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

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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

Steinman, like many of those interested in public access cases, was still dissecting the Maine Supreme Judicial Court’s ruling late last week. While the Law Court made a clear ruling on the “prescriptive easement” question, it did not address a host of other issues – most notably whether the “fishing, fowling and navigation” exemptions should be expanded to reflect the way most Americans use beaches today.

The Law Court left that issue up to York County Superior Court, much to the dismay of the Maine Attorney General’s Office, the Surfrider Foundation and other groups pushing to expand upon Colonial Ordinance language they view as antiquated.

“I believe this could have, should have and still will be the case to expand those uses, but the court has said it is not time yet,” said Steinman, whose group fought successfully in 2011 to include scuba diving among the activities allowed in Maine under the “navigation” category.

CLARIFICATION CASES

Just south of Kennebunkport along Route 9, the town of Wells relies on a prescriptive easement to guarantee public access to the large stretch of Wells Beach not owned by the town.

With more hotel rooms and campsites than residential homes, Wells is entirely dependent on beach access for its economic livelihood. Wells Beach is so important to the town’s tourism that the town has maintained the beach and access to it for decades. And that history justified the prescriptive easement.

Wells Town Manager Jonathan Carter, whose tenure dates back to that first Moody Beach case in 1989, said he was surprised by the ruling because he and others saw the court as “loosening up a little bit” on public beach access issues. Carter is hopeful that the Goose Rocks ruling will not affect Wells Beach.

“It’s only been a few days, but we are beginning to look at the ramifications of the ruling,” Carter said. “As of right now, we don’t see things changing on Wells Beach for us ... but we will certainly be putting our heads together with our legal team.”

John Duff, an associate professor of environmental law and policy at the University of Massachusetts Boston, said prescriptive easements remain viable options in Maine. But future applicants for prescriptive easements will have to meet a lengthier check-list, of sorts, to overcome Maine’s “presumptive permission” standards and will have to do it parcel by parcel, he said.

“For a long time, ambiguities in the law were not problematic since the use or pressure on the coast was not particularly high,” said Duff, a former University of Maine School of Law professor who authored a guide on shoreline access laws in Maine. “As the pressure does increase, the ambiguities that existed lead to different beliefs by different user groups.

“The last few cases seem to fall into the category of clarification cases,” he wrote in an email. “And in the most recent case, the Law Court seems to be signaling a need for greater precision in easement cases by noting the need to address such claims on a parcel by parcel basis, so that property owners are not all lumped together.”

But does the Goose Rocks case have implications for public access to private land beyond the intertidal zone?

The Maine supreme court justices certainly put the case in that broader context as they drew a clear legal line between guaranteed public access obtained through a prescriptive easement versus the access granted passively (or “presumptively”) by property owners who don’t gate, fence or otherwise “post” their land.

“The presumption of permission derives from the ‘open lands tradition’ that Maine shares with a minority of other states,” the justices wrote in their Feb. 4 decision. “This tradition recognizes the State’s desire to encourage the hunting, hiking, and other outdoor activities for which Maine is celebrated and on which much of Maine’s economy is based.”

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