More than 25 years ago, I wrote a law review article urging the state and/or Maine towns with sandy beaches to “Buy the Foreshore — NOW.”
Though my urging was largely ignored, it was a good idea then, and it’s a good idea now. Then and now, the cost of acquiring this property will never be cheaper.
The recently decided Almeder case in York County assumed that the central holding 25 years ago was correct, i.e., that upland landowners have title to intertidal lands between mean high and mean low as a result of the 1648 Colonial Ordinance, and that the public holds only an easement to engage in “fishing, fowling, and navigation.”
More importantly, Almeder made it almost impossible for towns such as Kennebunkport to show that long-standing public use of intertidal beach areas for beach-related recreational pursuits (such as sitting, strolling, bathing, surfing, etc.) gave rise to a right to continue such uses – what in law is called a “prescriptive right.”
Whether arguments that would challenge the central holding from 25 years ago will ever be fully examined by Maine’s highest court is problematic; it seems less likely with the passage of time.
Whether the language of the existing public easement allowing “fishing, fowling, and navigation” will be interpreted more broadly over time, to allow some (if not all) beach-related recreational uses is also problematic; at best it will be a long process. A series of cases like the recent McGarvey case holding that scuba diving (recreational and commercial) is encompassed by the term “navigation” will be needed.
These realities suggest that buying the beaches, putting these intertidal lands (and in some cases adjacent dry sand areas) in public ownership is the only way a broad range of recreational and other public uses – uses that go well beyond “fishing, fowling, and navigation” – can be permanently engaged in by all Maine people (and visitors) as a matter of right.
It is not enough – at best, it is a short-term fix – for the towns to negotiate with present upland owners a type of public license to use a particular beach area for recreational purposes. Some upland owners may just say no.
Even if several contiguously situated owners would agree, such an approach would give rise to a helter-skelter pattern of licenses defining the durational length of a license, included beach areas, permitted recreational uses, who (among town residents and visitors) qualifies as a licensee, and the scope of appropriate public regulation.
And when the durational period of a license ends, the town would have to begin again to fashion the next license for a shorter or longer period of time, for a narrower or broader range of uses and areas covered, by a broader or more narrowly defined group of licensees, who would be subject to more or less public regulation. This approach is never ending.
A far better approach would be for the state and/or individual towns to begin acquiring long, contiguous stretches (if not all) of Maine’s scarce supply of foreshore sandy beaches. The task is doable; there are less than 50 miles of sandy beaches in Maine. Public ownership would secure the widest range of uses for all Maine citizens, and visitors, forever. The licensing problems noted above would be avoided.
As important, an acquisition strategy would allow flexibility in determining precisely what should be acquired in each individual beach setting. In most instances, acquiring the property between mean low and mean high would be sufficient. In some settings acquiring an additional strip of dry beach area above mean high would be appropriate; valuable frontal dunes could be repaired and/or damaging sea walls removed.
In a few cases acquiring entire foreshore parcels may be appropriate; dilapidated structures could be removed, public parking and other facilities (toilets, picnic tables, etc.) could be provided, connectivity of the beach to public roads would be secure. But these are details that can be worked out once the idea of public ownership of Maine’s beaches is embraced.
Some assert the proposed strategy is unfair to upland owners of beachfront property. But it is not. These owners and/or their predecessors in title, gave nothing for the intertidal land they are said to own; it was/is a windfall – a gift – arising out of judicial interpretations (often by divided courts) of the Colonial Ordinance, interpretations that English Common Law and most other states have avoided. Historically and today most states hold that an upland owner’s property extends only to mean high; intertidal lands are publicly owned.
Finally, bear in mind the proposed strategy will compensate upland owners for any/all land acquired by the state and/or towns. Their property and existing homes (in most settings) will continue to be closest to the foreshore; they will have the views, the salt air, the most ready access to the beach for any and all beach-related uses. They will have lost only the right to exclude others from similar enjoyments, a small loss in the larger scheme of things.
In short, now is still the time to buy the beaches.
Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at firstname.lastname@example.org.