Massachusetts is blessed with 1,500 miles of coastline — a resource that, ideally, everyone would be able to use. But only about a quarter of that coastline is publicly owned. And as a dispute in Falmouth shows, even evidence of public ownership is no guarantee of public access. State environmental officials were wise to step in there, but a broader problem remains.
In the Sippewissett subdivision in Falmouth, owners of back-lots away from the shoreline have been literally walled off from the shoreline by beachfront property owners, despite a long history of deeded rights to the beach. Town officials were reluctant to get involved. But state officials determined that the wall in question was on public tidal land, requiring beachfront owners to provide access to both the back-lot owners and the general public.
Any positive step for public access is worthy of celebration. Yet it’s never clear how one of these cases will go — especially now that property lines are shifting due to beach erosion. In Hyannis, back-lot owners made a successful legal case for beachfront access. Yet in Eastham, they failed to convince a court.
The Bay State is hardly a leader in providing public shore access. In most coastal states, public ownership begins at the high water mark. But in Massachusetts, upland property owners lay claim to the “intertidal’’ zone between the high and low tide marks. Courts have upheld private ownership of beaches based on precedents dating back hundreds of years, when colonists were encouraged to build private wharfs on the tidelands.
Leaders of the Massachusetts Bay Colony did, however, leave today’s beach lovers with some wiggle room: Public access even to private beaches is allowed to anyone engaged in fishing, fowling, and navigation. A case can be made, at least, that possession of fishing equipment or binoculars for bird watching are the keys to some of the most beautiful beaches in Massachusetts. And droplines can be had for just a few dollars.
Within the limits of the law, state officials fight hard for public access to the waterfront. But the tide is usually moving against the public, and there are limits on the Legislature’s ability to pass laws that expand public access. In one relevant case in the early 1990s, Massachusetts lawmakers looked for a way to test the strength of the public’s right to stroll along the wet sand. But nothing came of it, because courts determined letting the public use property previously deemed private would constitute a land taking and require compensation to the landowner.
Still, the state’s approach in the Falmouth case should provide some guidance for how it should approach the issue statewide. When public ownership of shorelines is demonstrable, the state should make that known to beachfront property owners, town governments, and local police — who might be expected to field complaints about trespassers. The state should also make sure those same parties know that boaters and fishers have rightful access.
Once the rules are more broadly known, beachfront owners may be less likely to try to assert control. In the meantime, every beachfront property owner who shoos away the public is a reminder that it may be time to revisit the state’s beach access problem.