Shore Access in Maine

by Twain Braden

Clamming the intertidal zone upper Frenchmen’s Bay, Maine.

This is a column about maritime law, and I am the first to admit that I know little about what I refer to – somewhat pejoratively – as Dirt Law, that is, the law that exists here on dry land as opposed to on (or in) saltwater. What is interesting, though, is that the law, here in Maine anyway, mirrors the natural ecosystem when it comes to the interface between these two areas, the ocean and the land, known as the intertidal zone.

Plants growing in this zone need to be highly adapted to being high and dry in the hot sun or freezing air at one moment, and then, a few hours later, completely (or partially) submerged by saltwater or even brackish water the next. Consider the hardiness of spartina grasses and rockweed, for example. Other species, though based in one zone or the other, can survive an occasional ducking, such as yellow lichen and beach roses (rosa rigosa), or the reverse, an occasional dry-out, such as shellfish like crabs, clams, and oysters. In other words, the intertidal zone features a bunch of hybridized species that don’t really know what they are, except maybe a fun compromise between two distinctive and equally-harsh worlds.

The same is true of the law in the intertidal zone; it is an awkward (if not fun) compromise between the open-access custom of the coastal waters and high seas and the restrictive, “keep out” doctrine typical of private property law ashore.

I live on Peaks Island, where we are lucky enough to have unfettered access to most of the island’s coastline. A public road goes around about half of the island, running between the homes on one side and the shore on the other, and many of the sandy and rocky beaches elsewhere are also open to the public for sunbathing, swimming access, and picnicking. The exception is Centennial Beach, which is heavily used by the public but is actually private land, an example of the quirky land-use law in Maine (and Massachusetts, but nowhere else) that gives waterfront property owners legal title to their land all the way down to the mean low-water line. In other words, they can legally shoo you away from their beach.

Centennial Beach on Peaks Island is also an exception in that the shore-side property owners don’t generally shoo away sunbathers and dog-walkers. Instead, there is a kind of fragile détente between the owners and members of the public, provided we (the public) don’t excessively carouse, build dangerously-large fires, leave behind beer cans, dirty diapers, or broken glass, or otherwise create a nuisance. That’s the unwritten rule anyway. There is an occasional confrontation between one homeowner in particular (He Who Shall Not Be Named) and the frolicking public, but his shooings are infrequent, lack gusto, and generally limited to folks from away. At least for now.

Which brings me to the point of this column – how to defend yourself from being shooed off the land. My recommendation, flimsily supported by the law, is to recommend that, if you decide to encroach on the intertidal zone of private land, you carry either a nautical chart, a clam rake (with a clammer’s license), a fishing rod, and / or a pair of binoculars. The rule of law in Maine, as reaffirmed recently by the Maine Supreme Court (Almeder v. Town of Kennebunkport), provides that there are limited exceptions to the rule based upon a 1647 ordinance in Massachusetts that allows landowners to exclude others “subject only to the public’s right to fish, fowl, and navigate.” So my interpretation – again, flimsy, in no way trial-tested, and not an actual, serious recommendation – is that if you’re carrying a chart, you’re navigating; carrying a clam rake or fishing rod, you’re fishing; or carrying binoculars, you’re fowling (that is, hunting for birds without intent to kill them).

My predecessor to this column, Nico Walsh, wrote in these pages in September 2013 that an additional, permitted exception for access to private land was for access to and from the water’s edge for scuba diving, which did not directly fall into the trifecta of exceptions but was nonetheless permitted in Maine (citing McGarvey v. Whittredge). Nico wrote:

“A 2011 case – specifically allowing a scuba diver to cross another’s intertidal lands and enter the sea – holds ‘our common law has regularly accommodated the public’s right to cross the intertidal land to reach the ocean for ocean-based activities,’ even when those activities are not related to fishing, fowling or navigation. The court held ‘as have the jurists before us, we would continue to strike a reasonable balance between private ownership of the intertidal lands and the public’s use of those lands.’”

Nico then added, hopefully, that “[t]he stage may be set for a more expansive view of the public easement, perhaps, as some have lobbied, to include sunbathing and similar activities unrelated to fishing, fowling or navigation.”

As it happens, the opposite turned out, just a few months later, in February 2014, when the Maine Supreme Court once again upheld the anti-sunbather law in the case involving shorefront owners at Goose Rocks Beach and their right to exclude and expel interlopers from their private beach. (Almeder v. Town of Kennebunkport). (To make matters even more onerous for the dedicated sunbathing lobby, Maine has the harshest adverse-possession law in the nation, providing that a right in adverse possession must be exercised for 20 years before it can be considered a viable claim against title. Most states tend to have periods in the range of 10 years.)

The trial court in Almeder had taken a spirited run at the 17-century common law and recognized the public’s right to an “easement by custom”, which, on appeal, was subsequently rejected by the Maine Supreme Court, reinforcing the exclusion doctrine. The court held: “An easement by custom is of doubtful validity in the State of Maine, and therefore cannot be used as a theory upon which to create public access to public lots.”

A recent book written by retired Maine Law professor Orlando Delogu takes another run at this exclusionary rule and seeks to overturn the common law in Maine on this issue. He boldly asserts, instead, that the intertidal zone is “in the public trust for all citizens.” The book is aptly named Maine’s Beaches Are Public Property and stands for the proposition that Maine, as a sovereign state separate and independent from Massachusetts since 1820, can (and should) shake off the chains of the 1647 ordinance. He argues that Maine has the authority not only to disavow the Massachusetts ordinance but also to bring Maine’s intertidal land into compliance with other states, consistent with our English forbears’ tradition of open access to the intertidal zone. Delogu has a web site dedicated to his cause: mainebeachesarepublicproperty.com.

He has been on extensive speaking engagements throughout Maine since the book’s publication earlier this year. If you want to find out if Prof. Dologu is right – whether Maine’s beaches are public property – the next time you’re wandering the intertidal zone be sure to carry a nautical chart, clam rake, fishing rod, or a pair of binoculars. And let me know how it goes.

Twain Braden is a partner at the Portland firm Thompson Bowie & Hatch, LLC, where he specializes in maritime and admiralty law: tbraden@thompsonbowie.com