February 9

Maine high court ruling on land access sends out tremors

When the state supreme court affirmed the rights of private property owners at a Kennebunkport beach, advocates for public use all over Maine found reasons to cheer and to worry.

By Kevin Miller kmiller@pressherald.com
Staff Writer

WASHINGTON — The sandy beaches that stretch in front of expensive homes in the Goose Rocks section of Kennebunkport are leagues away – literally and figuratively – from the 14,500 miles of snowmobile trails that crisscross Maine’s wooded interior.

click image to enlarge

Bob Scribner of Kennebunkport, a beachfront property owner, says, “The public is welcome to use the beach. But they are going to use it with respect.”

Gabe Souza/Staff Photographer

Yet when 29 Goose Rocks property owners lawyered up to fight Kennebunkport’s attempt to guarantee public access to the beaches fronting their homes, they found eager allies in the influential organizations that represent snowmobilers and the owners of Maine’s vast commercial forestlands.

“Landowners in Maine are incredibly generous, and we do have this great tradition of access to private land for recreation,” said Bob Meyers, executive director of the Maine Snowmobile Association. “It is incumbent on us to be very respectful of their wishes.”

The Goose Rocks Beach case decided last week by Maine’s top court was, on the surface, the latest precedent-setting ruling over who should control access to most of Maine’s 3,500 miles of coastline: the property owners or the public. However, the implications of the Goose Rocks case will likely extend far beyond Kennebunkport to other beach disputes – and potentially inland as well.

The case could make it harder for municipalities or interest groups to claim that the public’s longstanding recreational use of private land – whether a beach or a wooded trail – outweighs the owner’s objections to those activities on the property.

In the Goose Rocks case, the property owners clearly won when the court ruled that beachfront homeowners – not the town – have the right to say whether the public can stroll, sunbathe or play Frisbee on their sandy strip.

To supporters, the decision reaffirmed the rights of private property owners from Kittery to Madawaska and, in the process, helped protect Mainers’ access to private land. That’s because removing the threat of guaranteed access by “prescriptive easement” will encourage landowners to keep their property open to the public.

Critics predict the opposite, saying the ruling could threaten the public’s access to places beloved by generations of visitors.

“This was a disappointing case for the town, but in some ways I would say it is worse for the state of Maine and for anybody in the state who has used a private beach as a member of the public,” said Amy Tchao, the attorney who represented the town of Kennebunkport and other town property owners fighting for legal access to Goose Rocks Beach.


It’s a dispute rooted in differing interpretations of a 370-year-old ordinance – penned by people who lived three or four generations before the Founding Fathers – that still dictates who can do what along the coast of Maine and Massachusetts.

Adopted by the Massachusetts Colonial government between 1641 and 1647, the so-called “Colonial Ordinance” grants any “householder” unrestricted access to the intertidal area between the high and low tide marks for “fishing, fowling and navigation.”

Maine courts have interpreted the “fishing, fowling and navigation” language quite literally, meaning today’s beach-goers have no right to use the intertidal area for other pursuits without the landowner’s permission.

This Colonial-era interpretation granting private individuals ownership of the wet sands of the coastline applies in only six states: Maine, Massachusetts, New Hampshire, New Jersey, Pennsylvania and Virginia. Everywhere else, the intertidal area is state-owned land to be held in the “public trust” for the people’s use, another concept that dates back to Roman times.

Nearly four centuries later after the Colonial Ordinance was written down, the language still inspires legal challenges in Maine and elsewhere.

“We have seen a lot of activity in Maine,” said Angela Howe, legal director for the Surfrider Foundation, a national group involved in the Goose Rocks case that fights for public access to private beaches across the country. “The northeastern states traditionally have been more protective of private property rights on the coast, so they are ripe for these kinds of battles.”

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