Striking a blow for right to roam in Maine

INFO GRAPHIC BY BEN MILLSTEIN

SOMESVILLE, July 16, 2020 – If the unofficial state bird of West Virginia is the rooftop TV dish, then surely the Maine state seal would be the “no trespassing” sign. I was and continue to be struck by their ubiquity, especially here on the Quietside.

It’s an equal opportunity affliction – from anxious summer homeowners, to local islanders on back roads, small businesses and private clubs – all with posted megaphones blaring, “Stay off my property!” They come in different flavors: “members and guests only,” “private property,” “private road pvt” … but they all convey an unwelcoming tone.

In Hingham, Massachusetts, I was disheartened to find that the house we purchased was part of a neighborhood beach association which barred outsiders with off-putting “no trespassing” signs. I hung a companion sign which stated, “Please use this beach as guests of the Millsteins.”

The proliferation of the “no trespassing” signs here is a direct result of a ruling in 2002 by Maine’s highest court that its citizens have a “presumption of permission” to trek onto private property unless the owners publicly post otherwise. That set off a torrent of signs.

Signs went up despite strict Maine laws protecting property owners from damage, injury and “prescriptive rights” claims by frequent trespassers that longtime use entitles them to partial ownership.

Landuse lawyer Andrew Hill of Brunswick wrote, in a 2018 article entitled “Get off my lawn … Trespassing in Maine,” that “Maine law does a fairly good job of balancing the competing interests or landowners and hikers.

“Hikers do not have to be overly concerned about legal liability for crossing over private land. At the same time, landowners are generally going to be able to avoid liability for injured trespassers and giving up prescriptive rights to the public. Further, in the event of users abusing private property, landowners may resort to a statutory trespass action. This balance should incentivize a large amount of land remaining unposted and available for outdoor recreation.  

Hill pointed that hikers have no rights to recover damages if they injure themselves and that “presumption of permission” has its limits. “Once users start causing damages on private land Maine has strong penalties (up to triple damages and attorney’s fees) that landowners may seek in a trespass action.”

A GOOD WALK SPOILED

But the signs only seem to proliferate. Sometimes, intentionally or not, they have consequences beyond their narrow intent – like blocking access to some of the island’s treasured natural areas and habitats. The causeway at Norwood Cove in Southwest Harbor is an example.

Until June I hiked regularly down North Causeway Lane, around the back of the Causeway Club, to spend some contemplative moments on the bridge that separates Norwood Cove and the ocean. There I would marvel at the rush of water flowing either inbound or outbound with on the tide.

At mid tide the water is translucent, allowing for a particular glimpse into the vegetation and the tiny salt water species just below the surface. I have not experienced a similar vantage point elsewhere on MDI.

But when the Causeway Club opened in June a sign went up closing access to the bridge.

I first thought about ignoring the sign. But in the end I just turned around. I was saddened that I would not be able to access the bridge until autumn after the club closed. Of course there is another entry point to the two-way bridge – South Causeway Lane, but the parking is not as accessible. But the story does not end there. As I walked toward the bridge heading north on South Causeway Lane, I came upon a beautiful trail through the woods on the left which someone had bothered to clear. I assumed it was privately owned.

But instead of posting a private “no trespassing” sign the owners assumed hikers would want to walk their land. So there was only a polite request for hikers to stay on the trail. It was quite a counter point to the Causeway Club.

A few days later I stopped by the Southwest Harbor Police Department and inquired as to the access point at the Causeway Club and was assured that as long as I didn’t drive I had the right to walk down to the bridge despite what the posted sign said. So I plan to do that. Signs like the one at the Causeway Club do more than prophylactically protect the owners from outsiders. They separate us as a community.

Ken Ilgunas, author of “Trespassing Across America” and “This Land is Our Land,” recently argued that the pandemic offers an opportunity for Americans to take back our “right to roam.”

In an op-ed in the Washington Post May 24, he wrote:

“Because of the coronavirus, we are rediscovering our backyards and neighborhoods. But as the need for social distancing continues, many will begin to feel stir-crazy in the same pedestrian-unfriendly sprawl, on the same dangerous country roads and around the same dull cul-de-sacs. A more evolved understanding of private property will help us feel healthier, freer, more equal and more connected to our communities and local environments. It’ll help us get out of the house in good times and bad.” https://www.washingtonpost.com/opinions/2020/05/24/america-may-be-opening-back-up-most-our-land-is-still-off-limits-lets-change-that/

Luckily we live on an island with a national park, so we’re not penned in. There are plenty of majestic, verdant spaces to share. Nonetheless, much of the most desirable waterfront, rolling hills and country roads on MDI are privately owned and posted with unfriendly signs.

If Arizona is an “open carry” state, Maine would be the “open hiking” state. This is where a positive libertarian sensibility flourishes, where there is an “everyman’s right” to access certain public or privately owned land, lakes and rivers for recreation. Maybe it’s time to take down the signs and build a real community.