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MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from electronic originals (may include minor formatting differences from printed original) Natural ACCESS TO COASTAL AND Resources INLAND WATERS Highlights The Public Use of Private Land An infonnation digest pre­ Maine is different from other states in the United States, and one of the key differences has to do with pared and distributed by the the access Maine people and out-<Jf-state visitors have to the state's water resources. Maine has: UNIVERSI1Y OF MAINE • a great abundance of marine, lake, and river resources; COOPERATIVE EX1EN­ a small resident population; SION SERVICE the great bulk ofits land in private ownership; and THE LAND AND WATER RESOURCES CENTER, • a tradition of free and easy access across pri vate.lands. UNIVERSI1Y OF MAINE Will this unique combination of abundant resources and open access continue? As our sborelands THE MAINE MUNICIPAL gradually become developed, as recreation activities and tourism increase, and as traffic builds up on ASSOCIATION our roads, are we moving toward a time when private lands are closed off and the only public access we have will be that available on publicly owned lands? and Tbe answer to this last question is, most likely, No. Urban growth and tourism will undoubtedly THE MAINE/NEW RAMP SIDRE SEA GRANT continue. But as long as we can foresee, Maine people and out-of-state visitors will continue to rely, for their water access, on a muture of public and private lands. And this mixture will depend on: COLLEGE PROGRAM • the legal rights and obligations of landowners, towns, and the public; • changes in laws to meet new needs of landowners and the public; This digest is based on infonnation from and the • how the State and towns deal with frictions caused by development and growth in tourism; generous assistance of • whether private landowners in the future will be as generous as landowners have been in the The Marine Law Insti­ past; and tute, University of • the extent to wbicb cities, towns, and the state utilize the wide range of options that are Maine School of Law available for guaranteeing future public access to the State's water resources. and the Maine Department of~ nomic and Community Development Department of Conser­ vation Department of Inland Fisheries and Wildlife State Planning Office MAY 1988 BACKGROUND There are, roughly, three public access situations in Maine: There are problems in paying for recreational management The charging of fees upsets some citizens who think that In northern and eastern Maine, paper companies and other large recreational use of the wildlands should be he. Industrial corporations own much of the land. In a substantial partofthis area, landowners don't want to subsidize public recreational use of recreational use of private lands is managed by the North Maine their lands. And taxpayers find it difficult to shoulder the Woods, a cooperative organization formed by the large landown­ costs of managing recreational activities over a vast area of ers. Recreational pressures in this part of Maine are relatively light, private and public lands. and access problems are not critical. However: In central and southern inland Maine, swimming, boating, and Recreational pressures on the "wildlands" have increased fishing access have been provided, to a great extent, by a combina­ greatly with expansion of the logging road network and use of tion of private and public lands and facilities (such as private four wheel drive vehicles and A TV s. marinas and public boat launching areas). However, accessibility Managing widely scattered recreational activities over a large to lakes and rivers in this area is gradually becoming restricted as area poses special problems of safety, impacts on natural development continues around lake shorelands; resources, conflicts with forestry uses, and coordinaticn be· tween multiple private owners and state agencies. shorelands of rivers, cleaned up part! y at public expense, are being developed and put off limits to the public by some of their owners; and As the map illustrates, I Maine's public lands, by extensive forested areas, which include many rivers, streams, and large. are not located and lakes, are being subdivided and posted against public where the people are. I access. Most cities and towns are Along Maine's seacoast, severe problems. are emerging with re­ in central and southern Maine. Most publicly­ spect to public access to water. Historically, ownersoflargeparcels owned lands are in north­ of coastal and island shoreland permitted occasional use of their em Maine. lands by clarndiggers, "summer people," and others. In built-up areas, access to the water was also available (often by town ways adjacent to or across private lands). Increasingly, these historic means of coastal access are proving inadequate. Shorelands (and some islands) that have been open to public use in the past are now being subdivided, developed, or sold to new owners who have outlooks toward public use different from those of previous owners. Public use has become much more intensive with the growth in tourism. Aud the old town ways, suitable for local people on foot, are now often not suitable for numerous tourists arriving by car. There are many ramifications to the coastal access problem: Maine's shellfish and fishing industri'es are being squeezed by loss of traditional access and by the pleasure boats and condominiums that are moving into the State's harbors. The economic benefits of tourism are being partly offset by municipal government problems and encroachments on land­ owners. These encroachments are in the form of intrusions upon privacy, deposits of refuse, and, in some cases, destruc­ tion of propenies. "Visual access" to the coas~ for Maine resident and vaca­ tioner alike, is being diminished, especially along the soulh- MAP SHOWING RELATIONSHIP OF ern coast • Populated Areas (oommunities) to • Island landowners are experiencing unwanted intrusions wilh • Publicly owned Lands and the great increase that is taking place in coastal boating. o Lands Owned by Conservation Fragile bird habitats face encroachment by both island land­ Organizations owners and boaters. 2 Tradition We have had a long tradition, in Maine, of free and easy access to The answers to such questions, especially the last one, are complex unimproved and unposted private land. Some have called this and controversial. Several centuries ago they bitterly divided the custom "permissive trespass." We shall use the term "permissive Indians and European seulers. Today they are the subject of coun access" because it does not suggest illegal action. We are not disputes and of frictions between landowners and the public. talking about a legal right•, but rather a custom in which people use With respect to the first set of questions-on ownership of water­ private property with the informal permission of the owner. Such legal traditions in the eastern United States are quite different from people include hunters, fishermen, trappers, hikers, cross-country those in the west In the east, where water resources have been skiers, snowmobilers, clam- and worm-diggers, boaters, canoers, abundant, the "riparian" owner (the owner of land next to a body of · bird watchers-indeed most of us who use the out-of-doors for water or flowing stream) has had fairly unlimited, but not exlusive, recreation and, in some cases, for our livelihoods. rights to use the water. In the western United States, where water is The tradition is so ingrained that many of us would be surprised to not so abundant, rights of riparian owners are much more limited. learn that it does not exist in many other parts of the nation. It is so No one "owns" fish and wildlife. Sovereign rulers used to, but this ingrained, in fact, that we sometimes forget that the land is owned "ownership" evolved into management of fish and wildlife by by someone. While we are sometimes careless about how we leave federal and state governments as a public trust. On the other hand, the land, most of us are careful. We stay offland that is posted. And ownership ofland has come to mean exclusive rights to use the trees if the owners are living near the area we are using, some of us, at and vegetation on the land. """""'"'""""'•\"oo'~o•="'""'""" The third question--concerning public rights on private land­ will be addressed in the following pages. Here we will only summarize the key laws and legal traditions that have determined those rights: There are two legal foundations for public rights in Maine waters. One is the public trust doctrine, whose history goes back to the Magna Carta and even antiquity. Because the sea was so important as a source of food and means of transpor­ tation, public access to the sea and seashore was vital, and public rights of access were guaranteed. The tradition be­ came part of the common law of England and, in time, our own law. In the late 19th Century, the nation's courts determined that the public trust doctrine applied to inland as well as coastal waters. State courts generally rule on how the doctrine aplies to a particular state. • The other foundation for public rights of access in Maine waters is the Colonial Ordinance enacted by the Massachu­ setts Bay Colony in the 1640s. This law, which recognized Permissive access has a long tradition in Maine. customary practices in use of the seacoast and inland lakes, became part of the common law that has come down to us. * Custcmal)' praclices do have legal significance and. under certain circumstances, can develop into legal rights. • Although public rights in shoreland areas have changed over the decades, major expansion of such rights has been limited Law by the U.S.

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