Here to introduce Maine Sea Grant's Accessing the Maine Coast Web site is Kristen Grant, extension associate of Maine Sea Grant and organizer of the workshops.
Kristen starts by reminding us that the goal of these workshops and the website is to provide stakeholders with legal tools to address public access issues cooperatively, without having to resort to litigation. Much of the information on the website comes from research done by Rita Heimes, Director of the Center for Law and Innovation at the University of Maine School of Law, and David Kallin, a third-year student at Maine Law. Kristen turns the floor over to Rita to talk about the Center's findings.
Rita begins by acknowledging that many people in the room may know as much if not more about the subject than she does because as landowners and fellow lawyers they may face these issues every day.
Many of the legal tools available for addressing public access issues are not necessarily new and innovative. In fact, most of them are common law doctrines that have been around for a long time: property rights, the public trust doctrine, contracts, easements, etc. With each of these tools comes different access rights and restrictions, so it is important to think about which option best meets your access needs. Another thing to consider when deciding what tools are appropriate is how you want to access the coast: perpendicular access or along the beach.
Keeping that in mind, there are a few ways to buy access, including buying the land, buying certain rights in the land, or purchasing the land and then selling a conservation easement to an organization interested in preserving the land.
If purchasing access is not an option, go talk to the landowner. You may be able to secure limited access through a private contract. For a landowner concerned with liability it is important to note that Maine encourages public access by providing for limited liability for landowners that allow for recreational use of their coastal land. In addition to private agreements Rita explains that town and state governments may be able to regulate to preserve access (i.e. zoning) or create incentives to provide public access (i.e. tax breaks).
Also, a right of access may already exist. For example, long-term, continuous and adverse use can create what is called a prescriptive easement.
Q: What do you do if the police will not keep trespassers off your private property?
A: This is difficult because the police should be protecting your rights. If they are not you can go to the municipality and lodge a complaint or you can sue the trespassers. Also if you have an access contract with someone and that person violates a provision of the contract you can terminate the contract.
Q: If my deed says that I own up to the high tide line, is it my responsibility to post signs indicating that it is private property and will/can I incur liability by posting the property?
A: The police should protect your private property rights, whether or not you posted the land. However, signs are an important part of educating the public about public access. [ed. note: since the person asking this question owns only to "the high tide line," then s/he does not own the intertidal zone, and therefore may not have the right to prevent people from using that area.]
Q:If you own land adjacent to a forest, could someone go across your land to access the forest?
A: It is unlikely that someone could cross private land to access a public forest. However, under Maine common law you can walk across private property to access an interior body of water (Great Pond) provided you don't use "improved" land (the common law standard is "cornfields or meadows"). This same access right does not apply to coastal land.
Q: Wasn't the issue in Bell v. The Town of Wells that the Police were not enforcing private property rights?
A: The issue in Bell was who had rights to use the beach. The Maine Law Court held that the beach was privately owned and that the public trust doctrine allowed public use of the intertidal zone only for "fishing, fowling and navigation" which does not include recreational use.
Q: How does a private landowner get the public to behave respectfully, while they are using their private property? Many landowners want to preserve public access, but do not want to deal with the disrespect of public users.
A: The tools we discussed earlier are designed to address issues like this. For example, municipal regulation may allow for limited access to property and may even provide for enforcement of restrictions.
Q: Isn't a town's failure to enforce trespassing laws and regulations restricting public access essentially a taking of private property?
A: That is a novel legal theory and one that someone might want to explore further.
Q: What do you do if your property is adjacent to a public walkway and people automatically assume that your beach is also public?
A: Again signs and education. The public may not realize they are on private property so consider a sign explaining that just because there is a public walkway here does not mean that the adjacent beach is public. Also this brings us back to the issue of stewardship and the idea that with the right of public access comes a heightened responsibility.
Paul thanks people for sharing their stories and Rita for coming to speak.
Coastal Access Tools on the Web
Kristen Grant is finishing up the first half of the workshop by talking us through Maine Sea Grant's Coastal Access website. She reiterates that the purpose of the website is to give stakeholders (landowners, waterfront users, government entities, etc.) tools to address access issues without having to resort to litigation. All the tools that Rita just discussed are on the website, organized so that individuals can educate themselves as to their rights and obligations as landowners or waterfront users or government entities.
Encouraging people to explore the website on their own, Kristen takes some time to explain the best ways to navigate the site.
With the legal research findings in hand, the project team began to think about how to share these tools by first identifying who would be the main users of this type of information. Key stakeholders were identified as waterfront property owners, waterfront users (both commercial and recreational) and public interest entities (federal, state and local governments, land trusts, etc). With these users in mind, we tried to consider how these users might search for information. It was decided that most users likely would come to the site trying to solve a problem. So, the team’s job became how to present the tools from a problem-solving perspective. To do this, the info was organized in flow chart format – leading users through a range or web of options based on how specific questions are answered.
Kristen explains that the site we’re seeing tonight is a "beta" version, and that the site will continue to evolve. The design is likely to change before the site is officially released. Kristen welcomes all workshop participants to provide your input on the site at http://www.seagrant.umaine.edu/accesslaw/index.htm .
A review workshop is available to guide your comments. (attach). Please forward comments to kngrant@maiine.edu.
Kristen describes the basis for the way the site functions. We want to make it possible for users to explore and discover existing, but also new and innovative tools – tools you might not be aware of. This meant that the traditional navigational approach of keyword-search needed to be expanded, since you might not know the words to search. This led to the need for new search approaches beyond keyword that allow you to explore and discover new tools. So we have provided options to broadly explore new ideas in a problem solving approach. These include "Who are you," "Tools," and "FAQ."
"Legal Principles and Statutes" This search option still allows for problem solving, but info is presented in an educational format in which one concept builds on another, rather than allowing for drilling down. Alternatively, if you think you know the answer to your question, but need more specifics, then use a more focused search via "Keyword" or "Site map."
With this concept of how info can be sorted, Kristen takes us through various approaches to introduce us to the site’s content. But there was not a specific discussion of content itself.
Next: Where do we go from here?
1 comment:
I'd like to know more about the specific types of behavior coastal property owners are having trouble dealing with on their beach fronts?
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