Mainers’ lawsuit will challenge 30-year-old legal standard for public access to private beaches
The case revives the fight that resulted in 2 rulings in the 1980s, when the Maine Supreme Judicial Court found that beachfront property owners own all the way to the low tide line.
"A group of 23 Mainers plans to file a lawsuit challenging a 30-year-old legal ruling that said the public does not have recreation rights on private tidelands.
The case could change the course of recurring legal battles over coastal access, especially around sandy beaches in southern Maine. Benjamin Ford, a Portland attorney who is representing the plaintiffs, said Wednesday that the lawsuit is meant to correct a “historical mistake.”
“Thirty years ago the people of Maine were told that they must live under a law that passed a century before the birth of Thomas Jefferson, and that locked away thousands of miles of the Maine coast,” Ford said. “The Maine Supreme Court’s decision in the so-called Moody Beach cases has led to nothing but confusion, conflict, and ridiculous litigation over whether seaweed is more like a worm or a tree. This mess was created by lawyers and judges and it needs to be fixed by lawyers and judges.”
A weathered sign on a homeowner’s concrete retaining wall along a public pathway to Moody Beach in Wells notifies visitors that the beach is private. Gregory Rec/Staff Photographer
Attorneys for the plaintiffs will make a formal announcement Thursday on Moody Beach in Wells, the same beach that was the focus of two landmark rulings by the Maine Supreme Judicial Court in the 1980s. In those opinions, the court found that beachfront property owners own all the way to the low tide line. That approach differs from most coastal states, where the state owns the area between low and high tide…"
Similar issues involving the coasts of the Great Lakes have been litigated, resulting in a Michigan Supreme Court decision in favor of the public.
While the decision has flaws of omission, it does allow the public to walk along the shores of the Great Lakes so long as they stay below the high water mark. The United States Supreme Court declined to hear an appeal of the Michigan Supreme Court decision.
Since the “high water mark” is in no way a fixed point on Lake Michigan, how do they delineate the “legal” pathway?
I remember trying to hike along the Michigan shoreline during my years there and encountering fences and signs that forced us to take off our shoes and wade up to our knees.
And of course those dogs-in-the-manger lakeshore residents who don’t want “strangers” traversing “their” beach are the same ones who cry to the government to use taxpayer funded effort to restore those post-storm beaches or the wind and surge collapsed dunes that they stuck their McMansion “cottages” on as soon as something goes awry.
I may be in the minority but I believe that the area along shorelines and navigable waterways defined as the area between low and high water marks should be considered as part of the common wealth and never privately owned. And that there should be a riparian buffer zone above the high water mark understood to be a common R.O.W. with limited (but functional) use of the water by the public.
I’m dreaming, I know, but it’s something we should be working towards. The argument that public ownership of these shorelines and stream banks constitutes a “taking” from private ownership is absurd . These lands were “taken” in the first place and it’s time they were given back to the land to restore their functions as filters and buffers, structure to minimize erosion, important ecological habitat, and yes, responsible, sustainable public use.
There have been numerous cases here in Connecticut regarding ownership and access to the intertidal zone. The result is almost always re-affirmation of the intertidal zone being public-owned. Why I say “Almost always” is that the issue in dispute sometimes doesn’t pertain to the law itself.
A couple of the more notorious ones were one where a wealthy coastal town not only claimed that ownership went to the low tide line, but also a distance beyond it as being off limits to swimmers and boaters. And another was one where a person was fined for trespassing while walking in the intertidal zone from one town to another that had a different view on intertidal zone ownership. Unfortunately for that town, the person they hassled was a trial attorney. Both times, the public ownership won out.
And inland, the rule is that if any part of a body of water comes in contact with public property, then the public has legal access to that body of water from the point that it touches public property. There was one case in particular where the property owners around a lake kept putting up barricades, and law enforcement kept tearing them down, and threatening the owners with being cited for breaking the law. I personally paddled there once and was politely asked by a cop that just happened to be there to please make his life less aggravating by paddling elsewhere. I told him that if I had the right to do so, then I was launching, so I could go fishing. He didn’t argue, and told me to have a good time. Great Bass fishing there.
Last I knew, only Maine and Massachusetts hold that property ownership goes to the low tide line.
Quoting from Glass v Goeckel, 473 Mich 667; 703 NW2d 58 (2005)
"The Court defined the ‘ordinary high water mark’ as follows:
“The point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any particular place is of such a character that [it] is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark.”
I’m not familiar with the southern shorelines of Lakes Michigan or Huron, but up here it’s easy to figure out the ordinary high water mark as well as the existing high water mark. While I have seen a couple of snow fences placed in an attempt to control sand movement, never did they extend to the water. Less population, less people problems I guess.
FWIW, I have no animus toward lakeshore property owners. Some of the homes have been in the same family for generations; others have been built by folks who worked hard for their financial success. Waterfront property is always taxed at a very high rate and while I read about those folks downstate who sought local government help with their eroding dunes, pretty sure there was none.
On the other hand, tens of billions of tax dollars have been spent on subsidizing coastal reconstruction in the aftermath of hurricanes.
Celia - Thanks for posting the news item about Maine. It will be interesting to see if they have any new arguments to try to change the rulings made in the 1980’s. I’ve always felt that landing a kayak in the intertidal zone counts as “navigation” and thus is one of the exceptions that grants public access (as long as you then don’t walk any higher than the high tide line). But I’ve never really felt a need to do that.
Paddling midcoast, obnoxious land owners are happily still a minority issue. But l hear it has become a huge issue in southern Maine, as long time fishing families have had to give up waterfront properties they owned for generations due to unbearable taxes and competition from wealthy out of staters. Plus there are simply more not or barely populated islands in Midcoast compared to further south.
However, the loss of the Old Quarry campground as of this season pokes a heck of a hole in launch options to easily paddle the Stonington Archipelago. Won’t be surprised to see more stories about this kind of friction in Penn Bay this year.
I know where l would be buying up access points to turn over to some land conservancy for public access if l won the lottery…
I fear the same. Maine properties are hot sales. We have realtors actually coming to our house begging to sell for some 3 times the assessed value of our property. Gentrification is ugly. Our neighbor was offered 1.5 million for lakefront property assessed at 400 k. The wealthy invasion is here.
Covid has had impacts. More from cities want to move here now that they have found out actually being in a fixed office is not necessary.
Whatever “limited use” is, imagine someone doing that in your backyard. We had people get out of their canoe once and set up a picnic on our lawn with blanket and the works. We also found some kind of animal trap set at water’s edge. Passing thru is one thing, the rest is something nobody, waterfront or otherwise, would put up with.
My better half’s niece has a shoreline property she grew up on in Bremen that surrounds a little 800 sq ft summer cottage owned by a guy from NJ. He put it on the market, and got an offer of $450K for it last week. The view is not that great from that house, it’s on piers rather than a foundation, and it has almost no land. And someone offered $450K. Incredible, considering that 2 years ago, he couldn’t move it at $275. Jess should have bought it back then.
Re having an area presumed to be for public use, a little moderation is needed. I wish I could say I had not seen kayakers land right under a private property sign or within easy sight of a house and break out lunch at high tide, but I have. FWIW it has never been boats I recognize from the camps and rentals around where I have stayed for decades, it is people who are far more out of towners than I am. So I happen to agree with the idea of limiting landings where there is a house nearby for necessary activities like checking charts or fixing a skeg problem.
And as I get older, taking a quick stretch out of the boat to stave off a charley horse or stretch an aching back.
But the situation in Maine, and elsewhere, has escalated to a lot more than the occasional grumpy encounter to newer and usually wealthier property owners calling the sheriff or otherwise getting quite wrought. As someone who only lands off of my planned stops when I have no choice, this is not something that I would want to encounter.
My thought about a common riparian R.O.W. implies that the primary use and function is for riparian habitat, not a lawn or bulkhead. Public use would be limited to uses similar to what Celia mentioned: A quick stop with a human powered boat or a means to get around an obstacle along the shoreline or stream bank area (passing through) but not for use as a picnic area or party spot. My main concern is seeing miles of shoreline and stream bank turned into lawns and concrete patios.
I am going to be on the other side of most of the reply’s…
The law says that the landowner owns it. Opinions dont matter. They own it and any change w/o reimbursement would be an unlawful taking. If the state wants to remake it into a public use, then they get to pay the landowner after fighting the same court battle that they have lost repeatedly.
Now landowners getting butthurt over a kayak landing because they have to, that is out of line, and actually if there is a real need, it isnt trespassing. Lunch isnt a need, resting isnt a need. Hole in the boat, yep, broken paddle, yep. Folks crossing/using your property because they think they should be able to is a problem that has created the massive posted property sign boom. As a landowner who has a pretty decent sized tract, if you want to find the problem, look at your actions and those of your neighbors. I tried hard to not post. I lasted about 3 years being a “nice” guy. With the BS I had to put up with and still do with trespassers I will side with the landowners.
Agree. Have never had a problem with a land owner for emergency use of a landing site. Most have been helpful. As you point out, a lunch break or leg stretch is not an emergency - better planning is needed by the group leader.
Just to be clear on the history of this in Maine, a Court ruling that actually altered prior arrangements said the landowner had it below the high tide line. To my knowledge, at least in more recent decades no law was ever passed by the State legislature saying that. And the Court ruling altered some past practices.
While I do not advocate hosting luncheons just below a private landowner’s back porch, I also have a problem with private ownership significantly altering public access that never been a problem.
Anyone following more recent controversies over passage by canoes thru small waterways in the Adirondacks will see that the property owners do not escape without some blame for inappropriate overreactions at times. More so with the newer owners.
A group leader should NEVER rely on other than clearly marked locations for landing. That to me is not any part of this discussion. There are places in Muscongus that Jim and I could land on that a guided group could not, and should not have used. The two of us getting out the cramps before the last leg home on a particular sandy beach did not alter its utilization level. On any nice warm day we were joining several small groups of locals that had come over in an outboard motor boat to picnic and swim. A guided group of five to six kayaks with a couple of guides, weekend after weekend in the summer, is another matter.
I have seen summer people do things that I felt the need to lecture them on, like landing on islands designated as nesting areas in early July. There are plenty out there who need a knock upside the head for all kinds of inappropriate behaviors. And it possible that there are a particularly high number of them in southern Maine. Most people I know who love Maine stop a couple of hours south of where I go.
But entirely blocking access below the high tide mark is a different standard than in most places, and with 12 to 20 feet of real estate to talk about perhaps a different discussion than in states like New Jersey.
The court altered past unconstitutional practices by the town of Wells with 300 years of precedent. I am glad this topic came up, I like history and probably would have been a lawyer if I hadn’t grown up broke.
Read the opinion. The intertidal land was granted to the landowners prior to Maine becoming a state. It became settled law for Maine in 1810.
Maine Bureau of public lands, the town of Wells, and the Conservation Law Foundation and Natural Resources Council of Maine tried to take the intertidal away from the property owners. Honestly the argument made is “My great great great great grandmother may have sunbathed somewhere along the shore so I should have the right to.”
“We agree with the Superior Court’s declaration of the state of the legal title to Moody Beach. Long and firmly established rules of property law dictate that the plaintiff oceanfront owners at Moody Beach hold title in fee to the intertidal land subject to an easement, to be broadly construed, permitting public use only for fishing, fowling, and navigation (whether for recreation or business) and any other uses reasonably incidental or related thereto. Although contemporary public needs for recreation are clearly much broader, the courts and the legislature cannot simply alter these long-established property rights to accommodate new recreational needs; constitutional prohibitions on the taking of private property without compensation must be considered. On this basis we agree with the Superior Court’s conclusion that the Public Trust in Intertidal Land Act, which declares an unlimited right in the public to use the intertidal land for “recreation,” is unconstitutional. Finally, on the record in this case no public easement by local custom has been proven to exist at Moody Beach, even assumingas need not be decided in this casethat in *170 Maine a public easement may be acquired over privately owned land by local custom.”
Access is NOT entirely blocked. Fishing, fowling, and navigation are good to go so you can land on the beach as far as I can see in the decision. Nothing else, but how much does a person need to do on another persons property?
Access is not blocked for the purposes you name, at least two of them. Have not been in a place where the fowling part is relevant. And it is certainly plenty for what I have ever needed.
There is an overall issue with courtesies in boating before you ever get to legal issues, when you have more people and more casual paddlers. Where I go in Maine people mostly behave well, I suspect that part of southern Maine’s problems are because the water is too comfortably warm. Cold water seems to be helpful at thinning the herd. Once in a while someone from out of town asks to use an lobster coop’s dock to launch their kayak. It appears that the kayaker gets duly served, at least those are the ones I hear about after.