As I went walking I saw a sign there
And on the sign it said “No Trespassing.”
But on the other side it didn’t say nothing,
That side was made for you and me.
—Woody Guthrie, This Land is Your Land
At the cottage we rented in Maine, we settled into easy rituals. Mornings, we sat out-of-doors with a simple breakfast, listening for loons and keeping an eye out for a pair of grosbeaks who visited from time to time. Evenings, we sat out again, then repaired inside for dinner and listened to episodes from a splendid CD set of Charles Dickens’s Our Mutual Friend.
Between times, we went exploring, above all in search of places to walk along the shoreline. We queried possibilities at bookstores, shops catering to camping and biking equipment, chambers of commerce, and tourist information centers; we scoured maps. Despite it all, finding a shoreline walk of reasonable length remained elusive, to say the least.
As we searched, I thought wistfully of shoreline walks we’d taken in other places: in Finland, along Helsinki’s harbor and in Loviisa’s harbor park; in Great Britain, along Cardiff Bay in Wales and in Devon and Cornwall in England. I thought, too, of Poughkeepsie’s rail trail system that, by dint of public and private dedication and perseverance, now connects over twenty miles of rail trails with the Walkway Over the Hudson. And I thought, above all, how easy it is, in New York City, to gain access to and walk for miles along the Hudson River.
To be sure, while in Maine we found lovely spots here and there, but no place to take a shoreline walk of any length. As we drove from place to place, I watched in puzzlement as local residents parked in designated places along the verge and climbed over guardrails to gain access to water for a swim. I became increasingly aware that, for the most part in the places where we traveled, Maine’s coastline was available only as glimpses through the yards of the well-to-do.
I was not so terribly surprised, upon on returning home, to discover that all but seven percent of Maine’s “3,500-mile ocean coastline” is privately owned. Public Shoreline Access in Maine: A Citizen’s Guide to Ocean and Coastal Law 3] I was completely surprised, however, to learn that the law in Maine and Massachusetts concerning public access to the coastline is far more restrictive than in any other State.
A centuries-old Colonial Ordinance, applicable only in Maine and Massachusetts, extends private property rights to the low water mark, subject to a public easement for fishing, fowling, and navigation. . . .[Citizen’s Guide 2]
Moody Beach is a mile-long sandy beach in the Town of Wells, just north of the Ogunquit town line. About 100 private homes adjoin the beach. In 1984, twenty-eight of these homeowners filed a “quiet title action” in Superior Court against the Town of Wells, the State Bureau of Public Lands, and various individuals. The owners sought a court declaration to prevent the public from walking, swimming, sunbathing, or using the beach in front of their homes for general recreational purposes. . . . [Citizen’s Guide 2]
In 1986, before Bell I was decided,
the Maine legislature enacted The Public Trust in Intertidal Land Act . . . . The 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.” [Citizen’s Guide 2]
In 1989, the Maine Supreme Court, in a 4-3 decision, found in favor of the shoreowner plaintiffs, and, into the bargain, declared The Public Trust in Intertidal Land Act unconstitutional:
In Maine, public rights in privately owned tidelands are limited only to those specifically enumerated in the 1647 Colonial Ordinance; that is, fishing, fowling, and navigation. The Court held that although the Colonial Ordinance was never expressly adopted by the State Legislature, it has become part of Maine’s common law by custom and usage. Since the Colonial Ordinance extends adjoining private property rights down to the low water mark, Maine’s Public Trust in Intertidal Land Act amounted to a physical intrusion to private property by permitting public recreational use of private tidelands. [Citizen’s Guide 2]
Though I’ve read both Bell I & II, I don’t pretend to know the ins and outs of the issues and determinations, nor do I know the current “state of play,” but it certainly appears that the decision has worked some terrible, not to mention bizarre, results. As Justice Wathen noted in his dissent in Bell II,
I firmly believe that it is primarily the intensity of the modern use rather than the nature of the use that provides the impetus for this litigation. Given similar degrees of intensity of use, one would imagine that a shoreowner might prefer the presence of sunbathers, swimmers and strollers over fowlers and fishermen. Further, as has been suggested elsewhere, the narrow view adopted by the Court today results in absurd and easily thwarted distinctions between permissible and impermissible activities:
[A] narrow view would recognize the right to picnic in a rowboat while resting on the foreshore but brand as a trespass the same activities performed while sitting on a blanket spread on the foreshore. The narrow view . . . does not exclude the public from walking on the foreshore as it purports; it merely requires that a person desiring to stroll along the foreshores . . . take with him a fishing line or net. . . . the Maine Supreme Judicial Court can refuse to draw such a delicate distinction between the rights expressly reserved in the ordinance and similar recreational activities. With such a refusal the court will avoid the anomalous result of “declaring the same man a trespasser for bathing, who was no trespasser when up to his knees or neck in water, in search of a lobster, a crab, or a shrimp.” Bell II at 189, quoting Comment, Coastal Recreation at 83.
Bizarre determinations appear to continue on. At one point, in a case still under litigation, a lower Maine court ruled that
the public’s right to fish, fowl, and navigate includes the right to cross the intertidal zone of the Beach to engage in all “ocean-based” activities, which it defined as such “waterborne activities as jet-skiing; water-skiing; knee-boarding or tubing; surfing; windsurfing; boogie boarding; rafting; tubing; paddleboarding; and snorkeling,” but not including “swimming, bathing or wading; walking; picnicking or playing games.” Almeder v. Town of Kennebunkport 106 A.3d 1099 (2014) at 1106.
Oh, now I get it: when visiting the storied Maine shoreline, we might be allowed to jet-ski or boogie board, but heaven help us if all we want is to take a walk.
Maurice Ravel, Une barque sur l’océan (A Boat on the Ocean) (orchestrated by Ravel), from Miroirs
On Spotify: Boulez/Berlin Philharmonic
On YouTube: Dutoit/Montreal Symphony Orchestra
Woody Guthrie- This Land Is Your Land
Credits: The quotations may be found at the sources linked in the text. The photographs, as always unless otherwise indicated on the blog, are mine.