December 3, 2012

OUR OPINION: Beach use laws need to be equal, consistent

How much stuff can a beachgoer do if a beachgoer wants to do stuff on a beach?

That question, at least as it regards beaches that are not in public hands, has been an issue in Maine for several hundred years. And every time somebody thinks it has been answered, somebody else says, "Not so fast."

Now, the multifaceted issue of who can do what on Maine's beaches -- at least between the low tide and high tide margins -- may end up once again in the hands of the Maine Supreme Judicial Court. That's because previous rulings on laws and customs that are rooted in statutes passed in Massachusetts before Maine became a state have become controversial again.

As a general matter of Maine law, people who own beachfront property are presumed to control the beaches in front of their houses down to the low-tide line. A Colonial-era law from Massachusetts created exceptions involving "fishing, fowling (hunting birds) and navigation," categories that over time were expanded by courts to include driving cattle and ice skating.

An effort by some landowners on Moody Beach in Wells to enforce those limits ended up in the Supreme Court's hands in 1989, where the 1647 law was essentially upheld and a 1986 law expanding public access for broader recreational uses was declared unconstitutional. Later decisions have expanded public access for a few specific uses, such scuba diving.

However, many nonabutters continued to use beaches for general recreation, so another group of Wells abutters sued to bar the public from the intertidal area at Goose Rocks.

A lower court, in a ruling on that suit handed down Oct. 16, said that the law's permission for "navigation" should be expanded statewide to encompass general water-related activity such as jet-skiing, tubing, surfing and similar sports.

And Judge G. Arthur Brennan also said the public's use of Goose Rocks for beach-centered activity such as walking, sunbathing and swimming had gone on for so long that an easement had been created -- but only at Goose Rocks.

That leaves such actions elsewhere still prohibited. If the Wells landowners appeal, as some think likely, the high court will have another chance to uphold or revise current usage.

It hardly makes sense to have some activities legal in one place and not another, so such a ruling would be desirable. If the law's not applied equally, it's not very much of a law.

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