Legal Question for Mike P:
Your expertise on the law and the various questions that arise about shoreline access is invaluable to the members here and I for one appreciate it.

My question concerns the following scenario and you could probably apply it in various locations in Mass and RI.

Turn the Tables Scenario

A surf fisherman has accessed a section of water legally via a public access and did not cross any private land. He continued laterally along the water below the tide line. He’s now standing below the high water mark while fishing. There is private residence behind him. The owner of the residence lets him know that he does not want the fisherman fishing behind his home on what he states is "his property" and threatens to call local authorities. The fisherman decides to make a “pre-emptive” call to the authorities first to tell them he’s being harassed by a land owner while on public property. The police respond. The home owner comes out. The police tell the land owner there has been a complaint lodged against him. Who’s in the right? Could the land owner be issued a citation? If fishermen are SURE they accessed fishing areas legally - would this be a good strategy for fishermen to employ when threatened by an abutting property owner?
Thanks for any advice.

DZ

I can tell you after 37 years doing the police thing that the land owner didn't commit a criminal harassment of the fisherman (very difficult to bring about court action on that charge), but he, landowner, may have made a false report to the P.D., which is a criminal offense everywhere DZ.

And I too like reading MikeP's post. They are always helpful, unbiased, and right on the money.

I can tell you after 37 years doing the police thing that the land owner didn't commit a criminal harassment of the fisherman


1) How about if he was shining a light on the water to scare the fish or 2) If was throwing rocks in the water (not near the fisherman) - would that be harrasment?

1) How about if he was shining a light on the water to scare the fish or 2) If was throwing rocks in the water (not near the fisherman) - would that be harrasment?


Childish very much so, but as you describe, not criminal. If he was throwing them near the fisherman, maybe a disturbance of the peace, and thats a stretch as well. Probably a stern talking to by a pissed off officer having to spend time with an educated, rude, and arrogant rich person. Afterall, how many times have kids thrown rocks nearby where your fishing because its fun. You should legally fill up the beach with fishermen/women some night. Be polite, not loud, have fun, and see how he likes that.

I had trouble with a caretaker in Bourne. Drove his vehicle in my direction one morning at 5 a.m. in front of Bill and Jul's here. I wanted to drag him out of the car, and maybe ten years before I would have, after all I have the right to arrest a felon any in the commonwealth. He was so pissed I wouldn't listen to him about the road being private he was sptting mad. I told him to call the cops, and when he drove at me, I then said, "listen %$%$%$%$%$%$%$, I am a cop and your not doing that again". He drove off and he never came near me after that. He was the worst one I ever dealt with. I have spoken with other people who are landowners, in an adversarial mannr as well, my reply to them after they have told me I have no right to be where I am is, "calls the cops, I'll be glad to listen to them".

I'm not a lawyer - but I too pay attention when Mike talks :uhuh:



From the mass.gov
Public Rights Along the Shoreline
Coastal managers are often asked, "Who owns the sea and shore?" If you have been curious, or perhaps a bit confused about what rights the public has along the shoreline, here's a brief primer on waterfront property law.

Ownership of Tidelands
"Tideland" is the legal term for all land beneath the waters of the ocean, including lands that are always submerged as well as those in the intertidal area (i.e., between the high and low tide marks). In every coastal state, the use of tidelands is governed by a concept in property law known as the Public Trust Doctrine, which dates back centuries to ancient Roman law. The doctrine states that all rights in tidelands and the water itself are held by the state "in trust" for the benefit of the public. In most states, this means that public ownership begins at the high water mark.

The Massachusetts Bay Colony originally followed this rule, until its legislators decided to transfer ownership of certain tidelands to coastal landowners, in order to encourage private wharf construction on these so-called "intertidal flats." This general land grant was accomplished by the Colonial Ordinances of 1641-47, which in effect moved the line between public and private property to the low water mark, but not farther seaward of the high water mark than "100 rods," or 1,650 feet. This intertidal area (now called "private tidelands") is presumed to belong to the upland property owner, unless legal documentation proves otherwise for a given parcel (as is true in certain segments of Provincetown, for example).

Although the Colonial Ordinance changed the ownership of most intertidal flats from public to private, it did not transfer all property rights originally held in trust by the state. For one thing, no rights to the water itself (as distinct from the underlying lands) were relinquished by the Ordinance. Moreover, the law specifically reserved for the public the right to continue to use private tidelands for three purposes-fishing, fowling, and navigation.

1) How about if he was shining a light on the water to scare the fish or 2) If was throwing rocks in the water (not near the fisherman) - would that be harrasment?

Both MA and RI have anti harassment laws with wording similar to this:

"No person may willfully interfere with the lawful hunting, fishing or trapping of a wild animal, wild bird or fish. Disturbing wild animals, wild birds or fish. No person may willfully disturb or attempt to disturb a wild animal, wild bird or fish with the intent to interfere with the hunting, fishing or trapping of them. "

I gather from Swimmers post that it may be difficult to find a cop to enforce the law, but it's worth trying. You might get a one that gives a crap.

In MA there are some deeded exceptions to the colonial ordinance

Another odd access fact

The National Park Service has exclusive legal right to regulate/manage from the waters edge out 150 feet.

I just found out something interesting from the local tax accessor today. It's call exercising your right of ownership on your property. There's a small runoff next to my land I thought. Well it's on my land.I asked if I'm taxed on it as the boundry stakes are on my side of it and not the other. He told me no as no one has ever exercised the right of ownership ad the town maintains it so it's not taxed.
He then told me a story about a property owner who decided to exercise their right of ownership to the low water mark by putting up no trespassing signs at both ends of his waterfront trying to stop people from using his Quote Waterfront.Someone complained as they have been walking that beach for over 50 yrs. they also asked out of anger " I hope he's paying property tax on that land". Well someone got curious and checked. He wasn't nor had he ever paid tax on that land as he has never exercised his right of ownership by controling it or receiving benefit of that land. Well like most towns an modified tax bill was sent to the property owner including an adjustment with the now controled property in it. All 15 acres. Like all the rest of us when you exercise your property rights ie build clear use or whatever they will tax you for it so putting up a sign can sometimes have hidden consequences. Just some food for thought. Ron

Keep in mind as your confronted by land owner or officer it may be wise to hide your knife.
Posted from my iPhone/Mobile device

Both MA and RI have anti harassment laws with wording similar to this:

"No person may willfully interfere with the lawful hunting, fishing or trapping of a wild animal, wild bird or fish. Disturbing wild animals, wild birds or fish. No person may willfully disturb or attempt to disturb a wild animal, wild bird or fish with the intent to interfere with the hunting, fishing or trapping of them. "

I gather from Swimmers post that it may be difficult to find a cop to enforce the law, but it's worth trying. You might get a one that gives a crap.


I am speaking from seeing cases go by the boards in court with a snicker by judges who don't want to do their job. You have no idea what it is to put a case together with the proper elements of the crime present to get a finding of guilt in court. Cops don't do fish and game. They are not trained to do fish and game. Cops leave that to the epo's. Next time someone bothers you while fishing try handling it yourself first, but if you don't find a cop that gives a crap after first trying yourself go to court if you want, and anyone can do this mind you in Massachusetts, and that is go to your district court and apply for a complaint against someone, it cost $15.00, for whatever charge you think they commited, and see if the court clerk gives a crap Rodger. One more thing Rodger, find a link to the legal wording you just posted in the chapters and sections of Mass. General Law, I would like to rear it all.

I am speaking from seeing cases go by the boards in court with a snicker by judges who don't want to do their job. You have no idea what it is to put a case together with the proper elements of the crime present to get a finding of guilt in court. Cops don't do fish and game. They are not trained to do fish and game. Cops leave that to the epo's. Next time someone bothers you while fishing try handling it yourself first, but if you don't find a cop that gives a crap after first trying yourself go to court if you want, and anyone can do this mind you in Massachusetts, and that is go to your district court and apply for a complaint against someone, it cost $15.00, for whatever charge you think they commited, and see if the court clerk gives a crap Rodger. One more thing Rodger, find a link to the legal wording you just posted in the chapters and sections of Mass. General Law, I would like to rear it all.

I don't know why your panties are in a knot :confused: - My only inclination to think the authorities don't care is from YOUR POST. Oh, BTW, do your own freakin research unless you're willing to pay my hourly rate.;) And learn to spell my name if you're going to call me out.:screwy:

The General Laws of Massachusetts

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MGL Search Page (http://www.mass.gov/legis/laws/mgl/mgllink.htm)
General Court Home (http://www.mass.gov/legis/legis.htm)
Mass.gov (http://www.mass.gov/)



PART I. ADMINISTRATION OF THE GOVERNMENT

TITLE XIX. AGRICULTURE AND CONSERVATION

CHAPTER 131. INLAND FISHERIES AND GAME AND OTHER NATURAL RESOURCES

Chapter 131: Section 5C. Obstruction or interference with lawful taking of fish or wildlife; remedies

Section 5C. No person shall obstruct, interfere with or otherwise prevent the lawful taking of fish or wildlife by another at the locale where such activity is taking place. It shall be a violation of this section for a person to intentionally (1) drive or disturb wildlife or fish for the purpose of interrupting a lawful taking; (2) block, follow, impede or otherwise harass another who is engaged in the lawful taking of fish or wildlife; (3) use natural or artificial visual, aural, olfactory or physical stimulus to effect wildlife in order to hinder or prevent such taking; (4) erect barriers with the intent to deny ingress or egress to areas where the lawful taking of wildlife may occur; (5) interject himself into the line of fire; (6) effect the condition or placement of personal or public property intended for use in the taking of wildlife; or (7) enter or remain upon public lands, or upon private lands without the permission of the owner or his agent, with intent to violate this section. The superior court shall have jurisdiction to issue an injunction to enjoin any such conduct or conspiracy in violation of the provisions of this section. A person who sustains damage as a result of any act which is in violation of this section may bring a civil action for punitive damages. Environmental protection officers and other law enforcement officers with arrest powers shall be authorized to enforce the provisions of this section.
This section shall not apply to the owners of the lands or waters or tenants or other persons acting under the authority of such owners of the lands or waters.

So I guess the next time some little kid throws a rock in the water next to your lure or bait, report the tike. Just being facetious. I don't want any one to think panties are in a bunch. I am in a good mood, really.

CHAPTER 131. INLAND FISHERIES AND GAME AND OTHER NATURAL RESOURCES


Chapter 131: Section 90. Penalties


Section 90. Whoever violates any provision of section five, ten, eleven, thirty, thirty-two, thirty-five, thirty-six, thirty-eight, forty-seven, forty-nine, fifty, fifty-one, fifty-three, fifty-four, fifty-seven, fifty-eight, fifty-nine, sixty-two, sixty-nine, seventy-one, seventy-two, eighty, eighty-two, eighty-three, eighty-four, or eighty-five, or any rule or regulation made under authority thereof, shall be punished by a fine of not less than fifty nor more than one hundred dollars, or by imprisonment for not more than thirty days, or both such fine and imprisonment; in addition, for each bird or mammal other than a deer, bear or turkey unlawfully killed, taken, held or possessed, or for each nest or egg unlawfully taken, molested, distributed or destroyed, by a fine of not less than ten nor more than fifty dollars; and for each deer unlawfully killed or unlawfully possessed, by a fine of not less than three hundred nor more than one thousand dollars, or by imprisonment for not more than six months, or both such fine and imprisonment; and for each bear unlawfully killed or unlawfully possessed, by a fine of not less than one thousand nor more than five thousand dollars, or by imprisonment for not more than six months, or both such fine and imprisonment; and for each turkey unlawfully killed or unlawfully possessed, by a fine of not less than three hundred nor more than one thousand dollars, or by imprisonment for not more than six months, or both such fine and imprisonment.

JR, watch out I learned how to cut and paste using the my history drag down list. Your going to need some more room on the server.

Harassment in Massachusetts requires a pattern of conduct, not just a single occurrence.

It's also a misdemeanor, and the police may not be willing to make an arrest for it unless it's committed in their presence--your remedy then would be to go to the District Court having venue over the location and file an Application for Complaint.

It's also a specific intent crime, and a landowner who mistakenly believes that he's exercising his legal rights by telling you to scram is not acting with that criminal intent.

I'm not admitted to practice in RI and have no idea of what the law is there.

Same deal with violation of those hunter/fisherman harassment provisions of Chapter 131--those violations are misdemeanors and even an EPO may not want to make an arrest unless he or she actually witnesses the violation.

If the rocks land close enough to you, you might be able to persuade a cop that it was an Assault with a Dangerous Weapon, which is a felony---or you might not.

Often it comes down to who they think is going to be the bigger pain in the ass. All I can suggest is that you respectfully assert your right to be there---carry a copy of what either the AG or the Sec'y of State (not sure which) has posted on their website regarding shoreline access, and show that to the officer. I have seen it work both ways. I've seen local cops side with the fisherman and tell the landowner to stop complaining about it, and I've seen them take the fisherman aside and do the old, "do me a favor" deal. Such as, "this guy will write letters to the chief all winter, and you guys are only here for a couple of months--just do me a favor and go fish somewhere else tonight, OK?"