Court watching may become a statewide pastime this spring as coastal communities await a decision from the Maine Supreme Judicial Court on beachfront access.
On April 9, oral arguments are scheduled to be heard on whether the court should reconsider its recent ruling barring public access to parts of Goose Rocks Beach in Kennebunkport.
In February, the court ruled unanimously in favor of several beach property owners who wanted to block public access. It’s startling that the court will now hear oral arguments to reconsider, said Amy Tchao, an attorney for the town.
“It’s pretty close to an unprecedented decision to reconsider a case,” Tchao said.
It’s an unpredictable turn of events in a court ruling that left many coastal communities equally in shock.
The February decision was so sweeping in siding against the town and public access that many legal observers wonder if it has upended past beach access rulings. That decision overturned a lower court decision concluding the public had a right to access Goose Rocks Beach because it has been using and maintaining the intertidal land there for generations. This is known as prescriptive easement, whereby the public can use private property if there is an established longstanding tradition of use of that property.
The recent state high court ruling also seems to call into question past rulings in favor of public access, including a celebrated 2001 case in Wells, Tchao said. In that case, the town of Wells won the right to maintain public access to Moody Beach by proving that it had maintained the beach for decades, according to Robert Foley, a Wells selectman.
“Growing up as a kid, nobody thought that the town didn’t own the beach,” Foley said. “I mean the town has cleaned the beach for the last 100 years.”
Foley said the town is weighing options should the recent court ruling affect public access to Moody Beach, but he hopes it won’t come to that. But the recent ruling could have wide-ranging implications far beyond Kennebunkport.
“This will affect a lot of other communities other than our own,” Foley said. “It really will affect the whole state of Maine.”
The recent ruling also creates an air of uncertainty in York, where a pair of landowners has blocked access to portions of the popular Cliff Walk Trail near the ocean. In 2013, York voters overwhelmingly approved a measure to establish a $50,000 legal defense fund should that dispute end up in court. Now, the town’s select board chairman Ron Nowell suggests that buying trail property parcels might be an option the town should seriously consider.
“I said that if the town really wanted to control them, they ought to own them,” Nowell said.
Friends of Cliff Walk, a group hoping to ensure public access to the trail, has always wanted to find a pathway to reopen the trail without filing suit, says member Bill Wieting. The recent uncertainty with the Goose Rocks Beach case might reaffirm that strategy.
“We’ve always wanted to avoid a legal confrontation, because it would be very clumsy,” Wieting said.
The law determining beachfront access in Maine dates back to colonial times, when the public was granted the right “to fish, fowl and navigate” in the intertidal zone.
Tchao hopes the oral arguments in April can bring more clarity to the longstanding dispute over what constitutes a legitimate reason for public access. She points out that one of the first approved uses for public access to the intertidal zone was driving cattle.
“If you can drive cattle in the intertidal zone, why can’t you stroll?” she asks.