This winter has been too long. Like many Mainers who live near the coast, I am dreaming of walking on the beach and exploring pools of water along our rocky coast. But after the State Supreme Court’s confusing decision about Kennebunkport’s Goose Rocks Beach, the question is: where can I go to do this?
The part of the coast between the high tide mark and low tide mark – called the intertidal zone – includes Maine’s treasured stretches of sandy beaches and famous rocky shoreline. The intertidal zone provides many of us with recreation and solace, and forms the backbone of our summer tourist industry.
The public has enjoyed Goose Rocks Beach for more than 100 years. Before the Supreme Court’s recent decision, the public could access Maine’s intertidal zone, as the area is considered held in trust for limited public use or because the public has gained an easement over the area. In the Goose Rocks case, Maine’s Supreme Court found that the public did not have an easement to use Goose Rocks Beach and declined to address the public trust issue altogether. The decision has left many confused.
In fact, the court has been asked to reconsider its decision, and is considering whether to do so. We believe that the court should review its decision and allow the public full access to Goose Rocks Beach. Below is a brief overview of the public trust doctrine and easement concept that permit public use of the intertidal zone, even where private landowners own the underlying soil.
The Public Trust Doctrine
The public trust doctrine originates from colonial times, when the King of England held the intertidal zone in trust for the public to use. In the mid 1600s, the council authorized by the King to govern Massachusetts (which also encompassed Maine) passed an ordinance that gave ownership of the intertidal zone to upland landowners but reserved the public’s right to use the intertidal zone for at least fishing, fowling, or navigation. The only reason the King gave away ownership of this valuable resource was to encourage landowners to build wharves to promote colonization of the area. Otherwise the public could continue to use the area.
Although the ordinance expired before Maine became a state, our courts adopted the concept that upland owners own the intertidal zone, but that the public still has the right to use it.
The extent of that right has been debated in Maine’s courts and press for at least the last three decades. Some believe the right is limited to fishing, fowling, and navigation. Others believe the doctrine should be expanded to include recreational uses.
In 2011, the last time the state Supreme Court looked at this question, the court failed to provide a clear answer. One judge recused himself and three judges reasoned that the doctrine should encompass public recreation. The remaining three declared that the public could only use the intertidal zone for activities associated with fishing, fowling, and navigation, but that the court should be generous in how it defined those terms – so generous that it found scuba diving to be allowed as navigation.
So, recently, the unanswered question came up again in the Goose Rocks case. The case originated when upland landowners sued the Town of Kennebunkport, asserting their full ownership rights over the intertidal zone. Following a three-week trial, the judge ruled that the public had gained an easement to use the intertidal zone for recreation including swimming, wading and sunbathing. In addition the judge ruled that under the public trust, the public could use the intertidal zone for many purposes that fit broadly under “fishing, fowling and navigation.” These uses include such activities as jet-skiing, waterskiing, tubing, surfing, boogie boarding, and snorkeling, but not swimming, bathing, wading, picnicking, or playing games.
The landowners appealed that decision to the state Supreme Court, which refused to consider whether the public could use the beach under the public trust doctrine, and said the trial court should not have considered the question either.
Easement to Intertidal Zone
The concept of easements to use the intertidal zone developed because, since a landmark 4–3 decision concerning the Town of Wells’ Moody Beach in 1989, the Maine Supreme Court ruled that the public trust doctrine prevented the public from using the intertidal zone for its most popular activities –walking, swimming, wading, and sunbathing.
Since then, when towns have been sued by landowners to limit public use of beaches, the towns have argued that the public has acquired an easement to use the beach – mainly because the public has in fact been walking, swimming, wading, and sunbathing in these intertidal zone for well over a century.
But proving an easement is difficult and confusing – for towns, landowners, and the public. In fact the result has come out differently in every case where a town has sought an easement, with the result, for example, that the public has an easement to one beach but not to a nearby beach. In the Goose Rocks case, the Town of Kennebunkport proved that the public had an easement to use the intertidal zone at trial, but lost it on appeal.
Confusion! The state Supreme Court has been asked to reconsider their recent ruling. They should. The public’s rights to use the intertidal zone should not be subjected to the piecemeal, perplexing, and inconsistent use of easements. The trials to establish these easements create a lot of tension among neighbors and cost huge sums of money. The fickleness of the supreme court’s recent decisions on easements has left towns wondering whether the beaches that have formed the backbone of summer tourism for more than a century will be open to the public this summer.
So, the court should reconsider the case, and answer the question we really need answered: Does the public trust doctrine allow public recreation – including walking and swimming – in the intertidal zone?
We think it has for centuries, and still does today. I hope to see you on the beach.