I am back from my latest trip and per my previous entry, will muse upon the latest Goose Rocks decision. The last entry has the list of all the previous blog entries and copies of the latest missives from the SJC. I will assume a familiarity with the case and issues, and in the interests of full disclosure, note again that my husband is an employee of the town of Kennebunkport.
The big mystery is why are there two decisions (sort of)? There's an amended decision on reconsideration, written by Justice Gorman, and a 17-page "Order on motions for reconsideration," signed by CJ Saufley for the Court (which consisted of six Justices, with Justice Levy off to federal court by the time this issued).
The order comes to the same basic conclusion as the amended decision - (1) remanding on the prescriptive easement claim for a parcel-by-parcel analysis, with text about how this is hard to prove, and the trial court can impose attorney's fees if it wants, because the SJC views the town as not having not previously raised the parcel-by-parcel point adequately; and (2) punting on revisiting the scope of the public trust doctrine.
My ad hoc inquiries indicate that this approach is unprecedented – the routine on reconsideration is not to issue any separate lengthy order, but just to issue the re-jiggered decision. So what is the point of the separate order?
The only people who know the answer are the Justices, and they of course aren't talking. So let's just indulge in rank speculation, shall we?
The order has some different factual characterisations (more helpful to the plaintiffs), while including blocks of text verbatim from the amended decision. What these documents look like are two competing draft decisions, with some edits to make one draft an order. There are six judges. Maybe they reached a 3-3 impasse as to which draft to choose?
Well, you might ask, given that the ultimate results were the same, couldn't the Justices who wanted one particular draft and text simply have called theirs a separate opinion? A concurrence?
Ah, but that approach would highlight the difference in their views, however nuanced. They may not want that, because this is an area of the law in which they may want to present a united front.
The Moody Beach decision, which established the scope of the public trust doctrine, was 4:3 and caused a lot of flap. The AG's office thinks that decision was wrong and is trying to get the Law Court to overturn it. It would not be good to have another razor thin majority on this issue, however the new decision comes out, for lots of reasons. Hence, the SJC completely punted on the intertidal zone issue in this decision, kicked that can wholly down the road.
They could hardly avoid addressing the prescriptive easement issue in this appeal, although they did partially, leaving the door open on the parcel-by-parcel analysis. The prescriptive easement issue is a similarly heady issue that the Court may want to show a united front on – they are concerned about a too liberal easement test encouraging property owners to limit public access on their land to hunt, snowmobile and the like. On the other hand, the downside to law that limits public access to sandy beaches on tourism and other interest is also obvious and concerning.
In other words, these are complex and important issues upon which the Court may want to appear unanimous. CJ Saufley doesn't have the votes to overturn Moody Beach. Therefore, these two legal concepts of prescriptive easement and public trust remain up in the air for ultimate balancing.
Issuing a separate order seems a unique and creative way of dealing with this situation. It also raises some interesting questions, such as what is the precedential impact of the fact statements in the order but not in the decision itself?
In any event, all kinds of litigation is proceeding on these beach use issues — including this case – so at some point all this is going to come to a head.
