Public Shoreline
Access in Maine:
A Citizen’s Guide to Ocean
and Coastal Law
Produced by the Maine
Sea Grant College
Program, Maine Coastal
Program/Department
of Agriculture,
Conservation and
Forestry, and
Wells National Estuarine
Research Reserve
Third Edition
August 2016
Public Shoreline Access in Maine is the revised edition of the guide published in 2004 by the
University of Maine Sea Grant College Program and the University of Maine School of Law.
Funding for this publication is provided by the Maine Outdoor Heritage Fund, Maine Sea
Grant, Maine Coastal Program/Department of Agriculture, Conservation and Forestry, and
the Wells National Estuarine Research Reserve.
Principal Author: John Du, University of Massachusetts-Boston,
with assistance from Liana James and Victoria LaBate
Editor: Catherine Schmitt, Maine Sea Grant
Designer: Kathlyn Tenga-González, Maine Sea Grant
Project coordinators: Paul Dest, Wells National Estuarine Research
Reserve and Kristen Grant, Maine Sea Grant and University of
Maine Cooperative Extension
Copies of this guide are available at accessingthemainecoast.com
and from:
Maine Sea Grant College Program
5784 York Complex, Suite 66
Orono, ME 04469-5784
207.581.1435
seagrant.umaine.edu
Wells National Estuarine Research Reserve
342 Laudholm Farm Road
Wells, ME 04090
207.646.1555
wellsreserve.org
Photo credits: Cover, p 4-courtesy of the Town of Wells;
p 1, back cover-Jacques Trempe; pp 2, 3, 7, 10, 12-Kathlyn
Tenga-González; pp 9, 11-courtesy of Kennebunkport
Conservation Trust
Illustration: p 2-Kathlyn Tenga-González based on original by
Anne Bernard
Suggested citation:
Du, John. 2016. Public Shoreline Access in Maine: A Citizen’s
Guide to Ocean and Coastal Law, ird Edition. Orono, ME: Maine
Sea Grant College Program.
1
Getting to coastal waters in Maine can sometimes be a challenge, for despite the state’s 5,400 miles of
mainland and island shoreline, only about 12% is in public ownership.
1
Yet the public does have longstanding, although limited, rights to support traditional coastal uses along
privately owned shoreline. In addition to the rights to “sh, fowl, and navigate,” members of the public
have a variety of other means to secure access to shoreline areas and ocean waters. With more people
attracted to Maine’s coastline for a variety of uses, it is important to understand the range of access
rights that accommodate public interests. At the same time, it is helpful to understand the legal balance
that respects private property.
Public Shoreline Access in Maine:
A Citizen’s Guide to Ocean and Coastal Law
2
Who has rights to the shoreline?
In Maine, the answer is usually some combination of the following:
Private property holders typically own the shore all the way down to
the low water mark;
e state or town may own shoreline areas including beaches;
e public has certain rights to use the shoreline, even where a private
owner holds legal title.
For each space and each given use of that space, there is a balance between
public and private property rights.
Location, location, location
When it comes to coastal access in Maine, three general
locations are important to consider and distinguish. Public
and private rights along the Maine coast vary considerably
from the submerged land and ocean areas through the in-
tertidal zone and onto “upland” areas.
While property interests in the submerged lands and ocean
areas are relatively clear, property rights in the intertidal zone
have been the subject of dispute and litigation, leading to
rulings by the Maine Supreme Judicial Court that have es-
tablished who has which rights in the area between the high
and low water marks. Even upland areas, including sandy
beaches above the high water mark, have been the subject
of a number of conicts that have prompted Maine courts
to reconcile private property interests with a collection of
public access claims.
1
Submerged lands and ocean space
e State of Maine owns submerged land below the mean
low-water line, out to three nautical miles, and holds this
land in trust for public use. e state also has authority and
public trust responsibility to manage coastal waters out to
three nautical miles. e public generally has unrestricted
use of the water and sea bottom, subject to state regulations.
High tide
Low tide
1
BELOW LOW TIDE
2
INTERTIDAL
3
UPLAND
Submerged lands
OWNERSHIP
Typically private with
public rights to “fish”
“fowl” and “navigate”
Typically private with
public rights as granted by
gift, easement, etc.
State of Maine
held in public trust
3
However, public rights may be restricted by leases between the
state and private individuals that provide exclusive use, such
as for aquaculture or marinas, to certain submerged lands.
2
The intertidal area
In the intertidal zone or wet shoreline areas in Maine, there
is a mix of public and private rights. Private coastal upland
owners usually hold title to the adjacent land between the
mean high-water mark and the mean low-water mark. How-
ever, those rights are subject to the public’s rights to “sh, fowl,
and navigate.” is brief descriptive list of public interests
resides at the center of a debate about whether the public has
only those limited use rights, or whether “shing, fowling,
and navigation” merely alludes to certain primary uses and
allows for an evolving range of additional uses. As outlined in
this document, a few decisions by Maine’s Supreme Judicial
Court (also known as the Law Court) explain how the range
of public rights in the intertidal area is interpreted today.
3
The upland area
e dry sand area and rocky shore above mean high water
and adjacent uplands are generally privately owned. As a
result, the public has no right to use that privately owned
land for recreation, shing, fowling, navigation, or any oth-
er purpose without the owner’s permission. Neither does
the public have a general right to pass over privately-owned
upland to obtain access to the intertidal area to engage
in the permitted uses of “shing, fowling, or navigation.”
However, the public has rights to use the upland if it is
publicly owned, subject to any governmental regulations.
e public also may acquire certain rights to use upland
areas through a variety of transactions or claims. A private
owner of coastal uplands may provide the public with a
dedication (a gi), easement, right-of-way, lease, and/or
a license. Non-owners may also acquire a “prescriptive
easement” under certain conditions (see page 8).
How can this be? Isn’t
property ownership an
all-or-nothing system?
When it comes to property in the United
States, our legal history and our economic
desires have led to a system of laws that
accommodate and even encourage the
splitting of legal interests in real proper-
ty. is system allows people to use loans
and mortgages to buy and “own” property
(acknowledging the interests of the lend-
ers). It allows a community to share some
spaces while recognizing sole ownership
in others. And it allows a landowner to
reserve some rights to a piece of property
while selling, giving, or sharing others. On
Maine’s coast, the nature and extent of pub-
lic and private rights depends on location.
And still this varied nature of public and
private rights continues to create conicts,
which oen end up in court where judges’
decisions shape Maine’s evolving law re-
garding public and private rights to access
and use the coast.
4
Public and private interests in submerged lands and ocean space
e nature and extent of public and private interests is clear-
est in Maine’s coastal waters and submerged lands. e pre-
sumption that those areas are held by the State for the benet
of the public stands as the rule to which there are relatively
few exceptions. Even where the State aords a private entity
a special right to use an area of submerged land or coastal
waters (such as an aquaculture lease), Maine law requires
that the public be provided notice as well as an opportuni-
ty to comment on an application for such use. And if the
State does grant a lease that provides private rights to such
areas to the exclusion of the public, the review process is
designed to ensure that public access to the general area is
suciently maintained.
The balance of interests in the intertidal area: shing, fowling,
and navigating
e phrase “shing, fowling and navigation” comes from
Maine’s history and laws regarding the intertidal area. e
references to shing, fowling, and navigation can be found
in the Colonial Ordinances of the 1640s that governed the
colony of Massachusetts and the district of Maine before
they became states.
2
ose terms have been interpreted by
courts in the ensuing centuries.
Maine and Massachusetts are exceptional in their approach
to the intertidal zone. In most states, private owners hold
title to the high-water mark and the states hold the inter-
tidal zone, submerged lands, and coastal waters as trustees
for the benet of the public. is is known as the “Public
Trust Doctrine,” a legal principle that dates back centuries to
English law (and ancient Roman law before that) and was a
protection against those, including kings and emperors, who
might impede the public’s interests in important activities
such as shing, commerce, and navigation.
e Public Trust Doctrine is a common law principle that
supports the public’s right of coastal access for certain coast-
al-dependent activities. While the Public Trust Doctrine has
certain elements that apply to all states (i.e., the state holds
certain legal interests in the coastal area for the benet of
its citizens), each state has developed and applied the Public
Trust Doctrine in accordance with its property law and his-
torical background. At the same time, the public may acquire
coastal access rights in a variety of other forms, such as an
easement.
3
While these concepts and terms may seem like
legal technicalities and jargon, their impact on public access
is something everyone who has an interest in the coast can
understand, especially when the issues are illustrated by
some recent legal cases. Since the benets and the operation
of the Public Trust Doctrine strongly parallel the way the
Colonial Ordinance works in Maine, some refer to the Co-
lonial Ordinance as part of Maine’s variation of the Public
Trust Doctrine. Maine legislators and judges sometimes use
the names of the rules interchangeably.
e background and history of both the Public Trust Doc-
trine in Maine and the Colonial Ordinance of 1647 are
extensively set out in the 1989 decision Bell v. Town of
Wells (“Moody Beach”), as well as in the 2011 McGarvey v.
Whittredge case.
5
The Moody Beach case
In March 1989, the Maine Supreme Judicial Court ruled on
a conict between public versus private rights to the shore
in Maine in Bell v. Town of Wells, also known as the Moody
Beach case.
4
e case has become a symbol of the conict
between public versus private rights to the shore in Maine,
and is cited as authority for the general proposition that the
public has only very limited rights in the intertidal zone (the
area between high and low tide). Since the Moody Beach
decision, access to Maine’s coastline has continued to be a
contentious issue. Changing demographics and related coastal
development have increased concerns that those who do not
own coastal property will lose more access to the coast.
Moody Beach is a sandy beach, about a mile long, in the
Town of Wells. About 100 private homes adjoin the beach. In
1984, 28 homeowners led a “quiet title action” in Superior
Court against the Town of Wells, the Maine Bureau of Public
Lands, and various individuals. e owners were concerned
about the public’s increasing use of the beach, and perceived
the town as unwilling to treat members of the public who
were abusing their beach “privileges” as trespassers. e
owners asked the court to prohibit the public from walking,
swimming, sunbathing, or using the beach in front of their
homes, including both the dry sand and intertidal zone, for
general recreational purposes. e Superior Court ruled
against the homeowners, frustrating their eort to obtain
a denitive statement as to their ownership of the intertidal
land and the restrictions they sought against a variety of
public uses of the area. e homeowners appealed.
To resolve the dispute, the Maine Supreme Judicial Court
had to determine the State’s role in property interests in in-
tertidal lands. e Court examined the Colonial Ordinance
(applicable only in Maine and Massachusetts and designed
in part to encourage the construction of wharves in these
English Colonies) and found that it extended private prop-
erty rights to the low-water mark, but reserved the public’s
right to sh, fowl, and navigate over this privately owned area.
In an initial ruling in 1986, the Maine Supreme Judicial
Court held that the Colonial Ordinance enacted by the Mas-
sachusetts Bay Colonies between 1641 and 1647 is part of
Maine’s common law (recalling that Maine was a district of
Massachusetts until 1820) which recognized private owner-
ship of the beach to the low-water mark, and reserved public
rights in privately owned tidelands for “shing, fowling, and
navigation.”
5
at ruling sent the case back to trial in Supe-
rior Court on the issue of whether the extensive public use
of Moody Beach had created a public recreational easement
by prescription, implied dedication, or local custom.
At about the same time, the Maine Legislature enacted e
Public Trust in Intertidal Land Act.
6
e Act declared that
“the intertidal lands of the State are impressed with a public
trust,” and therefore the public has the “right to use intertidal
land for recreation.”
e Superior Court also addressed the legality of this law as
part of the Moody Beach litigation.
7
Private property owners
argued the legislative act would eectively take some of their
legal property interests away without compensation and that
the statute was therefore unconstitutional.
Aer a four-week trial in 1987, the Superior Court decided
that the public had acquired no easement over Moody Beach
by custom or any other common law doctrine, and that the
1986 Public Trust in Intertidal Land Act, guaranteeing public
recreational use of intertidal lands, was unconstitutional. is
decision was appealed to the Supreme Judicial Court.
6
In 1989, the Supreme Judicial Court upheld the lower court
ruling and found that the only public rights recognized in
the intertidal areas were those articulated in the Colonial
Ordinance—shing, fowling, and navigation—and that the
Public Trust in Intertidal Land Act
constitutes a taking of private property for a public
use. Since the Act provides no compensation for the
landowners whose property is burdened by the gen-
eral recreational easement taken for public use, it vio-
lates the prohibition contained in both our State and
Federal Constitutions against the taking of private
property for public use without just compensation.
8
Private property rights in the intertidal zone after
Moody Beach:
In the Moody Beach decision, the Supreme
Judicial Court armed that, in Maine, owners of beachfront
property or property adjoining tidelands (also called litto-
ral or riparian owners) have private property rights to the
low-water mark or low tide area, subject only to a public
easement for “shing, fowling, and navigation.” As a result,
the owners may bring an action for trespass against mem-
bers of the public who enter upon private tidelands without
permission except for limited activities.
9
While coastal property owners may hold title to intertidal ar-
eas, they must still obtain all necessary local, state, and federal
permits prior to any tideland development. Environmental
laws prevent most construction activities in tidelands except
for wharves, piers, and—in exceptional circumstances—ll
for residential, commercial, or industrial development.
Public rights in the intertidal zone after Moody
Beach: e Moody Beach ruling noted that the public still
had the right, by virtue of the public easement originating
in the Colonial Ordinance, to use privately-owned intertidal
land, but only if engaged in shing, fowling, or navigation.
e land to which this easement applies is the area between
mean high water and mean low water (or to 1,650 feet sea-
ward from the high water, if the mean low watermark is even
farther seaward). If the shoreline is beach, this is the wet
sand area. If the shoreline is marsh, mudat, or ledge, the
intertidal area will commonly consist of gravel beaches or
mud ats. However, the decision in the Moody Beach case
was close (a 4-3 ruling regarding the issue of public rights
in the intertidal area), tempting those who argue that the
public’s rights ought to be interpreted more broadly.
What is meant by the terms “shing,”
“fowling,” and “navigation”?
e Maine Supreme Judicial Court has been addressing
this question on a case-by-case basis since the early nine-
teenth century. While there is no comprehensive statement
of appropriate public uses in the intertidal zone under the
Colonial Ordinance, the Court has held that the easement
includes uses reasonably incidental or related to shing,
fowling, or navigation, and also that the Court will apply a
“sympathetically generous” interpretation of these terms.
10
In addition, the Court has noted that the easement applies
equally to protect those individuals involved in shing, fowl-
ing, or navigation for sustenance, business, or pleasure.
11
Since many of the cases dening shing, fowling, and navi-
gation date from the mid-nineteenth century, the case law is
of limited help in dening the modern parameters of these
terms. Nonetheless, the case law does demonstrate that the
legal meaning of “shing,” “fowling,” and “navigation” extends
beyond a simple dictionary denition of each individual term.
Fishing: Maine law denes “shing” as taking, or attempting
to take, marine organisms, which include any animal, plant,
or other life that inhabits waters below the head of tide.
Fishing activities include harvesting nsh (cod and herring,
for example), digging for clams and worms, and taking oat-
ing seaweed and sea manure (organic detritus and waste of
marine organisms).
12
However, some court decisions have
placed apparent restrictions on removing some resources
from the intertidal area, including “mussel bed manure” or
seaweed cast upon the beach from within that zone.
13
e
cases also suggest that the public may not remove sand or
empty shells from the intertidal area. e public’s right to
sh does not include the right to erect sh weirs or fasten
seine or shing equipment to private tidelands.
14
At the time of this publication, it is unknown whether har-
vesting seaweed attached to rocks in the intertidal zone is
included in the denition of “shing.” Maine’s common law
is unclear if this seaweed is owned by the public generally or
by the upland property owner. is is an unsettled question
that only Maine courts can denitively answer; a case that
would answer this question is working its way through the
Maine courts (Ross v. Acadian Seaplants Ltd.). Because of
the uncertainty, the State of Maine, when it issues licenses
for seaweed harvesting, takes no position on (1) whether the
public may harvest seaweed from those areas without inter-
7
fering with the private property rights of the upland owner,
or (2) whether the upland property owners may prohibit
the public harvest of seaweed in those areas.
Fowling: e term “fowling” has not received nearly the
same judicial scrutiny, but is generally interpreted to mean
bird hunting. Some commentators have suggested that the
meaning should be widened to include bird watching, but
there is no indication that the Court would be willing to ex-
tend the ordinance beyond the obvious meaning of the word.
Navigation: e term “navigation” has always been con-
strued to mean that the public may sail over the intertidal
lands, may moor cra upon them, and may allow vessels
to rest upon the intertidal land when the tide is out. ese
activities may be conducted for prot, such as ferry services
in which the boat operator picks up and discharges passen-
gers on intertidal land.
As an incidental use, if a person reaches the intertidal land by
means of navigation, the person can walk on the intertidal
lands for purposes related to navigation.
15
is right to travel
through the intertidal lands does not, however, include the
right to remain on the intertidal lands for bathing, sunbath-
ing, or recreational walking, or to cross privately owned dry
sand or upland areas.
Additionally, a boat operator may moor a vessel to discharge
and take on cargo in the intertidal zone, provided that the
cargo does not spill over onto the uplands and provided that
the ats are unoccupied.
16
In keeping with the importance
of the intertidal area for travel, it has also been held that the
public may ride or skate over the intertidal area when it is
covered with ice.
17
e Maine Supreme Judicial Court has determined that “nav-
igation” does not include the right to use private tidelands for
general recreational uses such as strolling along the beach,
sunbathing, picnicking, bathing, or Frisbee-throwing.
18
But
“navigation” continues to draw a substantial amount of ju-
dicial scrutiny.
In the 2011 case McGarvey v. Whittredge, the Law Court
re-examined the Moody Beach case to consider the scope
of the term “navigation.” Beachfront property owners led
suit against a commercial scuba diving company, arguing
the divers had no right to walk across their intertidal land
to get to the ocean to scuba dive. e Court unanimously
determined that crossing the intertidal zone to scuba dive
was a permissible public use, but their reasoning was divid-
ed. In an opinion written by Associate Justice Levy, three
justices reasoned that scuba diving t within the denition
of navigation. But three other justices, in the portion of the
decision written by Chief Justice
Sauey, concluded that the public’s
right to the intertidal zone should
not be limited to shing, fowling,
and navigation. ey argued that
instead of stretching the defini-
tions of these three terms beyond
their reasonable limit, the court
should recognize that the common
law evolves to “reect the realities
of a changing world.”
19
is split
decision in McGarvey did noth-
ing to clarify the public’s right to
access and use the intertidal zone
for other activities (such as surf-
ing, jet-skiing, water-skiing, wind-
surng, boogie-boarding, paddle
boarding, or snorkeling).
8
The balance of interests in upland area dry sand beaches
e challenge of securing access to Maine’s coastal shore-
line grows when new property owners, unwilling to allow
old patterns of usage to continue, close or block traditional
access points. Conicts increase as more people use the
remaining access points. e Moody Beach and McGarvey
cases did little to satisfy the public’s desire to access and
use intertidal and dry sand areas along the entire coast. As
a result, the people have turned to other legal remedies or
methods to acquire access rights to the shoreline, including
Maine’s prescriptive easement law. is law was the subject of
both the 2000 Eaton v. Town of Wells case, the 2014 Almeder v.
Town of Kennebunkport case , and the 2016 Cedar Beach case.
Prescriptive easement law as
method of acquiring public access to
Maine’s shoreline
In general, the holder or owner of an easement is entitled to
a limited use of land owned by another. Private individuals
and the public can acquire an easement through several
methods, including purchasing the right or through a le-
gal doctrine known as prescription. Prescription allows a
non-property-owner to acquire a legal interest in or over
another’s property if the non-property-owner’s use of the
property is longstanding (20 years or more), continuous,
against the wishes of the owner (or adverse to the owner),
and where the owner either knows or should know of the
non-owners use.
Eaton v. Town of Wells: a prescriptive
easement success for the public
For generations, the Town of Wells maintained a stretch of
beach for the benet of the public. But the Town did not
own the beach. As a result, a private property owner sued the
Town in the late 1990s, arguing that the Town’s actions and
the public use of the beach constituted trespass. e Town
responded and defended its actions and the rights of the
public by claiming that the public had acquired legal rights
to the beach by their long-standing use of the property. e
property owner argued that the public’s use did not meet
the legal requirements of a prescriptive easement claim. In
Eaton v. Town of Wells (2000), the Law Court held that the
Town (and eectively the public) had successfully acquired
an easement by prescription for general recreational pur-
poses and maintenance because of the Town’s long history
of preserving and maintaining the beach and treating it as
public without the permission of, and in fact contrary to
desire of, the owners.
20
Prescriptive easement claims and the
presumption of permission
Since the decision in Eaton, the Law Court has added some
detail to its interpretation of prescriptive easement claims.
In Lyons v. Baptist School of Christian Training, a 2002 case
involving public access claims to open elds and woodlands
located in Chapman, the Law Court made it clear that when
the general public uses private land, it is presumed from the
property owner’s silence that the public has permission to
use the land.
21
is “presumption of permission” essentially
protects a landowner against prescriptive easement claims,
which require the public to show their use of the land was
adverse or against the owner’s wishes. But would this deci-
sion apply to shoreline areas where both the land and the
public’s use of the land are readily visible to property owners?
The Goose Rocks Beach case: In 2014, the Law Court
explored the presumption of permission in a beach access
case, Almeder v. Town of Kennebunkport, also known as
the Goose Rocks Beach case. Goose Rocks Beach is a two-
mile stretch of sand beach located in Kennebunkport. In
2009, numerous beachfront landowners initiated a lawsuit
against the Town of Kennebunkport, which claimed to have
acquired a prescriptive right to use both dry sand and the
intertidal zone for recreational purposes. Aer analyzing
several of the requirements that non-property owners have
to establish in order to acquirea prescriptive easement, the
Law Court once again emphasized that public recreational
uses are presumed to be undertaken with the permission
of the landowner. e Court noted that the presumption of
permission oers the double benet of allowing the public to
continue using the property for recreational purposes, while
also protecting landowners from legal claims.
22
Yet, because
of the way in which the case was argued, it was impossible
for the Court to rule for or against the prescriptive easement
claims, since the Town had based its claim of longstanding
use on a large expanse of the beach rather than on a series
of parcel-by-parcel claims against individual property own-
ers.
23
As a result, in 2014 the Maine Supreme Judicial Court
highlighted the rules to be applied and sent the issue back
to the Maine Superior Court to allow the Town to restate its
claims in that lot-by-lot fashion.
24
While the results remain
to be determined, the rules are much clearer.
25
e Town
must show that use of particular parcels of private land has
occurred for 20 or more years, and that the use was open,
adverse, and unpermitted (keeping in mind that silence is
presumed to allow permission).
9
The Cedar Beach case and seeking a legal path to
the shore: Cedar Beach, on Bailey Island in Harpswell, has
been a popular destination for people from Bailey Island and
beyond for decades. e public’s use of Cedar Beach Road
to access the shore was challenged in Cedar Beach/Cedar
Island Supporters, Inc. v. Gables Real Estate LLC.
26
In July
2016, the Maine Supreme Judicial Court (Law Court) ruled
that the public did not have a right to the road through a
prescriptive easement.
e 2016 decision claries and adds further detail to the
elements that the public must demonstrate to successfully
claim a prescriptive easement. While both the Cumberland
County Superior Court and the Law Court evaluated the
same evidence showing the back and forth between the pub-
lic users and private owners over the years, the Law Court
indicated that to demonstrate adverse use, the public need
to disregard the owner’s wishes entirely and use the land as
though they owned the property.
27
e high court found
that while the public had indeed used the road for long pe-
riods of time and adverse to the owners interests, those who
held legal interests in the road interrupted those periods by
posting the road with signs and erecting fences to break the
20-year continuity element of a prescriptive easement claim.
e Cedar Beach case is the latest in a series of opinions in
which the Maine Supreme Judicial Court suggests that its
legal principle of “presumption of permission,” while dis-
concerting to prescriptive easement claimants, “promotes
the long tradition in Maine of public recreational use of
private property.”
28
10
Other means besides lawsuits exist for securing and
maintaining coastal access. Land use regulations, pur-
chasing rights of access, trading town lands, negoti-
ating a lease or license, conducting a right-of-way
rediscovery project, and receiving gifts of land are
just a few of the valuable tools in securing access
to and use of the coast without going to court.
29
In
all methods, it is always important to determine the
relative rights and responsibilities of the landowner
and the user. In most instances, a landowner will be
relieved of liability for injuries sustained by a user,
unless the owner has some duty to the user pursuant
to a lease or license.
Beach use agreements
A beach use agreement allows a coastal town and pri-
vate property owners to fashion a contract to balance
the interests and needs of the beachfront owners and
the public while outlining the role and responsibili-
ty of the municipality. For example, in response to
the Goose Rocks Beach case and in the midst of its
ongoing litigation, the Town of Kennebunkport and
numerous owners of property on and near the beach
negotiated an agreement covering more than half of
a two-mile stretch of Goose Rocks Beach.
30
Under the
agreement, the town maintains a certain number of
parking spaces and restricts loitering, camping, res,
and other beach activities through the enforcement of
the town’s beachfront ordinance.
31
The agreement also
delineates the area of the beach reserved solely for
use by the private landowners and the areas the public
can use for typical “beachgoer”uses.
32
The agreement
became a regulatory tool when voters approved it
as a town ordinance. The ordinance agreement has
dedicated funds for maintenance of the publicly used
areas of the beach, and gives the property owners
the right to terminate the agreement if the public use
becomes unreasonable, or if the town fails to meet its
obligations. Every beach use agreement will be unique
and tailored to the particular needs of the community.
Such agreements may also be most effective when
developed before conicts begin.
Documenting and rediscovering
rights-of-way
Municipalities can safeguard and even “rediscover”
existing rights of way by maintaining an inventory
of such places or examining records. Right-of-Way
Rediscovery is a systematic effort to research and re-
assert existing legal rights of public access and use
that have been neglected or lost in town or county
record books. Public rights to roads which run to the
shore and shoreline parcels may have been acquired
over the years by the town through the following
actions: establishing a public road, accepting a road
dedicated (offered) by a private owner or developer,
purchasing a parcel, accepting a gift, securing a pre-
scriptive easement, or acquiring through a lien for
non-payment of real estate taxes. The town may have
lost track of these rights over time, particularly as land
use patterns change. For example, a public road to
an old ferry landing may have fallen into disuse when
a bridge was built, but the public rights may remain.
Careful research of public records will allow the town
to document continuing rights and reclaim a site for
public access and use.
Leasing or licensing
Instead of acquiring an ownership interest in proper-
ty, a municipality (or a state agency) may be able to
negotiate a lease agreement that allows the public to
use land for shoreline access and recreational use. If
an agreement can be reached, this option is often less
expensive than acquisition. The document detailing
rights and responsibilities can be exible in addressing
unique issues, including factors that would trigger a
termination of the agreement, specic restrictions on
public uses, protection from liability, and maintenance
responsibilities. However, leases may be a relatively
short-term solution and are always dependent upon
the owner’s willingness to enter into an agreement.
The Town of Kennebunk, for example, has a lease
agreement with a private landowner that allows the
public to use and enjoy an eight-acre portion of Par-
sons Beach. The lease agreement has certain condi-
tions to which both parties agree, including manage-
ment, duration, termination, and renewability.
Non-court options for securing public rights and protecting private property owners
11
Receiving gifts of property
In addition to ensuring access to the coast
through the purchase of property, a munici-
pality can take steps to encourage strategic
gifts of land that will provide public access. A
shoreline or open space plan that illustrates a
long-term vision for coordinated public access
may encourage donations from individuals with
a strong sense of civic responsibility or a desire
to preserve their land in a natural condition.
And there are many ways to structure gifts of
land that will produce benets for donors, such
as providing income or estate tax reductions.
The community will need to consider a range of
issues before accepting gifts, including those
relating to ongoing safety and stewardship.
Other organizations in Maine routinely accept
gifts of land to meet shoreline public access
needs, including the Maine Coast Heritage
Trust and local land trusts. When they work
with private conservation organizations and
state natural resource agencies, communities
will often achieve public access benets.
Purchasing rights of access
One way to secure shoreline access is for a
town (or state) to acquire the land from a will-
ing seller. Another option is for the town to
purchase an easement on a particular parcel
of land for public use and enjoyment, not the
actual fee simple title to the land itself. The
fee simple purchase of land or the purchase
of an easement are the most effective ways
to guarantee public access over a long period
of time. The obvious drawback is the cost.
However, for parcels that are deemed vital
to a town or the state where a permanent
solution is desired, the public may determine
that the benets more than justify the cost.
There are dozens of instances on the coast of
Maine where this option has been used over
the past decade.
For more information on these and other tools,visit
accessingthemainecoast.com
Non-court options for securing public rights and protecting private property owners
12
Where are we today and where do we go in the future?
More than a quarter of a century of litigation and a series
of important shoreline access cases heard by the Maine Su-
preme Judicial Court suggest one thing: the nature and ex-
tent of public and private rights regarding coastal access will
continue to be an issue in Maine into the future. While a level
of uncertainty remains for both private property owners and
the public regarding coastal ownership and use, the court
cases and actions by the people of Maine have provided us
with some guidance and important reminders:
Providing their deed states ownership to the “low wa-
ter mark,” people or institutions with title to land on
coastal waters own the land between low and high tide
in addition to the dry sand and upland areas. is area
is private property; or in the case of state, federal, or
municipal ownership, public property.
e public has limited rights to use the intertidal area
of privately owned land for “shing,” “fowling,” and
“navigation” as those terms have been interpreted by
Maine courts. At the time of this publication, general
recreational uses such as sunbathing are not among the
public’s rights.
In the McGarvey case, the Law Court provided a broad-
er interpretation of public rights in the intertidal area
when it recognized scuba diving as a permissible use.
Future court cases and decisions may provide additional
detail in the interpretation (and therefore the range of
activities) of public rights to the intertidal area.
Legal claims of “prescriptive easements” have been suc-
cessfully used to secure public access and use of Maine
beaches, as in the Wells Beach case (Eaton v. Town of
Wells). But the Law Court’s explicit application of “pre-
sumption of permission” in the Goose Rocks Beach
case (Almeder v. Town of Kennebunkport) and the Cedar
Beach case (Cedar Beach/Cedar Island Supporters v. Ga-
bles Real Estate) makes the prescriptive easement claim
daunting. In the Cedar Beach case, the Law Court noted
that in addition to the primary legal owner of a piece of
land, lesser legal interests (such as a private easement
holder) can take actions to interrupt the continuous
adverse use of the area by the public. Further, the Cedar
Beach opinion by the Law Court notes that “adverse use”
means use of the property as a rightful owner might use
it—treating the property objectionably, such as by being
loud or littering, is not sucient.
e Goose Rocks Beach (Almeder v. Town of Kenne-
bunkport) case sends a clear signal that unless an owner
explicitly restricts access to undeveloped coastal areas,
the public can “presume permission” to use it. Most
states presume otherwise.
Because the private ownership rights documented in
property deeds in Maine vary widely, uncertainties and
conicts will remain. In many instances they may only
be reconciled via litigation. Due to the length and cost
of court cases, tensions and conict might be better
addressed by means other than litigation.
Public access to the shoreline and waters of Maine is
evident along the state’s thousands of miles of coastline.
Some stretches are dedicated to public use, while many
other private coastal properties are accessible under a
“presumption of permission.” Where private owners of
coastal property are opposed to, or wary of, public use,
tensions may are. But thoughtful discussions between
private owners and public stakeholders may lead to con-
structive agreements that allow some public use while
protecting the interests of the property owners.
An alternative to litigation that shows promise is pro-
vided in the model of the Town of Kennebunkport’s
beachfront ordinance, which provides a framework for a
contract to balance the interests and needs of the beach-
front owners and the general public while outlining the
role and responsibility of the municipality.
13
References
1. Maine Coastal Program/Department of Agriculture, Conservation and Forestry,
personal communication.
2. e Book of the General Lawes and Libertyes Concerning the Inhabitants of
the Massachusets (Reproduced in facsimile from the unique 1648 edition in
the Huntington Library, Edited with an Introduction by omas G. Barnes,
Huntington Library, San Marino CA, 1975), available at mass.gov/courts/
docs/lawlib/docs/colonialordinancesof1651.pdf.
3. See accessingthemainecoast.com for examples and denitions of ways to
secure public access.
4. Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) [hereinaer Bell II].
5. Bell v. Town of Wells, 510 A.2d 509 (Me. 1986).
6. 12 M.R.S.A. §§571–573.
7. Similar to the principle of adverse possession (also known as “squatter’s
rights”); that is, open, continuous, notorious, and uninterrupted use of pri-
vate property for a certain period of time (20 years in Maine), a claim of right
adverse to the owner, will create a “prescriptive easement” to continue such use.
Such an easement for public use may also be created by “implied dedication”
where the owner clearly acquiesces to public use and the public’s enjoyment
has lasted for such a length of time that the public would be materially aected
by a denial or interruption of the enjoyment. Town of Manchester v. Augusta
County Club, 477 A.2d 1124 at 1128-1129 (Me. 1984).
8. Bell II, 557 A.2d at 177.
9. Storer v. Freeman, 6 Mass. 435 (1810).
10. Bell II, 557 A.2d 173.
11. Barrows v. McDermott, 73 Me. 441, 449 (1882).
12. 12 M.R.S. § 6001 (17)
13. Moore v. Grin, 22 Me. 350, 356 (1843); Hill v. Lord, 48 Me. 83, 86 (1861),
Marshall v. Walker, 93 Me. 532, 536–37. e terms “sea manure” and “mussel
manure” refer generally to the organic detritus and waste of marine organisms.
14. Matthews v. Treat, 75 Me. 594 (1884).
15. Andrews v. King, 124 Me. 361 (1925).
16. Id. at 364.
17. French v. Camp, 18 Me. 433 (1841).
18. Bell II, 557 A.2d at 175-176 (Me. 1989).
19. McGarvey v. Whittredge, 28 A.3d 620, 624 (Me. 2011).
20. Eaton v. Town of Wells, 760 A.2d 232 (Me. 2000).
21. Lyons v. Baptist Sch. Of Christian Training, 804 A.2d 364, 370-371 (Me. 2002).
22. Almeder v. Town of Kennebunkport, 106 A.3d 1099, 1111 (Me. 2014).
23. Almeder, 106 A.3d at 1114.
24. Id. at 1115.
25. Id. at 1114–1115.
26. Cedar Beach/Cedar Island Supporters, Inc., et al. v. Gables Real Estate, 2016
ME 114, para. 20.
27. Id. at para. 20.
28. Id. at para. 15. See also 14 M.R.S. § 812 Acquisition of rights-of-way and
easements by adverse possession; notice to prevent.
29. For information on issues related to coastal access and specic tools to coop-
eratively address access issues, based on research by the University of Maine
School of Law and National Sea Grant Law Center, see the comprehensive
web resource, accessingthemainecoast.com.
30. Kennebunkport Beach Use Agreement, 2012, preservegooserocksbeach.org.
31. Id. and Beach Use Ordinance for Goose Rocks Beach, Kennebunkport, Maine.
32. Kennebunkport Beach Use Agreement, 2012.
Updated information is available at accessingthemainecoast.com
Laws and policies regarding the use and ownership of the Maine coast continually change. Keep up with the latest changes
on the Accessing the Maine Coast website. In addition to updated information, the site is a comprehensive resource for
Maine residents and visitors on a range of topics relating to access, use, and ownership of the Maine coast.
The University of Maine does not discriminate on the grounds of race, color, religion, sex, sexual orientation, including transgender status and gender expression, national
origin, citizenship status, age, disability, genetic information or veteran status in employment, education, and all other programs and activities. The following person has been
designated to handle inquiries regarding nondiscrimination policies: Director, Ofce of Equal Opportunity, 101 North Stevens Hall, 207.581.1226.
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