Maine’s top court to decide
Moody Beach owners win court case, but advocates for public access vow to fight on
Shawn P. Sullivan. Portsmouth Herald
WELLS, Maine — Public beach advocates plan to appeal a ruling by a superior court judge that sets back their efforts to expand the rights of people to enjoy privately owned intertidal properties along the coast of Maine. (Portsmouth Herald, Feb. 14, 2024)
Superior Court Justice John O’Neil recently granted a summary judgment in favor of Moody Beach property owners, ending the case brought in 2021 that sought to return private beaches along the Maine coast to the public.
In doing so, the judge denied a motion by Maine Attorney General Aaron Frey asking the judge to rule members of the public “have the right to walk unfettered upon intertidal land in Maine.” It also rejected a motion by Our Maine Beaches for a modernized interpretation of “fishing, fowling and navigation,” which are the allowed uses under current law.
Attorney Benjamin Ford, who represents Our Maine Beaches, said he and his clients are now appealing the judge’s decision to the state’s Supreme Judicial Court. Ford's clients include residents Peter and Cathy Masucci, of Wells, as well as others who live in communities throughout Maine and Massachusetts.
“Although I disagree with the judge’s decision, I appreciate that it’s come this early,” Ford said. “Inevitably, the defendants would have appealed had Judge O’Neil ruled in our favor, so now we can just move straight to the state’s highest court and save everyone a little time and money.”
Lawsuit filed in 2021, but dispute goes back decades
Ford filed Our Maine Beaches’ lawsuit in 2021. The suit is comprised of five counts and names three defendants: Judy’s Moody, LLC, OA2012 Trust, and Ocean 503, LLC. All three own intertidal properties along Moody Beach.The goal of the lawsuit was to gain broad public beach access stating the "people of Maine have been threatened, harassed, and chased off land that belongs to them."
In April 2022, Superior Court Justice John O’Neil dismissed four of the five counts by ruling that intertidal zones — those stretches of beaches between the high- and low-water marks — belong to the property owners who live upland.
The remaining count had to do with the scope of the public’s right to access such land.
In May 2023, Ford filed a motion on behalf of Our Maine Beaches seeking a summary judgment declaring that 36 activities, from scientific research to birdwatching to building sandcastles, are legal and allowed on the state's beaches and intertidal lands under current law.
Property owners, however, filed their own motion for summary judgment, arguing that public use is already settled law.
In its decision, the court agreed with the property owners that the 1989 Bell v. Town of Wells case "resulted in a valid final judgment."
In that case, the state's top court ruled that the only public rights recognized in privately owned intertidal areas were those that were outlined in a colonial ordinance from the 1600s: fishing, fowling and navigating.
"It is apparent that granting plaintiffs' requested relief would require setting aside established precedent, which is outside the bounds of this court's jurisdiction," stated O’Neil in his decision.
In another ruling on Jan. 26, O’Neil denied a motion by Maine Attorney General Aaron Frey for a summary judgment that sought to give the public the “right to walk unfettered upon intertidal land in Maine.”
O’Neil denied this motion on procedural grounds, saying Frey’s statement of material facts failed to be “reasonably characterized as short and concise.”
Under Maine law, a court can issue such a denial if presented with a statement that is unnecessarily long, repetitive, or convoluted. Frey’s statement of material facts came in at 21 pages and 129 paragraphs.
Free Moody Beach advocates vow to fight on
Locally, a grassroots group called Free Moody Beach is supporting Ford’s legal efforts. In a press release on Feb. 13, the organization also expressed disappointment with O’Neil’s decision and vowed to press forward.
“We are disappointed that Judge O’Neil dismissed our complaint on what appear to be technicalities,” the organization said. “We simply wish to engage in recreational activities like everyone else without fear and intimidation ... We will continue our fight to get this unjust law overturned and return all beaches to the people of Maine.”
Last fall, the group wrote town officials in Wells a letter, asking for their support.
Specifically, Free Moody Beach wanted Wells to follow the same approach that Kennebunkport took when it successfully argued, in a case decided in Maine Superior Court in 2019, that the town-owned Goose Rocks Beach. In the letter, the group argued that the Kennebunkport case showed that legal pathways exist for Wells, despite the 1989 court ruling.
In his response to the group, Wells Town Manager Michael Pardue said the town was not prepared to offer such support. The reason, he said, was that the case involved issues that could impact the rights of residents in “different, potentially conflicting ways.”
Ford expressed optimism that their case for public access would be met favorably if it reaches the U.S. Supreme Court.
“In cases that have asked the U.S. Supreme Court if a state owns its intertidal land, the answer has always been yes,” Ford said. “Before that happens, however, the plaintiffs will prepare their appeal of the lower court decisions and make another announcement when legal filings are officially presented to Maine’s Supreme Judicial Court.”