To Have and Have Not -- Nantucket, Martha\u27s Vineyard, and the Public Trust Doctrine: Remembering the Land that Time Forgot

The Public Trust Doctrine, an ancient mandate under which the sovereign holds unique natural resources in trust for the benefit of the general public, has been adopted by the United States as a staple of American property law. While the federal government is the ultimate trustee of these lands, the states may flexibly interpret and administer this law to maximize the public benefit derived from trust resources. For instance, although most states own the land between the high and low tide lines in trust for its citizens, Massachusetts bases its common law interpretation of the Doctrine on the Colonial Ordinance of 1641-41, a statute passed by the early settlers of the commonwealth providing for private ownership of the ocean flats. However, the current application of the Doctrine to the beaches of Martha’s Vineyard and Nantucket directly contradicts the overall intent of the Doctrine. Although the Supreme Court of the United States and the Supreme Judicial Court of Massachusetts have reasoned otherwise, there are strong historical, legal, and public policy arguments that these islands are instead subject to the traditional common law application of the Doctrine