* Articles Editor, Boston College Environmental Affairs Law Review, 2003–04. This note was possible only through the invaluable assistance of Professor Zygmunt Plater, Professor of Law at Boston College Law School, who inspired this topic; Kelly Regan and Drew Skroback, who conducted some preliminary research regarding the subject; and Matthew Fee and Finn Murphy, members of the Nantucket Board of Selectmen.
1 Herman Melville, Moby-Dick, or, The Whale 2 (Luther S. Mansfield & Howard P. Vincent eds., Hendricks House 1952) (1851).
2 William Bulger served as the outspoken President of the Massachusetts Senate from 1978 to 1996, and more recently held the post of President of the University of Massachusetts. See Morning Edition: Analysis: President of the University of Massachusetts Resigns (NPR radio broadcast, Aug. 7, 2003), 2003 WL 4859202. Always a lightning rod for controversy, Mr. Bulger was recently entangled in a federal probe concerning his ties to the illegal activities of his brother, James “Whitey” Bulger, head of the notorious Winter Hill Gang, an organized crime syndicate formerly based in South Boston. See J.M. Lawrence, Bulger Hearing Will Be Public, Fed Panel Won’t Meet Behind Closed Doors, Boston Herald, May 17, 2003, at 5. As a result of mounting public pressure, Mr. Bulger announced his resignation from the presidency of the University of Massachusetts on August 6, 2003. See Patrick Healy, Bulger Set to Resign Today: Said to Believe Staying Would Divide UMass, Boston Globe, Aug. 6, 2003, at A1.
3 See Sarah Schweitzer, Nantucket’s Open Question: Town Seeking to Secure Public Access to the Beaches, Boston Globe, Mar. 2, 2003, at B1.
4 See id.
5 Id.
6 Id.
7 See Mass. Bay Colony, Gen. Lawes & Libertyes, Liberties Common (1641) (amended 1647), reprinted in The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusetts 35 (Thomas G. Barnes ed., The Huntington Library 1975) (1648) [hereinafter Colonial Ordinance].
8 J. Inst. 2.1.1; Jesse Dukemenier & James E. Krier, Property 818 (4th ed. 1998); see Colonial Ordinance, supra note 7, at 35.
9 See, e.g., Mathews v. Bay Head Improvement Ass’n, 471 A.2d 355, 358 (N.J. 1984). In this case the public’s trust right to use the flats was a foregone conclusion. See id. The controversy arose when a private beach club refused public access across the sand above the high tide line in order to reach the trust resource. See id.
10See Julia M. Underwood, Comment, Intertidal Zone Aquaculture and Public Trust Doctrine, 2 Ocean & Coastal L.J. 383, 383 (1997).
11 See Jose Fernandez, Untwisting the Common Law: Public Trust and the Massachusetts Colonial Ordinance, 62 Alb. L. Rev. 623, 631–32 (1998).
12 See id. at 632.
13 See, e.g., Opinion of the Justices, 313 N.E.2d 561, 565 (Mass. 1974) (examining the common law concerning the Ordinance and stating that “it has long been interpreted as effecting a grant of the tidal land to all coastal owners in the Commonwealth.”).
14 Storer v. Freeman, 6 Mass. (5 Tyng) 435, 438 (1810) (describing the economic needs that gave rise to the Ordinance and its modification of the common law); William L. Lahey, Tidelands, Waterways and Great Pond Law, in 1 Mass. Continuing Legal Educ., Massachusetts Environmental Law 11-1, 11-2-1 (2002).
15 See, e.g., Opinion of the Justices, 313 N.E.2d at 565–66.
16 See Mass. Gen. Laws ch. 91, �� 14, 18 (2002).
17 Mitchell W. Feeney, Regulating Seaweed Harvesting in Maine: The Public and Private Interests in an Emerging Marine Resource Industry, 7 Ocean & Coastal L.J. 329, 338 (2002). Originally incorporated under the jurisdiction of the Massachusetts Bay Colony, Maine adopted the provisions of the Colonial Ordinance of 1641–47 (the Ordinance) as its common law concerning the application of the public trust doctrine (the Doctrine). Id. After achieving statehood, the courts continued to apply Massachusetts’s version of the Doctrine, and Maine is the only other state besides Massachusetts to do so today. Id.
18See, e.g., Opinion of the Justices, 313 N.E.2d at 568.
19 See id. at 568; Schweitzer, supra note 3, at B1.
20 See J. Inst. 2.1.1.
21 See infra notes 70–71 and accompanying text; see also Serena Williams, Sustaining Urban Green Spaces: Can Public Parks Be Protected Under the Public Trust Doctrine?, 10 S.C. Envtl. L.J. 23, 24 (2002).
22 See Victor Gautam, From the Field: Cape Cod and the Islands: Working Toward a Sustainable Year-round Economy, Mass. Benchmarks, Summer 1999, at 19, 19–23, http://www. massbenchmarks.org/issues/99summer/pdf/99sum_v2i3.pdf (last visited Oct. 26, 2003).
23 Interview with Mathew Fee, Nantucket Board of Selectmen, on Nantucket, Mass. (Apr. 3, 2002). Mr. Fee indicated that disputes between private beach owners and would-be sunbathers arise on Nantucket at least once every ten years. Id.
24 Nantucket, Mass., Ordinance One Beach, Once and For All (Proposed 2003). Local authorities see the One Beach initiative as a solution to beach access disputes. The proposal would allow owners to retain title to their land and therefore avoid costly eminent domain actions on these properties, a course of action local officials are reluctant to pursue. Id. In addition, the town asserts that this beach access scheme will, in effect, merely solidify the present state of affairs on Nantucket, since private beach owners on the island have generally proven themselves amenable to permitting public access to their beaches. Id. Town officials estimate that it will take approximately two to three years to secure all of the easements and settle all of the takings claims, and are reserving their judgment as to the cost of the project, which they say will depend on various legal costs and the number of challenges mounted by landowners. Id.
25 See Schweitzer, supra note 3, at B1.
26 See Colonial Ordinance, supra note 7, at 35.
27 See Charter of W. & M., 1691, U.K.-Mass. Bay Colony.
28 Barbara A. Vestal, Dueling with Boat Oars, Dragging Through Mooring Lines: Time for More Formal Resolution of Use Conflicts in States Coastal Waters? 4 Ocean & Coastal L.J. 1, 25 n.84 (1999).
29 See Gautam, supra note 22, at 19–23.
30 See Shively v. Bowlby, 152 U.S. 1, 18–19 (1894); see, e.g., Opinion of the Justices, 313 N.E.2d 561, 566 (1974).
31 Great ponds in Massachusetts are defined as “ponds containing in their natural state more than ten acres of land.” Mass. Gen. Laws. ch. 91, � 35 (2002).
32 J. Inst. 2.1.1.
33 Frank Langella, Note, Public Access to New York and New Jersey Beaches: Has Either State Adequately Fulfilled Its Responsibilities as Trustees Under the Public Trust Doctrine?, 44 N.Y.L. Sch. L. Rev. 179, 182 (2000).
34 See Fernandez, supra note 11, at 626–27.
35 See J. Inst. 2.1.1; see also Lahey, supra note 14, at 11-2.
36 Lahey, supra note 14, at 11-2.
37 See id.
38 Id.
39 Id.
40 Id.
41 Lahey, supra note 14, at 11-2; see Martin v. Waddell’s Lessee, 41 U.S. 367, 410 (1842) (citing English common law precedent and reasoning that, since the Magna Carta, the king could not alienate trust lands to individual subjects).
42 See Langella, supra note 33, at 182.
43 Id. at 183.
44 Id.
45 See id. at 182–83.
46 See Storer v. Freeman, 6 Mass. (5 Tyng) 435, 438 (1810); see also Lahey, supra note 14, at 11-2, 11-2-1.
47 See id.
48 Fernandez, supra note 11, at 631–32.
49 Lahey, supra note 14, at 11-2-1; see Storer, 6 Mass. (5 Tyng) at 438.
50 Fernandez, supra note 11, at 631–32.
51 See Colonial Ordinance, supra note 7, at 35; Fernandez, supra note 11, at 631–32.
52 See Colonial Ordinance, supra note 7, at 35; Fernandez, supra note 11, at 631–32.
53 See Fernandez, supra note 11, at 632 (citing Storer, 6 Mass. (5 Tyng) at 438).
54 See Mass. Gen. Laws ch. 91, �� 1–2, 14, 18 (2002); Fafard v. Barnstable Conservation Comm’n, 733 N.E.2d 66, 71 n.11 (Mass. 2000) (citing Denise J. Dion Goodwin, Massachusetts’ Chapter 91: An Effective Model For Statestewardship of Coastal Lands, 5 Ocean & Coastal L.J. 45, 45 (2000)).
55 Donald D. Cooper, In Recreation We Trust: The Public Trust Doctrine After Fafard, Boston B.J., Sept.–Oct. 2001, at 8, 24.
56 Fafard, 733 N.E.2d at 71 n.11. Chapter 91 of the Massachusetts General Laws seeks “to strike a balance between the general rights of the public in fishing, fowling and navigation and the reasonable expectations of the landowners.” Cooper, supra note 55, at 24. The statute requires that the commonwealth “act to preserve and protect the rights in tidelands of the inhabitants of the commonwealth by ensuring that the tidelands are utilized only for water-dependent uses or otherwise serve a proper public purpose.” Mass. Gen. Laws ch. 91, � 2.
57 See generally Opinion of the Justices, 313 N.E.2d. 561 (Mass. 1974) (relying on centuries old judicial precedent when determining what rights are protected under the Ordinance and Massachusetts’s common law regarding the Doctrine).
58 See Langella, supra note 33, at 183.
59 Id.
60 See id.
61 See id. at 183–84. The federal government’s authority under the Doctrine was first articulated by the Supreme Court in Gibbons v. Ogden, 22 U.S. 1 (1824), in which the Court emphasized the importance of maintaining exclusive federal control over regulating the nation’s waterways to facilitate commerce; this federal power became known as the federal navigation servitude. Langella, supra note 33, at 183; Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa L. Rev. 631, 637 (1986). Approximately twenty years later, in Martin v. Waddell’s Lessee, the Court ruled that the thirteen original colonies held title to the navigable waters and shores subject to these limited federal servitudes. 41 U.S. 367, 417 (1842); John A. Duff & Kristen M. Fletcher, Augmenting the Public Trust: The Secretary of State’s Efforts to Create a Public Trust Ecosystem Regime in Mississippi, 67 Miss. L.J. 645, 648–49 (1998). Shortly after this decision, the Court held that new states entering the Union would do so on an “‘equal footing’” and would therefore take title to the tidelands and navigable waters within their borders. Duff & Fletcher, supra at 649 (citing Pollard’s Lessee v. Hagan, 44 U.S. 212, 222 (1845)). In 1894 the Court affirmed the states’ titles to trust land, indicating that they “‘have the same rights as the original states in the tide waters, and in the lands below the high-water mark, within their respective jurisdictions.’” Id. (quoting Shively v. Bowlby, 152 U.S. 1, 26 (1894)).
62 See Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453–56 (1892); Kristen Hoffman, Note, Waterfront Redevelopment as an Urban Revitalization Tool: Boston’s Waterfront Redevelopment Plan, 23 Harv. Envtl. L. Rev. 471, 485–86 (1999).
63 Ill. Cent. R.R., 146 U.S. at 453.
64 Id. at 455; Hoffman, supra note 62, at 486.
65 See Ill. Cent. R.R., 146 U.S. at 460–64; Hoffman, supra note 62, at 485–86.
66 See Ill. Cent. R.R., 146 U.S. at 453–55.
67 Id. at 454.
68 See Appleby v. City of New York, 271 U.S. 364, 393–99 (1926); Hoffman, supra note 62, at 486. The controversy in this case arose over state legislative grants of trust lands to New York City which were subsequently alienated to a private party. Appleby, 271 U.S. at 367–68. This suit was brought by the owner of the land to restrain the city from using the water over this land for slips and mooring places for vessels. Id. at 372–73. The Court held that the city had consciously recognized and parted with both the jus publicum and the jus privatum titles in this land. Id. at 399; Hoffman, supra note 62, at 486. The Justices reasoned that the extensive grant to New York City and its subsequent alienation to a private party was valid since it was executed for the promotion of the commercial prosperity of the city, and consequently of the people of the state. Appleby, 271 U.S. at 393–99.
69 See Appleby, 271 U.S. at 399; Hoffman, supra note 62, at 486.
70 Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (indicating that protected trust uses include “the right to fish, hunt, bathe, swim, . . . boat[] and [engage in] general recreation”); Kootenai Envtl. Alliance, Inc. v. Panhandle Yacht Club, Inc. 671 P.2d 1085, 1088 (Idaho 1983) (indicating that the Doctrine is a “dynamic . . . concept . . . destined to expand with the development and recognition of new public uses”); Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972) (stating that the scope of the Doctrine is expanding to include bathing, swimming and other shore activities in order “to meet changing conditions and needs of the public it was created to benefit”); Vestal, supra note 28, at 25 n.84 (1999); Williams, supra note 21, at 24.
71 See 484 U.S. 469, 482 (1998).
72 See Storer v. Freeman, 6 Mass. (5 Tyng) 435, 438 (1810).
73 See, e.g, Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 65 (1851); Sharon M.P. Nichols, Note, Public Right of Passage Along the Massachusetts Coast: An Argument for Implementation Without Compensation, 4 B.U. Pub. Int. L.J. 113, 118–19 (1994).
74 See, e.g., Opinion of the Justices, 313 N.E.2d 561, 568 (Mass. 1974).
75 See, e.g., id; Nichols, supra note 73, at 115.
76 See, e.g., Lynnfield v. Peabody, 106 N.E. 977, 984–85 (Mass. 1914); John A. Pike, Wetlands and Waterways, in 2 Mass. Continuing Legal Educ., Real Estate Title Practice In Massachusetts 15-1, 15-6-1 (2003) (citing M. Frankel, Law Of Seashore, Waters, And Water Courses: Maine And Massachusetts 110–11 (1969)).
77 6 Mass. (5 Tyng) at 438.
78 See id.
79 Id.
80 61 Mass. (7 Cush.) 53, 77 (1851).
81 62 Mass. (8 Cush.) 347, 354 (1851).
82 See 152 U.S. 1, 15–19 (1894).
83 See id. at 19.
84 Id. at 18–19.
85 See Commonwealth v. Charlestown, 18 Mass. (1 Pick.) 180, 188–89 (1822); Nichols, supra note 73, at 118. Furthermore, in 1871, the court held that the public’s usage rights in the flats included “‘fishing and fowling and other uses . . . common to all.’” Nichols, supra note 73, at 118 (citing Paine v. Woods, 108 Mass. 160, 169 (1871)).
86 See Alger, 61 Mass. (7 Cush.) at 65; Nichols, supra note 73, at 118.
87 See Alger, 61 Mass. (7 Cush.) at 65.
88 See 80 N.E. 688, 689 (Mass. 1907); Fernandez, supra note 11, at 633; Nichols, supra note 73, at 118–19.
89 Butler, 80 N.E. at 689 (emphasis added).
90 See id. at 688; Fernandez, supra note 11, at 633.
91 Opinion of the Justices, 313 N.E.2d 561, 563–65 (Mass. 1974).
92 Id. at 566–67.
93 Id. at 567.
94 Id. at 566, 568.
95 See id.
96 See, e.g., Pazolt v. Dir. of the Div. of Me. Fisheries, 631 N.E.2d 547, 548 (Mass. 1994) (holding that shellfish cultivation is not a “natural derivative” of fishing, and therefore was not protected by the Ordinance, allowing the private owner to prohibit this activity on the flats); Wellfleet v. Glaze, 525 N.E.2d 1298, 1301 (Mass. 1988) (noting that “there is no general right in the public to pass over the land or to use it for bathing purposes”); Fernandez, supra note 11, at 652–53.
97 See 89 Mass. (7 Allen) 158, 165 (1863). In this case, however, the court held that the Ordinance did in fact control, even though the land grant in question was executed in 1636. Id. at 168–69. As the grant was made to Roxbury, the court held that the legislature could require towns to devote these lands to public purposes. Id. at 170.
98 28 N.E. 257, 257–58 (Mass. 1891).
99 See id.
100 Id. at 258.
101 Id.
102 See 106 N.E. 977, 984–85 (Mass. 1914). This case involved a dispute between the town of Peabody and the residents of Lynnfield over the ownership of Humphry Pond. Id. at 979. Lynnfield residents, as successors in interest to the owner who had gained title from the original private owner prior to the passage of the Ordinance, brought suit against Peabody for damages and lost value due to its extraction of water. Id. Peabody’s defense asserted that the grant was invalid because it contradicted the provisions of the Ordinance. Id. The court held that plaintiffs could recover damages as private owners of the property. Id.
103 See id. at 984–85.
104 See Inhabitants of W. Roxbury v. Stoddard, 89 Mass. (7 Allen) 158, 171 (1863); Pike, supra note 76, at 15-6-1 (citing M. Frankel, Law Of Seashore, Waters, And Water Courses: Maine And Massachusetts 110–11 (1969)).
105 See Charles Edward Banks, 1 The History Of Martha’s Vineyard, Dukes County, Massachusetts 58 (Edgartown, Dukes County Historical Soc’y 1966) (1911) (quoting a Norse saga purportedly describing present-day Martha’s Vineyard).
106 Id. at 58–59. The island “round which there were strong currents” was christened with the name Straumey, or the stream island, due to “that peculiar co-tidal phenomenon which impressed all the early voyagers sailing into these waters.” Id. This depiction has led some historical scholars to assert that these early Norsemen were in fact describing what would later become known as the island of Martha’s Vineyard. See id. at 58.
107 Id. at 58–59; Lydia S. Hinchman, Early Settlers of Nantucket, Their Associates and Descendants 1 (Charles E. Tuttle Co. 1980) (1896).
108 Alexander Starbuck, The History of Nantucket County, Island, and Town, Including Genealogies of First Settlers 13 (Charles E. Tuttle Co. 1983) (1924).
109 See Banks, supra note 105, at 71.
110 Id.
111 Starbuck, supra note 108, at 13.
112 Banks, supra note 105, at 71–72.
113 Id.
114 Id. at 80–83; C.G. Hine, The Story of Martha’s Vineyard 6 (1908).
115 See The Forme of the Comission to Be Granted to the Comissionrs for the United Colonies (1644), reprinted in 2 Records of the Governor & Company of the Massachusetts Bay in New England 69 (Nathaniel B. Shurtleff ed., 1853).
116 Banks, supra note 105, at 132.
117 Id. at 132.
118 Hine, supra note 114, at 7.
119 Banks, supra note 105, at 132 (emphasis added).
120 Id. at 139.
121 Franklin B. Hough, Papers Relating to the Island of Nantucket 129–31 (1856).
122 Id. at 133–35.
123 Banks, supra note 105, at 154–55.
124 See id. at 159 (quoting a Letter from The Court of Assistants, Mass., to Mr. Thomas Bercher, Mr. Isaac Robenson, and the Rest of the Subscribers of a Petition Sent From Martens Vineyard (Oct. 31, 1673)) (emphasis added).
125 Id. at 162–63.
126 Id. at 258–59.
127 See Charter of W. & M. 1691, U.K.-Mass. Bay Colony; Starbuck, supra note 108, at 77.
128 Starbuck, supra note 108, at 83.
129 An Act for Confirmation of Titles Within the Islands of Capawock, Alias Martha’s Vineyard and Nantucket, ch. 4 (1693) (codified at 1869 Mass. Acts 117–18) (emphasis added).
130 J. Hector St. John de Crev�coeur, Letters from an American Farmer 92 (Oxford Univ. Press 1997) (1782) (describing the Island of Nantucket in the eighteenth century).
131 Banks, supra note 105, at 80–83; Hine, supra note 114, at 6.
132 Banks, supra note 105, at 80, 84 (emphasis added).
133 Id. at 87.
134 Id. at 258.
135 See Interview, supra note 23.
136 NantucketCapeCod.com, Nantucket History Page, at http://www.nantucketcapecod.com/history.html [hereinafter Nantucket History] (last visited Oct. 15, 2003).
137 See Starbuck, supra note 108, at 354; Nantucket History, supra note 136.
138 Nantucket History, supra note 136.
139 Id.
140 Banks, supra note 105, at 432.
141 See Vineyard Gazette Online, A History of Martha’s Vineyard at http://www. mvgazette.com/travel/vineyard_history/ (last visited Oct. 15, 2003).
142 Nantucket History, supra note 136.
143 Id. The Vineyard was, however, a bit slower to take advantage of the tourist industry than Nantucket. It was not until the servicemen stationed on the island’s airbase—which later became the county airport—returned home to their families after World War II that word of the island’s unique charm began to spread. See Vineyard Gazette Online, supra note 141.
144 See Gautam, supra note 22, at 19.
145 Id. at 22. The number of annual visitors to Nantucket increased an estimated 29% from 1992 to 1997, and approximately 400,000 people visit the island each year. Id. Similarly, the annual number of visitors to Martha’s Vineyard has increased an estimated 21.5% to 2.1 million over the same period. Id. As a result, tourism accounts for 23.1% of employment in this region. See id.
146 See id. In 1997, the highest concentration of jobs in the region was in the private sector. Id. at 23. This represents 32% of all employment, of which most is in retail. Id. Eating and drinking establishments are the largest employers in the area, providing 11,689 jobs and accounting for 13.2% of employment and 41% of retail trade. Id.
147 See id. at 22.
148 See J. Inst. 2.1.1; Lahey, supra note 14, at 11-2.
149 See Colonial Ordinance, supra note 7, at 35.
150 See Storer v. Freeman, 6 Mass. (5 Tyng) 435, 438 (1810); Fernandez, supra note 11, at 631–32.
151 See Opinion of the Justices, 313 N.E.2d 561, 567–68 (Mass. 1974).
152 See Mass. Gen. Laws ch. 91, �� 1–2 (2002).
153 See Appleby v. City of New York, 271 U.S. 364, 399 (1926).
154 See, e.g., Lynnfield v. Peabody, 106 N.E. 977, 984–85 (Mass. 1914).
155 See Appleby, 271 U.S. at 393–99; Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453–56 (1892).
156 See J. Inst. 2.1.1.
157 See, e.g., Opinion of the Justices, 313 N.E.2d 561, 566 (Mass. 1974).
158 See Colonial Ordinance, supra note 7, at 35.
159 See, e.g., Lynnfield, 106 N.E. at 984–85.
160 See Appleby, 271 U.S. at 393–99; Ill. Cent. R.R., 146 U.S. at 453–56.
161 See infra note 223.
162 See Banks, supra note 105, at 132.
163 See Banks, supra note 105, at 71–72, 80–83; Hine, supra note 114, at 6; Starbuck, supra note 108, at 13.
164 See Banks, supra note 105, at 139.
165 See Banks, supra note 105, at 132; Hine, supra note 114, at 7.
166 Hough, supra note 121, at 133–35.
167 Banks, supra note 105, at 258.
168 Starbuck, supra note 108, at 77.
169 Banks, supra note 105, at 80.
170 Id. at 87.
171 See An Act for Confirmation of Titles Within the Islands of Capawock, Alias Martha’s Vineyard and Nantucket, ch. 4 (1693) (codified at 1869 Mass. Acts 117–18).
172 See Langella, supra note 33, at 182–83.
173 See 89 Mass. (7 Allen) 158, 165 (1863).
174 See id.
175 See Watuppa Reservoir Co. v. Fall River, 28 N.E. 257, 257–58 (Mass. 1891).
176 See id.
177 Lynnfield v. Peabody, 106 N.E. 977, 984–85 (Mass. 1914).
178 See An Act for Confirmation of Titles Within the Islands of Capawock, Alias Martha’s Vineyard and Nantucket, ch. 4 (1693) (codified at 1869 Mass. Acts 117–18) (emphasis added).
179 See Langella, supra note 33, at 182–83.
180 Id. at 183.
181 See id.
182 See Appleby v. New York, 271 U.S. 364, 399 (1926); Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453 (1892).
183 Appleby, 271 U.S. at 393–99; Ill. Cent. R.R., 146 U.S. at 453–56.
184 See, e.g., Butler v. Attorney Gen., 80 N.E. 688, 689 (Mass. 1907).
185 See, e.g., Opinion of the Justices, 313 N.E.2d 561, 566–68 (Mass. 1974).
186 See Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 65 (1851).
187 See, e.g., Opinion of the Justices, 313 N.E.2d at 566–68.
188 See id.
189 See id.
190 See, e.g., Storer v. Freeman, 6 Mass. (5 Tyng) 435 (1810).
191 See Opinion of the Justices, 313 N.E.2d at 566.
192 See, e.g., id. at 566–68.
193 See Banks, supra note 105, at 434; Fernandez, supra note 11, at 631–32.
194 See Banks, supra note 105, at 434; Fernandez, supra note 11, at 631–32.
195 See Fernandez, supra note 11, at 632; Lahey, supra note 14, at 11-2-1.
196 See Nantucket History, supra note 136; Vineyard Gazette Online, supra note 141.
197 See Banks, supra note 105, at 432; Starbuck, supra note 108, at 354; Nantucket History, supra note 136; Vineyard Gazette Online, supra note 141.
198 For instance, it was a common practice of Nantucket whalers to erect lookout towers and temporary huts along the island’s beaches, where approximately six hunters would live, each, in turn, manning the tower and spotting for whales. Starbuck, supra note 108, at 353. A whale, once captured, was towed ashore where the blubber was cut up and tryed out in temporary try-pots built on the shore. Id. Therefore, obstructing the shorelines by facilitating the construction of private wharves and piers would have inevitably led to conflicts between whalers and these private property owners. See Ghen v. Rich, 8 F. 159, 159–60 (D. Mass. 1881).
199 Interview, supra note 23.
200 See Gautam, supra note 22, at 19.
201 See id.; Interview, supra note 23.
202 See Gautam, supra note 22, at 22; Interview, supra note 23.
203 See Schweitzer, supra note 3, at B1.
204 See Interview, supra note 23.
205 See, e.g., Opinion of the Justices, 313 N.E.2d 561, 566–68 (Mass. 1974).
206 See Interview, supra note 23. Mr. Fee has indicated that one island resident went so far as to place enormous boulders across his area of the beach to inhibit the public from passing through his property. Id.
207 See id. Island officials also note that, although many wealthy landowners on the island are eager to establish good relationships with the local community and therefore allow public access to their beaches, others prefer to keep a low profile and have no interest in engendering the good will of islanders. Id.
208 See Schweitzer, supra note 3, at B1; Interview, supra note 23.
209 See Schweitzer, supra note 3, at B1; Interview, supra note 23.
210 See, e.g., Opinion of the Justices, 313 N.E.2d at 566–68.
211 See Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453–56 (1892); Hoffman, supra note 62, at 486.
212 Ill. Cent. R.R., 146 U.S. at 453–56.
213 See id. at 455, 460–64.
214 See id.; Opinion of the Justices, 313 N.E.2d at 567–68.
215 See Ill. Cent. R.R., 146 U.S. at 455, 460–64.
216 See Nantucket, Mass., Ordinance One Beach, Once and for all (Proposed 2003).
217 See Interview, supra note 23.
218 See Nantucket, Mass., Ordinance One Beach, Once and for all (Proposed 2003).
219 See Interview, supra note 23.
220 Schweitzer, supra note 3, at B1; Interview, supra note 23.
221 See Colonial Ordinance, supra note 7, at 35.
222 See Appleby v. New York, 271 U.S. 364, 399 (1926); Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 460–64 (1892).
223 See Mathews v. Bay Head Improvement Ass’n, 471 A.2d 255, 365 (N.J. 1984) (recognizing that the right to enjoy the portion of the beach below the mean high-tide line required public access across the dry sand to access it); Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972) (“We have no difficulty finding that, in this latter half of the twentieth century, the public rights in tidal lands are not limited to the ancient prerogatives of navigation and fishing, but extend as well to recreational uses, including bathing, swimming and other shore activities.”); Susan M. Codaro, A High Water Mark: The Article IV, Section 2, Privileges and Immunities Clause and Nonresident Beach Access Restrictions, 71 Fordham L. Rev. 2525, 2532 (2003). In addition, the Oregon State Legislature has broadened the scope of the Doctrine, enacting a law to protect public access to dry sand areas of the beach, while the Texas Legislature has passed an act prohibiting the erection of structures that would impede the public’s beach access. Codaro, supra at 2532.
224 See Nantucket, Mass., Ordinance One Beach, Once and for all (Proposed 2003).
225 See, e.g., Lynnfield v. Peabody, 106 N.E. 977, 984–85 (Mass. 1914).
226 See, e.g., Inhabitants of W. Roxbury v. Stoddard, 89 Mass. (7 Allen) 158, 164–69 (1863).
227 See Appleby, 271 U.S. at 399; Ill. Cent. R.R., 146 U.S. at 460–64.