How the Goose Rocks Beach Decision Helps Moody Beach
The recent Goose Rocks Beach (GRB) decision, and the overall fight for recreational access to GRB, provides hope to the Moody beach community for improving their access to Moody Beach. More-so, the GRB efforts provide a blue-print on how this might be achieved.
By understanding the latest GRB decision and its context within GRB’s overall fight for beach access rights, the Moody Beach community can learn valuable lessons to assist in their own quest for improved access to Moody Beach. Moody Beach’s similar circumstances to GRB imply that what worked in Kennebunkport can work for Moody Beach too.
The Campaign for Recreational Access to GRB
The April 2018 decision by the Maine Superior Court was based on the title/deed histories for Goose Rocks Beach, as well as the Town of Kennebunkport’s historical dealings with regards to common lands.
The case resulted in awarding the Town of Kennebunkport ownership of the beach for 22 of the 23 ocean-front properties considered. This means the public has restored recreational access rights to the beach from the seawall to the ocean in front 96% of the beach-front properties that were part of this case. Evidence showed that the deed histories of 96 % of the properties considered did not legally convey ownership to the beach.
(The full court decision can be found here: https://www.kennebunkportme.gov/home/news/court-decision-goose-rocks-beach-title-trial-040918)
This most recent decision trumps earlier decisions that were made during the 2009 to 2014 timeframe.
In 2012, a lower court decided that the public had recreational access rights to GRB. This decision awarded the public a ‘prescriptive easement’ to GRB. A prescriptive easement basically means that since the public had used the beach for an extended period of time, it had the right to keep using it.
In 2014, the Maine Supreme Court reversed the 2012 decision and decided the public only had access rights to GRB for the purposes of “fishing, fowling, and navigation”. This decision assumed that the ocean-front properties of GRB had legally conveyed deeds to the beach. However, this decision was also remanded so that the Town of Kennebunkport had a path to challenge ocean-front properties' deeds to the beach on a lot-by-lot basis (which ultimately resulted in the April 2018 superior court decision).
The rest of the GRB properties / Beach-Users-Agreement:
Beyond the beach areas in front of the 23 ocean-front properties involved in the recent case, there are ~67 Goose Rocks ocean-front property owners who signed a Beach Users Agreement with the Town of Kennebunkport. For the 67 properties of the beach user’s agreement, once signed this agreement was in effect in perpetuity (forever), and they are unaffected by the recent decision.
This agreement was signed in-between the 2012 court decision and the 2014 court decision. This agreement a.) Provides the town (back-lot owners and public) recreational access to the beach, b.) Reserves an area of beach directly in front of the sea-wall for the ocean-front owners if they so desire, and c.) Outlines beach maintenance plans and beach-goer code-of-conduct.
How GRB Applies to Moody Beach
There are many similarities between GRB and Moody Beach, and Moody Beach can learn a lot from GRB’s success. These lesson learned can be applied to our own efforts to improve beach access. Specifically:
A Title/Deed Case: Moody Beach could initiate its own case regarding the beach deed histories. Although the recent ruling is specific to Goose Rocks Beach only, and the decision may be appealed, my initial review of the decision shows many of the circumstances of this GRB case are similar or the-same for Moody Beach. This includes the beaches having similar beach deed histories. The 2016 deed history study (partially funded by the Town of Wells), revealed a lot of uncertainty regarding whether most ocean-front properties have legally conveyed deeds to Moody Beach. Links to the research study as well as a presentation on the study can be found here:
Beach Users Agreement: The community and Moody Beach’s ocean-front owners could negotiate their own Beach Users Agreement. The recent GRB decision (not to mention Professor Delogu’s efforts to overturn the Moody Beach / Bell Supreme Court decisions), provide the community leverage for negotiating such an agreement.
Although this needs to be a community decision, a Beach Users Agreement might be a way to put the court battles behind us once and for all, while a.) Providing the community the right to recreate on Moody Beach, and b.) Recognizing the ocean-front owners and their unique relationship to the beach.
Town support: The Town of Kennebunkport was a staunch ally of preserving the public’s right to recreate on GRB, and led the charge in many areas. Moody Beach should look for similar support from the Town of Wells regarding community efforts to improve recreational access to Moody Beach.
Community Effort: The Goose Rocks Beach community should be commended for coming together and fighting for the public’s right to recreate on GRB. After 2014, GRB was in similar circumstances to where Moody Beach has been since 1989 – at the short-end of a court decision that took away the community’s recreational beach access rights. Like GRB, Moody Beach can come together as a community and successfully improve their access-to and enjoyment-of Moody Beach!!!
6/9/2016: Best Strategies and Approaches to Improve Access to Moody Beach
I hope everyone is beginning to enjoy Moody Beach as the weather continues to warm, and another summer is about to begin! With the summer seasoning approaching, I thought I would share some thoughts on what I see as the best approaches for improving access to Moody Beach.
I think the first step to improve access is to let the town of Wells know that the community thinks access to Moody Beach needs to improve. This could easily be done by having folks around Moody Beach sign a petition and presenting it to the town.
After submitting such a petition, I would recommend engaging the town of Wells in developing concrete approaches to improve access to Moody Beach. Specific approaches could include:
Making the town aware that this is an important issues to many people and starting a dialogue with the town on what to do about it is essential to any efforts to improve access to Moody Beach.
Initially I would recommend the local approaches over others that require going to the courts to improve access. That is because court cases are going to be very costly and have less than certain results. Maybe approaches through the courts become more viable over time as the community’s and town officials’ support for the efforts is gauged.
For more information on the above approaches and on all approaches, see the following link: http://www.freemoodybeach.com/approaches-to-improve-access.html
For updates on the Maine court cases regarding beach access, see this link: http://www.freemoodybeach.com/news---links.html
Thanks for your time. Together we can improve access to Moody Beach!
P.S. If you have other ideas or opinions regarding Moody Beach access, please email me at FreeMoodyBeach@yahoo.com
11/11/2014: Part 4 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series
The 4th and final event of the “From Moody Beach to Goose Rocks” Beach Access series was held at Laudholm Farm in Wells on 10/23/2014. The final event featured two speakers who have both been big allies in the public’s fight for beach access in Maine over the years: Judge Daniel Wathen – former chief justice on the Maine Supreme Court, that gave the dissenting opinion in the Moody Beach case (the opinion that was for full public access to Moody Beach); and Adam Steinman – an attorney from the Surfrider Foundation that has been a major advocate for the public’s right to access the beach in Maine. See the following link for more info on these speakers:
The 4th night provided a wealth of detailed info and ideas on Maine beach access, and provided some specific thoughts and recommendations on where the fight over Maine beach access will go to next. Here are the major takeaways that I got from the meeting:
1.) GR Reconsideration: The Goose Rocks case is under reconsideration by the Maine Supreme Judicial Court (SJC). Neither speaker understood the Supreme Court’s initial ruling on the GR case. Mr. Steinman said he was shocked that the SJC did not solidify a major victory for beach access in Maine – he had thought that all the court proceedings since the Moody Beach decision pointed to a major beach access improvement decision….. Judge Wathen said in his tenure within the Supreme court (~20 year tenure), he could remember only 2 cases where a reconsideration reversed significant portions of the initial ruling. The part that seems to be under reconsideration is whether the Public Trust Doctrine (PTD) is expanded to cover public use of the intertidal beach areas for such activities as surfing, boogie boarding, etc. …. The thought is that the SJC has 3 judges who support expanding the PTD and 3 who do not, with a new judge (the 7th) whose stance on this is unknown…
2.) Future Court Challenge Possibilities: The speakers gave insight into future court challenge possibilities IF the GR reconsideration kept the initial SJC ruling in tact. Judge Wathen emphasized that these were just his best guesses and they were far from certainty.
a.) PTD Expansion
b.) Overturn Moody
c.) Prescriptive Easement
3.) State Legislature
4.) Enforcement of PTD
10/20/2014:Part 3 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series
The event was held in the Moot Court Room as the University of Southern Maine in Portland. (http://www.wellsreserve.org/visit/calendar/1011-from_moody_to_goose_rocks_public_access_and_private_ownership_of_maines_shoreline). Part 3 really proved to be the highlight of the entire series.
An all-star panel was compiled for Part 3 with people who have been intimately involved with Maine beach access issues over the last 30 years. Each panelist spoke for ~10-15 minutes followed by the entire panel taking questions from the audience. The speakers presented in the following order:
Below are questions that my family and I compiled for the meeting. Some of them we asked the panel directly, some were addressed in part either by answers to other audience members’ questions or during the panelists’ initial talks. We also handed out all of the questions as a flyer once the meeting had concluded. I summarized the info obtained from the meeting after each question.
1. Maine is 1 of only 2 states in the country (MA is the other) that DOES NOT allow unrestricted recreational use of the beach areas between high and low tide. This is a national embarrassment to a state that calls itself “Vacationland”. Shouldn’t the state take bold steps to correct this injustice such as eminent domain, federal court challenges, further state court challenges, etc? Accepting the Goose Rocks and Moody Beach decisions will most certainly impact tourism as this ruling gets wider public awareness and is applied to more and more beaches in Maine (such as Long Sands Beach in York, Drakes Island Beach in Wells, etc) [Meeting feedback: There are several potential court challenges to a.) the portion of the Moody Beach decision stating that under the 1647 Colonial Ordinance the ocean-front home-owners owned the beach, and b.) to the Public Trust Doctrine (PTD) interpretation that the public can only use the beach for the purposes of “fish, fowl, and navigation”. Although not directly addressed during the meeting, the PTD could presumably be challenged to include recreational use under the umbrella of the public's economic pursuits such as tourism. Professor Delogu provided most of the information on this and also handed out his Law Journal article: “Friend of the Court: An Array of Arguments to Urge Reconsideration of the Moody Beach Cases and Expand Public Use Rights in Maine's Intertidal Zone” 2010, and lecture notes on the subject from a class he teaches.]
2. Back-lot owners of Moody Beach and Goose Rocks Beach, who had decades and generations-worth of recreational beach access (and who literally built their properties under such assumptions), now have absolutely NO recreational beach access rights under the present Maine Supreme Court rulings. Doesn’t this show that the ‘prescriptive easement’ concept in Maine is totally flawed? And don’t all back-lot owners in Maine deserve bold initiatives to regain beach access in a legal system that has abandoned them? Bold initiatives that do not necessarily include the process of negotiating for beach access where it’s a pre-requisite to accept oceanfront properties ownership and control of the beach, and where the public/back-lot owners have no leverage and are pitted against a very wealthy party on the other side. [Meeting feedback: Amy Tchao stated that this question “really hit the nail on the head”, and that if they attempted to negotiate access to Goose Rocks Beach AFTER the Supreme Court’s Goose Rocks decision, then the Goose Rocks Beach Agreement would not have happened….. The two lawyers on the panel advocating using negotiations – Leoni and Parkinson - to settle beach access disputes were notably SILENT to this question…… Professor Delogu inferred that back-lot owners were now in the same boat as the public in gaining beach access.]
3. During this series, we’ve heard Mr. Thaxter talk several times about the “generosity” of the oceanfront owners in granting the public beach access. The concept now being promoted to negotiate access with these owners would depend on this supposed generosity……… As someone whose family has owned a back-lot property and been coming Moody Beach for 45 years, my 4 year old son and I were kicked off the beach this July by an oceanfront owner and the Wells police who supported her. I would like to warn beach communities and the state of Maine against a negotiating process that in the wake of the Goose Rocks decision leaves the public and back-lot owners’ little leverage beyond the generosity of these ocean-front owners. [Meeting feedback: An attorney in the audience representing the public and beach community in the Cedar Beach/Cedar Island legal dispute - David Bertoni – stated that in the wake of the Goose Rocks decision that beach communities had little more than ocean-front homeowners generosity as a vehicle to gain beach access, and furthermore the ocean-front owners within disputes have a distinct advantage because they tend to be very wealthy and are able to handle courts costs better than the people they are in conflict with.]
4. One of the 3 evenings of this beach ownership and access series was totally focused on the oceanfront owners’ perspective on beach access, while zero nights were dedicated to the perspective of the public and/or back-lot owners. ….. With this series being publicly funded and supported by the federal NOAA Sea Grant Program, and with public opinion overwhelmingly supporting the public’s right to access the beach for recreational purposes, shouldn’t this series/forum offer a more balanced view on beach access? And shouldn’t more focus be placed on initiatives looking to overturn the unjust rulings of the Goose Rocks and Moody Beach cases as opposed to promoting a negotiation process that will solidify property owners’ rights to restrict beach access? [Meeting feedback: The meeting organizers redeemed themselves by planning a 4th night for the series that will primarily focus on a Supreme Court justice who wrote the dissenting opinion in the Moody Beach case (dissenting opinion was for the public). This 4th event was added out of the blue, and one wonders if it was put together due to attendee complaints (including complaints from FreeMoodyBeach.com). Regardless, it should bring some balance to the night dedicated to ocean-front owners perspectives…….. Although Part 3 had 2 panelists that are actively involved in resolving beach access disputes by negotiations, it didn't seem like the organizers are 'promoting' beach negotiations necessarily. Panelist Amy Tchao stated she was skeptical about the viability of a negotiations process for back-lot owners given the Maine Supreme Courts’ Goose Rocks decision…….. Professor Delogu also offered many specifics on how future court challenges could improve maine beach access.]
5. Oceanfront ownership to the low water mark at Moody Beach was neither on the original property deeds, nor on the majority of house deeds at the time the Moody case was brought to trial. Why did the court rule in favor of oceanfront owners based on a minority of deeds? Didn’t the state of Maine, then, de facto, take public land and give it to oceanfront homeowners for free? [Meeting feedback: Professor Delogu responded to the latter question with a resounding “YES”. Furthermore, he believes all ocean-front owners regardless of their deeds were given beach ownership due to a misinterpretation of the Colonial Ordinance…… The Moody Beach decision did not rule specifically on whether beach ownership was justified due to property deeds.]
9/6/2014: Part 2 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series
I attended Part 2 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" series on August 28th at Laudholm Farm in Wells. Part 2 featured the attorneys representing the ocean-front property owners in the Goose Rocks and/or Moody Beach cases (Sidney "Pete" Thaxter and Ben Leoni). Here is a summary of my observations from the meeting:
1. According to Mr. Thaxter, the driving reasons for the lawsuits were as follows:
2. ‘Prescriptive Easement’ is a way that the public or individuals can gain access to private property due to historical usage. The minimum historical usage period for a prescriptive easement in Maine is 20 years. [Note that in the Moody Beach and Goose Rocks cases the Maine Supreme Court decided prescriptive easements were not applicable despite decades and generations worth of beach access by back-lot owners and the public.]
3. At one point Mr. Thaxter quipped that back-lot property owners’ best path to beach access was to make friends with ocean-front owners so that they would allow them to use their beach. Mr. Thaxter also implied that if a back-lot owner could not make friends with at least one oceanfront owner then there must be something wrong with them.
4. Mr. Leoni stressed "consensus building" through “collaborative negotiations”. This process emphasizes using negotiations to settle beach disputes between the public and the ocean-front property owners as opposed to using litigation. Mr. Leoni claimed that the collaborative negotiations would yield better results for all parties at a much lower cost.
5. The extremely biased presentation of Mr. Thaxter was made worse by the moderator. He chose not to offer any sort of commentary to insinuate that there were other perspectives and interested parties from those that Mr. Thaxter represented. Furthermore, his only action as moderator seemed to be to discourage any questions that differed from the presenters. He suggested that people write their questions on notecards so that he could relay the audiences most common concerns, but then never even collected the notecards before the evening was over.
Synopsis: Part 2 of the Beach Ownership and Access series was an extremely biased affair. Apparently Mr. Thaxter thought that being invited to talk in a public forum was a great opportunity to solicit more business from ocean-front property owners. Despite all the subjectivity, I did learn a few things. Although I found the “collaborative negotiations” concept interesting, I couldn’t help but wonder what leverage beach communities would have in this process given that the Maine Supreme Court decision in the Goose Rocks beach case reiterated ocean-front owners’ full ownership and control of beach access.
7/23/2014: Part 1 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series
I attended Part 1 of of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" series at Laudholm Farm in Wells. I learned the following during the course of the night: