A man walks along Parsons Beach in Kennebunk on Wednesday, April 21, 2021. Parsons Beach is privately owned but allows public access with some restrictions. A group has filed suit to overturn a 30-year-old Maine Supreme Court ruling and establish a public right to the intertidal zone along Maine’s coast. Gregory Rec/Staff Photographer

A group of 23 Mainers plans to file a lawsuit challenging a 30-year-old legal ruling that said the public does not have recreation rights on private tidelands.

The case could change the course of recurring legal battles over coastal access, especially around sandy beaches in southern Maine. Benjamin Ford, a Portland attorney who is representing the plaintiffs, said Wednesday that the lawsuit is meant to correct a “historical mistake.”

“Thirty years ago the people of Maine were told that they must live under a law that passed a century before the birth of Thomas Jefferson, and that locked away thousands of miles of the Maine coast,” Ford said. “The Maine Supreme Court’s decision in the so-called Moody Beach cases has led to nothing but confusion, conflict, and ridiculous litigation over whether seaweed is more like a worm or a tree. This mess was created by lawyers and judges and it needs to be fixed by lawyers and judges.”

A weathered sign on a homeowner’s concrete retaining wall along a public pathway to Moody Beach in Wells notifies visitors that the beach is private. Gregory Rec/Staff Photographer

Attorneys for the plaintiffs will make a formal announcement Thursday on Moody Beach in Wells, the same beach that was the focus of two landmark rulings by the Maine Supreme Judicial Court in the 1980s. In those opinions, the court found that beachfront property owners own all the way to the low tide line. That approach differs from most coastal states, where the state owns the area between low and high tide.

“Although contemporary public needs for recreation are clearly much broader, the courts and the legislature cannot simply alter these long-established property rights to accommodate new recreational needs; constitutional prohibitions on the taking of private property without compensation must be considered,” the 1989 opinion said.

The group would not provide a copy of the complaint until it is filed in court Thursday. A news release did not name the plaintiffs, but a spokesperson said they are Maine residents and business owners, as well as a couple of out-of-state residents who also own property in Maine. It also did not name the expected defendants, but the lawsuit will be aimed at 10 beachfront property owners “who have been demonstrably complicit in actions causing Maine citizens to be threatened, harassed and chased off land that belongs to them.”

Attorney Sidney Thaxter represented landowners on Moody Beach and has been involved in litigation over beach rights for years. He said Wednesday that the court has not overturned its ruling despite multiple appeals in the decades since, and he does not believe it would do so now because such a change would be unconstitutional.

“They can’t change property owner rights of people without compensating them,” Thaxter said.

Maine has 3,500 miles of tidal coastline. But only 30 miles, or less than one percent, is publicly owned sand beach.

In the Moody Beach case, the Supreme Judicial Court did also find the public has limited rights to use private lands in the intertidal zone for “fishing, fowling and navigation.” That language dates to an ordinance from the 1640s, two centuries before Maine became a state, and its meaning has long been disputed.

This case could be destined for the top court yet again. The Moody Beach case predates the current justices, but the court has issued multiple opinions about beach access and ownership in the years since that ruling.

The plaintiffs pointed to a 2000 case in which the court said the public could recreate on Wells Beach. That ruling did not go so far as to overturn the earlier one in the Moody Beach case, but the then-chief justice wrote a separate opinion saying the court should have done so, saying that precedent had created “uncertainty and unworkable restrictions.”

“Pursuant to our holding in Bell, a citizen of the state may walk along a beach carrying a fishing rod or a gun, but may not walk along that same beach empty-handed or carrying a surfboard,” Leigh Saufley, who is no longer on the court and now serves as dean of the University of Maine School of Law, wrote at the time. “This interpretation of the public trust doctrine is clearly flawed.”

In 2011, the court re-examined the case to determine whether the public had the right to walk across intertidal zones to reach the ocean for scuba diving. The justices decided that use was allowed, although they were divided as to why.

In 2019, the court ruled against a Canadian company that had been removing rockweed from the Maine coast for decades, saying the plant is on private property and can no longer be harvested without permission from the landowners. A central question in that lawsuit was whether the harvest should be considered fishing under the law, and the justices decided no.

That same year, the court ended a decade-long legal battle by deciding the town of Kennebunkport owns Goose Rocks Beach. But that case had more to do with ancient deeds than it did public beach access.

Despite legal disputes over the years, Thaxter said, most beachfront owners do not mind when the public uses the intertidal zone, but they want to protect their property from commercial uses.

“Most of them have been very generous,” he said.


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