Expanding Public Access by Codifying the Public Trust Doctrine: The Massachusetts Experience

The Commonwealth of Massachusetts is dramatically expanding public access to the coast through statutory and regulatory codification of the public trust doctrine. Is this legislative and administrative experiment relevant to other states, particularly to Maine? The initial answer to this question may depend on the meaning of the Bell v. Town of Wells decision. For better or for worse, Massachusetts jurisprudence set the course followed by the majority of the Maine Supreme Judicial Court in Bell. To some, including several of the authors in this symposium, the bearing of the Massachusetts courts leads to a civic wasteland where the public's interest is subservient to private property interests. To others, including the Maine Supreme Judicial Court majority, Massachusetts case law walks a "well-reasoned" path between private property rights and public access. But the Massachusetts case law relied on in Bell tells only half the story of the legal status of public access to the coast of Massachusetts.