BANGOR, Maine — When it comes to beach access for recreation, whose rights prevail — the public’s or those of property owners?
That is the question the Maine Supreme Judicial Court wrestled with on Tuesday at the Penobscot Judicial Center when it considered the appeal of 33 owners of property fronting Goose Rocks Beach in Kennebunkport.
The owners sued the town four years ago in an effort to limit beach access to the public, which they feared was about to be expanded.
A York County judge found earlier this year that the town, the owners of property in the neighborhood and the public have a right to use the beach, according to information posted on the court system’s website. The beachfront owners have argued that the court erred in allowing an appeal before all claims were decided and relied on improper evidence in allowing the state and various owners of non-beachfront property to intervene in the matter.
The state is seeking clarification as to the scope and force of the public trust doctrine that allows people to cross the intertidal zone to reach the ocean. The intertidal zone is that part of the shore above water at low tide and underwater at high tide.
Justices on Tuesday focused their questions to attorneys on the impact their decision might have on beach access and the public’s right to cross intertidal land to reach the ocean.
“Do we want to create rules that require people who own oceanfront property to fence sections of the beach or put up signs that tell people they have to get permission to be on the beach?” Chief Justice Leigh I. Saufley asked hypothetically without getting a definitive answer.
The legal precept at issue is “public presumptive easement” for recreational purposes, according to Bangor attorney Patient Noreen, who filed a “friend of the court brief” on behalf of the Maine Forest Products Council. The law assumes the public has permission to use land for recreation unless the owner posts it, she said.
The council and other groups, including the Maine Snowmobile Association, are concerned the decision could affect how private land is used for public recreation.
Justice Joseph Jabar pointed out that at least 38 other property owners on the beach who are not plaintiffs in the lawsuit have signed agreements with the town allowing public access to their beachfronts.
“That puts about one-third of the beach in the public domain,” he said.
The current beach access case, Robert F. Almeder et al. v. Town of Kennebunkport et al., is a followup to a 2011 case, according to the Surfrider Foundation Maine Chapter, which supports public access. In a previous narrowly focused decision, the justices unanimously ruled in McGarvey v. Whittredge that “navigation” was an ever-evolving concept, and oceanfront property owners could not exclude the public to reach the ocean to scuba dive or run a scuba diving business.
In the first case after McGarvey to consider what additional rights should be allowed under the term navigation, the York County Superior Court ruled that the public has the right to occupy or cross over the intertidal zone for the purpose of engaging in ocean-based navigation activities, including surfing, windsurfing, boogie boarding and paddle boarding, the Surfrider Foundation said in a press release issued Monday.
The lower court also found that the public does not have the right to cross the intertidal zone to swim or participate in general recreation in the intertidal zone.
There is no timeline under which the Maine supreme court must issue its decision.