Today, the Maine Law Court (Maine’s highest state court) heard arguments in Robert F. Almeder v. Town of Kennebunkport, a beach access case pitting beachfront homeowners against the Town and the public over ownership of intertidal lands and beach access along Goose Rocks Beach in Kennebunkport, Maine. While beachfront property owners claim they own title to the intertidal lands all the way to the low tide line, the lower court rejected this argument, holding that for all but one of the twenty-three parcels at issue, the owners’ title ends at the “seawall” – located landward of the higher high water line. Instead, the court held the Town of Kennebunkport owns both the wet and dry sand of the parcels.
Now on appeal to the Law Court, this morning the property owners argued that the trial court applied the wrong burden of proof and the wrong standard, applying strict rules interpreting ancient land grants instead of liberal rules. In short, the beachfront homeowners argue that they own the beach, not the Town. Meanwhile the Town argued that the Superior Court was correct in finding that the property between the ocean and the seawall was never conveyed into private ownership, and was therefore retained by the Town.
Procedurally, the case has taken some twists and turns over the last ten years. The case was originally filed in 2009 by 29 beachfront property owners seeking declaratory relief and quiet title to the intertidal zone. In response to the complaint, the Town argued it owns fee title to the property, and alternatively that it has an easement by custom, and a public prescriptive easement. The Surfrider Foundation and the state of Maine intervened (along with others), asserting arguments that the public has public trust rights to the intertidal zone.
The Superior court bifurcated the case, meaning it divided it into two parts, separating the issues into: (1) use related issues (public trust and easement claims), and (2) title issues. First, it focused on the public trust and easement arguments, and found for the public, that it has rights to use the beach for ordinary recreational purposes, and to cross the intertidal zone for “ocean-based” activities including jet-skiing, water-skiing, surfing, wind-surfing, and the like.
On appeal, the Law Court vacated the decision, holding that the public trust claims were not yet ripe, but remanded the case to the trial court to consider the title issues. An 11-day trial focused on the beachfront owners’ and Town’s title claims, with a focus on the deeds in chain of title, historical documents relating to title, and established rules of deed construction. In 2018, the court issued an opinion rejecting the beachfront homeowners’ claims, and holding that for all but one of the twenty-three parcels at issue, the owners’ title ended at the “seawall” – located landward of the higher high water line. Instead, the court held the Town of Kennebunkport owns both the wet and dry sand of the parcels.
In February, Surfrider, on behalf of its Maine Chapter, submitted an intervenor’s brief to the Law Court asking the Court to affirm the Superior Court’s opinion. However, Surfrider also argued that the more appropriate approach is for the Court to take this opportunity to extend the trial court’s holding to all of Goose Rocks Beach as well as every other beach in Maine. Supporting this view, Surfrider contends:
“It is the settled rule of law in this court [the U.S. Supreme Court] that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original states were reserved to the several States, and that the new states since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original states possess within their respective borders.” (Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), citing Knight v. United States Land Association, 142 U.S. 161 (1891)); and “The title consequences of the equal footing doctrine can be stated in summary form: Upon Statehood, the state gains title within its borders to the beds of waters then navigable, or tidally influenced.” (PPL Montana, LLC v. Montana, 565 U. S. 576 (2012)).
In conclusion, while arguing that the lower court’s opinion should be affirmed, Surfrider urges the Law Court to take this unique opportunity to reexamine the overarching issues and determine who owns the intertidal zone up to the high water mark in Maine, and overrule the wrongly decided Bell cases.
At the conclusion of the hearing, Chief Justice Saufley described the case as “interesting and complex” and thanked the amicus parties for submitting briefs. It is unclear exactly when the Law Court will issue its decision, though in similar recent cases the decisions came after one to two years after oral argument.