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Private Parties Cannot Enforce Public Rights to Access Tidelands

Massachusetts is unusual in 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.

The landowner cannot interfere with those so-called “public trust” rights without the benefit of special legislation or a license to do so issued by the Department of Environmental Protection (the “Department”) 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. And Massachusetts courts have been zealous in protecting public trust rights.

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