Sngl2th

How Much Can Towns Limit Access to Intertidal Zones?

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I posted this in the Cape Cod thread, but I think it's an issue that others might want to talk about, especially with all of the efforts to restrict access connected to COVID. 

 

I was recently fishing a beach in Chatham that has a no swim zone. I tried to wade out onto a bar an hour before slack low tide. There are a lot of boats around there (although they'd run aground if they went near where I was) but barring a boat accident you'd have to be an extremely weak swimmer to get drowned in that area with no waders on (or even with them). I walked I had a little teenage lifeguard blowing the whistle at me to come back off the bar. I didn't get into it with him much and went elsewhere, but I wonder what specific laws/authority allows town beaches to tell fishermen where they can and can't go on state tidelands where access is protected by Chapter 91 and the right to "fishing, fowling and navigation" in these areas. The lifeguard got truculent and told me that someone drowned there and it wasn't going to happen on his watch. Frankly, the fact that some guy who couldn't swim managed to drown himself there doesn't change our rights. I am skeptical that certain areas can be reserved exclusively for boating, or closed by a town. I also don't really see where a town gets the authority to limit public access to intertidal areas that are reserved for public use by state laws. Can anyone tell me about the relevant laws?

 

As an example, there is a sign on a bridge in the Merrimack River barring fishing beyond the bridge at the face of the dam. I met a local fisherman who told me that he challenged this, and that the police or the court (I can't remember which) had found that they had no authority to prevent people from fishing in this area. I tend to think that pretty much all efforts to limit use of waterways, especially saltwater, are abuses of law. I can understand barring parking, but barring access (as in the case of Crane Beach) rubs me the wrong way. The problem is that towns can just do what they want and expect that the barriers to anyone doing anything about it are too great.

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I think parking and access to water is their strength. Once you are there you can fish or fowl. 

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Restricting the parking seems to be their winning stradegy.  Out of 6 spots in my regular summer rotation I have access to 2 of them this year and I'm starting to get crowded out by riff raff in those places.

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There are a lot of online resources, including the state's website.

https://www.mass.gov/service-details/public-rights-along-the-shoreline

 

The best thing you can do when you run into authority figures who don't know the law or respect your rights is to carry copies of the law with you.  EPOs give this advice at MA hunter education seminars.  With law enforcement, you often have to let them do their job, even if that means a citation or arrest.  Then you win in court.  With dumbass, truculent lifeguards, you may want to write the town and department responsible for his paycheck/conduct.  

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Point is you walked on town property to get into the water..now if you came from say  around a corner and were already in the water you'd be safe....if you read the rules you have to be in the water..not standing on the edge of the water on the beach...all land to the edge of the water[low tide] belongs to private owners and they can stop you..but if your ankle deep in water they can't...the bay side is a tough place cause when the tide goes out its a long ways to water and home owners are always kicking people off.

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8 mins ago, capesams said:

Point is you walked on town property to get into the water..now if you came from say  around a corner and were already in the water you'd be safe....if you read the rules you have to be in the water..not standing on the edge of the water on the beach...all land to the edge of the water[low tide] belongs to private owners and they can stop you..but if your ankle deep in water they can't...the bay side is a tough place cause when the tide goes out its a long ways to water and home owners are always kicking people off.

All of the shoreline below Mean high tide line is publicly owned.

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41 mins ago, capesams said:

Point is you walked on town property to get into the water..now if you came from say  around a corner and were already in the water you'd be safe....if you read the rules you have to be in the water..not standing on the edge of the water on the beach...all land to the edge of the water[low tide] belongs to private owners and they can stop you..but if your ankle deep in water they can't...the bay side is a tough place cause when the tide goes out its a long ways to water and home owners are always kicking people off.

But they can't kick fisherman off, because we have a right to the intertidal zone. Also if you just carry a pair of binos and say you are birding you are good, according to the attorney general in Mass,

 

My strategy for dealing with this parking BS is to carry a bike in the truck and to park at some slightly remote location, although I hate to have to do it. Or I will kayak there. I kayaked to steep hill from plum island at one point to get around those jagoffs at Crane.

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Posted (edited) · Report post

problem with the high tide mark is the fact that there are or were deeds of old stating their deeds go to spain...anyways...been through this a hundred times living on the cape...don't plant your feet on dry land...stay in the water.

 

we now have a lot of stone walls here..those belong to private ownership..you want to fish in front of them you need to stay in the water till it gets to high an walk out in the water to a public beach...been caught a few times trying to walk out on the rocks to get out...talk about screaming matches...they quoted it's their insurance that'll get hit if you slip an get hurt and it's true.

Edited by capesams
info.

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It doesn’t matter where anybody thinks their deeds say they own, it’s an easement basically, a right to fish in the intertidal zone which admittedly and by DEED owned by the private upland owner, as long as you are in the wet sand no court in the commonwealth will convict u of trespassing, being in the water below low tide is great bc that is all public but that isn’t always possible 

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52 mins ago, MakoMike said:

All of the shoreline below Mean high tide line is publicly owned.

In mass private landowners own to the mean LOW tide line, below that is public 

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Posted (edited) · Report post

16 mins ago, Two Rock said:

In mass private landowners own to the mean LOW tide line, below that is public 

Are you sure? I know that in NY, RI and CT its the mean  High Tide line.

Edited by MakoMike

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From the State Web Site;

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.

 

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O.K. so maybe the land between the high and low tide lines are owned by some private waterfront owners, but the fact that the public has a right to fish, hunt, etc. between the high and low tide lines in effect means that effectively the pubic can enter the intertidal zone. Who owns the property is kind of a moot point.

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Posted (edited) · Report post

Being a former "Colony" of MA, ME also has that rule, a 17th century holdover from the "Patents" given to the nobles from the British Kings, with the property owner owning the intertidal zone, but they cannot prevent Fishing, Fowling and Navigation.  

 

That being said, to fish or fowl there, you can't pass through private land above MHW unless you have permission.  Of course, you could always "Navigate" there...

 

There's been a recent landmark case here regarding seaweed harvesting.  Harvesters claimed seaweeding was like "fishing," because shellfishing and worm digging is covered under that umbrella, but the courts said, no so property owners can prevent seaweed harvest in their intertidal zone...

Edited by Roccus7

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Posted (edited) · Report post

So back to my original point, I don't think that lifeguard had authority to tell me I couldn't fish on the bar in Chatham. 

 

Edit: I should note that I got there from another beach by swimming across a short channel.

Edited by Sngl2th

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