SCARBOROUGH — Maine’s economy is tied to its shore, and with recent mill closings, we are even more dependent on tourism. Maine’s shore is also our cultural, artistic and recreational signature. However, while most coastal states are passing legislation and most court decisions are providing increased public beach access, Maine has veered in the opposite direction.

Why is Maine among a small minority of states where coastal ownership extends to the low-water mark? A 1647 Massachusetts ordinance grants Maine beachfront property owners presumed title to the low-water mark, while reserving for the public the rights to “fish,” “fowl” and “navigate” in the intertidal zone (land between the high- and low-water marks).

The scope of “navigation” has been litigated for centuries, and the specific public rights are still being clarified and articulated, the Maine Supreme Judicial Court ruled in 2011 in McGarvey v. Whittredge. Millions of dollars have been spent clarifying this issue, and as long as the law is in flux, wasteful and community-destroying beach-by-beach litigation continues.

Do these three rights provide the public its only access to public water, fish and surf? Should access to beaches that have been used by the public for centuries now be at the sole discretion of the few individuals who are lucky enough to own beachfront property and who stand to profit over the exclusivity of the access? In 2011, the answers to these questions appeared to be “no.”

In 2000, Maine’s highest court granted the town of Wells a prescriptive easement over Wells Beach, which allowed the public to continue to use the beach for “general recreation purposes.” This decision was based, in part, on the fact that the public had had access to that beach for recreational purposes since at least 1901.

The court ruled 4-3, however, that Maine residents have no general right to use Maine’s beaches (the so-called public trust doctrine). According to the court, absent proof of a prescriptive easement over a given beach, the public was limited to fishing, fowling and navigating within the intertidal zone there.

In 2011, the court ruled unanimously the public could access the intertidal zone to scuba dive, because scuba diving was a form of navigation. The court split 3-3 on whether the public had broader recreational rights under the public trust doctrine.

As additional activities, such as surfing and boogie boarding, were litigated, the court noted it would take an expansive view of what the term “navigation” included. So it appeared that historically town beaches would remain public, and public access and use rights would expand beach by beach and use by use in a manner that would eventually swallow up the limited public access rule.

So what happened at Goose Rocks, and where can we surf, swim and sunbathe now?

In February, the state supreme court ruled that the town of Kennebunkport had not established an easement by prescription over Goose Rocks Beach, although the public has used the beach and the town has maintained and patrolled it for over a century (almost exactly as in the Wells Beach case, where the town prevailed).

The court declined to decide whether the public has general unrestricted rights to recreate in the intertidal zone (public trust doctrine); and what other activities fall under navigation (all water-based activities were found to be navigation at trial).

The court reasoned if it did not presume that the public has the property owner’s implied permission to access beaches for traditional recreational uses, then private property owners would be forced to fence their properties against public prescriptive claims. Thus, by denying the town’s prescriptive easement claim, public access to the beaches will increase.

This argument is not supported by Maine law and is contrary to what happened at Moody Beach in Wells following two lawsuits in the 1980s. Soon after the court ruled that the town of Wells did not have prescriptive rights to use Moody Beach, up went the “no trespassing,” “no loitering” and “private beach” signs – which now outnumber members of the public using the beach for recreation.

A decision against a public prescriptive easement at Goose Rocks, if it stands, foreshadows the privatization of Maine’s historically public beaches. Hope may still exist, however.

n First, in a rare and unanticipated move, the court agreed to hear arguments on Kennebunkport’s and the state’s motions for reconsideration.

n Second, the court entertained arguments on the proper scope of the public trust doctrine and whether navigation includes other water-based activities.

So the door is open for the law court to decide whether to put future access to the state’s beaches in the hands of the few, or whether we should continue costly, community-wrecking, beach-by-beach litigation. Stay tuned.

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