At long last the Maine Law Court has issued its decision after reconsideration and reargument in the Goose Rocks Beach case, Almeder v. Town of Kennebunkport, 2014 ME 139. As you may recall, the Court’s original decision, back in February, 2014 ME 12, vacated a Superior Court decision that had, among other things, awarded the public a recreational easement by prescription over Goose Rocks Beach.
As it had noted as an alternate holding in its original decision, the Law Court held that the public use supporting the claimed prescriptive easement had to be established on a parcel-by-parcel basis, rather than by examining public use of the beach as a whole as the Superior Court had done. The Court further noted, as it had before, that the lack of analysis or findings of public use on a parcel-by-parcel basis required the Superior Court’s judgment to be vacated.
What happened next is truly remarkable. After pointing out that the Town had “steadfastly” (and successfully) opposed the plaintiffs’ argument that a determination of any easement by prescription had to involve parcel-by-parcel findings, the Court remanded the case to the Superior Court to allow the Town to relitigate its case (albeit without the right to introduce new evidence) on the very parcel-by-parcel basis it had fought for years!
While it frankly acknowledged that it wouldn’t ordinarily allow a litigant get away with such a reversal of course, the Court offered this justification:
"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."
In addition, the Court stated that if the Town were to seek a parcel-by-parcel reanalysis on remand, the Superior Court may (not shall) require the Town to reimburse the plaintiffs for the attorney’s fees and costs they incur as a result on remand (but not the fees and costs incurred over the last several years).
Strategic choices get made in litigation every day – some pan out and others … not so much – but generally litigants (even government agencies, like the Town, charged with working in the public’s interest) are held to the choices they and their counsel make. One could, without too much work, come up with a string cite as long as a beach towel for the proposition that even constitutional arguments can be irretrievably lost if not properly raised and/or preserved; yet, here, the Law Court threw the Town a lifeline based on a subjective judgment that sandy beaches are really important.
We all like sandy beaches, but there are important institutional considerations embodied in the Court’s long-standing rules of waiver and judicial estoppel that were too easily cast aside in Almeder for a public interest in beaches. It will be interesting to see what next gets offered up by a litigant as a public interest of corresponding societal import in an attempt to gain relief from the operation of the rules of appellate practice.
