PORTLAND – Peter Gray is a painter by occupation and a longtime beachfront resident of Goose Rocks Beach in Kennebunkport.

Peter and his family never objected to the seasonal public recreational use of their beach property or sought to “bar” the public. The public’s recreational use has simply never interfered with Peter’s own. 

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A judge has ruled that the public established the right to have access to Goose Rocks Beach by longtime continuous use. 2012 File Photo/John Patriquin

In most cases, he welcomed others’ use of the sand because he felt confident that longstanding safeguards provided by Maine law, combined with longstanding town enforcement of his property rights, protected him against the risk of losing his property.

Earlier this fall, however, a judge determined that Peter’s entire beach property — not just the intertidal zone — is now effectively public property because the court concluded that the public’s “longstanding recreational use” gave rise to a public “prescriptive easement.” 

The greatest impact of this decision may not be its effect on Goose Rocks Beach but its effect on public access to all private property in Maine. 

Unlike many states, Maine law presumes that public recreational use of private property is “permissive” rather than “adverse.” This “presumption of permission” applies to recreational activity regardless of where it occurs — from large open woodlands in northern Maine, to your neighbor’s field, to beachfront property. This is critical because only “adverse” use can create a prescriptive easement.

The policy behind the presumption of permission is simple: If property owners don’t feel threatened that allowing public recreation on their property will forever deprive them of their rights, they will be more willing to allow it. As a result, Maine is a better place to live and play. Applying to all property from Aroostook to York counties, the presumption of permission strikes a delicate balance between the interests of public recreational access and the preservation of private property rights.

Mainers can thank this presumption for much of the recreation they take for granted, such as snowmobile and ATV use in northern Maine and hunting and fishing just about everywhere. The consistent testimony by all witnesses in the Goose Rocks lawsuit that Goose Rocks was a “welcoming” and special place is proof by example that the presumption of permission worked the way it was intended. 

Landowners in Maine who see fishermen cross their property to get to a river or watch snowmobilers cruising down the edge of their field may wonder whether allowing public use is going to deprive them of their property rights forever. 

According to the Maine Supreme Judicial Court, the presumption of permission assures landowners that the answer will be “no” unless the use is so pervasive that property owners should clearly know that the public users are “disregarding entirely” the true owner’s rights to their property. This legal standard has encouraged Peter and other property owners all across Maine to continue the tradition and benefit of permitting recreational access on private property that many take for granted.

The problem with the Goose Rocks decision is that the court turned on its head the presumption of permission and the public policy it embodies. It declared that longstanding recreational use of private property is sufficient evidence of “adversity” to overcome the presumption of permission. 

However, without the presumption, property owners would not have been encouraged to allow the recreational use in the first place. The court’s decision calls into question what reliance, if any, landowners can continue to place on the legal presumption of permission. 

People pay attention to these cases — as evidenced by the significant news coverage of this lawsuit. This is why the court’s decision to cast aside the presumption of permission based on the exact recreational use that the presumption promotes affects far more than just beaches.

It places all Maine property owners who have relied on the presumption to permit longstanding public recreation on their property — whether it be for hunting, fishing, sandcastle building or ballgames — in the unprecedented position of deciding between allowing public access or preserving their property rights. The result is not difficult to predict.

This case’s lasting legacy could be the unintended consequences that result when legal standards are sacrificed in an effort to “open” a single beach that was never “closed.” Unless overturned by the Maine Supreme Court, it could be that this decision, heralded by advocates of “public access,” turns out to be the greatest threat to public access to private land that Maine has ever seen.

Ben Leoni is an attorney at Curtis Thaxter in Portland and represents property owners at Goose Rocks Beach.

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