In Search Of . . . Maine’s Shoreline

Rockland Breakwater Light

Rockland Breakwater Light

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]

In 1989, the Maine Supreme Court confirmed the limitations on public access in two decisions, Bell v. Town of Wells I and II, often referred to as the “Moody Beach” cases. 

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]

Blue Hill Peninsula

Blue Hill Peninsula

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.

This is Part 3 of a 4-part series on Maine. Click here for Part 1, Warning: Reflections May Be Distorted, here for Part 2, In Search Of . . . Maine Past, and here for Part 4, Hiding in Plain Sight. 

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Listening List

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

Bonus Tracks:

Woody Guthrie- This Land Is Your Land

Sung by Pete Seeger and Bruce Springsteen

Sung by Woody Guthrie

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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.

8 thoughts on “In Search Of . . . Maine’s Shoreline

  1. Mark Kerstetter

    Those are some mighty strange customs (I can see your law background in the language of this post). We were recently recalling how we seldom went to the beach in Key West when we lived there since the public beaches were so poor and unspectacular.

    P.S. Saw the PBS American Masters episode on Woodie Guthrie a couple nights ago. Talk about giving a voice to a whole group of Americans. He was a fascinating person.

    1. Susan Scheid Post author

      Mark: This was definitely an instance where curiosity nearly killed the cat. I had my hunches about what the issues were, but wanted to see if there was any information and ran smack into case law. You know, in Maine, while the controversy arises over the (very few) sandy beaches, to me that’s not what Maine’s shoreline is about, but rather the beautiful rock pools and rock formations on shore and out into the water. It’s such a shame, really a crime, that the shoreline’s beauty is for the most part out of reach. (PS: Woody Guthrie did indeed give voice to a whole group of Americans, didn’t he? Nicely put.)

  2. David N

    Oh dear – we’ve talked about this before, haven’t we, with respect to Rebecca Solnit’s book Wanderlust, which so highlights the difference between America’s ‘walk in national parks or don’t walk at all’ and the veins of footpaths that make it possible to go from one end of the UK to the other. The South West Coastal Footpath, which we walked over ten years – four days in spring, four days in autumn, except for the Foot and Mouth epidemic year – is 598 miles long, with only a few incursions. And it could so easily have been different had the National Trust not come along at exactly the point when the entire coastline could have been developed. Wales now has a footpath round the entire coast, not just Pembrokeshire. North Norfolk has one, as you know. And in Sweden ALL beaches allow public right of way, in principle anyway.

    Let’s hope it gets better. But it does, of course, look very beautiful in your careful selection of photos.

    1. Susan Scheid Post author

      David: Indeed we have, though at that time I didn’t know the worst of it. Of course a great irony is that the legal doctrine applicable in Maine and Massachusetts had its genesis in the actions of James I and Charles I during colonial times. Charles I made the grant of land so as to encourage private owners to build wharves at private expense. Case after case has upheld the doctrine, so I’m not hopeful about a change–and even if there is a change, we’re still miles short of the principles of public access in the UK.

  3. hilarymb

    Hi Susan – what an interesting post … and I can see correlations with our early laws here – which thankfully are being whittled away to allow common sense to reign, yet unfortunately responsibility to the land is something that’s come in in recent years …

    Fascinating history though and still ongoing … I love the Blue Hill Peninsula image .. but your story telling with photos are always a delight. So glad you had a happy time despite the struggle to find places to walk along … cheers Hilary

    1. Susan Scheid Post author

      Hilary: Yes, per my comment to David, this law springs directly from a grant made by Charles I in colonial times. If only common sense would reign here, as it seems to be your side of the pond.

  4. shoreacres

    I’m truly surprised. For some reason, I would have put Maine and Massachusetts at the top of the list of states not only allowing but encouraging public access. As I understand it, Florida is another state where public use of beaches is being markedly curtailed. And, despite an open beaches act here in Texas, the twin realities of storms and coastal erosion (and the issue of how to distinguish between them) may raise havoc and hackles in the future. There’s a brief article here, that gives a decent synopsis.

    Just think — with no public access to beaches, I wouldn’t have found either my purple Janthina janthina, or the mutant sunflower that gave rise to my Van Gogh post. Beyond that, I’ve spent many a happy sunrise and sunset hour on our beaches. You’ve given me a bit of a new perspective. They may not be the prettiest in the world, but at least we still can get to them.

    1. Susan Scheid Post author

      shoreacres: As was I! You know, we’ve been on several visits to Maine, some better than others, but all positive (and, as I hope can be seen, this one had many good points, too). Somehow, this aspect had not been so visible to us on other trips (Acadia National Park’s Schoodic Peninsula is particularly nice). Didn’t know this about Florida, but on Long Island, public access points are also limited, though, once you’ve made it to the shoreline, you can often walk for miles. Of course, Maine’s topography is big a factor here, as well as the tidal nature, but this is what makes the more draconian low water mark as the demarcation so particularly awful. As I get older, and given where we live, too, in which we’re required to get in a car to do anything, even get to a decent place to walk, I’ve become more sensitive to obstacles to walking, and otherwise being active, out of doors. On this vacation, the ratio of driving to walking was hugely out of whack. And, as you note about your own area, on return, I had an even more strongly renewed appreciation of the reclaiming of old railroad beds for walking, and of course the ability to walk along the Hudson River, as I’ve noted in the post.

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