Moody Beach in Wells, Maine. (Courtesy of William C. Penney)
The Maine Supreme Judicial Court heard oral arguments Thursday afternoon for a case regarding public access to intertidal land in Maine.
The outcome of the case will determine public access at Moody Beach, and isn’t expected until sometime next year. But the ruling’s impact will extend beyond the battle over the Wells beach, since it may reverse current limits on public access to the land between high and low tides all along Maine’s coast put into place decades ago.
In April 2021, more than 20 plaintiffs filed Peter Masucci v. Judy’s Moody, which challenged the limited public use and private ownership of intertidal land on Moody Beach. The case hopes to reverse a 1989 decision by the Supreme Judicial Court of Maine that established private ownership down to the low-tide mark and limited public use to “fishing, fowling, and navigation” — language from a 400-year-old ordinance, when Maine was still part of Massachusetts. The plaintiffs’ argue the state of Maine assumed the title to all intertidal lands when it became its own state in 1820.
“[The 1989 decision] must be conclusively overruled now, not merely because it was wrong, but because it was jarringly out of step, an anomaly at the time it was decided and it’s been criticized in each case since,” said Keith Richard, an attorney for the plaintiffs, during the proceedings Thursday at Lewiston High School.
He was among seven attorneys who appeared before four justices of Maine’s Supreme Judicial Court who peppered questions about whether the plaintiffs have a right to even bring the lawsuit and if reversing that 1989 decision would wrongly take private land away from people without compensation.
Private beach sign on Moody Beach. (Courtesy of Free Moody Beach)
Richard started by asking the court to “end the acrimony, chaos and conflict” by legalizing reasonable recreational public use of privately owned intertidal land. The plaintiffs have the right to bring the suit, he argued, because of their adverse experience trying to access Moody Beach in Wells. Private beach signs posted by beachfront property owners have created a “chilling effect” for the public trying to access the area, he explained.
Throughout the arguments, Associate Justice Wayne Douglas asked at least two of the defense attorneys if their clients object to people walking in the intertidal zone along their property. None of them said their clients had any objections, so Douglas wondered where the conflict lies.
Richard said the private beach signs are an “overstatement” of the property owners rights.
A way to restore public access without overturning private land ownership
Since that 1989 decision established private ownership of that land, Associate Justice Catherine Connors asked how they could change that at this point without unconstitutionally taking that land away from beachfront owners. The Fifth Amendment prohibits the government from taking private property without just compensation.
Richard said he thinks that decision is already “hobbling and it deserves a proper burial,” but Lauren Parker, an assistant attorney general for the state of Maine, sees a way to restore public rights without completely throwing out that previous decision.
If the court clarified that intertidal land is not an easement, but rather subject to the public trust doctrine — which preserves certain natural resources for public use — Parker said they could expand the definition of “fishing, fowling and navigation” without overturning the 1989 ruling.
Christopher Kieser, an attorney with Pacific Legal Foundation who is representing one of the defendants, disagreed, saying that expanding what is permitted under the public use doctrine would still constitute a taking of private property.
“When a judicial decision does expand public rights at the expense of previously recognized private rights, that would be a taking,” he said, citing an April U.S. Supreme Court decision.
Rather, he said that if the town of Wells wants it to be a public beach, they could do that by taking the land through eminent domain.
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