Private parties cannot enforce public rights to access tidelands - by Gordon Orloff

The state of Massachusetts has some unusual laws and regulations. One important example dating from colonial times is that an owner of waterfront property typically holds title to the low water mark. However, the area between the low and the high water marks normally remains subject to the rights of the public to fish, fowl (hunt birds) and navigate.

Massachusetts courts have been zealous in protecting these so-called “public trust” rights. The landowner cannot interfere with the exercise of these rights without special legislation or a license to do so issued by the Department of Environmental Protection (DEP) pursuant to Chapter 91 of the Massachusetts General Laws. In most instances, Chapter 91 licenses contain language requiring some type of public access to the tidelands or former tidelands. 

In its July decision in Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC, the Appeals Court addressed who has the ability to enforce public trust rights.

Boston Boat leased a marina on Commercial Wharf in Boston that is subject to a variety of restrictions on its use. These restrictions were set out in an access easement, a zoning variance and permit and a settlement agreement between the plaintiff condominium association and prior owners of the marina land that prohibits a series of uses, such as booze cruises, weddings and bar mitzvahs. Boston Boat argued that these restrictions were void because they were inconsistent with the Chapter 91 license that, in substance, required that Boston Boat permit 24 hour public access on its wharf to the extent permitted by the access easement.

The Appeals Court never reached the substantive issue. Instead, it torpedoed Boston Boat’s claim before it could get underway, holding that “Boston Boat had no authority in the first place to seek judicial enforcement of public trust rights in private litigation.”

The Appeals Court relied on case law that states emphatically that only the Legislature, or an entity to which the Legislature has delegated authority expressly, may act to further public trust rights. By Chapter 91, the Legislature had delegated this authority to the DEP. In contrast, the Legislature had not delegated authority to enforce public trust rights to either Boston Boat or the Land Court, where the case had been filed.

Because of the DEP’s “special role” in the area of public trust rights, it alone had the authority “to determine whether Boston Boat is currently using the locus in accordance with the license and, if not, how best to proceed in order to vindicate public rights.”

This case is proof that you don’t need to sail off the map to enter dangerous territory marked: “Here be dragons.” In Massachusetts, you can encounter legal dragons once you hit the high water mark.

Gordon Orloff is an attorney at the law firm Rackemann, Sawyer & Brewster, Boston, Mass.