PORTLAND — Beach goers would urinate in the limited privacy provided by the seawall. A few times, they tore pieces of the wooden stairs that led from the beach to the yard to feed a bonfire. And sometimes, they would climb the wall to the yard, use the home’s outdoor shower and peer into the windows.
Bill Case was sick of it, so he and his neighbors talked to a lawyer about their concerns about the beach in front of their homes in Wells. After some research, the lawyer found the homeowners, in fact, owned the beach in front of their houses. In 1983, the property owners asserted that ownership. The move triggered one of the most infamous cases in Maine legal history, referred to today as the Moody Beach decision.
The dispute, resulting in landmark decisions in 1986 and 1989 by the Maine Supreme Judicial Court—known in legal circles as the Law Court—reached back through time to 1647. And it reverberated forward, and even today holds sway over a similar dispute over access to Goose Rocks Beach in Kennebunkport.
Peter Fellenz lives near Goose Rocks Beach.
“I live a 7-minute walk away. Well,” he quickly corrects himself, “it used to be a 7-minute walk. Now it’s a 10-minute walk.”
Fellenz suffers the debilitating muscle weakness and loss of balance that comes from a childhood bout with polio. He loves walking on the broad, flat beach, especially at low tide, finding it therapeutic and peaceful.
A few days earlier, Fellenz said in a phone interview, he had run into Bob Almeder at the grocery store. Almeder and other beachfront property owners sued the town of Kennebunkport five years earlier, asserting their ownership of the beach the town called public. Almeder told Fellenz the litigants never intended to restrict access to people, but instead want to assert and maintain their ownership rights.
But someday, Fellenz and others say, new owners could block the public.
The Law Court found for the property owners in the Almeder case, but earlier this year, took the extraordinary step of hearing arguments for reconsidering its decision. Action may come at any time.
THE ARGUMENTS
Case and Fellenz both spoke from the audience at a forum at the University of Southern Maine Law School on Oct. 2 at which the Moody Beach, Goose Rocks and other related decisions were discussed.
A panel of five lawyers reviewed the long legal history on either side of the Moody Beach case.
The story begins—and according to some, ends—with a colonial law from 1647.
Maine and Massachusetts rely on this law to describe acceptable public use of the shore. The law allows public use of the intertidal zone—between average high and low tides—for “fishing, fowling and navigation.”
Other U.S. states and most countries, speakers noted, do not have such restrictions. The law is based on the Colonial Ordinance, drafted in the 1630s in Massachusetts, said Pete Thaxter, a lawyer who represented the Moody Beach landowners in the 1980s and now is representing landowners near Goose Rocks Beach in Kennebunkport.
The Colonial Ordinance was part of The Body of Liberties, Thaxter explained at the forum, “[which] to them, was like a Bill of Rights,” creating some distance between colonists and the king, who asserted ownership of resources and land.
After the U.S. won independence, Massachusetts adopted this body of law, and when Maine became a state in 1820, it did the same.
Thaxter said about 100 lots in Wells ran down to Moody Beach and his firm was retained to “represent 29 or 30 of them,” who asserted that they owned to the low water mark.
The town and state brought a motion arguing the beach was held in public trust. The court ruled in 1986 that the state did not own the intertidal zone, and that there was no public trust, Thaxter said.
The town and state then argued that “fishing, fowling and navigation” was not an exclusive list, and that recreation should be included.
But in 1989, “The Law Court soundly rejected that,” Thaxter said. The court in its ruling said “never has recreation or broader uses been discussed or found.” Furthermore, if the court had changed the understanding of colonial law, that action would amount to a legal taking under the state and federal constitutions, and beachfront owners would be owed money.
FOR THE PUBLIC
Orlando Delogu, a professor for 40 years at USM’s Law School who has served on Portland’s planning board and city council, pulled no punches in asserting that the Law Court erred in the Moody Beach case.
Can public rights be expanded? “Yes,” Delogu said, answering the rhetorical question he posed.
Those rights are expanded through prescriptive easement, a legal term referring to historic use of a place; if the public has enjoyed access for decades, the area is essentially public, or so goes the argument.
Another way to grant further access is if a use fits within the “fishing, fowling and navigation” list, Delogu said. A recent case in which a scuba diving guide crossed a beach in Eastport to bring clients to the water ended in the Law Court ruling unanimously for the guide. Interestingly, though, three of the judges said scuba diving was a form of navigation, while the other three ruled the list of uses should be seen more broadly.
Delogu argued the colonial law was flawed. It did not include a statement of purpose, which makes understanding its reach difficult. He also cited later land grants from the colonial period in Maine in which deeds ended at the high water mark. Historically, boats were stored on what is known as the “high, dry sand,” livestock was grazed, grasses were cut and people moved on foot and in carts and wagons on that beach, he said.
These activities “were all tolerated and were extant public uses in 1647,” Delogu said. A later speaker said the shore was the colonial version of Route 1, with early settlers, used to the open fields of England, fearful of venturing too far inland through the dark woods, and fearful of Indian attacks. Travelers would be ferried across the mouths of rivers, then continue traveling along that shore.
John Duff, an associate professor at the University of Massachusetts-Boston School for the Environment who moderated the forum, noted that the essential question appeal courts like the Law Court and U.S. Supreme Court must weigh turn on the concept of originalism. Can the law, even if it dates back to 1647, be used as a sort of stone tablet truth to weigh contemporary cases? Or should the law be seen as a living document that must grow to be relevant to the times?
Attorney Durward Parkinson, who successfully argued in Eaton v. Town of Wells that the public had a right to another beach in that town, known as Wells Beach, told the forum that beach recreation was born in the early 1900s. So if colonists did not use the shore for recreation, should contemporary interpretation view the “fishing, fowling and navigation” list as exclusive?
Amy Tchao is the attorney for the town of Kennebunkport, which has argued, along with the state, that public access to Goose Rocks Beach has been established through 100 years of use. The town has maintained, law enforcement patrolled, lifeguards have watched over and crews have sprayed the beach for insect control.
But beyond that, Tchao told the forum, losing public access has larger ramifications.
“The coastline is a defining feature to our state,” she said, and is essential to tourism and serves as a cultural engine.
Maine’s reliance on the “fishing, fowling and navigation” list is antiquated, she said.
“Maine is an outlier state [and] really out of step with every other state,” Tchao said.
She feared that while property owners may be willing now to allow public access, the recent court rulings leave the coastline “entirely to their whim.”
CONTEXT
Tim Glidden, president of Maine Coast Heritage Trust (MCHT) and the lone non-lawyer on the panel, said access to water “has been the most important issue to the people of Maine,” and cited the high rate of voter support for Land for Maine’s Future bonds over the years.
“Seventy-five percent of the state’s population lives in coastal towns,” Glidden said. In recent decades, conserved land has grown from 4 percent of land to 20 percent. Land trusts like MCHT believe “there should be some evolution” of accepted uses, beyond fishing, fowling and navigation. “Are we really locked into that?” he asked.
Though Moody Beach, Goose Rocks Beach and other cases have and will be used as precedents, context is important, say some of the players.
Case, the private property owner plaintiff at Moody Beach, explained that the dispute arose from a municipal “divorce.” Ogunquit was a village corporation within the town of Wells, and had become a town. A parking lot and a list of rules greeted visitors to the Ogunquit beach. But if beachgoers wanted to play Frisbee, they would head north to the Wells portion of the beach.
Workers at area restaurants and bars would hit the beach at 1 a.m., Case said, build bonfires and drink.
“We had two young children,” he recalled, and the next day, they would walk past broken beer and wine bottles.
Case would call police during the nighttime parties, “but often, they would fail to come.” He and others tried to get Wells town officials to act, but they would not.
“The use of the beach is never an issue,” he said. “It’s the abuse by the public.”
A semi-retired real estate agent, Case said he told prospective Moody Beach buyers about the controversy, but “the law is the law—they own to the low-water mark.” Private property rights are critical, he said. “That’s the basis of our whole country.”
Today, Case lives in Kennebunkport near Goose Rocks Beach, epicenter of the latest access fight.
Fellenz wants to know he’ll be able to walk that same beach. Recalling his recent encounter at the grocery store with Bob Almeder, the lead plaintiff for the property owners at Goose Rocks, “I said, ‘I just want to walk that beach. It’s the best walking in the world.'” Almeder assured him he and other owners won’t stop him.
Fellenz worries about subsequent owners.
The Law Court may be asked to rule on related issues again. Superior Court Justice Nancy Mills ruled in September that property owners on Cedar Beach Road on Bailey Island could not block access to the beach there. The public has a prescriptive easement over the road, she ruled. But access is yet another wrinkle in the debate.
A definitive ruling favoring either private landowners or the public probably would carry a big price tag, with the losing side seeking compensation.