State’s intertidal zones are awash in Puritan law and lack of clarity
As many Bostonians know well — and as this intern and West Coast transplant is quickly finding out — a typical beach day comes with its own logistical considerations and challenges. There are the typical issues for any beachgoer of where to go, how to get there, how to avoid crowds, and where to park. But peculiar to the Commonwealth are limited public rights-of-way for what Mayor Michelle Wu calls “an opportunity that must be available to all.”
Most states abide by the legal principle that beaches are public property from the mean high-tide mark to the open water, allowing people to walk through tidepools, swim, or play on the sand. Massachusetts is far different; its laws allow for private property through the intertidal zone — where the coastline is submerged for half the day — up to the mean low-tide line.
That means that, unlike anywhere else in the country, owners of oceanfront property in Massachusetts enjoy de jure private beach access.
Their effects are apparent. Of the 10 states with the most miles of coastline, Massachusetts rivals Maine for the lowest percentage of publicly owned and accessible coastal land. What seems a geographic coincidence is actually the product of contentious property rights disputes going back nearly 400 years, to the days of Puritan law.
In 1647, Massachusetts Bay Colony (which then still included New Hampshire) extended private property rights from the high-tide to the low-tide mark, letting landowners build private shipping wharves to increase trade and commerce.
Though it preserved intertidal access for fishing, fowling, and navigation, the 1647 ordinance marked a clear departure from existing property law in the Anglosphere as well as the colony’s own precedent. It repealed a 1641 ordinance that established a mean high-tide threshold for oceanfront property rights. New Hampshire left the Bay Colony shortly thereafter, and Maine exited the fledgling Commonwealth in 1820, but in all three legal codes the abnormal low-tide threshold remained.
New Hampshire was the first to restore the high-tide threshold for public land. In 1889, the state’s Supreme Judicial Court ruled, in Concord Co. v. Robertson, that “private ownership of so much of the tide-land [when]… bare twice a day, and public ownership where vessels can come to a wharf at low tide…” constituted an inadequate and useless “adjustment of rights…” established in the original 1641 ordinance.
Maine has affirmed the high-tide threshold in various legal challenges — a view reflected in the state’s low percentage of publicly owned coastline — but recently its own Supreme Judicial Court recognized good-faith arguments that the ordinance’s fowling, fishing, and navigation carve-out unfairly excludes beach recreators, noting in Eaton v. Town of Wells that “A citizen of the state may walk along a beach carrying a fishing rod or a gun but may not walk along that same beach empty-handed or carrying a surfboard.”
Unlike its New England neighbors, Massachusetts has resolutely opposed changes to both the 1647 ordinance and the existing fishing and fowling carve-out, the latter of which survives in state law as Chapter 91 of the Public Trust Doctrine.
As early as 1851, in Commonwealth v. Alger, the Massachusetts Supreme Judicial Court interpreted the 1647 ordinance as creating a jus in re, a real or proprietary title, to the intertidal soil itself, rather than a license or privilege for oceanfront property owners to build shipping wharves as the law originally intended.
The SJC clarified its view in a 1974 opinion criticizing proposed legislation that would have permitted “public on-foot free right-of-passage” in the intertidal zone. Not only did the court call the reform an “…[un]natural derivative…” of the explicit fishing and fowling carve-out, but it also warned that alterations to the 1647 ordinance would constitute an undue seizure of citizens’ private property and a violation of their state and federal constitutional rights. See Opinion of the Justices to the House of Representatives.
The SJC’s textual rigidity has been a key feature of beach access debates throughout the Commonwealth, with those in favor of expanding access quick to criticize its longstanding precedent favoring property owners over the general public. The situation is helped little by Massachusetts’ high percentage of second and vacation homes — concentrated largely in summertime magnets like Cape Cod, Martha’s Vineyard, and Nantucket — furthering the public perception that a small wealthy few are unfairly curtailing enjoyment of a public good.
With oceanfront property owners more resourced and emboldened than ever to litigate their claims, and with the question a seemingly settled matter at the SJC, it’s difficult to imagine a future wherein access to Massachusetts’ intertidal zone is changed wholesale.
Recent attempts to expand recreational use have floundered in the Legislature, and the state’s rising housing prices have fueled homeowners’ argument that a large tax responsibility protects their property from being “impeded with public use.”
When you also consider the ambiguous legal guidance and volatility that surround these debates — one local blog suggests that beachgoers carry a fishing rod to avoid the ire of suspecting property owners — it’s understandable why many are pessimistic that Massachusetts will ever fall in line with the rest of the nation and strengthen the rights of way for beachgoers.
Perhaps with more public pressure and awareness of the state’s peculiar legal stance compared to the rest of the country, we might better meet Mayor Wu’s charge and ensure that ocean recreation is indeed a resource available to all, while still protecting honored legal rights for property owners.
Thriving, elite beachside communities like Palm Beach, Southampton, and Malibu are proof that private oceanfront property and coastal access can coexist amicably with free recreation in the intertidal zone. Massachusetts might consider following suit.
Jude Iredell is a Roger Perry Civics Intern with the Pioneer Institute. He is a senior at Pomona College pursuing a bachelor’s in history. He can be reached via email, LinkedIn, or by letter to Pioneer’s office in Boston.