Beach Access for Everyone: Jurisprudence & Parables

Wednesday, January 29, 2025 2:57 PM

Beach Access for Everyone: 

A Parable from the Martha’s Vineyard Times & Vineyard Gazette


The following Letter to the Editor appeared:

on page 15  of the Vineyard Gazette, under the title "Beach justice for all" on Friday, September 14, 1990, and 

on pages 12 and 13 of the Martha’s Vineyard Times on Thursday, August 30, 1990 under the title "Beach Rights". 

The Gazette’s version elicited an informative reply entitled "Beach rights" from Melissa Waterman on Friday, Sept. 28, 1990 while the one in the MV Times resulted in an exchange of letters with Robert Post, who was the president of the Martha’s Vineyard Surfcasters Association, and Peter M. White, who offered to ‘”walk the plank” to invite arrest and test the restrictions in court! The on-line version was originally posted on May 24, 2016.



To the Editor :


I have been walking Vineyard beaches all my life and have witnessed the encroachment of territorial exclusivity with increasing unease. But I was dismayed when I overheard a youngster upon the white tower at Lucy Vincent Beach tell a stroller that he couldn’t walk toward Squibnocket, even though he promised to remain below the high tide line in accordance with common law as embodied in the colony ordinance of 1641-45, which is still in effect, with even older precedents for the sovereign’s rights over the seashore, and with common practice on the Vineyard for generations. When I rose to ask how he could be turned back, I was scolded that I knew full well that “trespassing” on adjacent beaches was forbidden by the terms of our access permits since I had been told so when I had paid at town hall. Needless-to-say, I had been told nothing of the kind, and now I wondered how it could be true: don’t state, federal and admiralty laws supersede local regulations?


Furthermore, can a local regulation deny the exercise of a more general right? And what precisely does “trespassing” on adjacent beaches mean? Under the law it surely means entering the area above the mean high tide mark - for that is trespassing. But can one “trespass” where one has a right to go – below the high tide mark?  


However, these quibbles are but the iceberg’s tip. Shortly after the stroller had been turned back, several groups passed through the border without exchanging a glance with the guard. How curious, I thought, and rose to ask our monitor what was so special about them. I was told, rather curtly, that anyone who passed was an adjacent landowner bearing a red card issued by the town clerk. I asked around and nobody had seen any of these free souls flash a card. In fact, several people testified that they had seen groups of nudists cross the line and wondered where they even kept theirs. But the vigilant lookout insisted that she recognized the elect, and didn’t have a thing to prove to anyone. She added, as if to cap her argument, that, as a matter of fact, I should be satisfied, because not only did our neighbors need the red card to enter their domains, but they couldn’t come in the opposite direction and enter the town beach, above or below the tide mark, without still another permit – so there!


Curiouser and curiouser! I wondered how the town, as a subordinate entity of the state, could restrict access below the tidemark along its own stretch, unless Chilmark had usurped sovereignty from the higher bodies. What next? Perhaps Chilmark will go after the 200-mile limit.


But once you open a can of worms, you can’t stop the little critters from spilling over. In this case with uglier ramifications. “What,” I asked, “is your guard platform even doing there, at the extreme western end of the town’s long stretch? Shouldn’t the guard platform be positioned toward the beach’s center, where you could best carry out what must be your most important duty – that of saving lives?”


“We’re not lifeguards, we’re beach guards!” the whatever-she-was announced from on high. Well, selectmen of Chilmark, tell that to a court after someone drowns at Lucy Vincent’s! Having a traditional lifeguard tower with a strapping youth squatting in it could give parents a false sense of security. Surely for the purpose of avoiding liability alone, the town should post a notice informing beach-goers that the youth is not a lifeguard after all, and is not competent to rescue or resuscitate you, despite his misplaced vigilance. Then the tower would be seen for the sheep’s clothing it is. 


But, come to think of it, why aren’t the youths lifeguards? Wouldn’t our money be better spent paying trained swimmers and paramedics to save lives and tax dollars should the town be sued? The question is urgent since the system’s failing almost came to a tragic head only a few days before my encounter. A cry for help went up; William N. Fenney III, MD, was standing by the lookout platform, in a quandary. Normally he carries a life-saving kit along to beaches, but he hadn’t brought it to Lucy Vincent’s because he knew there was a lifeguard on duty. Now, however, he saw this person react with strange slowness, taking off her T-shirt. When he saw her going to the scene with the urgency of a spectator, he ran down himself. Luckily, other swimmers were making the rescue while the guard floundered around, inshore, obviously outmatched by the waves. Then, to make matters worse, Dr. Fenney realized the guard didn’t have a life-saving kit and wouldn’t have had a clue as to how to use one. When I asked at the border about this, the guard avowed, “I think it’s wrong myself to have the tower down here, but I get paid good money, so I’m going to enforce the rules whatever they are and do just as my boss tells me.”


I would have been moved by such high-mindedness, except that her rules’ enforcement seems to be riddled with arbitrariness. “What about the ban on surfboards?” I asked, admittedly the gadfly now. “Those aren’t surfboards, those are bodyboards,” came the quick retort. “Okay, let’s not split hairs, isn’t that nine-footer, with a guy standing on it, a surfboard?” I queried. “I wasn’t the one on duty when that one came in,” wafted down self-absolution. Which made it all right. The guard proceeded to sit there, wasting our money, and her time, until a mother cuddling a newborn tried going up the beach with her ankles in the spume. Then the guard was quick as a greyhound.


Now what you bring onto that beach comes to seem even more arbitrary in light of another incident involving Dr. Fenney. The day before, he had been turned back for bringing on a fishing rod – not for casting into bathers; no, just for carrying it, although the regulations never mention rods. What is the Vineyard coming to? Moreover, what about time-honored access rights for fishermen – have they gone by the board too? 


But to wrap up a loose end: why indeed is the fake lifeguard tower at the far end of the beach, and just at one end? Why, when the guard’s function is just to check identities, isn’t there another checkpoint protecting the vulnerable landowners at the other end? Is it because those with the most clout live to the west? I understand that this is a complicated issue. Apparently Lucy Vincent had intended to give the town the beach, but died without having put that in writing, so her executors had to compromise between her wish and good business sense by subdividing, whereupon the town essentially had to pre-authorize five sites above the cliff for building and agree to try to stop the public from “encroaching” on the western beaches, in return for a 99-year lease to Lucy Vincent’s. 


So the town chose the lesser of two evils. It received a beautiful bathing beach in exchange for a Faustian pact to curtail what private owners had never been permitted to stop, and the state had never agreed to restrict – that is, the right of anyone to walk down the entire length of a beach below the mean high tide mark. I understand the selectmen’s dilemma. I sympathize with their decision. And far be it from me to hinder practical compromises which would give access to places unaffected by men, those primary sources for our inspirations and constructions.


Yet I don’t think the town had the right to restrict free passage, just as I doubt that Maine and Massachusetts, the only two states to allow property to be deeded to the mean low tide mark, have the right to infringe on the sovereign – that is federal – right below the HIGH tide mark – although, admittedly, such deeds should not be a problem here, since they concern the right of sale, for example for kelp gathering, rather than obstruction of the public. Still, even Massachusetts law is hopelessly confusing on this question of deeding, since in such cases as Comm. v. City of Roxbury, Anderson v. DeVries, and Attorney General v. Chambers, even Massachusetts precedents specify that “The property (!) right of the sovereign extended to high water mark.” [1]  Moreover, in the first of these decisions, C.J. Shaw writes that “the king held the seashores … public juris for the use and benefit of all the subjects, for all useful purposes.” That is clear enough and the principle has not changed! 


So perhaps it is time to reassign our guards to performing functions we can all agree upon, before someone calls the town’s well-intentioned bluff and involves it in a test case. If the adjacent landowners really think they have a leg to stand on, they can hire their own border guards, and take the risk. For why should the taxpayer pay to step on his own toes?


But let me lay my cards on the table. I’m old-fashioned enough to wonder what people rich enough to own the land atop the bluffs are doing, refusing to share land daily reclaimed by the sea – which they hardly own – with their fellow Chilmark residents. Isn’t that a little petty?


While asking for the guard’s understanding of the regulations, I was rebuked with the callow retort of a nation of immigrants, “If you don’t like it here, why don’t you leave?” – when of course, I had raised the issue because I love the Vineyard and wish to preserve its accessibility, at least to its own residents. [In fact, on a tangent, I suggest that we could have reciprocity agreements, at least among the less populous up-Island townships. Why not allow Gay Head residents to come to Squibnocket, or Chilmarkers to go to Philbin’s – for a breath of fresh air, so to speak?]  But the retort reminds me that I was able to hike along France’s Atlantic coast at will recently, and, once before, in Greece. In such populous European countries, and in such an enlightened state as Oregon, both the beaches and their access are part of the common weal. I, for one, as a member of a family with private Vineyard beach rights, would be happy to forsake them, in return for universal access. I don’t wish to exchange freedom for a comfortable cell.


For with all this partitioning and exclusivity, aren’t we being terribly shortsighted and paranoid? Aren’t we limiting our freedom to range in open spaces kept free of all human encumbrances by mighty, impersonal forces? Oh, I know the red herring, “If we opened up beaches, people would be everywhere!” But we spread out to psychologically comfortable distances, so that those that wish to group do so, whether in Greece, Oregon, or on the Vineyard. Aren’t we ending the American dream and turning out to be even less sagacious than many others? I’m afraid we are crassly making our beaches into tradable commodities when territoriality goes against the very spirit of places swept clean by the sea. It seems to me that there should be some room for reverence and detachment in the secular world and that we would do well to consecrate those natural no-man’s lands along our elemental frontiers to those pilgrims who wish to walk in peace from Lobsterville to Katama. Certainly we should stop allowing a new aristocracy to plant bullies in their path to force them to swim around their new domains complete with gamekeepers. Even in monarchies, there was such a thing as eminent domain. And ones birthright!


Duncan Caldwell

Chilmark


[1]  See the “Compilation and Summarization of the Massachusetts General Laws, Special laws, Pertinent Court Decisions, etc. Relating to Water and Water Rights” published by the Massachusetts Water Commission in 1970. It would seem to be up to date, since Chief Ameen of the state Department of Fisheries, Wildlife, and Environmental Law Enforcement just sent me a copy.