry.
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Good one, Seth
The gun part is starting to appeal to me.