Thursday, December 12, 2013
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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
"The ordinances were never fashioned with an eye to giving the upland owners 'fee simple' -- absolute title to the mean low water," says Orlando Delogu, an emeritus professor of the University of Maine Law School who has written extensively on the issue.
There's also the question of whether this Massachusetts ordinance -- created by a semi-rogue Colonial government while the English empire was in the midst of a civil war and abortive revolution -- should have legal standing in Maine, which wasn't even absorbed into the Bay Colony until the 1650s. The ordinance was made null and void in 1684, when a restored English monarchy rescinded the colony's charter of government -- and presumably restored the crown's sovereignty over ungranted shore. Its claim to nearly-exclusive private ownership of the shore wasn't incorporated into the common law of Massachusetts until 1810, when half the Maine backcountry was already engaged in an armed uprising against Massachusetts land barons that helped fuel the drive for statehood.
"There are any number of examples well after the Colonial ordinances were written where the Massachusetts Legislature granted a group incorporating a new coastal community a title that only went to the high tide mark," Delogu says. "They didn't think they had ever given up a square inch of (public) intertidal land."
Regardless, the Bay State's 1810 decision to incorporate a narrow view of the ordinance's meaning into its law arguably became binding upon Maine under the terms of its 1820 secession from Massachusetts. "The courts have adopted this into common law," Thaxter explains. "I think it's entirely settled."
Not everyone agrees. Under Massachusetts, the District of Maine was treated as a colony, and scholars like Delogu have argued that under the U.S. Constitution's equal footing doctrine, Maine had a right to establish its own policy toward the shore. "It's never too late to fix a mistake," he says.
"The public is entitled to use the beach and that's how I feel it should be along the coast," says Barbara Barwise, a back-lot owner at Goose Rocks Beach who has studied the history of land use in the area. "Most people used to think this was the case, but we found out that Massachusetts rules. We may have made the separation in 1820, but it didn't hold!"
PRIVATE SHORE OR PUBLIC TRUST?
That said, most of the legal community accepts Thaxter's assertion that oceanfront owners generally hold title to the intertidal shore. Disagreement focuses on what public trust rights the ordinance grants everyone else. Following Massachusetts' interpretation, Thaxter and the court majority in the Moody Beach case say only "fishing, fowling and navigation." Many others -- including the dissenting justices in that case and the state of Maine -- say those are merely some of the many rights the public should and always have enjoyed, and say they have 150 years of Maine case law on their side.
In a brief filed in the Goose Rocks case, the Attorney General's Office cited numerous instances between 1820 and 1989 in which Maine courts acknowledged public rights to engage in other activities on the shore, from ice skating to walking and lying on the flats. It notes that the 1647 ordinance itself has a passage allowing the public to drive cattle on the shore.
"It is hard to understand how the public has the public trust right to travel over the intertidal area when driving cattle but not when pushing a stroller with a child in it, or only when it is covered with ice but not when bare," the brief reads. "And herding cows has nothing to do with fishing, fowling, or navigation."
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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