Accessing the Maine Coast

What do I own?

In the state of Maine, property lines for coastal parcels usually extend to the mean low tide line. However, a colonial ordinance allows people engaged in fishing, fowling, and navigation protected access to intertidal spaces. This means that people engaged in those activities have the legal right to be in the intertidal, regardless of private ownership.

How do I manage public access?

• As a waterfront landowner, what are my legal rights and responsibilities to manage public access to my property? What are my responsibilities?
• You have the right to determine who can access your waterfront land
  • Invitees
  • Licensees
  • Trespassers
• When you choose to voluntarily allow members of the public to access your property, be informed about Maine’s Landowner Liability Law.
• As a property owner you are allowed to deny public access to your waterfront property to mean low tide.
• If you allow access to any type of user (general public or a defined group), you have the right to prescribe the kinds of activities and behavior that are allowed on your property. To clarify this, you can draft a Contract for Access with the prospective users or arrange with the prospective users to buy certain interests in the property. 
• According to a colonial ordinance, the general public has protected access to coastal land if they are engaging in fishing, fowling, or navigation. If members of the public are engaging in these activities, they are legally allowed to be in the intertidal area (between mean high and low tide marks).

Land owners are also subject to other limitations in managing access to their land by other elements imposed by doctrine including the potential for eminent domain, takings, and prescriptive easements.

What are the benefits of allowing access to my waterfront land?

• Tax benefits and affordability
• Income potential when land trusts or public entities purchase easements
• Building community: By allowing access to your waterfront property, you can get to know the recreational and commercial users in your community. 
• Supporting the economy and identity of Maine: People in Maine have relied on the sea as a source of food and/or income since time immemorial. Access to the coast is important for intertidal species harvesters (clams, mussels, rockweed, etc.). Lack of access can not only lead to difficulties for harvesters’ livelihoods, but having to haul their harvests over longer distances can lead to injuries. Recreational users too, be they tourists or locals, benefit from access to the coast. Connection with the ocean and coast are a key part of the Maine experience.

How do I ensure access?

What tools are available to secure and enhance waterfront access or to protect my own rights when I provide access?

• Selling Access: people desiring access to your property can buy the rights to access it. Landowners can transfer or convey access rights by transfer or sale. 
• Contract for access
• Posting for access: You can post a sign on your property that says “No trespassing except with permission” with your contact information. 

Writing access into the property description in the form of a covenant. This will ensure access even if you sell your property.

Am I liable if someone gets injured on my property?

• Maine’s Landowner Liability Law protects landowners, should someone become injured while using their land. The Maine Landowner Liability law limits the liability of landowners who provide access to their land for recreational or harvesting purposes. Landowners are not required to maintain their land as safe for public use but should be aware that they can be held liable for willfully failing to guard against injury. Since the law was enacted in 1979, no landowner in Maine has been found liable, or at fault, for accidents that have occurred on their land by persons who are using those lands.
• For more information on landowner liability, the Maine Department of Inland Fisheries and Wildlife has produced a useful webpage 
• See the language of the law here

Who can own access rights?

Individuals and private user groups, federal, state, and local governments and land trusts can all own access rights. Ownership can also be held in trust by governments acting as trustees for the public at large (the public trust doctrine) or land trusts acting as trustees for the intents of the person who donated the land.

What is traditional ownership?

Traditional land ownership included ownership of the full title, the right to eject and the right to transfer (sell or give the land away). Ownership need not be absolute; it can be split, such as by easement or a right of way.

When it comes to property in the United States, our legal history and our economic desires have led to a system of laws that accommodate and even encourage the splitting of legal interests in property. This system allows people to use loans and mortgages to buy and “own” property (acknowledging the interests of the lenders). It allows communities to share some spaces while recognizing sole ownership in others. And it allows owners to reserve some rights to a piece of property while selling, giving, or sharing others. The manner in which various coastal interests are balanced in Maine depends largely on location. And still those split or shared interests continue to create a variety of conflicts, which often end up in court where judges work to interpret laws to create clearer understanding regarding public and private rights of access to the coast.

What is property owned in trust?

Property owned in trust consists of the property itself, the trustee or holder of the property (who will often be the manager of the property), and the beneficiary of the trust, or the person or organization who receives any benefits from the property. Land trusts – though often set up as private non-profit organizations rather than actual trusts- assist landowners in conserving their land. Land trusts can act as trustees or whole owners of the property.

What is a public trust?

The public trust doctrine is a legal concept that applies a public trust ownership to lands that have traditionally been public, such as submerged tidal lands. Because the state owns such land in trust, it cannot give the land to private owners.

what are easements and What are forms of voluntary easements that can be used for access?

Rights of access to the shore can be acquired separate from the land itself through the use of easements. An easement allows its holder the right to use another person’s land for the purpose specified in the deed granting the easement. The landowner retains full ownership of the land and can use it in any way that does not interfere with the rights granted in the easement. Some easements are voluntary grants by a landowner to a user, but others are imposed by law.

conservation easements

A conservation easement is when a landowner voluntarily limits, by sale or donation to a land trust or other public interest entity, the uses of the property for the purpose of protecting natural resources. It can also spell out how and if the public has access rights to those natural resources. A conservation easement can be held by the government, or by a non-profit or charitable trust that has conservation purposes. The conservation easement “runs with the land,” meaning it is still in place even if the land changes hands, and is therefore considered a permanent protection. There are important tax implications and benefits associated with buying or donating a conservation easement (including decreased property, income, and estate taxes) and landowners should work with a lawyer or a land trust to explore the options.

covenants

Not exactly an easement (though the terms are often confused), a covenant is a written legal promise contained in a contract or deed. A landowner promises to the limits on land use defined in the covenant. The covenant can be enforced by another party, such as the state. Covenants can be used to specifically address ways that landowners legally promise to address water access on their land.
The Working Waterfront Covenant is an example of how covenant language helps protect access for commercial fishing in perpetuity. Restrictive covenants can also be used to protect access.

What are forms of easements imposed by law that can be used for access?

From a landowner’s perspective, some easements may be unfortunate things that happen to them to force ongoing access or use. Some may also be agreed upon by a landowner or developer as they negotiate the legal uses of their land. “Imposed” easements include:

what are eminent domain & Takings?

Eminent domain is the power of a government to take private real estate for public use, with or without the permission of the owner, as long as the acquisition is for a public purpose. In Maine, eminent domain is typically used for roads, utilities, and occasionally for public access to the water.

Maine has granted the power of eminent domain to municipalities. Although eminent domain permits acquisition of land not otherwise for sale, towns cannot expect a break on the price. The property’s owner must be paid fair market value, otherwise a “taking” may occur.

The takings clause of the U.S. Constitution states that the government cannot take private property without just compensation. If the current government can afford the land outright, then use of eminent domain to acquire the land might be an option. However, because coastal land is very expensive, the government may be forced into acquiring the land through longer-term purchase agreements, such as paying installments over time, binding future governments that may lack the resources to make regular payments.

Though eminent domain is often viewed as heavy-handed by residents and landowners, the possibility that the government could force a landowner to give access privileges to others is an incentive for landowners to provide access under their own terms and conditions.

How can governments avoid committing a taking?

GENERALIZED ASSESSMENT OF WHETHER A REGULATION CREATES A TAKING

Provided courtesy of Evan Richert, Muskie School of Public Service,
University of Southern Maine.

what are land ownership trusts?

Who can own access rights?

Individuals and private user groups, federal, state and local governments, and land trusts can all own access rights. Ownership can also be held in trust by governments acting as trustees for the public at large (the public trust doctrine) or land trusts acting as trustees for the intents of the person who donated the land.

What is traditional land ownership?

Traditional land ownership included ownership of the full title, the right to eject (keep out trespassers), the right to transfer (sell or give the land way). Ownership need not be absolute; it can be split, such as by an easements or a right of way.

What is property owned in trust?

Property owned in trust consists of the property itself, the trustee or holder of the property (who will often be the manager of the property), and the beneficiary of the trust, or the person or organization who receives any benefits from the property. Land trusts – thought often set up as private charitable organizations rather than actual trusts – assist landowners in conserving their land. Land trusts can act as trustees or whole owners of property.

What is a public trust?

A public trust consists of the same three parts as a regular trust: the trust property (or the public’s right to that property), the trustee (the state), and the beneficiary of the trust (the public). The public trust doctrine is a legal concept that applies a public trust ownership to lands that have traditionally been public, such as submerged tidal lands. Because the state owns such land in trust, it cannot give the land to private owners.

If someone gets injured while using my land, can I be held liable?

The Maine Landowner Liability Law: Maine has a strong law that protects landowners from liability, should someone become injured while using their land. The Maine Landowner Liability law limits the liability of landowners who knowingly or unknowingly provide access to their land for recreational or harvesting purposes, such as clamming. The law also acts as a disincentive to litigation by requiring that the parties bringing a suit against a landowner must pay legal and court fees in the event that the litigant loses. Landowners are not required to maintain their land as safe for public use but should be aware that they can be held liable for willfully failing to guard against injury. Since the law was enacted in 1979, no landowner in Maine has been found liable, or at fault, for accidents that have occurred on their land by persons who are using those lands.
For more information on landowner liability, visit the Maine Department of Inland Fisheries and Wildlife website. Click here to see the language of the law itself.

For more information, see:
Access to Coastal and Inland Waters, the Public Use of Private Lands. Duff, J. 2004.
Public Shoreline Access in Maine: A Citizen’s Guide to Ocean and Coastal Law (revised). Orono and Portland, ME: Maine Sea Grant and the Marine Law Institute.
Maine’s Landowner Liability Law

Where can I find more information?

• Access to coastal and inland waters: The public use of private land (1998)
• Public shoreline access in Maine: A citizen’s guide to ocean and coastal law (Duff, 2016)
• Maine’s Landowner Liability Laws
• Access for the future: Improving Maine’s implementation of the public trust doctrine through municipal controls to ensure coastal access for continuing benefit to Maine’s people and economy (Kuhns, 2020)

The Maine Coast Fishermen’s Association in collaboration with other partners and the town of Harpswell have created a guide for coastal land owners, especially those who may be new to the area. This publication called The Scuttlebutt, outlines what coastal landowners can expect in terms of the sights, sounds, and smells one might experience in a coastal community.