Coming to Terms

A legal brief on the issues in Maine’s recent beach disputes

The Colonial Ordinance

Adopted in the 1640s, retained by the Commonwealth of Massachusetts after the Revolutionary War, and retained by Maine when it became a separate state in 1820, the Colonial Ordinance granted oceanfront property rights to the mean low-tide mark, with a public access allowed for fishing, fowling, and navigation.

Prescriptive public easement

Basically, this applies the “If it walks like a duck . . .” argument to beach access. If the public has used a “private” beach without objection for many years, then that beach has effectively become public — particularly if the town has provided services such as lifeguards and trash pickup. The courts granted the town of Wells a prescriptive public easement over a portion of Wells Beach in 2000, but there were extenuating circumstances (the plaintiffs didn’t even know they owned the beach until 1983, and the town of Wells had maintained it for years before that). Nevertheless, that case helped embolden the town of Kennebunkport to take on the property owners at Goose Rocks Beach.

Presumption of permission

Traditionally, Maine’s beachfront residents have been generous in allowing public access to their property — so much so that many summer visitors would be surprised to learn that technically they’ve been “trespassing” when using certain popular beaches. And that’s just the way the State wants it; visitors can presume they have permission to use any of Maine’s beaches — as well as its undeveloped woodlands — unless they’re explicitly told otherwise. “This tradition recognizes the State’s desire to encourage hunting, hiking, and other outdoor activities for which Maine is celebrated,” the Supreme Judicial Court recently wrote.

If you have a hard time discerning where “presumption of permission” ends and “prescriptive public easement” begins, you’re not alone. The Maine Supreme Judicial Court struck down a lower court’s verdict that awarded the town of Kennebunkport a prescriptive public easement at Goose Rock Beach because, the Supreme Judicial Court ruled, the town hadn’t presented a strong enough case to upgrade from mere presumption of permission. But in a rare motion to reconsider, the high court left the door open for the state of Maine to retry the case under the . . .

. . . Public Trust Doctrine

This notion, which dates to ancient Roman law, holds that navigable waterways are public property. In most states, the doctrine also covers the intertidal zone — or the “wet sand” between the mean high- and low-tide marks. Not in Maine (see the Colonial Ordinance). In 1985, in a hasty response to the Moody Beach case, the Maine legislature passed the Public Trust in Intertidal Land Act, which basically negated the Colonial Ordinance and gave the public almost unlimited access to private beaches. The courts quickly struck the act down on the grounds that it constituted an unconstitutional taking of private property without due process and just compensation. Still, Maine’s courts have shown a recent inclination to expand public access beyond “fishing, fowling, and navigation,” while stopping short of the sweeping reforms in the Public Trust in Intertidal Land Act.

Eminent domain

This is essentially the “due process and just compensation” referenced above. Any coastal Maine town can acquire the beaches within its limits if it wants to — but it must pay the current landowners a fair price. Some Maine towns have already done that — including Old Orchard Beach, which bought up the beaches within the city limits before World War II. No one is happier about that than town manager Larry Mead, who was mired in the Goose Rocks Beach case as town manager in Kennebunkport before coming to Old Orchard Beach. Says Mead, “I’m truly thankful for whoever had the foresight way back when to have the town [of Old Orchard Beach] acquire the beaches. That’s unusual in Maine.”

stare decisis

According to the Wex Legal Dictionary, this is a Latin term that means “to stand by things decided.” Maine’s courts have shown no inclination to follow this basic legal principle when it comes to beachfront-property disputes. A better description of Maine’s approach would be stare indecisis.