December 2, 2012

War for Maine's shore

Recent court decisions open new fronts in the battle over ownership and use of the state’s beaches.

By Colin Woodard cwoodard@pressherald.com
Staff Writer

KENNEBUNKPORT - Joan Junker has spent every summer since 1930 -- and the past 36 winters as well -- here at Goose Rocks Beach, a 2½-mile sweep of fine white sand facing the ocean.

click image to enlarge

A sign posted on a seawall at Moody Beach proclaims, “Private Beach. No Loitering.” Property owners there won a landmark 1989 case affirming private ownership of the shore straight to the low-water mark. Unlike most other states, Maine’s beaches and other intertidal property are not owned by the state, though recent court cases have increased public access rights.

Colin Woodard/Staff Writer

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Additional Photos Below

Her parents started coming in 1908, bought the family cottage one house back from the dunes in 1925 and moved here year-round a quarter century later. She met her future husband walking the beach where their friends had long played, walked and swam.

But if some of her neighbors have their way, she'd have no right to walk on the beach at all. The lawsuit they launched to stop her could finally decide whether she and other Mainers can legally stroll, sunbathe or build sand castles anywhere along the state's 3,500 miles of shoreline.

In mid-October, a judge affirmed the public's right to swim, stroll and recreate on Goose Rocks Beach, rejecting a claim by 29 oceanfront lot owners to have exclusive rights to do these things on the wet sand exposed at low tide. It was a victory for Junker, hundreds of other back-lot cottagers, and the town of Kennebunkport, who argued they and the public had always used the beach and always should.

It was only a partial victory for Mainers everywhere. The ruling expanded their rights to cross intertidal shores to engage in a broad range of activities, including boogie boarding, jet skiing and windsurfing. But if appealed, which is expected, Maine's highest court will have an opportunity to decide if the public has the right to sit, build sand castles, or simply walk below the high-water mark as generations of Mainers always had.

The struggle over public rights to Maine's wide intertidal shore is heating up, increasing the chance that Maine's Supreme Judicial Court might review a watershed ruling made 23 years ago that many legal scholars, citizens and the state of Maine itself believe was wrongly decided.

The decades-long conflict pits a restrictive 365-year-old Massachusetts colonial ordinance against a notion that is backed by law in most of the country: that the sea floor exposed at low tide is in essence a public good and should be open to strollers, bathers and children building sand castles.

After recreating on Goose Rocks Beach for eight decades, Junker thought such rights existed in Maine, too. Nobody had ever sought permission to use the beach -- dry sand or wet -- and the two beachfront owners who objected in the past were seen as eccentrics. So when she heard three years ago that her oceanfront neighbors were suing to assert ownership of the beach, she was dumbfounded. "I couldn't believe it," she recalls, sitting at her son's home on the other end of the beach. "The idea that the beachfront owners owned the beach, it had never occurred to us."

A CONTROVERSIAL DECISION

Not long ago, Mainers assumed they already had "public trust" rights to the shore, and had behaved accordingly for generations. People walked the flats, used beaches as highways and airports and places to drive cattle, and sat on rocks from Kittery to Lubec while their children played in tidal pools. Below high tide, nobody thought to ask a landowner's permission to access the seabed, and few landowners would have expected to be asked.

But in 1989, Maine's high court ruled in favor of a group of beachfront homeowners on Moody Beach in Wells who had asserted their right to kick beachgoers off the sand, effectively privatizing the beach. That case, Bell v. Town of Wells, is sort of the Citizens United of Maine shoreland jurisprudence: a 4-3 ruling with wide-ranging ramifications that has been widely condemned by legal scholars and dissenting justices and is seen by many as a departure from previous case law.

(Continued on page 2)

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Additional Photos

click image to enlarge

Joan Junker walks along Goose Rocks Beach in Kennebunkport on Thursday. Junker has spent every summer since 1930 at Goose Rocks and was surprised when some of her oceanfront neighbors filed a lawsuit, claiming they owned the beach.

Gregory Rec/Staff Photographer

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An aerial view shows Moody Beach in Wells.

John Patriquin/Staff Photographer

 


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