Back in February, we blogged about an opinion from the Maine Supreme Court involving littoral property (that's beachfront property to all you non-lawyers and Navy people), in which the court concluded that those who were asserting a prescriptive easement over the plaintiffs' beachfront property-- the Town and several neighbors -- had not rebutted Maine's presumption of permissive recreational use of open land, when they introduced evidence that people generally made recreational use of the beach in front of the plaintiffs' properties, without showing specifically where. Which meant that the public did not have a right of access over the plaintiffs' beachfront land. The court also held that Maine does not recognize an "easement by custom."
Maine apparently allows a party who is disappointed with the court's ruling to ask for reargument. Similar rules for reconsideration also are present in other courts, but with rare exception in our experience, those courts do not grant such motions. Thus, we were somewhat surprised when the Maine Law Court said it would reconsider its decision, and it set the case for reargument.
The court has now issued a new opinion in Almeder v. Town of Kennebunkport, No. 12-599 (Dec. 9, 2014), which reaches pretty much the same conclusions as its February opinion, at least as far as the law is concerned. The big difference is in the remedy the court imposed. In its earlier opinion, the court vacated the trial court's judgment and remanded the case to deal with what few issues which were bifurcated out below. The new opinion did not disturb the court's earlier rulings that there is a presumption that recreational use of land is permissive, or that Maine law does not recognize easements by custom. The court also reemphasized that it is the nature of the use (recreational) and not the nature of the land (open or wild) that is the key.
But the court expanded the scope of the remand order to allow the Town to attempt to rebut the presumption on a parcel-by-parcel basis, even though the Town had affirmatively abandoned any attempt to do so earlier. Appellate wonks know that in order to preserve an argument or a line of proof for remand, you've got to at least have asked the court below on the first go-round to introduce that evidence or argument. In this case the Town did not do so, and indeed, it "opposed [doing so] at every turn during years of litigation." Slip op. at 17. The Town asserted that it was not required to offer parcel-by-parcel evidence rebutting the presumption of permissive. Despite this, the court allowed it to do so on remand:
We would not ordinarily provide an opportunity for a litigant to do what it has opposed at every turn during years of litigation.We recognize, however, that the public’s access to scarce resources such as sandy beaches in Maine is a matter of great importance and extraordinary public interest. The public is obliged to rely on legal representatives to assert that interest. In this singular case, in which those representatives chose a litigation strategy that had a substantial gap, equity demands that the matter should be remanded to allow the parties to present evidence as to the location of each Beachfront Owner’s specific parcel, and to give the court an opportunity to consider the factual record of public use already developed, so that the court can determine whether the Town established—as to each of those specific parcels of property—the elements necessary to support a declaration of a public prescriptive easement.Id. at 17-18.
To counterbalance that extraordinary order, the court also recognized that "the Beachfront Owners have already incurred considerable expense and expended significant effort in responding to the Town's arguments." Id. at 18. Exercising its inherent authority to fee-shift, the court held that the trial court has the discretion to allow the owners to recover attorneys fees if the Town elects to go forward with the proof on remand.
Two interesting points, which give this an "only-in-Maine" twist:
- Here's how they use beaches in Maine: "The court found that 'while people tended to use the area in front of their own properties or near a public access point most frequently, nearly all used the Beach ‘from river to river’ frequently depending on what activity was being undertaken at the time.' Although the use of the Beach is most intense in the areas of the Beach owned by the Town, people regularly use the full length of the Beach year-round to walk, play in tidal pools, collect sand dollars, play softball, ride horses, and cross-country ski, and to access the water for boating, water-skiing, windsurfing, kayaking, snorkeling, rafting, paddleboarding, and tubing." Slip op. at 5-6. Not how we use beaches in Hawaii, for sure.
- We were somewhat confused by Maine's Rules of Appellate Procedure when we went searching for the details of the "reargument" process. The rules refer to the "Law Court." See Maine R. App. P.14(b)(3) ("If a motion for reconsideration is granted, the Law Court may make a final disposition of the cause without reargument or may restore it to the calendar for reconsideration or may make such other orders as are appropriate. Frivolous or repetitive motions for reconsideration may result in the imposition of appropriate sanctions."). Not being familiar with the term, and not being able to find out by the usual means (Google) what it meant, we tapped into our Maine resources and were informed that the Maine Law Court is the same court as the Supreme Judicial Court. It is referred to as the "Law Court" when the court is exercising its appellate jurisdiction, and the "Supreme Judicial Court" when the court is exercising some other power such as its original jurisdiction, or as the manager of the judicial branch. Apparently, the term is a holdover from Massachusetts, from the time when what is now the State of Maine was part of the Bay State.
We like this opinion, but for the bit about the scope of remand. We think that if the government adopts a theory of the case and takes a consistent line, it should have to live with the consequences just like the rest of us. But that aside, Maine Law Court, you can be my wingman anytime.
Almeder v. Town of Kennebunkport, No. 12-599 (Me. Dec. 9, 2014)
