The Low Water Mark for Beach Access: Defending Government Protection of Intertidal Recreation as a Lawful Exercise of State Power

Beaches are a natural resource ideally suited for public recreation. The public generally has a right to access this intertidal land, but the purpose and scope of public access vary greatly between states. Consistent with national trends toward greater public access, the legislatures of Massachusetts and Maine have attempted to expand public beach access rights to include the right to engage in general recreation below the mean high tide line. However, the Supreme Judicial Courts of both states have declared that such legislation would be an unconstitutional taking of property requiring compensation to the abutting landowners and held that public rights of access are limited to the traditional purposes of fishing, fowling, and navigation. In doing so, the high courts of both states stymied a natural progression toward greater public intertidal rights based on a colonial city ordinance enacted in 1641. I argue that legislative determinations about the most socially valuable uses of intertidal land should be given significant weight, particularly in light of the inherent flexibility of public access rights and a national trend expanding beach access. Thus, in this Article, I argue that the state legislatures can broaden the public’s right to beach access without constituting a taking. In doing so, the Article provides a roadmap for how legislatures, including those in Massachusetts and Maine, can draft legislation broadening beach access rights that can withstand constitutional scrutiny