Written by Surfrider Legal Intern Marisa Choy
As part of a larger campaign to promote public beach access, the Surfrider Foundation Maine Chapter develops educational programs and engagement opportunities to help Maine residents and visitors understand and protect their beach access rights. The Chapter also engages in strategic litigation to protect those beach access rights, on an as-needed basis.
Towards this goal, on July 10, 2015, Surfrider Foundation, on behalf of its Maine Chapter, filed a motion to intervene in a lawsuit brought by property owners on Crowley Island, the Swans (“Plaintiffs”), against neighboring property owners who have attempted to cut off generations of public beach access to Crowley Island Beach. Crowley Island is in the village of Corea, just north of Acadia National Park.
The controversy centers around several parcels of land located at the southeastern end of Crowley Island. For generations, local residents, summer tourists, and others have crossed over the property via a path, now known as Jenny’s Lane, to access the beach for a range of activities including fishing, wading, sunbathing, swimming, picnicking, having clambakes, and exploring the nearby islands, which beachgoers can walk to at low tide. Without asking or receiving permission from the property owners, the public has been using this right-of-way from at least 1928 through at least 2013.
Despite this long history of continuous use by the public to access the beach, the Defendant property owners have tried to cut off the public’s right to continued access.
In July 2014, the Swans filed a complaint in Maine Superior Court asserting two claims. First, they sought to quiet title to an easement by right, pointing to a recorded easement referenced and identified in the chain of title for the Defendants’ property. Second, they asserted a claim for an easement by prescription (also known as a “prescriptive easement”), which essentially gives the public a right to acquire a “non-possessory interest” in land so long as certain conditions are satisfied. These conditions are: (1) continuous use; (2) for at least 20 years; (3) by the general public; (4) in a manner adverse to the owner; and (5) with the owner’s knowledge or acquiescence; or (6) a use so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.
Surfrider Foundation believes that the public has a prescriptive easement to access the beach, as the public has continuously used the path for decades, from the 1920s through the 1930s, 1940s, 1950s, and beyond, with no one trying to prohibit access during that time. Last Friday, Surfrider Foundation filed a motion to to intervene as a Plaintiff in the case, to help ensure that the general public’s rights and interests in accessing the beach are protected.
Previously, Defendants had filed a motion for summary judgment, which Plaintiffs have opposed, and which the Court has yet to rule on. Trial is currently set for July 23-24, but since the Court has not yet ruled on the motion for summary judgment or Surfrider’s motion to intervene, Plaintiffs have filed a motion to reschedule the trial for a later date, after a decision is made on the outstanding motions.
The ruling in this case could have implications on the interpretation of the Public Trust Doctrine & Colonial Ordinance of 1647 in the state of Maine, thereby affecting public beach access in the state, where less than 10% of the coastline is publicly owned. Surfrider is generously represented pro bono in this matter by Verrill Dana LLP.
Chapter volunteers are working with Surfrider staff to develop an educational program to help communicate the public’s right of access to Maine’s ocean, waves and beaches in this and other public beach access campaigns in Maine. To learn more about the Chapter’s Crowley Island campaign, please visit this website. To learn more about how you can get involved in this and other campaigns, we encourage you to join the Maine Chapter or email maine@surfrider.org.
Update: Unfortunately, on July 22, just one day before trial was set to begin, the Court denied Surfrider's Motion to Intervene, and Plaintiffs' Motion to Stay the trial date. Therefore, trial is being held July 23, with closing arguments to be heard August 10, and Surfrider will continue to monitor the case and support the Plaintiffs in this very important fight to maintain the public's right of access.