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How Much Can Towns Limit Access to Intertidal Zones?

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Sngl2th

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I don’t think he did, but the interesting point is that the colonial ordinance we are talking about codifies the right of the public to fish on private lands, it says nothing about public land (which I assume your spot in Chatham was) yet you could argue it is inferred

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On 8/3/2020 at 10:29 PM, Sngl2th said:

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.

you're most likely correct, but there's almost zero chance a lifeguard is aware of the intertidal zone laws... 

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14 hours ago, amh said:

Where exactly does a town derive the power to impose a “no swim zone”? Littoral rights in MA allow swimming in intertidal zones, as the water is public. Could fishing not also be restricted through the same mechanism?

Yeah I was thinking that towns/state may have authority to close the water under some form of police authority, such as shark closures. 

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On 8/3/2020 at 10:29 PM, Sngl2th said:

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.

I usually ignore them for that exact reason. The whole idea of the town, state, etc attempting to limit where I can fish/swim "for my own safety" annoys me to no end. They should put up whatever "at your own risk" signage they need to cover their behinds and then leave us alone to make our own choices. 

 

That's just another reason I prefer to fish "commando style" at night. Quiet, no lights, leave no trace and no one bothers me.

 

Edited by Sandbar1

Chasing false echoes

Send lawyers, guns, and money - Zevon

When the going gets weird, the weird turn pro - Thompson 

 

DITCH TROLL 333

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On 8/5/2020 at 0:30 AM, amh said:

Where exactly does a town derive the power to impose a “no swim zone”? Littoral rights in MA allow swimming in intertidal zones, as the water is public. Could fishing not also be restricted through the same mechanism?

"public safety" is my guess.

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On 8/5/2020 at 0:30 AM, amh said:

Where exactly does a town derive the power to impose a “no swim zone”? Littoral rights in MA allow swimming in intertidal zones, as the water is public. Could fishing not also be restricted through the same mechanism?

Fishing rights, as well as fowling and navigating, in the intertidal zone are held in a public trust, which individual towns have no right to disallow. Swimming is not protected by the same trust, although I see your point about the water. I believe as long as you don’t touch the bottom, you could legally swim in a no swimming zone.

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25 mins ago, JTR said:

Fishing rights, as well as fowling and navigating, in the intertidal zone are held in a public trust, which individual towns have no right to disallow. Swimming is not protected by the same trust, although I see your point about the water. I believe as long as you don’t touch the bottom, you could legally swim in a no swimming zone.

So does the colonial ordinance give you the right to navigate your boat through a swimming zone which is located in the intertidal zone? Obviously not, every rule has it’s exceptions...

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On 8/3/2020 at 6:55 PM, Roccus7 said:

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...

I would think seaweed would be covered under "floating marine plants" which is covered under the ordinance as one of the reserved public rights on private tidelands. You can't take plant debris that has washed up on the beach. Is that what the harvesters were doing?

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I don't know the legal stuff but seems like public safety rules can supersede other laws.

Public beaches have all kinds of safety rules which are enforceable by lifeguards. You typically wouldn't expect to be allowed to wade into the swimming area from a public access point and start surf casting in a crowd of swimmers. I get that most of us wouldn't do that anyway, but if we did, we'd get chased away and the cops would likely support the lifeguard. 

 

I believe that's how the paddle boarder got arrested in California at the beginning of the covid lockdown. He apparently was out to challenge the validity of the lockdown but they busted him for defying the lifeguard or beach monitor or whatever. At the time it was being presented as "arrested for surfing during the lockdown" but in reality it was for violating beach rules and refusing to obey the lifeguard. 

 

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On 8/3/2020 at 5:31 PM, MakoMike said:

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

In MA in most cases ownership extends to the low water mark.  However, as is stated a number of times, if you can access the shoreline legally you may continue to traverse the shoreline if fishing, fowling, navigating. 

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1 hour ago, mostly fly said:

In MA in most cases ownership extends to the low water mark.  However, as is stated a number of times, if you can access the shoreline legally you may continue to traverse the shoreline if fishing, fowling, navigating. 

Yes the intertidal zone can be privately owned, but everyone and anyone is free to use it for fishing.

====Mako Mike====
Makomania Sportfishing
Pt. Judith, RI
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1 hour ago, mostly fly said:

In MA in most cases ownership extends to the low water mark.  However, as is stated a number of times, if you can access the shoreline legally you may continue to traverse the shoreline if fishing, fowling, navigating. 

This is a subtle but important point the colonial ordinance and case law establishes your right not only to fish but to SEEK fish meaning to travel along the wet sand to find fish, including traversing barriers such and jetties and man made walls and other impediments above the high tide line to accomplish this, AS YOU WOULD IMAGINE A REASONABLE INTERPRETATION OF THIS LAW WOULD, don’t be intimidated, I’ve had rent a cops insist that I couldn’t be there if I wasn’t fishing just walking to a spot etc etc, best to just ignore them completely 

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I've said this here before, as the issue seems to be an annual topic.  In Massachusetts it is by law ILLEGAL to harass a hunter of fisherman who's engaged in lawful pursuit of wildlife or fish.  It is punishable by a $500 fine and/or 14 days in jail.  I would never ever back down from a property owner, lifeguard, etc., under any circumstance.  As far as I'm concerned, the colonial law granting the right to fish and fowl in the tidal zone, in Massachusetts and Maine, is sacred.

 

When we were kids in Wareham we used to paddle over to the private quahog beds, lean over the skiff at dead low, and sift through the muck for pails full of the clams.  The owner would go berserk and chase us away, sometimes with a shotgun, as the quahogs were his livelihood, but by law....................

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