Massachusetts on public beaches--Boston Globe
- Take back our beaches
By Steve Bailey, Globe Columnist | June 30, 2006
Think of this long Independence Day weekend as the weekend we begin
freeing our beaches.
In Massachusetts there are far too many beaches where I can walk
along the shore with a fishing rod in my hand, but not hand in hand
with my kids. I can swim in the ocean as long as my feet don't touch
the bottom. If it all sounds crazy -- if it all sounds frankly un-
American -- that is because it is.
Is there anything more obnoxious than a ``private, no trespassing"
sign on a stretch of sandy beach? People who come from civilized
places -- that is, almost anywhere else -- can't understand the
concept. The ocean is our Grand Canyon; it belongs to everyone. It's
wrong to fence it off.
But what the emperor gave, Massachusetts' Colonial authorities gave
away. A very long time ago -- in 530 A.D. -- Roman Emperor Justinian
put into writing all the empire's civil laws. Among them: ``By the
law of nature these things are common to all mankind: the air,
running water, the sea, and consequently the shores of the sea."
That public nature of the tidelands and the water became embedded
first in European law, and later American law.
Not, however, in Massachusetts. In the 1640s, our forefathers gave
away much of the public's right to the land between the mean high
tide line and the low tide line in an attempt to spur the development
of wharfs and maritime commerce. It was the greatest land give away
in the history of the Commonwealth, leaving three-quarters of the
state's precious 1,500 miles of coastline in private hands. You would
think that now, 350 years later, those development rights would have
You would be wrong.
The courts have consistently ruled in favor of private property
owners and against the public's interest. The original law reserved
the public's rights of ``fishing, fowling, and navigation," but the
courts have ruled that you don't have the right to walk on the wet
sand to get to the ocean to go swimming. Fowling yes, swimming no.
William Bulger, who like me grew up on the beach, tried to do
something about this elitist lunacy when he was Senate president.
Having been tossed off a private beach, Bulger passed a bill that
would allow the public to walk the wet sand. But nothing came of it
because the law also required -- to satisfy the courts -- that
private owners be compensated for the inconvenience of having walkers
on their land. That never happened.
Bulger thinks it is time to try again. ``What you need is a test
case, an actual case, so this thing is challenged," he says.
Times have changed since the 1640s, and the law needs to change, too.
If the state's Supreme Judicial Court were as progressive on the
beaches as it is on the state of marriage, it would recognize that
how we use public resources, like marriage itself, has changed
dramatically. Fowling is not what it used to be. And the cost to
sharing the shore is small. Is a homeowner's property worth less on
Long Island than on Cape Cod because people can walk the beach there
and not here?
The attorney general's office has produced a dandy little pamphlet
explaining the rights of property owners and the public when it comes
to the beaches. What I want is an attorney general who will get my
rights back. To win, we'll need creative thinking, looking for
whatever leverage we can find, whether it is eminent domain or
something else. And we'll need to be as persistent and organized as
those who think they can expel us from the beaches. We can't go away
after Labor Day.
I hope to see you on the beach this weekend. And eventually in court,
too. Take back our beaches.
Steve Bailey is a globe columnist. He can be reached at
bailey@... or at 617-929-2902.
© Copyright 2006 Globe Newspaper Company