MEbiz Real Estate Insider: Shifting Sands – A historical perspective behind the law of Kennebunkport’s Goose Rocks Beach case


MEbiz Real Estate Insider: Shifting Sands – A historical perspective behind the law of Kennebunkport’s Goose Rocks Beach case


A historical perspective behind the law of the Goose Rock’s Beach case.
By Pete Van Hemel, Real Estate attorney

You may not have thought it was possible, but ME’s iconic coastline has become even more interesting, at least at Goose Rocks Beach in the Town of Kennebunkport. Residents and visitors alike are dealing with the aftermath of a recent case overturned by ME’s highest court.

Artist, Edouard Manet 1869

Initially, the trial court decided that Kennebunkport residents had earned the right to use the entire area of Goose Rocks Beach based on a concept of public prescriptive rights, due to public use for at least 20 years accompanied by the silent acquiescence of the beachfront property owners. The trial court found that ME’s public trust rights in inter-tidal (wet sand) zones under a historical ordinance originally dating from the 1640s to allow only “fishing, fowling and navigation” had grown into rights for all ocean-based activities, including just about everything you might want to do on a day at the beach.

ME’s Historical “Open Lands Tradition”

The opinion of the law court was quite different than that of the trial court. On appeal, the court held that there could be no public prescriptive right for the town’s recreational easement due to a longstanding legal principle that the beachfront owners were presumed to have permitted the recreational use, and therefore it should be hard – very hard – for beach users to rebut that presumption at the expense of beach owners. The court leaned heavily on ME’s historical “open lands tradition” that encourages recreational use and provides landowners with strong protections if they allow hunting, hiking, and the like on private property. Key among those protections is the law’s presumption for the benefit of a landowner that recreational users have the owner’s permission to be there. This put a heavy legal burden on the beachgoers in Goose Rocks to prove that their use was without any permission, and was instead silently suffered by the beach owners for 20 or more years. Only then could the use mature into a permanent legal easement that no longer depended on the owner’s permission being continued. Without that presumption of permission and the legal protection it provides, the court suggested that beachfront owners would have to fence off their land and prevent the very access that the beach users sought to preserve.

Public Trust Rights

The court further held that the ME’s public trust rights, under the nearly 400-year-old law, could not be expanded to include recreational use of the intertidal zone, and that in 2014 those rights are still limited to fishing, fowling, and navigation with only very limited exceptions.

The principles at issue are ancient, even if jet-skis present a very contemporary problem.  ME’s public trust rights to fishing, fowling and navigation echo back to the code of Emperor Justinian 1500 years ago which contained very similar provisions that found their way into the common law. In colonial America, those public trust rights were controlled by the King who held them in trust for the benefit of his colonial subjects. Private citizens could and did own land down to the low water mark after the 1640s, but the wet sand was always subject to a right of passage and use by the public to fish, to hunt birds, and to pass over the area by boat at high tide free from unreasonable obstructions. However, it is safe to say that in 1640, very few beach users, even fewer legislators – and zero English kings – had volleyball or sunbathing rights of future generations of Americans in mind.

The case of Wells Beach vs. Goose Rocks Beach

Court watchers and real estate lawyers across the state followed the Goose Rocks Beach case with interest to see whether the law court would broaden the historical public trust trio of rights. In 2000, in a prior case involving Wells Beach, the court upheld a public prescriptive easement to use that beach recreationally. Then-Associate, now Chief Justice Saufley opined quite strongly that there was a good legal opportunity before the court to broaden the nearly 400-year-old public trust rights to include reasonable modern recreational uses. However, the Goose Rocks Beach case left the issue untouched. The town and the state have recently filed motions asking the court to reconsider the opinion and to address the current scope of the public trust rights and to harmonize the Wells Beach case with the Goose Rocks Beach case.

Take-aways from the Court’s Decision

At the moment, and unless the law court reconsiders, the Goose Rocks Beach decision leaves us with a few interesting take-aways:

  1. This case makes it much harder for recreational beach users to establish vested legal rights.
  2. Numerous ME towns are now scrambling to scrutinize their current beach rights inventory and/or acquire public ownership of at least some portions of ME’s most popular beaches. This is especially true of beaches that form an important part of a Town economy, although the use of many those beaches is more likely to resemble the pattern of Wells Beach (public) than the pattern of Goose Rocks Beach (private).
  3. This case gave rise to a potentially successful model that might shift the debate and promote settlements. In the Goose Rocks case itself, a large group of 63 landowners who felt they had been dragged into the case signed an agreement with the Town of Kennebunkport to allow some public use on certain portions of the beach provided that other portions remain private.  It’s a simple enough concept that it can be summarized in just that one sentence, but the negotiations to get there were very complex and costly.

Finally, there is the practical recognition that many beach goers – especially vacationers from away – simply won’t know about the various shifting legal sands under their feet as they walk up and down Goose Rocks Beach.

For more information, contact Pete Van Hemel, real estate attorney at Bernstein Shur.