private vs private on the trail and public islands

[rick stoehrer]

There are PRIVATE islands along the Maine coast. These islands are NOT on the Maine Island Trail and the owners of the islands DO NOT want us or anyone else traipsing around them uninvited. In landing and walking about, you are trespassing. You are committing a crime. If it were your land, your house, it's akin to someone walking into your yard uninvited and poking around the flower beds, maybe taking a leak over by the azalea's. As the landowner, you'd be rightfully concerned and probably a little angry if it happened more than once.

2 of the islands in Casco Bay that are PRIVATE are House Island and Cushing Island. They are private. There is no public landing or public beach. There is no ferry service. The islanders DO NOT want us landing and poking around their property.

Given the freedom and the access to far off places that sea kayaks allow us, the solitude and privacy that we are afforded in our small boats, we need to take care to be respectful of those seeking the same thing. We bought boats...they bought islands or houses on islands. We want to get away, get offshore and find some downtime away from the rest of the world. So do they. Those islanders don't want to see you any more than you want to see someone in your favorite offshore campsite...difference is...they OWN theirs.

OBVIOUSLY, under duress, you land where you NEED to land. If there's an emergency, you land, take shelter, you do what you NEED to do to keep yourself and your group safe and you can sort out property and privacy rights after the fact. Safety is the first priority and everything else takes a back seat....I believe you would still technically be breaking the law in trespassing but that's not really a biggie given some circumstances.

Please keep this in mind when planning your trips and when out paddling. Those private islands can be a safety net if it hits the fan but please be respectful and don't count on them as a place to stretch your legs, have lunch, take a leak. That's someone's backyard and they don't want us there.

You know what your trip circumstances are, you know where you should and shouldn't go...choose respectfully and wisely.

Have fun.

[Pintail]

I wonder what prompted this posting, Rick? Complaints? (Ouch, if in the affirmative)

Re this: <...maybe taking a leak over by the azalea's> (you meant azaleas -- no apostrophe): I thought urine was <good> for them? Nitrates and all that... ;^) (In which case, owners should <thank us> for fertilizing them?)

Question: what is the difference between <edit> mode and <full edit> mode on this message board? It seems to me that simple <edit> does not allow any form of editing...??? I always have to go a step further and hit "full edit". Silly...

Edited June 7, 2013 by Pintail

[JohnHuth]

That's pretty much true for any private stretch of land - not sure why you're singling out islands along the Maine coastline. There are some 'high travel' areas where this is particularly true. The same statement goes for bird preserves - any human presence adds to stress of some species of birds. It's sort of like it's the birds' own private turf. Areas that come to mind are Petite Manaan Is. and S. Monomoy (or whatever we're calling it these days).

[rick stoehrer]

by no means are property/privacy rights the sole domain of coastal maine islands but islander property and privacy rights are often ignored by paddlers that may not be aware that they are breaking the law, or are just willfully breaking the law.

i think it's a different mind set on shore - you wouldn't think of walking into someones backyard uninvited in cambridge but often that's what happens on those islands. same mind set with with preservation or conservation areas - you might not even consider landing in a rookery lest you disturb the birds but often we don't think twice about landing, eating and taking a leak, in what is essentially someone's backyard.

we oughta be looking at private islands and all private property in the same way - it may be pretty from the water but we shouldn't land if we can avoid it.

[EEL]

One of the useful features of Dorcas Miller's book is that in each section it lists the islands which are restricted during nesting season and the dates of closure.

Ed Lawson

[bazzert]

Note however that in Maine and Massachusetts the public does have certain limited rights to the intertidal zone. This article does a good job of summarizing them. It should also be pointed out that the limited coastal access in ME/MA is an aberration when compared internationally or even to other states.

Barry.

[JohnHuth]

I don't think this is necessarily germane to Rick's point, but there are some obscure laws that grant passage to fishermen in a zone between low and high tide in some states. I have to say that I get confused on this part of the law in Massachusetts. I do own land with beach, and have many people pass by on it - we don't really mind, but once a summer, some group plops down right at the foot of our stairs - we try to be mellow about it, but it can be a bit annoying.

[spider]

People seems mighty confused as to what it takes to legally post your land as "no trespassing".

Just because a land is privately owned does not mean it is off limits.

Here is a link for the Maine rules and regs.

http://www.maine.gov/ifw/commissioners_office/LandownerRelations/frequently_asked_questions.htm

I purposely made sure this was a link to Maine's laws, as the laws here in NH might be a bit different.

You may note that in many cases that signage has to be posted every 100 feet. Many owners of land do not wish to spoil the landscape with visual pollution of their view shed.

There are of course exceptions. I believe the people of the Rouge Islands do not even want to see you let alone land on their property...but do they also own the water ?

If property is not clearly posted then no laws are broken and the "property right" groups can just go..well whatever...

Here we are on a website that is even afraid to mention public Islands and launch places...surely this is a highly negative approach to simply enjoying life and paddling.

Yes I own property here in NH it is not posted and therefore open to other people using it.

This might be an interesting question ..How many islands on the Maine coast are owned by folks who do not even live in Maine...Have they posted their property every 100 feet. ? I doubt it.

Just a matter of time before people complain that we are breathing the same air and not infringing on the "rights"....

Edited June 7, 2013 by spider

[rick stoehrer]

whether or not mainers own a specific island may be interesting but it's besides the point, isn't it? unless YOU own the private island then YOU don't have a right to be there above the H water mark.

because someone has or has not posted a sign every 100 feet along a 6,000 acre perimeter of a private island shouldn't be the point. it isn't yours and it's a known private island, should you need to be told to stay out?

if i don't post a sign on my fence saying no trespassing, do you think you have the right to come into my yard? if i don't have it on my door and it's unlocked, should you come into my house? how about if i need a ride somewhere and don't have a car...should i just take yours if i intend to bring it back?

it's great that your land isn't posted and people can walk around - but that's how YOU see land use and maybe not others. nothing wrong with either point of view.

for me it's simple...if it isn't yours and you know you don't belong there and you don't have permission, leave it alone.

the reason that we try to not mention private islands that are on the trail is so that we do not advertise them to folks that are non mita members. mita and it's members have been granted access to those islands specifically by the land owners for whatever reason - possibly because of the conservation and stewardship values that they share. in any event, it would be impolite to violate that trust and say to paddlers that weren't mita members "hey, yeah, camp here even though you don't have permission"

[Gcosloy]

Does the intertidal area in ME/MA which is open to the public, for in our case, navigation purposes include the same for private coastal islands? I must say that over the years that I have been kayaking in both of these states I've been deeply resentful of the stingy public access laws that favor property rights over the public's enjoyment of what should be open to all. The contrast with NH is palpable each time I land on Wallis Sands or other NH beaches. Sometimes, witness the residents of Baker's Island, in Salem Sound, even the intertidal access is ignored and paddlers are routinely asked to leave private land when they sit upon wet rocks in the intertidal zone. Call me an anarchist but I'm with the Russian Mikhail Bakunin when he said: "Property is theft"! Contrasting property rights of a homeowner with no waterfront to those who have vast beachfronts is unfortunately not a match-no one wants to sit on my crab grass infested lawn, but almost everyone wants access to the beach. MA/ME laws on this matter are counter intuitive and elitist.

[EEL]

Spider:

I appreciate your sentiments. Maine has a long cultural tradition of "open land" and to some extent that tradition has been codified. Still, nobody has the inherent right to simply go upon the property owned by another based on this tradition. The tradition is based upon what is often called "premissive access". The requirements for legal posting relate to whether a trespasser can be prosecuted for criminal trespass which is a totally different matter from whether you are trespassing or not. In other words, you can trespass upon the lands of another without engaging in criminal trespass. Simply because the land is not "legally posted" does not give you the right to be physically present upon the lands owned by another person. Unless one of the recognized defenses applies to a given fact pattern, merely being upon the property owned by another constitutes trespass and doing so is unlawful (whether it is criminal as well as unlawful depends upon posting).

As a practical matter and by tradition many landowners permit people to use their property for recreational purposes and seldom is land "legally posted". The key word is "permit". The reality is that when people abuse the privilege, land gets posted or people are confronted and told to leave and the cultural traditions get lost. Unfortunately, this is becoming more common. Which is why it is very important to keep in mind the open land tradition is a two way street. The public has the obligation to behave appropriately upon and use the property responsibly. In any event, the property owner may at any time stop permissive access and this has been happening more often to the concern of those who believe in the open land tradition.

To be kayak specific, in Maine the public has no right to be on the shore line between low tide and high tide lines unless engaged in fowling fishing, and navigation. Lets not go there in terms of what those words mean, but any type of recreational activity is not included. It is often said it is okay to land and take some time to examine a chart so you can claim you are engaged in navigation. Sorry, navigation in this context does not mean engage in the practice of route finding, etc. Suffice it to say you have no right to move above the high tide line of privately owned property even if you are engaged in fishing, fowling and navigation. While there is a law on the books in Maine that gives the public the right to use the intertidal zone for recreation (Title 12, Chapter 202-A), the Moody Case held that statute unconstitutional so it is void.

To bring it full circle, there may well have never been the Moody case, and we all could still use the intertidal zone for general recreation if it had not been for some people who did not act responsibly while using the beach in Wells which caused the Moody case. And that is why we should not run amuck thinking we can land and do what we want on the coast or on the shore of any island in Maine.

Ed Lawson

[brambor]

The laws should be changed to clearly allow access at least below the high tide mark. Right now it is somewhat vague but you can still land in that zone, take a break and continue on your merry way.

You can't camp, like a few years ago when Rick S went with buddies in Casco Bay and got caught in a storm and landed somewhere near cliff island and spent a night with his group.

But quick land and go is usually ok. This of course does not prevent a landowner to come over and give you an earful. In which case you can apologize and move on. Who wants to listen to that.

[rick stoehrer]

"Right now it is somewhat vague but you can still land in that zone, take a break and continue on your merry way."

- no Brambor you can't. if you aren't fishing, fowling or navigating (as used NOT what we do) then you can not use the intertidal zone of the private island.

same when i landed awhile back and camped on a private island rather than proceed in pea soup fog, thunder and lightning storm...but then i started this with saying safety trumps all. there simply wasn't any other safe option. we were still trespassing.

"But quick land and go is usually ok. This of course does not prevent a landowner to come over and give you an earful. In which case you can apologize and move on. Who wants to listen to that"

- more appropriately, who wants to do that?

[brambor]

meh

[Phil Allen]

I always try to be respectful of private property, but its only trespassing legally if you've been warned (verbally, posted etc). Also, the state of the intertidal, at least in ME is a little less clear: http://www.surfrider.org/coastal-blog/entry/maine-high-court-ruling-scuba-diving-6-exclusive-intertidal-zone-0#.UbKFMnhgYLU.email. As I read it, the state Supreme Court affirmed the right to travel across the wet sand for recreation.

Phil

[Phil Allen]

And why won't the board keep my formatting

when I post

from my IPad?

[EEL]

Phil,

Never rely upon the press reports explaining a court decision from an organization whose arguments were actually rejected by the court. Also, concurring opinions may indicate where the court is headed, where it has been, or just the wacko ideas of some members of the court who also voted for the result in the case, but they are not the opinion of the court nor do they constitute the descion of the court. The actual opinion is here: http://www.courts.state.me.us/opinions_orders/opinions/2011%20documents/11me97mc.pdf for those who want to read it.

In McGaverty, the people walking across the intertial area were held liable for tresspass based on activities other than travel to the oceran to scuba dive and there was nothing said about posting and being warned. A person is trespassing when they are upon the property of another without permission or other defense. Posting and warning are not necessary. The damages awarded were trivial which helps keep things in perspective, but we are talking about the technicalities of the law.

Also, the opinion expressly stated that a person could not walk across the intertidal area for recreational purposes. Instead the opinion was limited to affirming that a person who needed to traverse the intertidal zone in order to pursue an acivity on or in the ocean could do so. Actually, the opinion is limited to those engaged in scuba diving. Finally, the court's opinion rejected the logic and position of the concurring opinion which the press release refers to.

As a practical matter and consistent with the long standing traditions in NH and Maine, overall few people really care if others on occasion use their shoreline or island in less populated areas so long as done respectfully and only when it does not interfere with the owner's enjoyment. However, as property values go up and "those from away" have bought up shoreline the whole cultural dynamic has changed and so has the legal aspects as well. Its a sad tale actually, but its where we are.

Ed Lawson

I know, but its my day job to parse this stuff.

[scamlin]

I know it's tempting to think Maine should pass a law to allow recreational use of the inter-tidal zone, but since the statue was declared unconstitutional, it appears that the only recourse is a change to the Maine constitution. Remember, the concept of restricting rights to this zone were established in the 1600s by Massachusetts (of which Maine was a part) when the colonies were still part of England. I seem to remember the concept was based on English practices, specifically the usage of salt marshes and shores in East Anglia where many of the Puritan leaders came from.

Also, just to clarify, Rick's appropriate comments on private islands applies to just that: private islands. The request to not mention private islands on the Maine Island Trail by name is in order to respect the wishes of the owners of those islands, who in many cases have granted permission only to current MITA members. Some do not care if the public visits their islands, but we do not know which ones.

The public islands on the Maine Island Trail (State of Maine and some municipalities) are open to anyone: you don't need to be a MITA member to visit. Access to the third category of islands on the Trail--those owned by non-profit entities such as land trusts and conservations organizations--depends on the specific policies of each entity: some allow the public to use their islands and some do not.

Historically, the Maine Island Trail was formed in part because private ownwers that has for generations allowed or tolerated use of the islands started to put up no trespessaing signs and telling visitors to leave. The founders wanted to preserve access for recreational boaters and so found another way: an alliance between Like-minded owners and recreational users of islands.

Scott

[eidsvolling]

It used to be my job to parse this stuff, so I will urge all participants here who have not done so to actually read the McGarvey decision and the subsequent law review article - "MCGARVEY V. WHITTREDGE: CONTINUED UNCERTAINTY IN MAINE’S INTERTIDAL ZONE " by Benjamin Donohue at http://mainelaw.maine.edu/academics/maine-law-review/pdf/vol64_2/vol64_me_l_rev_593.pdf - before you comment further here. Mr. Donohue's summation of the situation should be copied and pasted onto your charts and your calendar, as a reminder to check the state of things some time after the next Maine gubernatorial election:

"Although scuba diving is now expressly permitted, the public’s right to access and use the intertidal zone has changed little as neither Chief Justice Saufley nor Justice Levy managed to muster the necessary votes for a majority. McGarvey demonstrates that at least part of the Law Court is ready to expand Maine’s public trust doctrine beyond those uses envisioned in 1647 and the restrictive holding of Bell II. The Saufley separate opinion should be seen as a clear indication of this, while the Levy separate opinion is a reminder that part of the Court remains bound by the past, and Bell II’s errors.

"If Chief Justice Saufley gets another vote next time the Law Court has the occasion to address the public’s rights within the intertidal zone, the public’s easement in Maine’s intertidal zone will likely include the right to engage in accepted recreational uses of the day. Until then, Maine’s public trust doctrine remains bound to the language of the past."

Edited June 9, 2013 by eidsvolling

[eidsvolling]

Might not have to wait until the 2014 election. McGarvey was a 3-3 tie, with Justice Silver recusing himself for reasons I don't know.

I suspect but do not know for certain that will not be the case when Almeder v. Town of Kennebunkport comes before the Court this year. The Superior Court tossed this hot potato at the Supreme Court last fall, and it's been appealed this spring. (It has a procedural history faintly reminiscent of Jarndyce v. Jarndyce, and that sideshow continues with the appeal.) Stay tuned:

http://www.preservegooserocksbeach.org/uploads/4586-565_2012101709391398850.PDF

Edited June 9, 2013 by eidsvolling

[JohnHuth]

Two questions for anyone who might know - what does the purpose of 'navigation' mean in the context of inter-tidal zone activities? This is more of a curiosity for me. Whoops....answered my own question:

• The right to fish includes the right to seek or take any fish, shellfish, or floating marine plants, from a vessel or on foot;
• The right to navigate includes the right to conduct any activity involving the movement of a boat, vessel, float, or other watercraft, as well as the transport of people and materials and related loading and unloading activity; and
• The right to fowl includes the right to hunt birds for sport as well as sustenance. (The Massachusetts Attorney General takes the position that the right of fowling also includes other ways that birds can be "used," such as birdwatching, but also notes that this issue has not yet been addressed by the courts.)

The other one is on fishing gear. In my understanding, a person isn't supposed to touch fishing gear that washes up on one's property, but let the fisherman pick it up in due time. I'm assuming that there's some kind of time limit on this, right?

Edited June 9, 2013 by JohnHuth

[EEL]

Oh man. For the State to prevail in its efforts to have a broad public right to use the intertidal zone, the lower court's order must be reversed to the extent it limited the public's right to a specific set of "ocean based" activities. The lower court's order is consistent logically with the basic premise of the "fishing, fowling and navigation" standard, but does not include what are likely the most common and numerous activities by the public in the intertidtal zone. You gotta love the distinction between snorkeling and swimming. And you still have the questions arising from what happens if the surfer or kayaker decides to have lunch on the beach, etc. The shadow of one bad decision can be long indeed.

Ed Lawson

Who dreams of being a recovering lawyer

[scamlin]

John:

As far as I know, there is no time limit on fishing gear being off limits. Besides the long-standing principle, how would anyone measure or prove how long it had been abandoned, once you were caught with it in your vehicle, boat or house?

The clean ups MITA does ran up against this for years as lobster traps are a major component of trash on islands. In 2009, we did a major clean up of Bar Island which lies just south of Louds Is. in western Muscongus Bay. To get permission to remove them, volunteers went out a couple of months in advance and recorded the tag numbers of each trap, gave them to the Department of Marine Resources (DMR) who posted the list in lobster pounds in the area. After 30 days none had been claimed, so we got the green light from the DMR to remove them. If I remember, we took over 220 traps off in one day--with help from community groups and a couple of lobster boats out of Round Pond. If I remember, only 6-8 of them were usable. I was on another clean up two years later, and we found that over 100 additional traps had washed up in the intervening two years.

Since then, we have established a relationship with the DMR which allows removal of traps without the same laborious posting of abandoned traps, but only because MITA has established its credibility. It helps that for many of the major trap retrievals, local fishermen volunteer to transport the traps back to the dock.

While almost all fishing gear is damaged and of little interest to their previous owners, I don't think private individuals should even think of retrieving gear. Too sensitive.

Scott

[djlewis]

• The right to navigate includes the right to conduct any activity involving the movement of a boat, vessel, float, or other watercraft, as well as the transport of people and materials and related loading and unloading activity

What the heck does that mean? Interpreted in "plain English" it seems to include landing, launching, exiting and entering your kayak as well a removing and loading gear.

Does that mean I can land, jump out, open a hatch, remove my lunch from the hatch and eat it (the lunch, not the hatch)? Eating lunch on the beach thus arguably "involves" unloading said lunch from said boat. To be sure, I can jump up every few minutes to move my boat a bit -- something we often do anyway when we don't pull it high enough on a rising tide.

Edited June 10, 2013 by djlewis

[spider]

I will read up more on the subject, For me it is "making a mountain out of mole hill"

I don't know what rock these people who don't supposed to like us live under. I haven't met any yet. I meet friendly hard working people along the Maine coast.

We know (even more so now) there is no shortage of people who will tell you what you can do, should do, and "rights" groups seem to multiply by the minute, however you need to look might closely at what is true what is b. s. and of course the grey area between.

I think it gets a bit spooky when people start dissing photos that they disapprove of on our friendly web site, that encourages paddlers.

Yes people can walk all over your property, ever had someone knock on your door that you don't know ?

That person has not trespassed to come to your house, they have not broken any laws and yes they can walk in your flower garden. Unless other wise posted.They do have to leave when you ask though.

Though I don't hunt I appreciate the efforts they have made to keep open land open, and yes a hunter can walk on your property, whether we like it or not unless otherwise posted.

So while Maine does have some pretty bizarre coastal laws, what happens in real life seems far different than the absurd laws unless

somebody is purposely.. well.. making a mountain out of a mole hill...oops did i say that again.

Some might have noticed on the link I posted that there are $ incentives to keep land open to the public. I, for example, get a discount for that reason (NH) If a property owner is getting a break then post their land for no trespassing, they would be technically breaking the law.

Then again who would really give a hoot if you're just out trying to enjoy the day.

smile awhile... enjoy the day...happy paddling