I was trying to find some info on the legality of landing on private property (in this case, closed wildlife refuges and indian reservation lands) if continuing on would put a person in danger due to weather or other conditions. As I understand it, in that situation, safe harbor supercedes the property rights, but I’m not having any luck finding substantiation for this yet.
Thanks, Nate
Safe Harbor
http://www.uscg.mil/directives/ci/16000-16999/CI_16451_9.PDF
This states that:
In general, force majeure is a doctrine of international law which
confers limited legal immunity upon vessels that are forced to seek refuge or repairs within the
jurisdiction of another nation due to uncontrollable external forces or conditions. This limited
immunity prohibits coastal state enforcement of its laws which were breached due to the vessel’s
entry under force majeure.
However, for paddle boats landing in areas where maritime law is, most likely, unknown, it is safer to assume that one had best ask permission. I know of some individuals who prefer the “shoot first, ask questions later,” philosophy of trespassing.
My personal experience has been that few people deny or complain where and when I land my boat. When possible, I’d ask permission first, “Ahoy the shore, is it ok…”
This isn’t always possible and I’ve landed amongst the cattle more than once where there was no person to ask. The cows never seem to care, fortunately :).
Rick
Ocean?
Or at least the Great Lakes - is that where you are talking about? A nor’easter with crashing waves may produce a bit more sympathy.
But even with that, I could name places in Maine where property owners used to be sensible about this but would come and tell you to haul your butt off their island in the middle of a storm now. Where you are can really matter.
Are you asking because you are traveling somewhere that this could come up, or is this a general question?
landing
there are rivers in the adirondacks where the land owner not olny posts the land but the waterway!!! by cabling off the river. major tax payer in the area. the arrest folks. each case has to be tried one case at a time.
a ruleing on one issue does not count for another
Where are you talking about
In Maine you may land on private property only for the purpose of fishing fowling or navigation.
http://www.seagrant.umaine.edu/files/pdf-global/90accessmoody.pdf
Common sense would have you think that in case of emergency landing would be OK.
However I think you are referring to AK and I don’t know what the regs are there for sure the Moody ruling pertains only to Maine and would seem insane where there is little or no development.
Maybe you should contact the wildlife refuge involved and the Coast Guard.
A word of caution
– Last Updated: Feb-28-11 11:04 AM EST –
You can't be denied the right to land on or cross the upland
for emergency purposes while navigating a waterway.
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT
Act 451 of 1994
Part 731
RECREATIONAL TRESPASS
If the weather is "that" bad that you trespass
and stare at the barrel of a gun from a landowner
is it worth getting shot arguing "rights" ?
The government may close navigable waterways to recreational boaters
during an emergency, such as flood conditions,etc.
--- Tread lightly regarding land on navigable waterways ---
-it is often a misdemeanor crime
-it is a tort - can be sued in civil court
Trespass for emergency purposes to protect life and limb
also will incur liability to the property owner
for any damage that is done to the property.
Definition of "upland" and "bottomland"
Ordinary high water mark means the line between upland and bottomland
which persists through successive changes in water levels.
If the weather is real bad - i.e. high water;
you're probably trespassing on the upland area.
Hence - the character of the land is marked distinctly
and is apparent in the soil itself,
the configuration of the soil and the vegetation.
looks like that is Michigan NM
Nationwide
– Last Updated: Feb-28-11 11:09 AM EST –
Similar laws for recreational trespass exist nationwide
Usually under Riparian Law for property owners
The specifics
This will be in regards to a trip I’ll be taking this summer down the Pacific Coast. The northern half of WA is dotted with islands forming parts of a wildlife refuge that is closed to the public, and with indian owned land. Under decent conditions, I would have no problem avoiding those areas, however, if conditions turn sour, I’d just like to know if I have a leg to stand on legally. I’ve contacted the tribes, but without a complete itenary, they aren’t too keen to issue a camping pass.
You should be ok
What I would do is contact the tribes individually and do the following:
- Ask for permission to land in an emergency
- Ask if there is a guide/paddle club in the area with whom you could travel so that you can do whatever it takes to avoid infringing on their rights.
As for the federal land, they will obey maritime law and not forbid you to land if conditions warrant, provided there are any authorities in the area to enforce the laws.
Example: I’ve had experience with the authorities and the MMPA and they explained that if a whale approaches you, as has happened to me a few times, they will look the other way. Some situations just require a bit of judgement and most (not all) federal employees are willing to work with you in situations like this.
Rick
Airplanes
Airplanes with failed engines must ask permission to land in a field. If the owner says NO, they must fly on until they can find someone who gives permission to land.
Total nonsense!
Do what you have to do. Best of all just hide in the brush. Don’t ask, don’t tell.
at first I thought you were joking
(“fishing fowling or navigation”)
But then I read your link (http://www.seagrant.umaine.edu/files/pdf-global/90accessmoody.pdf), and, having read it, I don’t know why you say that one could only land in case of emergency.
Truly, if people have the right to occupy the intertidal zone for purposes of “fishing fowling or navigation”, I would think kayakers would have it made in the shade. Sure, you can’t pull out your tent and set up camp, but – unless I’m reading things wrong – you can pull up and get out and stretch. You’re just not allowed to throw a frisby or sunbathe. But if kayaking’s not navigation, I don’t know what is.
What’s your take on it? Are people in Maine afraid to pull up in the intertidal zone and get out and stretch? What a bummer state.
Reservations
Check with individual tribes. Their laws vary. Red Lake in MN for instance is a closed reservation and you can be arrested for trespassing if you are there w/o proper authorization.
Much of Northern Wa Coast is
National Park. You’ll be fine from Cape Flattery down past LaPush. There are tribal lands below that for a section but I think a courteous letter is all you’ll need and can probably avoid having to land on these areas anyway. Makah lands above that are no big deal and the locals are cool. Northern coast is pretty.
appreciate the details
Ideally, I’ll set my stops so that I avoid the reservations all together. I wouldn’t try to bully my way through the locals with legalese, but it’s nice to know that if it came to a court battle down the road, I’d at least have a leg to stand on. I’ve never had issues in the past, prefering courteous conversation to confrontation.
Good to know about the Makah. I’ll need to resupply in Neah Bay.
The thing about maritime laws is
that they don’t apply on land.
The Maine rule is very restrictive
The rule in Maine, governed by the Moody Beach case, provides fewer public rights on the shore than probably any other state (except possibly Massachusetts if Mass. still has the same Colonial ordinance as Maine).
In all other states, the public has full rights to do anything generally legal up to the mean high tide line. In Maine, the public doesn’t have general rights up to the mean high tide line but only seaward of the mean low tide line.
The area between the mean high tide line and the mean low tide line is called the “intertidal zone”. In Maine the only public activities allowed in the intertidal zone are fishing, fowling and navigation. Again, in other states, all activity would generally be permitted in the intertidal zone.
Some general concepts
I have general background in this area and can discuss certain general concepts.
Under the laws that govern perhaps all states except Maine, the public has the right to access and to perform legal activities up to the mean high tide line on land bordering tidal waters. However, the precise location of the mean high tide line is often ambiguous and subject to litigation.
The public generally has no right to access private uplands above the mean high tide line, unless state law grants certain exceptions. We can see from a post above that Michigan has enacted a statute that provides some complex exceptions.
In some sort of emergency situation – e.g., a medical situation, natural disaster or loss of your boat – well, what are you going to do? Call your lawyer to look up the local exceptions?
As a practical not a legal matter, you do what you’ve got to do. I would suspect most landowners would be sympathetic to a true emergency. If they aren’t and try to charge you with trespass, I suspect most courts would be sympathetic to the legal argument that you did not have the requisite “intent to trespass”, which is required to be proven for the crime to have been committed.
that’s right
you’re not likely to run into too many people on the washington coast, most of it is Nat Park. There’s almost no road access at all north of LaPush. There’s people and rangers hiking the coast during summer. And, if the weather turns sour, you might not want to stop on an island anyway, most of those little islands are a bit more like sea stacks.
kayaking as navigation
I think you’d have a hard time making the case in a Maine court that everything done near a kayak counts as navigation, but the reality is that Maine has a lot of undeveloped and sparsely developed coastline. Hundreds of thousands of miles of it. The Moody beach case, as I read it, means that a land owner CAN tell you not to land on their beach if you’re just looking for a place to hang out. So in practice, we just stick to shoreline that doesn’t have a guy sitting in a lawn chair, or isn’t right under some rusticator’s expansive deep-water dock. There’s no end of remote shoreline, and tons of shoreline that is state owned or is otherwise accessible to the public, so I never really have an issue of where to land.
If something is going poorly, then I don’t care who says I can’t land. If there’s any safety concern then I consider it “navigation”, and I’ve never heard of their being a problem with that interpretation. If the water’s rough and someone is getting seasick, we can land and “take a bearing”. If a boat is busted, then we’ll land and effect a repair. If we’re lost . . . well then it’s CLEARLY navigation! 