WELLS, Maine — A judge has whittled down a sweeping lawsuit against owners of intertidal beaches to a single question.
What exactly is the extent of the right of public access to these lands?
In the absence of precise answers, the local plaintiffs could perhaps fight another day at least on this front. Otherwise, Superior Court Judge John O’Neil ruled in a ruling earlier this week that intertidal zones — those stretches of beach between the high and low water marks — belong to landowners who live on the highlands.
For attorney Benjamin Ford, who is representing the plaintiffs in the case, the judge’s decision provided just enough reason to keep moving forward.
“Today’s decision proves what every Maine resident who depends on our coastline knows to be true: Maine’s intertidal problem is far from over,” Ford said in a prepared statement. “We thank the Court for its diligence in resolving these issues and look forward to taking the next steps toward recovering the Maine coast for all Mainers.”
last April, Ford stood near a private stretch of Moody Beach in Wells and said he filed a lawsuit in Portland seeking to return private beaches along the Maine coast to the public. The plaintiffs included both commercial and recreational beachgoers, and the suit involved eight defendants, three of whom own intertidal properties in Wells: Judy’s Moody, LLC, OA2012 Trust and Ocean 503, LLC.
Residents Peter and Cathy Masucci, of Wells, are among Ford customers. Others live in communities such as Waldoboro, Bath, Portland, Peaks Island and Needham, Massachusetts.
Last summer, attorneys for private beach owners — in Harpswell and Friendship, Maine, in addition to Wells, for example — filed motions to dismiss the case altogether.
In his decision, O’Neil granted the motion to dismiss the case regarding intertidal landowners in Harpswell and Friendship who became embroiled in a dispute with individuals who were harvesting seaweed from their property for purposes commercial.
However, with respect to the local defendants, Judy’s Moody, OA2012 Trust and Ocean 503, the judge only partially granted their motions to dismiss – saying they did indeed own their intertidal lands, but leaving blurs the question of what constitutes an acceptable public good. use.
In filing the lawsuit last year, Ford took aim at a Maine Supreme Court decision made decades ago. Ford called the decision “a historic mistake” that “locked up thousands of miles of Maine’s coastline.”
In 1984, property owners along Moody Beach in Wells accused local and state authorities of not treating bathers on their private beaches as trespassers. The owners asked the court to prohibit the public from using the beach in front of their properties, not only on the dry sand but also in the intertidal zone, according to a report on public shore access produced by the Maine Sea Grant College. Program, the Maine Coastal Program and Wells National Estuarine Research Reserve.
Two years later, the Supreme Judicial Court of Maine ruled that the colonial ordinance enacted in the 1640s was part of the common law of Maine. This ordinance had recognized private ownership of beachfront property as including the intertidal zone, extending to the low tide mark. It had also recognized the public’s right to fish, hunt and sail on private tidal lands, according to the report.
In 1989, in Bell v. Town of Wells, known as the Moody Beach case, the state’s highest court has ruled that the only recognized public rights in the intertidal areas are those defined in the colonial ordinance: fishing, hunting and navigation.
This means that beachfront property owners along the coasts of Maine have property rights up to the low tide zone, except for an easement allowing the public to engage in these three permitted activities.
In his ruling, O’Neil noted that the scope of public use rights “has been flexible.”
“The Court of Justice has maintained a flexible approach to determining what public uses are permitted in the intertidal zone,” O’Neil wrote.
O’Neil added that the court approved public land uses that are related to, but not coextensive with, fishing, poultry and shipping.
“So what constitutes permitted use of the intertidal zone by the public has taken many forms,” he added.
O’Neil noted that it was unclear what activities the claimants wish to pursue in the intertidal areas. However, he said it was “conceivable” that they seek to be able to walk, run or enjoy other forms of movement on these lands. O’Neil even referred to an applicant who is a researcher who wants to access intertidal land for professional purposes.
O’Neil noted that the Court of Justice did not specifically address the issue of whether movement or research-related activities are permitted in the intertidal zone.
“Given the broad and expansive approach that the Court of Justice has taken to defining these rights of use, it is conceivable that movement-related or research-based activity could be acceptable use. “, he wrote.
The Associated Press contributed to this report.