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

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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

"There is no doubt that the public has been walking in the intertidal zone in Maine as long as anybody can remember, and that they did so up until recently without objection," says Deputy Attorney General Paul Stern, who has spent nearly a quarter century fighting to overturn the decision. "We view the Bell decision as an aberration, and that it was wrong from many different perspectives."

The Moody Beach decision held that the only shore activities members of the public had rights to were those enumerated in a Colonial ordinance adopted by the Massachusetts Bay Colony in 1647, several years before it began annexing settlements in Maine: fishing, fowling and navigation. Everything else -- walking, surfing, bird-watching and sunbathing -- required the permission of waterfront property owners, who could prosecute violators for trespass. The court also declared Maine's 1986 Intertidal Land Act -- which guaranteed public recreational use of such shoreland -- unconstitutional.

"Massachusetts and Maine law are totally in sync with the fact that the Colonial ordinance granted a limited (public) easement over the intertidal zone for specific purposes and no others," says attorney Pete Thaxter of Curtis Thaxter in Portland, who represented oceanfront owners in both the Moody and Goose Rocks Beach cases. "Private property is private property, and if you want to take it away you have to compensate owners."

Critics have savaged the ruling on many fronts. The 1647 ordinance, they argue, flies in the face of 2,000 years of legal practice dating back to ancient Rome and enshrined in English common law and North American custom. ("Things common to mankind by the law of nature are the air, running water, the sea, and consequently the shores of the sea," the 5th- century Justinian Code reads. "No man therefore is prohibited from approaching any part of the seashore.") The English crown held title to the shore, delegating its sovereign control to its early American Colonies, most of which retain ownership today as states.

AN ANCIENT ORDINANCE

Early Maine was no different, but the Puritans of Massachusetts had their own ideas -- including the notion that they were God's chosen people -- and presumed to govern their Calvinist utopia-in-the-making themselves. Tensions between that colony's citizens and magistrates became strained as the latter ignored constraints on their power in English common law. This resulted in the official compilation -- in the midst of the cataclysmic English Civil War, in which the king was beheaded -- of a written codex of rights and liberties of the Bay Colony's citizenry.

This document was commissioned in 1641, completed in 1647, and would be of little interest to Mainers today if it did not contain the following passages: "Everie Inhabitant who is a hous-holder shall have free fishing and fowling in any great ponds, bayes, Coves and Rivers, so far as the Sea ebbs and flows. ... Where the sea ebbs and flows, the Proprietor of the land adjoining shall have proprietie to the low water mark ... provided that such proprietor shall not by this libertie ... stop or hinder the passage of boats or other vessels in or through any sea, creeks, or coves to other men's houses or lands."

What these passages really mean has been a topic of considerable debate. Several legal scholars have argued that when seen in its full historical and textual context, this passage intended to give property owners an opportunity -- a "proprietie" -- to use the shore to build private wharves and nothing more. The ordinance fails to use the well-established early-17th-century language of a land grant, suggesting that the Puritans had no intention to give away public ownership of the intertidal zone. According to this interpretation, fishing, fowling and navigation were simply those public trust activities the ordinances' authors wished to emphasize, not a list of the only ones permitted.

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Additional Photos

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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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