Saturday, December 7, 2013
(Continued from page 3)
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 courts appear to be taking a broader view as well.
In August 2011, the high court unanimously ruled in favor of Eastport diver Jonathan Bird, who asserted his right to cross a section of intertidal flats owned by his neighbor to engage in scuba diving. Three of the justices said this was because scuba diving was a form of navigation, while the other three disavowed the Moody Beach interpretation altogether. Fishing, fowling and navigation, they wrote, "simply do not and have never, until (the 1989 ruling), been understood to wholly or exclusively define the public trust rights."
The Oct. 16 Goose Rocks Beach decision opened the door wider.
Twenty-nine of Junker's neighbors had filed suit in 2009 to claim ownership of the beach, and to deny both back-lot owners and the general public any rights to use it for general recreation. (Like their counterparts at Moody Beach, they had been motivated by the boorish behavior of some beachgoers, but ultimately chose not to join a successful effort to negotiate new beach-use policies to be enforced by the town.)
Relying on the scuba case, lower court Justice G. Arthur Brennan ruled that the interpretation of "fishing, fowling, and navigation" should evolve with the times, that the public had the right to cross the beach to engage in "waterborne activities" including "jet-skiing, water-skiing, knee-boarding or tubing; surfing; windsurfing; boogie boarding; rafting; tubing; paddleboarding; and snorkeling."
But while he moved the walls set by Bell v. Town of Wells, Brennan didn't try to knock them down. Activities that couldn't be reconciled with those in the 1647 ordinance were excluded, including "swimming, bathing or wading; walking; picnicking or playing games in the intertidal zone."
General recreation will be permitted at Goose Rocks, however. The judge was presented with extensive evidence that the public had used that beach for general recreation for at least a century without seeking permission or facing the objection of landowners. He ruled the town of Kennbunkport had "established easements for general recreational activities on the entirety of Goose Rocks Beach."
GOOSE ROCKS APPEAL LIKELY
Thaxter, who represented the oceanfront owners, says he expects the decision will be appealed. "Beachfront owners have been very generous, and there haven't been objections to the things (Justice Brennan) listed," he says. "If you get on a surfboard or row a boat, that's not going to be a big issue."
"It's really recreation they're after," Thaxter says of his opponents on the issue. "There's no question that some justices in the (high) court would like to erode the Bell decision."
If the Goose Rocks case does reach the appeals court, high court justices will be presented with another opportunity to define what the public can or can't do in the intertidal zone. "In some ways, we already have our answer," says attorney Amy Tchao of Drummond Woodsum, who represented the town in the Goose Rocks proceedings. "We've moved beyond (Moody Beach) in that the (high) court is saying fishing, fowling, and navigation are not exclusive, and that we will look at uses on a case-by-case basis."
Public rights might logically snowball from there. "If you can walk through the intertidal zone to go scuba diving and surfing and snorkeling, how is swimming any different?" Tchao asks. "Is it really any more burdensome to property interests for someone to be walking across the shore to swim as opposed to snorkel?"
Walking the packed sand at Goose Rocks -- legally for now -- Barbara Barwise expresses hope the courts continue to expand public rights to the shore.
"In 1647 people fished and fowled and navigated their boats and their cattle and that was about it. The ordinances met the times," she says. "I don't think the Puritans did much wind surfing and I doubt there was much Frisbee."
"I think it's time we moved on," she adds, gazing out at the crashing surf. "I think we're on the cusp. I really do."
Staff Writer Colin Woodard can be contacted at 791-6317 or at:
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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