The Wrack

The Wrack is the Wells Reserve blog, our collective logbook on the web.

Finding Common Ground on Maine's Beaches

Posted by | November 3, 2014

Drakes Island beach scenceIn 1989, after a few years away, my wife and I moved back to Maine. Just a few months earlier, the Maine Supreme Court had handed down its “Moody Beach decision,” confining public use of privately owned beach property to the colonial era’s permitted uses of “fishing, fowling and navigation.” As someone with a profound love for the Maine coast, I read the court’s decision with great personal and professional interest.

For most of my career, I have worked to conserve special places in Maine — to protect natural resources and to provide the public with access to the coast. Realizing that 2014 would mark 25 years since “Moody,” I organized a public lecture series so people could better understand and appreciate the legal issues surrounding public access and private ownership of coastal lands.

This summer and fall the Reserve hosted four evenings that involved all the key players from “Moody” and subsequent court cases dealing with coastal access in Maine. Each time, we filled the auditorium to capacity.

It was a great experience for all of us. Together we learned that Maine is not an anomaly; other states have access conflicts and must also contend with legal ambiguities over shoreline use and ownership.

We were reminded that we have a great tradition in Maine that many states do not enjoy: presumption of permission. This principle states that a person has a presumed right to access and walk on a privately owned parcel of undeveloped land if it is not posted with “No Trespassing” signs. In other states, it is the opposite.

Nationwide, the coast is highly valued real estate; sometimes only the courts can remedy conflicts. But in our lecture series, we also learned of other than legal avenues for preventing or resolving conflicts. Creative solutions — long-term leases of private coastal property for public use, agreements between municipalities and landowners for public beaches, management agreements hammered out by volunteer boards and property owners — can ensure beach access. The key to their success is getting the conversations under way before misunderstandings can pollute the effort.

These are not easy issues, and they are not going away. Our system of property law is based on nearly 400 years of custom, court decisions, and legislation. It is a strong foundation that adds stability to our society. This heritage informs today’s laws and customs, some of which we agree with, some of which we do not. The key is how this precedent is interpreted by decision-makers, legal or otherwise.

Like our beaches themselves, our laws and interpretations shift. Even after the landmark Moody Beach decision, which for a generation defined ownership and use for long stretches of Maine shoreline, our laws have continued to evolve. With this year’s decision by the Maine Supreme Judicial Court to reconsider the long-disputed Goose Rocks case, state law may change yet again. Those who attended our beach access series this summer now have an improved understanding of the bedrock principles beneath these “shifting sands.”

Three of the evening sessions were recorded. View them on our YouTube channel.

From Watermark 31(2), Fall 2014

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