Fishing, fowling, and navigation

[Jim Snyder]

Where can I land? 

I've been reading a lot about the history of public rights to the intertidal zone. Excuse the long quote but these paragraphs summarize the basics for most states, and how Maine and Massachusetts are different:

"Tideland" is the legal term for all land beneath the waters of the ocean, including lands that are always submerged as well as those in the intertidal area (i.e., between the high and low tide marks). In every coastal state, the use of tidelands is governed by a concept in property law known as the Public Trust Doctrine, which dates back centuries to ancient Roman law. The doctrine states that all rights in tidelands and the water itself are held by the state "in trust" for the benefit of the public. In most states, this means that public ownership begins at the high water mark.

The Massachusetts Bay Colony originally followed this rule, until its legislators decided to transfer ownership of certain tidelands to coastal landowners, in order to encourage private wharf construction on these so-called "intertidal flats." This general land grant was accomplished by the Colonial Ordinances of 1641-47, which in effect moved the line between public and private property to the low water mark, but not farther seaward of the high water mark than "100 rods," or 1,650 feet. This intertidal area (now called "private tidelands") is presumed to belong to the upland property owner, unless legal documentation proves otherwise for a given parcel (as is true in certain segments of Provincetown, for example).

Although the Colonial Ordinance changed the ownership of most intertidal flats from public to private, it did not transfer all property rights originally held in trust by the state. For one thing, no rights to the water itself (as distinct from the underlying lands) were relinquished by the Ordinance. Moreover, the law specifically reserved for the public the right to continue to use private tidelands for three purposes-fishing, fowling, and navigation.

https://www.mass.gov/service-details/public-rights-along-the-shoreline

As kayakers, maintaining a positive public image and good relations with shoreline landowners is important. It should be balanced by our rights to this "public trust". In Maine and Massachusetts it boils down to the phrase "fishing, fowling, and navigation". This language has been tested in courts but not as far as I can find with respect to landing small boats. For example, you can fish there, but not just carry a fishing rod with no intention of fishing. Also, fishing and fowling are different because in many cases you would have to access the zone by passing over private land. 

It seems to me that in MA and ME you're within your rights to land if you're "navigating". This language dates to the 17th century. As applied to seakayaking, when are we not navigating? Are we only legal if we have a chart and compass in hand? It makes you wonder what kind of navigation they were contemplating might take place in the intertidal zone in the 1641.

 

 

[Inverseyourself]

While landing for navigation purposes I often fill the time between looking at my past and future course on my chart and calculating my times with putting food and drink in my mouth. It is always my hope that this is not misconstrued by landowners as lunch .

[EEL]

Perhaps someone with a more complete understanding of the case law will chime in, but my understanding is the term "navigation" as used in this context is quite different from the commonly held view of kayakers and other boaters.  The case law, at least the cases in the 19th century, make clear the right of navigation referred to is to protect against the upland land owner interfering with the public's right to travel over the tidal zone by vessel. It does not refer to  engaging in the task of navigating as in figuring out where you are and how to get from A to B which you might do standing on a beach.  It refers. essentially, to moving across the water in a vessel and does not include the right to land to navigate.

Ed Lawson

Edited December 7, 2020 by EEL

[Jim Snyder]

That probably made some sense in 1641 if landowners were trying to restrict travel. I found this here regarding how the courts have interpreted "navigation":

https://www.maine.gov/dacf/parks/docs/public-shoreline-access-in-maine.pdf

Navigation: The term “navigation” has always been construed to mean that the public may sail over the intertidal lands, may moor craft upon them, and may allow vessels to rest upon the intertidal land when the tide is out. These activities may be conducted for profit, such as ferry services in which the boat operator picks up and discharges passengers on intertidal land.

As an incidental use, if a person reaches the intertidal land by means of navigation, the person can walk on the intertidal lands for purposes related to navigation. This right to travel through the intertidal lands does not, however, include the right to remain on the intertidal lands for bathing, sunbathing, or recreational walking, or to cross privately owned dry sand or upland areas.

Additionally, a boat operator may moor a vessel to discharge and take on cargo in the intertidal zone, provided that the cargo does not spill over onto the uplands and provided that the flats are unoccupied. In keeping with the importance of the intertidal area for travel, it has also been held that the public may ride or skate over the intertidal area when it is covered with ice.

The Maine Supreme Judicial Court has determined that “navigation” does not include the right to use private tidelands for general recreational uses such as strolling along the beach, sunbathing, picnicking, bathing, or Frisbee-throwing. But “navigation” continues to draw a substantial amount of judicial scrutiny.

[EEL]

Jim:

You are right about the interpretation in Maine and that is a great explanation of the state of the law in Maine, but everything is still tied to the original concept of navigation and any walking about for purposes of navigating must be incidental to navigation through the area..  Property law is interesting in that even concepts that date to the feudal period in England may still apply in the US.  Of course many have also been deleted or substantially changed.  Basically, the law of 1641 is still "good law" and it is still  applicable.  Of course how courts apply a law is another interesting question.

 

[Jim Snyder]

Maybe one of us will turn into a test case. In the 80s, the Maine legislature

"enacted The Public Trust in Intertidal Land Act. The Act declared that “the intertidal lands of the State are impressed with a public trust,” and therefore the public has the “right to use intertidal land for recreation.”

This was subsequently overturned by the State Supreme Court. Realistically it was probably too broad.

Edited December 7, 2020 by Jim Snyder
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[Paul Sylvester]

Jim,

   Are you finding references to the Wells ME case in your readings? I believe the last fight was with beachfront landowners in Wells? 

[Jim Snyder]

The case was brought by owners along Moody Beach in Wells, about halfway between Wells Harbor and Ogunquit. The case went to the Supreme Judicial Court which affirmed the public's rights were limited to fishing, fowling, and navigation. 

In my opinion, clinging to this archaic language only creates confusion. We could start a North Shore Fowler's Network...

Edited December 7, 2020 by Jim Snyder
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[prudenceb]

1 hour ago, Jim Snyder said:

The case was brought by owners along Moody Beach in Wells, about halfway between Wells Harbor and Ogunquit. The case went to the Supreme Judicial Court which affirmed the public's rights were limited to fishing, fowling, and navigation. 

In my opinion, clinging to this archaic language only creates confusion. We could start a North Shore Fowler's Network...

Better yet, let's start a North Shore Fishing, Fowling and Navigation Network (NSFFNN).  Maybe we could squeeze some paddling in, too.