The Maine Supreme Judicial Court issued a new opinion Tuesday that has both sides claiming partial victory in a long-debated property-rights question of whether the public should have full access to Goose Rocks Beach in Kennebunkport.
The opinion represents an unusual step for the state’s highest court, replacing a more decisive opinion on the issue with one that leaves room for further litigation.
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In its initial opinion, issued Feb. 4, the court ruled unanimously in favor of a group of 29 landowners whose properties front Goose Rocks Beach. That ruling overturned a Superior Court judge’s decision in 2012 that the public could use both the wet and dry sands of the beach for recreation.
In the opinion issued Tuesday, the court replaced its Feb. 4 ruling to allow Kennebunkport to argue its case again in Superior Court on a parcel-by-parcel basis, rather than arguing for property access for the entire two-mile stretch of beach.
Both rulings left intact a 370-year-old rule says the owner of shoreland above the high tide mark is the owner, in name, of the intertidal area but the public has a right to use that wet area “to fish, fowl or navigate.” That means surfing, snorkeling, shell collecting and other activities are protected.
The new ruling also answers a lingering question from Feb. 4: that this opinion is specific to Goose Rocks Beach in Kennebunkport, and has no broader impact on beach access rights elsewhere in the state.
The Supreme Judicial Court rarely revisits a case. It did so in this instance after the town of Kennebunkport and the state filed motions asking the court to reconsider its overall decision and several specific issues.
The town specifically asked whether the Feb. 4 ruling overturned a 2000 ruling in Eaton v. the town of Wells, in which the court said the town and the public have rights to use the dry sand and the intertidal, wet sand on Wells Beach.
Chief Justice Leigh Saufley answered that question in a standalone order, issued alongside the new ruling, that clearly says that the Goose Rocks Beach decision does not overrule the 2000 Wells decision, and that the Wells decision guarantees Maine’s “presumption of permission” allowing the public access to privately held lands while protecting landowners.
“The state of Maine is blessed with beautiful beaches, rocky shorelines, mountains and forests. When those lands are held in private ownership and the owners do not prohibit public use of land, the owner will not stand at risk of public confiscation of their rights by the beneficent act of permitting public recreational use of the land. To hold otherwise would fundamentally change the nature of this great state,” Saufley said in the order.
The new ruling, in a 6-0 decision, also gives Kennebunkport a chance to reverse its approach to the Goose Rocks Beach case, which started in 2009.
“We would not ordinarily provide an opportunity for a litigant to do what it has opposed at every turn during years of litigation,” Justice Ellen Gorman wrote on behalf of the court. “We recognize however, that the public’s access to scarce resources such as sandy beaches in Maine is a matter of great importance and extraordinary public interest.”
Gorman noted in the 28-page decision that if Kennebunkport decides to litigate further, it will be liable for lawyers’ fees for the landowners who sued the town.
An attorney for the landowners, Sidney Thaxter, said the new ruling is almost entirely in favor of the landowners, though he wishes the court had not allowed the town to re-litigate on a parcel-by-parcel basis.
He said that when landowners sued the town, they were trying to stop bonfires and partying on the beaches near their homes, not surfing and fishing.
“In practicality, what will go on is people will continue using it exactly as they have always used it,” he said.
Amy Tchao, an attorney representing Kennebunkport, said she was pleased with the court’s decision.
“The court has breathed new life into our effort – the town’s effort – to keep the beaches open to the public, which is important to the town and to the economy,” Tchao said. “That gives the town the opportunity to go back and, based upon evidence already in the record, to establish public beach rights on Goose Rocks Beach on a parcel-by-parcel basis, which is what we had asked to do,” Tchao said.
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