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PORTLAND, Maine — Attorneys in the case over public access to a privately owned stretch of beach in Kennebunkport returned to the Maine Supreme Judicial Court on Wednesday, keeping alive a five-year-old legal battle many believed was substantively resolved two months ago.
With a new look at the controversy Wednesday, the law court also opened the door for a fresh interpretation of a 1647 rule that has guided the state’s regulation of waterfront properties ever since.
In early February, the state’s highest court threw out a lower court ruling that the public and backlot owners have a prescriptive easement to access Goose Rocks Beach, where a string of at least 29 waterfront private property owners had claimed ownership and rights to refuse access to the sand.
The supreme court ruling meant that the waterfront property owners could legally deny public access to the beach, a decision that promised to create a precedent for similar public access debates like those regarding Cliff Walk in York and Cedar Beach in Harpswell.
But the town of Kennebunkport filed a motion urging the high court to reconsider its ruling, and last month, the court agreed to schedule a new hearing in the case, at least temporarily reopening it.
On Wednesday afternoon, the supreme court justices heard arguments in the case a second time.
Kennebunkport Town Attorney Amy Tchao reiterated the town’s case in court that members of the public have used the beach — and that tax dollars have contributed to its maintenance and oversight — for more than a century.
“If these landowners bought property, they did so knowing that not only was the public using the beach, but the town was patrolling the beach with lifeguards and police for the public benefit,” she told the justices.
In urging the court to reconsider its decision, Tchao also asked the justices to clarify whether the private property owners or the public owns the intertidal zones — legally gray areas between the privately owned dry land and state-owned earth underwater.
Tchao asked the court to consider sending more of the case back to the Superior Court level, where the town could seek to sort out beach ownership “lot-by-lot.”
“We do not know who holds fee ownership in the wet sand,” acknowledged Chief Justice Leigh Saufley on Wednesday. “If there is continued confusion, is this not the time to clear that up?”
The case revives, once again, a dispute that has recurred throughout Maine history and can be traced back to the Colonial Ordinance of 1647, which established private land ownership rights all the way to the low-water mark but preserved public access for fishing, bird hunting and navigation.
More contemporary recreational beach activities were not considered by the 17th century rule.
The premises of the Colonial Ordinance — without expansion to include walking, sunbathing or sports — were upheld by the Maine Supreme Judicial Court in landmark cases such as 1989’s Bell v. Town of Wells, which regarded public access to Moody Beach.
But that longtime precedent, which has been used for decades to reinforce private property owners’ waterfront rights with public access limited to fishing and fowling, may be due for an update, Saufley suggested.
“Has too much time gone by for this court to overrule Bell?” the chief justice somewhat rhetorically asked Maine Deputy Attorney General Paul Stern, who argued alongside Tchao on Wednesday.
Alluding to the Colonial Ordinance, Saufley also asked attorney Sidney Thaxter, representing the landowners: “Can [members of the public] walk on the beach in the intertidal zone without a gun or a fishing pole?”
“Technically, no,” Thaxter responded. “But they do.”
Thaxter argued that the Goose Rocks Beach case has been adequately litigated, and the high court’s earlier decision should be left to stand. He said his clients haven’t kicked anyone off their beaches but rather just want to make sure to retain legal rights over them.
“You don’t get a do-over,” he told the court. “It was tried, and the court made its decision. … It’s been five years here. We need an end to this case, and this court did not make a mistake in its judgment.”
Thaxter has contended that Maine’s system of giving private landowners the flexibility to allow the public recreational access to their lands without giving up legal authority over those lands is important to preserve.
If regular public use — by beach goers, hunters, snowmobilers or hikers — of private property would ultimately result in property owners losing rights over their properties, he argued, those owners would have to start blocking all access in order to prevent those losses of rights.
“If you want landowners to be generous, you have a good rule in place,” Thaxter told reporters outside the courthouse in Portland on Wednesday.
The Maine Supreme Judicial Court does not issue rulings immediately following hearings, and there is no timetable for a decision in this case.