Key motion filed in beaches case
Plaintiffs request common sense definition of “public uses”
(Portland, Maine) Maine families fighting for the restoration of the centuries-old public right to use Maine beaches and intertidal lands filed a motion in Maine Superior Court this afternoon, arguing that language dating back to colonial times clearly intended to protect a broad array of public uses along the Maine coast.
The group (www.OurBeaches.me) is collectively but informally known as “Our Maine Beaches.” It has asked the court to rule that many uses along the coast are legal and permitted under the current law. The motion lists 36 specific activities ranging from scientific research, bird watching, and building sandcastles. The plaintiffs argue that each one is included in a key definition, a very old choice of words already accepted by the Court to define the public’s rights to the shore.
“More than three centuries ago, public authorities wanted to permanently protect these lands for all citizens; that was their clear intent,” said Benjamin Ford, an attorney representing the group. “At that time in history, all uses of the beach could be neatly summed up in three words, ‘fishing, fowling and navigation.’ That’s what people did back then; there was little time for scientific research or even leisure.
“But time marches on and things change. It’s just common sense that as beach use evolved naturally, the law’s original intent was always to be preserved --- and the original intent was to protect public uses. Nobody was playing bocce on the beach in 1647, but folks are doing that in 2023 and it is completely legal. Those lands are owned by the public.”
In April of 2021, Peter and Kathy Masucci and 21 other plaintiffs sued 6 landowners who, they allege, had claimed ownership over the intertidal land adjacent to their upland property. In April of 2022, the Maine Superior Court handed the plaintiffs a key victory by letting the most important count delineated in the original lawsuit stand. Today’s motion seeks judgment on that final count. Ford said his clients are simply trying to correct a judicial error made by a narrow majority of the Court in the 1980s.
“Thirty-four years ago, five unelected judges of the Maine Supreme Court substituted their own wisdom for that of Maine people. In stripping the legislature of the authority to regulate the intertidal, Mainers were kicked off the beaches and coastlines they had used and enjoyed for generations. This lawsuit seeks to correct that historical mistake.”
Ford said that in most states, waterfront property lines run to the mean high tide line. Everything between the high and low tide lines in those states is considered public property, except for small portions of land that are sold by the state for the purposes of building private wharves. In its 1989 Moody Beach decision the Maine Supreme Court held that in Maine, waterfront property owners are assumed to own to the low tide line. The decision expressly overruled the Maine Legislature’s attempt to regulate intertidal property and set off decades of litigation and hostility between those seeking to use the coast and those seeking to exclude them. He said the question of intertidal ownership should ultimately be given back to the Maine Legislature, from whom it was incorrectly appropriated.
“Maine people should be able run on the beach or walk with their children, without encountering threatening signs that incorrectly state they have no right to be there.
“In the 34 years since the final Moody Beach decision, there has been a nearly continuous string of intertidal cases in Maine courts. Each case takes years to fully adjudicate with one case in Kennebunk taking nearly a decade. 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.”
The plaintiffs say they 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.
Ford is an attorney at Archipelago in Portland. His co-counsels on the case are Sandra L. Guay, Keith P. Richard, and Michael Skolnick. For more information about the firm: https://archipelagona.com/meet-the-team/