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Fishing Incident - Take #2

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Lets try this again. Original post seems to be hung up.

 

 

 

I spoke to a gentleman on a south side beach who told me about a fishermanwho the day before wes escorted off the beach (possibly arrested) for asserting his right to fish below the high water mark.

Seems that  mega-mansion homeowner called the police after telling the fisherman he was trespasiing on private property. The fisherman explained he was within the law and a short time later cops were there

and he was escorted off.

 

WTF.....My understanding is as long as we don't access the beach by trespassing on private property and are actively fishing we are free to fish below the high water mark (or intertidal zone). Why don't the police know this?

 

Does anyone have any online links to the specific law/ordinance? I want to print it, carry it with me and show it to any mega-mansion HO or cop that tries to deny my right to fish. I'm pissed.

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Public Rights along the Shoreline
 

Published in 2005

Coastal managers are often asked, "Who owns the sea and shore?" If you have been curious, or perhaps a bit confused about what rights the public has along the shoreline, here's a brief primer on waterfront property law.

Ownership of Tidelands

"Tideland" is the legal term for all land beneath the waters of the ocean, including lands that are always submerged as well as those in the intertidal area (i.e., between the high and low tide marks). In every coastal state, the use of tidelands is governed by a concept in property law known as the Public Trust Doctrine, which dates back centuries to ancient Roman law. The doctrine states that all rights in tidelands and the water itself are held by the state "in trust" for the benefit of the public. In most states, this means that public ownership begins at the high water mark.

The Massachusetts Bay Colony originally followed this rule, until its legislators decided to transfer ownership of certain tidelands to coastal landowners, in order to encourage private wharf construction on these so-called "intertidal flats." This general land grant was accomplished by the Colonial Ordinances of 1641-47, which in effect 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 (as is true in certain segments of Provincetown, for example).

Although the Colonial Ordinance changed the ownership of most intertidal flats from public to private, it did not transfer all property rights originally held in trust by the state. For one thing, no rights to the water itself (as distinct from the underlying lands) were relinquished by the Ordinance. Moreover, the law specifically reserved for the public the right to continue to use private tidelands for three purposes-fishing, fowling, and navigation.

Scope of Public and Private Rights

Over the years, Massachusetts courts have ruled that the scope of activities on private tidelands covered by the reserved public rights of fishing, fowling, and navigation is broad, and includes all of their "natural derivatives." For example:

  • The right to fish includes the right to seek or take any fish, shellfish, or floating marine plants, from a vessel or on foot;
  • The right to navigate includes the right to conduct any activity involving the movement of a boat, vessel, float, or other watercraft, as well as the transport of people and materials and related loading and unloading activity; and
  • The right to fowl includes the right to hunt birds for sport as well as sustenance. (The Massachusetts Attorney General takes the position that the right of fowling also includes other ways that birds can be "used," such as birdwatching, but also notes that this issue has not yet been addressed by the courts.)

Clearly, these rights cover a variety of both old and new activities that many people enjoy, such as surfcasting and windsurfing. Still, the courts have imposed some limits. The right of fishing, for example, does not allow the use of structures for aquaculture or the taking of plant debris washed up on the beach. Also, courts have made it clear that the public right to use this area does not include the right to simply stroll, sunbathe, or otherwise engage in recreation unrelated to fishing, fowling, or navigation. Without permission from the landowner, such general recreation is trespassing. There is only one narrow exception to this rule-because there are no private property rights in the water itself, 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.

The distinction between public and private rights is much simpler on either side of the intertidal zone, i.e. on submerged lands to the seaward side and on the dry shore to the landward side. Except on filled tidelands (which is another story altogether), all rights to use the area above the high water mark generally belong to the upland property owner, and public access on private land can occur only with permission. On the other hand, below the low water (or 100 rod) mark, the public is almost always within its rights to walk, swim, or enjoy other recreational activity. With very few exceptions, these tidelands are still state property.

Respecting the Rights of Others

Respecting the rights of others-private property rights as well as public access and use rights-is an important part of visiting the coast. To prevent infringements on everyone's rights, it may be helpful to follow these guidelines. To help keep the peace, the visiting public should be careful not to trespass or otherwise infringe on the privacy of shorefront property owners, and should minimize their impact on the environment. Likewise, in posting signs and taking other steps to identify their private property, coastal landowners should not attempt to discourage the public from using the water's edge to the full extent allowable by law. In short, mutual respect is the key to meaningful coastal access for everyone.

Sources of Additional Information

This information was adapted from Massachusetts Coast Guide to Boston Harbor and the North Shore, which includes 22 full-color maps and nearly 400 public access sites, ranging from expansive parks with concession stands to small public landings and out-of-the-way spots. In addition, public rights also exist in filled tidelands, which are protected by a state law commonly known as "Chapter 91." Information about Chapter 91 (Waterways regulations) is available through the Department of Environmental Protection's (MassDEP) website.

 

Embrace American Privilege

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http://www.mass.gov/eea/agencies/czm/program-areas/public-access-and-coast-guide/public-rights/

 

 

 

Ownership of Tidelands

"Tideland" is the legal term for all land beneath the waters of the ocean, including lands that are always submerged as well as those in the intertidal area (i.e., between the high and low tide marks). In every coastal state, the use of tidelands is governed by a concept in property law known as the Public Trust Doctrine, which dates back centuries to ancient Roman law. The doctrine states that all rights in tidelands and the water itself are held by the state "in trust" for the benefit of the public. In most states, this means that public ownership begins at the high water mark.

The Massachusetts Bay Colony originally followed this rule, until its legislators decided to transfer ownership of certain tidelands to coastal landowners, in order to encourage private wharf construction on these so-called "intertidal flats." This general land grant was accomplished by the Colonial Ordinances of 1641-47, which in effect 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 (as is true in certain segments of Provincetown, for example).

Although the Colonial Ordinance changed the ownership of most intertidal flats from public to private, it did not transfer all property rights originally held in trust by the state. For one thing, no rights to the water itself (as distinct from the underlying lands) were relinquished by the Ordinance. Moreover, the law specifically reserved for the public the right to continue to use private tidelands for three purposes-fishing, fowling, and navigation.

 

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The right to fish includes the right to seek or take any fish

 

I think this is key!  If an angler is walking below high water en route to a "spot", the term SEEK allows presence.  In waders, carrying rods and tackle makes it pretty obvious that one is seeking fish, no?

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Ha...exact same posting time.

 

As long as persons are fishing or fowling, anything below high water is open....from what I can tell.

Nice, and we didn't break the internet this time.

Embrace American Privilege

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Ha!

I didn't realize there was an earlier thread on this.  Haven't been on in a while.

 

Anyway, if the angler in question (from the original thread) was escorted away and/or arrested, that's BS.  Of course this assumes said angler parked legally, entered the water legally, etc.  

 

I lived on the "south side" for most of my life.  The town way parking areas are becoming more and more crowded and many vehicles are WITHOUT town beach/parking stickers.  I know on good information that the Town of Barnstable is clamping down on offenders this year.  Maybe this is the reason the angler in question was escorted off the beach??

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The police are the police, I wouldn't expect anything other than what happened to happen. In wealthy areas, the police are given perks for "upholding the law".

 

I was once driving though the Hamptons some time around 3 a.m in the middle of the summer. My friend was moving out of NYC back to Boston and I was helping him move. We left late and decided to make it to Montauk to do some fishing. When we hit the Hamptons there were all sorts of drunk people wandering the streets after last call. A guy in a high-end Mercedes pulled out in front of us and started driving on the wrong side of the road. When we hit the stop sign, he blew though it. A cop pulled out in front of us and behind the drunk guy. He mowed over a mailbox and swerved all the way back over to the other side and hit the curb. He then started driving on the wrong side of the road again. I'm not talking over the line, I'm talking on the complete opposite side of the road. The cop did nothing. As we got to the next set of lights he pulled over to the side and let us pass and started to follow us. Within 15 minutes he pulled me over and asked me where we were going and where we were staying for the night.... 

 

The cops don't always know the laws or care about them. The cops are cops. It shouldn't surprise you that they would escort a fisherman off a beach like that. I always carry around a copy of that law. I also always get the name and badge number of any obnoxious cops that I encounter. 

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IMO, as mentioned above, carrying a copy of the regulations is the best way to deal with the issue.

 

The very first page of the printed Town of Wareham Rules and Regulations for the taking of Shellfish, Eels and Seaworms, is a full page explaining these rights of access of the intertidal zones for shellfishing.

" I did my worst, but I did it well "

 

 

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While not directly related to this case, since the "harassment" was perpetrated by the alleged landowner and the police officers, do not forget MGL Title XIX, Chapter 131 section 5C: (often called the "hunter harassment" law, though it pertains to the taking of fish too)

Section 5C. No person shall obstruct, interfere with or otherwise prevent the lawful taking of fish or wildlife by another at the locale where such activity is taking place. It shall be a violation of this section for a person to intentionally (1) drive or disturb wildlife or fish for the purpose of interrupting a lawful taking; (2) block, follow, impede or otherwise harass another who is engaged in the lawful taking of fish or wildlife; (3) use natural or artificial visual, aural, olfactory or physical stimulus to effect wildlife in order to hinder or prevent such taking; (4) erect barriers with the intent to deny ingress or egress to areas where the lawful taking of wildlife may occur; (5) interject himself into the line of fire; (6) effect the condition or placement of personal or public property intended for use in the taking of wildlife; or (7) enter or remain upon public lands, or upon private lands without the permission of the owner or his agent, with intent to violate this section. The superior court shall have jurisdiction to issue an injunction to enjoin any such conduct or conspiracy in violation of the provisions of this section. A person who sustains damage as a result of any act which is in violation of this section may bring a civil action for punitive damages. Environmental protection officers and other law enforcement officers with arrest powers shall be authorized to enforce the provisions of this section.

This section shall not apply to the owners of the lands or waters or tenants or other persons acting under the authority of such owners of the lands or waters.

DITCH TROLL
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Most of the problems I encounter in this area have more to do with parking than anything. A few years ago I parked partway off the street next to a public ROW and walked down to the fishing spot. When I came back, some property owner across the street claimed I ran over "his" bushes. First of all the alleged bushes, which I couldn't even find, were not even on his property. And second, on-street parking is legal there. When I pointed this out, he became incensed and said he was calling the cops to have my vehicle towed unless I left immediately. Clearly he had a problem with anyone parking anywhere near his place, legal or not. So there was certainly harassment and threats although it was over parking access to a public right of way, not specifically fishing.

 

I was leaving anyway so I didn't press the issue. But unfortunately this is how some property owners try to clear you off, hoping that threats of towing or calling the cops will scare off most people even though they don't have a legal leg to stand on.

 

-bd

Pfantum Pfishah

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Most police in this situation just do not want to be bothered.  In the long run the wealthy person in the water front home is going to be a way bigger PIA than the guy fishing.  Cops realize this and often appeal to the fisherman to keep the peace.  It does suck, but it's the way it goes.   

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