Private piers and public trust

I’ve been trying to write as much as possible about Camden’s public access points to the harbor before I forget what it felt like not to know about them. They are easy to ignore when not enough people know they exist, so it’s great to see the new signs marking many of the lesser known spots like Eaton Avenue, Harbor Road, and the Curtis Island Overlook. We are still waiting on signage at Sherman’s Point Road. 

It’s notable that many of the public access points contain the word “overlook”. It’s meant to make it clear that there is no obvious way to get down to the water—whether natural or engineered— but at each of these locations, the public rights goes all the way to the low tide mark. The adventurous and the physically fit are free to descend at their own risk. Everyone else is encouraged to request that the town prioritize safe ways to reach the shore at our public access points. 

But you should also know that public rights to access the water extend beyond the official boundaries of the town owned land. They go all the way back to the 16th century when Queen Elizabeth recognized the public’s “inalienable right to the sea” and the public trust doctrine was established. It’s a somewhat complicated issue and case history in Maine, but in essence, it established that certain lands are held in trust by the government for public benefit. 

Specifically, tidal waters and submerged lands belong to the state and cannot be sold to a private party. The public has the right to cross over “unimproved land” in order to access a great pond or tidal waters. Maine’s beaches or intertidal areas influenced by the ebb and flow of the tides are often privately held by the upland property owner but the public has a permanent right of way to access the land for the purposes of “fishing, fowling, and navigation” all broadly defined. 

Maine has been mulling through case after case determining the evolving meaning of “fishing, fowling, and navigation” as it relates to the economic and recreational realities of today. For those who want to know more, I recommend an article published by the Ocean and Coastal Law Journal (2020) titled 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 by Allison M. Kuhns

https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1392&context=oclj

Private land owners frequently attempt to keep the public off of the beaches in front of their properties, and court cases have delved into the details of creative applications of allowed uses. For example, crossing over a private beach to reach the ocean for scuba diving is a right under the public trust doctrine and so is digging for worms.

In many places, the private property owner’s right to access the water from their property has taken the form of private piers and docks, which in turn, interferes with the public’s right of passage. Some docks are required to have a set of public stairs that allow for passage above the structure when the tides are such that passage underneath is not feasible. 

Piers also displace habitat for shorebirds and shellfish. Wading birds have been found to avoid a 300ft radius around pier structures. The pilings associated with the structures permanently consume real estate used by clams and other shellfish. 

Most of our harbor access points are sandwiched between private property, sea walls, piers, and man-made precipices meant to keep the adjacent properties from losing any real estate to the sea. In some cases, the private property owners even managed to convince the townspeople to share in the cost of building the erosion control sea walls that protect their property while creating a virtually impassable vertical drop for the public access point. 

We forget that beaches are formed by the natural process of erosion. As sea level rises, the beaches and intertidal zones will migrate landward in some places where they are able to. In other places, constructed sea walls (often built in conjunction with private piers) will keep the shoreline in a fixed position, shrinking the amount of dry beach that will be revealed on the outgoing tide. 

This phenomenon is referred to as coastal squeeze and you can feel it at high tide if you try to walk anywhere along the beach in Camden Harbor. In some places, the footings of a private pier actually occupy the only spot that would allow a pedestrian to pass by at certain tides. 

When I was first elected to the Select Board, I avoided taking positions on issues relating to boats and harbor infrastructure since it was clear to me that I have a lot less experience than many of my friends and neighbors. Being surrounded by family members who have spent their professional careers working in this area has prepared me well for the habit of deferring to the input of others on this topic. Even my kids are more proficient in basic marine vocabulary than I am, but there’s something liberating about accepting your role as an observer in need of learning from others. 

This may be one of the reasons that so many people reach out to me with their own questions and concerns regarding the harbor. I’m not embarrassed by not knowing the answer and it’s easy for me to be open minded and ask my own questions. People have rightly assumed that I might be convinced to see things their way on certain topics because I haven’t established a rigid position of my own. 

I’ve done a lot of listening about “the way things used to be” and all the public access that has been lost. There was a time when Camden Harbor wasn’t as popular as it today and it was viewed more like an airport and less like a destination of its own. Allowing some private property owners to build structures through the public trust resources didn’t seem like such a big deal if it was only a few piers and everyone who wanted a mooring in Camden Harbor could get one. 

Today, every inch of Camden Harbor is potentially precious real estate. I do not anticipate personally wanting to have a boat moored in Camden Harbor, but I have many friends and family who pay fees every year just to be on a waiting list for the privilege. Demand is growing all the time. The Harbor itself is a destination for many and the economic importance that was linked to sustenance fishing in Queen Elizabeth’s day may look more like guided fishing and photography trips today.

One place you can see the changing pressure for space in the harbor is at the dinghy dock. Traditionally, the dinghy dock was for people to park their small boat which would get them out to their bigger boat, but a new class of boaters has emerged that is rapidly encroaching on the dinghy real estate. We are broadly referred to as paddlers and many of us are happy to never leave the harbor at all. Smaller vessels are supposed to get out of the way of larger ones but in Camden Harbor there is a single established channel. A trip over to Sherman’s Cove is magical by paddle board if you hug the shoreline and gaze at the rockweed but sooner or later one of the massive private piers will force you out into the main channel to compete for space with launches, tenders, schooners, and more. 

Sometimes I go down to check on my little dingy and I become so enamored with fish and underwater flora and fauna that I never even leave the dingy dock at all. The harbor to us is not a launching point to get us out onto Penobscot Bay but a destination all its own. The intertidal habitat, the changing tides, the beaches, and the estuarine waters where Megunticook and other small streams mix with the sea provides an experience that attracts anglers, tourists, shell collectors, beach walkers, paddle boarders and even swimmers. 

Until recently, shellfish harvesting in Shermans Cove and other swaths of Camden’s mud flats was an activity that drew both hobbyists and the hungry down to the harbor, but the concerns over pollution within a certain radius of wastewater treatment plant outfalls has closed the area for now. This has opened up for door for new pier applications to say with a straight face that they won’t interfere with any existing shellfish harvesting, but shouldn’t we be looking for ways to eventually reopen the shellfish harvest rather than allowing more private structures on the grounds that we already polluted the water too much for certain types fishing?

With so many missed opportunities to look back on, let’s not miss our opportunity to keep the keys to the castle that remain. There may come a time when we need or want to build commercial or public use piers, docks, and even breakwaters. As sea level rises, the water may become deep enough in some places to support new moorings and we have an obligation to safeguard precious public resources now rather than give them away to private interests. We can always go back and decide to give more of it away to private development if we choose to later but it doesn’t work the other way around. 

In 2015, the harbor committee and the planning board unanimously recommended a ban on new private residential piers but the Select Board voted in a split vote not to pass the question on to voters. It’s time to make that happen.