Confrontation on Sandy Neck: Public Road Access Rights, Endangered Species Protections, and Municipal Liability

Abstract

Sandy Neck’s barrier beach in Barnstable, Massachusetts provides critical habitats for piping plovers and other threatened species listed by the Endangered Species Act (ESA) and the Massachusetts Endangered Species Act (MESA). To protect the species, the Town must regulate vehicle access to the beach and the nearby cottages. The cottage owners assert that the regulations amount to a regulatory taking of their access rights to the cottages. This Note proposes alternatives for the Town to protect the threatened species, without working a taking of the cottage owners’ access rights, recommending that the Town apply for an incidental take permit under ESA, eliminate restrictions on guest access, and hire additional pilots to guide cottage owners around piping plovers on the trails leading to the cottages.