tnetherc

New Hampshire Shoreline Access

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5 hours ago, drmevo said:

I've been asked to leave by a security guard while night fishing by a ritzy NH marina (hint, it's located at a ritzy NH hotel) from my kayak. I wasn't even within the "boundaries" of the marina. I assured him I wouldn't hit any of the multi-million dollar yachts and he acknowledged he couldn't make me leave so we left it at that. :shrug:

I "think" I stayed at the "Historic" hotel you're talking about once in early spring and noted to myself what a great place for bass, especially on the bridge leading to the hotel.  As I guest I would hope that the security guard may be a bit more laid back toward my fishing there...

 

Regardless, IF you were on your kayak inside the marina I don't think they "own" that area, do they?  

Edited by Roccus7

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43 mins ago, Roccus7 said:

I "think" I stayed at the "Historic" hotel you're talking about once in early spring and noted to myself what a great place for bass, especially on the bridge leading to the hotel.  As I guest I would hope that the security guard may be a bit more laid back toward my fishing there...

 

Regardless, IF you were on your kayak inside the marina I don't think they "own" that area, do they?  

No, I'm pretty sure I could toss a line in an empty slip and be legal. As long as I'm not hitting anything or somehow being a nuisance there's not much they could do AFAIK. 

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The owner of that historic hotel was involved in a long running legal battle in which he blocked public access to the small beach there if it's where I think it is. He lost eventually... 

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Different state, same issue (and maybe even more widespread) 

"Today, the Maine Law Court (Maine’s highest state court) heard arguments in Robert F. Almeder v. Town of Kennebunkport, a beach access case pitting beachfront homeowners against the Town and the public over ownership of intertidal lands and beach access along Goose Rocks Beach in Kennebunkport, Maine. While beachfront property owners claim they own title to the intertidal lands all the way to the low tide line, the lower court rejected this argument, holding that for all but one of the twenty-three parcels at issue, the owners’ title ends at the “seawall” – located landward of the higher high water line. Instead, the court held the Town of Kennebunkport owns both the wet and dry sand of the parcels.

Now on appeal to the Law Court, this morning the property owners argued that the trial court applied the wrong burden of proof and the wrong standard, applying strict rules interpreting ancient land grants instead of liberal rules. In short, the beachfront homeowners argue that they own the beach, not the Town. Meanwhile the Town argued that the Superior Court was correct in finding that the property between the ocean and the seawall was never conveyed into private ownership, and was therefore retained by the Town. 

Procedurally, the case has taken some twists and turns over the last ten years. The case was originally filed in 2009 by 29 beachfront property owners seeking declaratory relief and quiet title to the intertidal zone. In response to the complaint, the Town argued it owns fee title to the property, and alternatively that it has an easement by custom, and a public prescriptive easement. The Surfrider Foundation and the state of Maine intervened (along with others), asserting arguments that the public has public trust rights to the intertidal zone. 

The Superior court bifurcated the case, meaning it divided it into two parts, separating the issues into: (1) use related issues (public trust and easement claims), and (2) title issues. First, it focused on the public trust and easement arguments, and found for the public, that it has rights to use the beach for ordinary recreational purposes, and to cross the intertidal zone for “ocean-based” activities including jet-skiing, water-skiing, surfing, wind-surfing, and the like.   

On appeal, the Law Court vacated the decision, holding that the public trust claims were not yet ripe, but remanded the case to the trial court to consider the title issues. An 11-day trial focused on the beachfront owners’ and Town’s title claims, with a focus on the deeds in chain of title, historical documents relating to title, and established rules of deed construction. In 2018, the court issued an opinion rejecting the beachfront homeowners’ claims, and holding that for all but one of the twenty-three parcels at issue, the owners’ title ended at the “seawall” – located landward of the higher high water line. Instead, the court held the Town of Kennebunkport owns both the wet and dry sand of the parcels. 

In February, Surfrider, on behalf of its Maine Chapter, submitted an intervenor’s brief to the Law Court asking the Court to affirm the Superior Court’s opinion. However, Surfrider also argued that the more appropriate approach is for the Court to take this opportunity to extend the trial court’s holding to all of Goose Rocks Beach as well as every other beach in Maine. Supporting this view, Surfrider contends:

  • The Law Court should rely on public trust principles to support and extend the Superior Court’s holding to all of Goose Rocks Beach and all Maine beaches.
  • The Law Court should rely on Maine’s Statehood Act and the “equal footing” doctrine to support the Superior Court’s holding and extend it statewide. The equal footing doctrine refers to the principle that when the United States was formed, there was full equality among the states – that is, they entered the union on an equal footing. When Maine entered as the 23rd state in 1820, it entered on an equal footing, and accordingly, the Law Court has a duty to conform Maine’s intertidal land law to the broad principles outlined in U.S. Supreme Court case law with respect to the title and ownership of, and trust duties with respect to intertidal land. See, for example:

“It is the settled rule of law in this court [the U.S. Supreme Court] that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original states were reserved to the several States, and that the new states since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original states possess within their respective borders.”  (Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), citing Knight v. United States Land Association, 142 U.S. 161 (1891)); and “The title consequences of the equal footing doctrine can be stated in summary form: Upon Statehood, the state gains title within its borders to the beds of waters then navigable, or tidally influenced.” (PPL Montana, LLC v. Montana, 565 U. S. 576 (2012)).

  • Plaintiff Appellants’ argument that they own title to the intertidal lands pursuant to prescriptive rights, chain of title statutes, and other equitable doctrines is not supported by U.S. Supreme Court and Maine case law. Surfrider’s brief cites U.S. Supreme Court case law providing that governments stand on a different footing from private parties, and that equitable doctrines are ill-suited to resolve disputes that involve large areas held in trust by government, significant public interests, and/or large numbers of the public. A number of Maine cases are cited with similar holdings.
  • Certain Maine cases have been wrongly decided, including Storer v. Freeman, and Bell v. Town of Wells I & II, and must be overturned.
  • Finally, Surfrider argued that if the Law Court reverses the Superior Court’s decision, issues with respect to the scope of the term “navigation” (as related to allowable uses) are ripe, and the scope should be extended to include surfing and all water-based activities that require any type of specialized equipment.

In conclusion, while arguing that the lower court’s opinion should be affirmed, Surfrider urges the Law Court to take this unique opportunity to reexamine the overarching issues and determine who owns the intertidal zone up to the high water mark in Maine, and overrule the wrongly decided Bell cases.

At the conclusion of the hearing, Chief Justice Saufley described the case as “interesting and complex” and thanked the amicus parties for submitting briefs. It is unclear exactly when the Law Court will issue its decision, though in similar recent cases the decisions came after one to two years after oral argument."

from Surfrider

Edited by stormy monday

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On 5/15/2019 at 2:50 PM, drmevo said:

No, I'm pretty sure I could toss a line in an empty slip and be legal. As long as I'm not hitting anything or somehow being a nuisance there's not much they could do AFAIK. 

I've also had issues in that Marina!! Bunch of chit heads. 

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Like others said, it's not so much where you fish and walk around the water it's more important to focus on where you park and how you gain access to the water. For NH not having a long coastline I think it is pretty accessible for the shore based fisherman. I am lucky enough to have my mother in laws house on the beach in Rye, open invite and spend a lot of time their. Having a house on the beach does come with some drama. We have people park on the private road and walk through the yard to avoid paying for beach parking all the time.  It's not that we want people to have to pay to park at the public lot but it's the liability of those people on the property. When people walk through the yard to get to the beach at this house they have to climb over a jagged rock wall similar to a jetty. My mother in law is afraid that someone is going to get hurt and sue her because it's her property.

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