Now that the peninsula is filled to the brim once again, if you take a hike along the beautiful shore between high and low tides, beyond the confines of a public beach, be sure you have one of three things with you — or risk arrest for trespassing:
A fishing rod, a gun, or a boat.
Massachusetts is one of only four states that bestow property owners deeded rights not to high tide, but low tide. These rights were established well before the nation, Colonial ordinances in the 1640s encouraging Brits to build docks and wharves.
But from the get-go there were exceptions to intertidal No Trespassing: If you are “fishing, fowling (hunting for birds), or navigating,” you can meander as you please. You’re also welcome to swim — provided you don’t let your feet touch the bottom.
These property rights have led to many confrontations along Cape Cod beaches, the most famous in the late 1970s.
William “Billy” Bulger was president of the Massachusetts Senate back then. “Billy” pretty much ran the state’s political world while his infamous brother James “Whitey” Bulger pretty much ran the state’s underworld.
One weekend, Billy packed his family and left South Boston for the Cape, New Seabury. Strolling along Nantucket Sound, he was confronted by a landowner who told him he was trespassing, get the hell off private property.
No doubt Bulger responded along the lines of, “Do you know who I am?” or perhaps even, “Do you know who my brother is?” Didn’t matter. He and his children (he had nine) got the boot.
A state agency called Massachusetts Coastal Zone Management had just been created and its first executive director was Richard Delaney, let’s say “Richie” to stay consistent, who later achieved further fame and glory (far as the Cape is concerned) as head of the Center for Coastal Studies in Provincetown, still living in Orleans.
“First thing that Monday morning, I got a phone call,” Richie remembers. “The Senate President says, ‘Come to the State House, I want to talk to you.’”
That’s a scary phone call politically, in this case personally as well given Whitey in the background. But Billy just wanted legal clarification. Delaney explained that the homeowner was within his rights.
Bulger, being Bulger, was not taking that lying down. He drafted a bill:
Henceforth and retroactively, property owners along the Massachusetts coast would control to mean high tide, not low. Therefore, the public would have every right to walk the intertidal zone, chewing gum, playing catch, whatever.
Bulger being Bulger, the bill passed.
But then the Massachusetts Supreme Judicial Court weighed in.
The Commonwealth could enact such a bill, the judges said, but this would be a “taking,” the state would in essence be seizing private land for public use. Eminent domain is the process for that, which requires that the state pay full fair market value for whatever property (and property rights) it usurps.
With 1500 miles of zigzagging Massachusetts coastline, only 150 or so in public ownership, the math didn’t look good. Paying fair market value for 1300-plus miles was something taxpayers could not afford.
Bulger was stymied. Years later he would say that not securing public access to the intertidal zone was his most bitter political defeat.
Recently several Cape legislators filed a bill to amend Colonial ordinances and allow “recreation” as well as “fishing, fowling and navigation.” But private property issues remain. The bill did not move.
And so many of us will continue trespassing as we wander the coast this summer — or keep a rod or gun handy. If that’s your option, one piece of advice:
Make sure you have a fishing license, or permit to carry.
