Last month, Maine’s State Supreme Court issued a new decision regarding the public’s right to use Goose Rocks Beach in Kennebunkport. In Maine, under an arcane legal doctrine, the people who own the land adjacent to a beach also own the beach itself down to the low water mark, subject to limited public rights under the public trust doctrine. (For more information on this doctrine, see my prior blog.) In the ongoing Goose Rocks Beach case, prior to last month’s ruling, the State Supreme Court had issued a decision in favor of homeowners, who want to limit the public’s use of what they consider to be their beach property. The Court found that the public – despite extensive evidence provided by the Town of Kennebunkport – had failed to prove it had an easement to use the beach for recreation. With its decision last month, the Court has granted the Town a second chance to prove a prescriptive easement (in other words, that the public’s historic use of Goose Rocks Beach gives it the right to keep using the beach). The caveat? The Town must offer evidence of how the public uses each of the 101 privately owned parcels of beach, rather than simply having witnesses testify that they use the entire beach for recreation, as they did in the first trial.
That first trial was long and costly, and the trial judge implied that he did not need such specific evidence; he understood that if a witness testified to using the entire beach for recreation, then that necessarily included the 101 parcels at issue.
And, remember that arcane public trust doctrine? The State Supreme Court has continued to rule that the public trust doctrine issue was not properly tried during the first trial, because the State Attorney General’s Office did not file a claim against the property owners who had originally filed suit against the Town.
Confused yet? I know I am – especially about this last part of their ruling. I reviewed parts of the trial record and listened to the arguments before the State Supreme Court. The public trust doctrine was raised in numerous pleadings. In addition, every attorney who appeared before the State Supreme Court stated that the public trust doctrine issue had been tried and decided. In fact, the trial judge issued an order finding facts and deciding the scope of the public trust doctrine. Nonetheless the Court has sent the case back to the trial court with instructions to “conduct proceedings and issue a decision on the remaining pending causes of action, … , as well as any public trust doctrine claim.”
So our State Supreme Court has sent the case back to the trial court for a second, nearly identical, and potentially very expensive trial – this time linked to those 101 specific parcels of beach and with the mandate to retry the public trust doctrine. I understand the Court’s reluctance to find that private landowners who let the public use their beach for recreation give up some property rights in the form of a prescriptive easement, because of the precedent it could set for all private landowners. But the fact is the public’s use of beaches is very different from their use of private inland parcels. Inland, a generous landowner may open her land for public recreation, with a presumption that she has granted permission for the public to recreate on her land without creating an easement. In contrast, no private landowner in Maine has EVER owned the intertidal zone absolutely. It has ALWAYS been open for public use under the public trust doctrine.
I hope the parties to the Goose Rocks case take the procedural steps needed to bring the public trust doctrine question back to the State Supreme Court later this year. The Court should find that the public trust doctrine includes the public’s right to engage in customary recreation – for sunbathing and walking, for example, but not for building bonfires or hosting weddings without landowner permission.