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Group asks court to rule on public access
WELLS, Maine — People may not have played bocce on the beach back in colonial times, but if they had, then that would have been their right, according to a group that is asking the Maine Superior Court to rule that the public is allowed to enjoy shores all up and down the state’s coast.
Earlier this month, Our Maine Beaches filed a motion in Maine Superior Court, seeking a summary judgment ruling that many uses of the state’s beaches and intertidal lands are legal and allowed under current law.
A summary judgment is a decision by a judge that is based on statements and evidence and results in a case not needing to proceed to trial.
The motion is the latest development in a legal battle in which Our Maine Beaches has challenged the position of some coastal property owners that the intertidal lands they own are private and not for public use.
In its motion, Our Maine Beaches states that language going back to colonial times clearly intended to protect many public uses along the coast.
Benjamin Ford, the attorney representing the group, said that public authorities wanted to “permanently protect” beaches for everyone when they crafted language and laws more than 300 years ago. Back then, according to Ford, all uses of beaches could be “neatly summed up in three words: fishing, fowling and navigation.”
“That’s what people did back then,” Ford said. “There was little time for scientific research or even leisure.”
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Ford noted that circumstances change over time and argued that it is “just common sense” that, as beach usage evolved over the centuries, the law’s original intent “was always meant to be preserved.”
Enter that bocce reference.
“Nobody was playing bocce on the beach in 1647, but folks are doing that in 2023, and it is completely legal,” Ford said. “These lands are owned by the public.”
Filed on May 2, the motion lists 36 activities, from scientific research to birdwatching to building sandcastles, and argues that each one is included in a “key definition,” accepted by the courts, that spells out the public’s right to use beaches and intertidal lands.
Intertidal zones are stretches of beaches between high- and low-water marks.
Attorneys for the beach property owners could not be reached for comment.
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‘A chilling effect’ to limit public access to Maine beaches
In April of 2021, Ford stood near a private stretch of Moody Beach in Wells and declared he had filed a lawsuit in Portland that sought to return private beaches along the Maine coast to the public. The plaintiffs included both commercial and recreational beachgoers, and the suit took aim at eight defendants, three of whom own adjacent intertidal properties in Wells: Judy’s Moody, LLC, OA2012 Trust, and Ocean 503, LLC.
According to Ford, the Ocean 503 property is the northernmost one on Moody Beach. The southernmost property is owned by OA2012 and approaches the Ogunquit line. The property owned by Judy’s Moody is located between the two.
Residents Peter and Cathy Masucci, of Wells, are among Ford’s clients. In his latest motion, Ford described the ways in which the Massucis enjoy the beach, but to a limit. In an interview, Ford said signs warning people that certain intertidal lands are private properties have a “chilling effect” on members of the public.
Those signs, Ford said, prevent “full access” to beaches.
In the summer of 2021, attorneys for the owners of private beaches filed motions to dismiss the case altogether, arguing that the matter had been long settled.
In April of 2022, Superior Court Justice John O’Neil granted the motion to dismiss the case, as it pertained to intertidal land owners in Harpswell and Friendship who were caught in a dispute with individuals who were harvesting rockweed on their property for commercial purposes.
But O’Neil also gave Ford and his clients a lifeline. When it came to the local defendants, Judy’s Moody, OA2012 Trust and Ocean 503, the judge only granted their motions to dismiss in part – asserting that they did indeed own their intertidal land but leaving vague the question of what constitutes acceptable public use.
With its latest motion, that is what Our Maine Beaches is asking the court to answer.
“Since the issue is more narrow, I’m hoping the court takes less time,” Ford said.
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The Moody Beach case revisited
Ford said his clients want to correct what they believe is a judicial error that the court made regarding land at Moody Beach in the 1980s.
In 1984, homeowners along Moody Beach in Wells accused local and state authorities of failing to treat beachgoers on their private beaches as trespassers. The homeowners asked the court to prohibit the public from using the beach in front of their properties, not only on the dry sand but also the intertidal zone, according to a report on public shoreline access produced by the Maine Sea Grant College Program, the Maine Coastal Program, and the Wells National Estuarine Research Reserve.
Two years later, the Maine Supreme Judicial Court ruled that the colonial ordinance enacted in the 1640s is part of Maine’s common law. That ordinance had acknowledged private ownership of beachfront property as including the intertidal zone, extending all the way to the low-tide mark. It had also recognized the public’s right to fish, fowl and navigate on privately owned tidelands, according to the report.
In 1989, in Bell v. Town of Wells, known as the Moody Beach case, the state’s top court ruled that the only public rights recognized in intertidal areas are those that were outlined in the colonial ordinance: fishing, fowling and navigating.
That means beachfront property owners along Maine’s coasts have property rights all the way down to the low-tide area, except for an easement to allow the public to engage in those three permitted activities.
Ford said Maine courts have addressed a “nearly continuous string” of cases involving intertidal lands since the 1989 decision.
“Each case takes years to fully adjudicate,” Ford said. “Our courts have better things to do than decide how long a jogger can stop and stretch on the beach before they become a trespasser. Our case asks the court to put that decision back where it belongs – with the people of Maine and those elected to represent them.”
Ford said his clients are willing to go all the way to U.S. Supreme Court to defend the restoration of public rights to the shore, and to advance constitutional arguments that the state holds title to the intertidal lands.
