Goose Rocks, muskets and takings law


We've been a little derelict in keeping up the blog, so let's catch up.  Before going back to more tidbits I learned at the last AAAL conference, let's discuss the oral arguments just held before the SJC, because they are only posted for about a week.  One of them is the Goose Rocks case, and if you are interested in takings law (or walking on a beach in Maine), it's worth listening to before the argument goes up in the ether.  The case is Almeder v. Town of Kennbunkport, York 12-599 [Recording]

FIrst, a disclaimer, my husband works for the Town of Kennebunkport.  The Town is a party in this case, taking the position that there is a public recreational prescriptive easement to use Goose Rocks beach.  This view prevailed before the Superior Court.  Some of the beach front owners settled, but others did not and appealed.  

Second, here's the checklist of background information to get up to speed on the general issue of public rights to use Maine beaches and related takings implications.  The relevant SJC decision on prescriptive easements is Eaton v. Town of Wells, 2000 ME 176.  The three relevant SJC decisions on takings and beach use are McGarvey v. Whittredge, 2011 ME 97; Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) (Bell II); and Bell v. Town of Wells, 510 A.2d 509 (Me. 1986).  The relevant previous blogs on these are dated June 20, 2010 and September 7, 2011.

The fundamental question is to what extent can the public use Goose Rocks beach.  The oral argument reflects various complicated case-sensitive issues relating to standing, existing public easements, etc.  Cutting to the chase, the general issue on the prescriptive easement front is whether the evidence can support the trial judge's finding that an easement exists as to all the plaintiffs' properties.  The policy concern in this area, as CJ Saufley noted in the questioning, is if the rule on what is needed to show a prescriptive easement is very liberal, this could cause property owners to post everything and not let the public use their property for fear of an easement being created. 

Land use issues like this can be very fact specific, and for various reasons, the Court may never get to the other point I'm going to touch on briefly here – the public trust doctrine.  But Paul Stern of the Attorney General's office argued on this point, and there's at least a chance this may be reached, so let's chat.

The Moody Beach cases (Bell I and II) are rulings that the common law only gives people the right to "fish, fowl and navigate" on most public beaches in Maine, and only within the intertidal zone.  In McGarvey, the SJC found the beach use at issue (scuba diving) was allowed, but split 3:3 (Justice Silver was missing) on why – 3 Justices (the Justice Levy opinion) found the use fell within the allowed category of navigating; 3 (CJ Saufley opinion) suggested it was time to re-visit Bell

The takings question presented is if/when does a Court decision expanding allowed uses beyond fish, fowling and navigating, viewed in the ordinary sense, effect a taking of the beach owner's property rights?  

Justice Silver heard this appeal, but I'm not so sure we're going to get any definitive answer to this question, or which McGarvey position holds sway.  The AG's office argued that there would be no taking in expanding uses, because, in its view, Bell was wrongly decided in the first place.  According to the AG, if the SJC says whoops! we made a mistake in Bell, that wasn't the common law to begin with, then it's not a taking when the Court says here's what the common law has always been, including uses expanded far beyond that held allowed in Bell

Tea leaf reading from oral arguments is never particularly accurate, but this is a blog, so why not speculate?  The Court sounded dubious about the AG's approach.  If the Court changed its mind very quickly after the Bell decisions, CJ Saufley said, that might be one thing.  But it's been 24 years, with reliance from property owners.  In my previous blog entries, I noted how at least some Supreme Court Justices have said this issue – takings and evolving or moving common law — is a thicket to be avoided unless or until the Court has no choice but to make a decision, which seems a fairly prudent position that the SJC might follow.  For example, Justice Kennedy (Mr. Swing Vote) has said that when a court changes its mind about the common law, this may not be a takings issue at all, but a substantive due process question, and who wants to go down that road unless they have to?

That said, it's interesting to muse upon what "fish, fowling and navigating" reasonably means in the modern world (somewhat related to the Justice Levy approach). 

Let's take "fowling."  No one thinks that this limits the public to stalking the beach with a musket circa when the ordnances were first enacted.  If I can use a modern gun, do I have to want to kill the bird at all?  What if I take a pair of binoculars with me and a birdwatching guide — is that ok?  Does it make a difference if I walk my dog at the same time?  Put down a towel and study the horizon for birds while catching some rays? 

The broader point, perhaps, is that people were given rights to tromp all over the beaches for uses that were important at the time.  If a ton of people fished, hunted and navigated on these beaches when the public's rights were first described, and absorbing a recreational aspect doesn't intensify those uses, would that be a taking?  The scuba diving ruling appears to embrace at least the result that a use can be recreational without running afoul (afowl?) of Bell.  People "navigate" the beach for different reasons now.  How much is the recognition of this point simply proper updating to meet modern times (no more muskets), and when do you, in the world of regulatory takings, "go too far"?  

Making this more complicated, of course, is that we're talking about physical invasions, not regulatory takings.  

And let's say a court says yes, it is a taking to add a new use to the existing public easement.  If the new use doesn't really add to the intensity of the public invasion – people hunting 200 years ago were just as intrusive as those wandering around to get a sun tan now – what compensation should an owner get for this taking?  Only nominal damages – $1.00?  The usual measure for takings damages is diminution in market value.  A modern assessment of that difference might see a differential that takes into account the fact that people don't hunt on beaches any more.  But the reason they don't is because of town ordinances and statutes that prevent them from doing so.  Should this make a difference?

I don't expect all (or maybe even any) of these questions to be answered in this decision.  It's just another example of how NOTHING about takings law is simple.