MAINE’S PRIVATE BEACHES

Owners of oceanfront property in Maine own the beach all the way down to the low-water mark. You are trespassing if you walk, bathe, sunbathe or picnic there. A 1641 Massachusetts colonial ordinance to that effect was inherited by Maine and is still in force. It is high time for a change.

The old law set forth three exceptions: fishing, fowling and navigation. That meant – and still means – that you can traverse a private beach if you carry a fishing rod or a gun or if you land by boat. If you don’t, you can be chased off. The same goes for Massachusetts. But other states mostly own the inter-tidal strip between the low- and high-water marks. Oregon, the most liberal of all, owns the entire beach for public use, all the way back to where the sand meets the vegetation.

Maine’s Supreme Judicial Court, by a divided vote of 4 to 3, upheld the old common law in a 1989 decision involving Moody Beach, just north of Ogunquit in the town of Wells. Edward B. Bell and other owners of oceanfront lots had asked for a judicial declaration reaffirming the restrictions of the old law. They said they were willing to let outsiders “stroll” along their beach, but only as a granted privilege, not a right.

The majority opinion, by then Chief Justice Vincent McKusick, upheld the old law and declared unconstitutional a Maine law that had given the public an unlimited right to use the inter-tidal land for “recreation.” The majority opinion said the court could not allow bathing and sunbathing and walking on privately owned inter-tidal land without also allowing “picnics and Frisbee-throwing and many other activities people regularly engage in on the beach.”

Still, there was an odd quirk about the court’s split vote. The four justices who upheld the old law all owned shorefront property in Maine. The three who dissented did not. An article in the National Law Journal said the four in the majority would have had to disqualify themselves in most other states, where ethics guidelines were stricter than Maine’s. One of the four, Carolyn D. Glassman, retorted that if those who owned shorefront property should disqualify themselves, so should those who did not. Thus the whole court would have been disqualified.

So far, the only satisfaction the dispossessed public has gained is by chipping away at individual grievances. The town of Wells in 2000 won its right to open part of Wells Beach to public use though a “prescription agreement” but lost an effort to take title to that land.

Significantly, the present chief justice, Leigh Ingalls Saufley, while concurring with that decision, wrote a separate opinion, “because I would overrule Bell v. Town of Wells.” She argued that a prior decision may be overruled when, among other things, “the court is convinced that the rule of the prior decision operates harshly, unjustly and erratically to produce, in its case-by-case application, results that are not consonant with prevailing, well-established conceptions of fundamental fairness and nationally-based justice.” She concluded, “common sense and sound policy dictate that our holding in Bell should be overruled now, in order to preclude continuing uncertainty, expense, and disputes.” Membership in the high court now is almost completely changed, and she is the chief.

Justice Saufley’s words may be taken as an invitation to bring suit to overthrow the outmoded colonial law and open to the public Maine’s 75 miles of beaches, only half of them sandy, out of a tidal coastline of 3,480 miles. The opportunity to free Maine’s beaches is here, and the time seems right.