December 4, 2012

Our View: Just whose hands control Maine's coast?

You can have a lot of fun on intertidal land, but many forms of it are illegal. Should they be?

How much stuff can a beachgoer do if a beachgoer wants to do stuff on a beach?

That question, at least as it regards beaches that are not in public hands, has been an issue in Maine for several hundred years. And every time somebody thinks it has been answered, somebody else says, "Not so fast."

Now, the multifaceted issue of who can do what on Maine's shoreline -- at least between the low tide and high tide margins -- may end up once again in the hands of the Maine Supreme Judicial Court. That's because previous rulings on laws and customs that are rooted in measures passed in Massachusetts before Maine became a state have become controversial again.

As a general matter of Maine law, people who own shorefront property are presumed to control the area in front of their houses down to the low-tide line. A Colonial-era standard from Massachusetts created exceptions involving "fishing, fowling and navigation," categories that also were understood over time to include other uses, like driving cattle and ice-skating.

An effort by some landowners on Moody Beach in Wells to enforce those limits ended up in the state Supreme Court's hands in 1989, where the 1647 measure was essentially upheld and a 1986 Maine law expanding public access for broader recreational uses was declared unconstitutional. Later decisions have expanded public access for a few specific uses, such scuba diving.

However, many nonabutters continue to use intertidal land for general recreation. In Kennebunkport, such use led a group of abutters to sue to bar people from Goose Rocks Beach.

A lower court, in a ruling handed down Oct. 16, said that the ancient permission for "navigation" should be expanded statewide to encompass water-related activity such as jet-skiing, tubing, surfing and similar sports.

And Judge G. Arthur Brennan also said the public's use of Goose Rocks for beach-centered activity such as walking, sunbathing and swimming had gone on for so long that an easement had been created -- but only at Goose Rocks.

If the landowners appeal, as some think likely, the high court will have another chance to uphold or revise current usage on a statewide basis.

While easements hold no precedent for areas where no prior access has been established, most of the rest of the country allows the public the general recreational use of intertidal areas. If it can, Maine should settle this question once and for all.

 

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