A sign on Moody Beach tells visitors that the area north of the Wells-Ogunquit line is private. A group is challenging a law that gives ownership of the intertidal zone to property owners instead of the state. Ben McCanna/Staff Photographer

Bonnie Tobey works for a Brunswick company that has long harvested rockweed in Quahog Bay off Harpswell. But, she said, restrictions by coastal landowners have changed the business and forced the processing plant to reduce its number of shifts in recent years.

“The working waterfront has become an endangered species,” Tobey said. “Places that we have harvested for decades are now off limits, and people are claiming to own everything they see from their windows.”

Tobey is among 23 plaintiffs who have filed a lawsuit in Cumberland County Superior Court to challenge the law on beach ownership in Maine. She and others gathered on Moody Beach in Wells on Thursday to announce their litigation while standing in the open sand of the intertidal zone. More than 30 years ago, that same beach was the focus of two landmark rulings by the state’s top court. While most coastal states own the land between the low and high tide marks on their beaches, the Maine Supreme Judicial Court found that area belongs to oceanfront property owners. The lawsuit aims to overturn that decision.

“My hope for this case is to restore the shoreline back to the people of Maine,” Tobey said. “It belongs to everyone, not just a select few.”

A news conference unfolds on Moody Beach in Ogunquit on Thursday just south of the Wells town line where the beach is private. Public access is the subject of a lawsuit. Ben McCanna/Staff Photographer

But lawyers who have represented beach house owners in related disputes for years do not expect the court will reverse itself.

“These are sort of speculative academic arguments that are inconsistent with how people have treated property for hundreds of years and also arguments that the court has seen and rejected on more than one occasion,” attorney Gordon Smith said. “I don’t think that there is really a legitimate chance of these arguments succeeding.”

In 1986 and 1989, the Supreme Judicial Court considered a title case brought by property owners on Moody Beach. In those two opinions, the justices found that private owners own all the way to the low-tide line, but the public still had limited rights to use private land in the intertidal zone for “fishing, fowling and navigation.” That language dates back to an ordinance from the 1640s, and its meaning has long been disputed.

The complaint filed Thursday argues that Maine became the owner of the intertidal land upon statehood, and that the colonial ordinance should not have applied after that point. The plaintiffs said the court erred in its Moody Beach ruling, and they asked the court to find that the state owns the intertidal zones.

“The people that own these houses, they’re not greedy, they’re not selfish,” said Benjamin Ford, one of the attorneys who represents the plaintiffs. “They’ve just been told that they own something which can never be owned.”

However, landowners have argued in the past that it would be unconstitutional for the court to change property owner rights without compensation. Smith said courts considered the intertidal zone private property long before the Moody Beach ruling and should continue to do so.

“Why is this private property?” Smith said. “It’s private property because in Maine, it’s been treated as such by courts and landowners and the public for hundreds of years, and that is how property rights are determined.”

Most of the plaintiffs work in the seaweed industry as harvesters and processors like Tobey, who is the operations manager for Source Inc. Others are clammers, wormers and oyster farmers.

Brian Beal is a marine biologist at the University of Maine at Machias. The complaint says his research on organisms in the intertidal zone is impeded by private owners. Others own property near Moody Beach but not on the water. William Griffiths and Shiela Jones own the Crow’s Nest Resort in Old Orchard Beach, and the complaint says their customers come expecting to find beaches open to everyone and are disappointed to find “invisible lines in the sand and hostile signs telling them and their children to ‘keep out.’ ”

Attorney Benjamin Ford is flanked by plaintiffs on Thursday during a news conference at the Wells-Ogunquit line of Moody Beach. Ford is pointing toward private land in Wells, which is the subject of a lawsuit. Ben McCanna/Staff Photographer

Also among the plaintiffs is Orlando Delogu, a professor emeritas at the University of Maine School of Law who has long been involved in the debate about beach ownership and access.

“It’s like the wind and the air, the water, the oceans,” he said Thursday. “It has to be open to everyone.”

There are 10 named defendants. Two are limited liability corporations, including Judy’s Moody LLC, which rents units on AirBnB and advertises its private beach, and one is a trust. The rest are individuals who are accused of blocking people from using their land in the intertidal zone, particularly for rockweed harvesting. Most did not return a call Wednesday afternoon about the lawsuit, deferred to a lawyer or said they could not speak about the complaint.

John Howe, the trustee named in the complaint, said Thursday that he has owned a house on Moody Beach for decades. His brother’s family has, too. He doesn’t remember many encounters with beachgoers, except years ago when he asked people throwing horseshoes to move away from his young son. The complaint references signs that say “Private Beach, No Loitering,” and Howe said he has posted signs like that in the past and people have respected them.

“I don’t bother people who come sit on the beach, but I do think we own it, and I’ve always felt that way,” he said.

Howe, 76, lives in New Hampshire but visits Maine often. Asked how he would be impacted if the court sided with the plaintiffs in this lawsuit, he said he wasn’t sure.

“I would have to talk to the lawyer,” Howe said.

Bonnie Tobey, operations manager at Source Maine, is flanked by fellow plaintiffs on Thursday during a news conference at the Wells-Ogunquit line of Moody Beach. Tobey said her business collecting rockweed is impacted by areas of the beach that are marked private. Ben McCanna/Staff Photographer

Attorneys said Wednesday that whether owners pay taxes on the intertidal zone varies from town to town, and this case is not directly related to those assessments.

The lawsuit also names Attorney General Aaron Frey as a party of interest. A spokesperson for his office said Thursday that he did not have any comment and did not answer a question about the attorney general’s position on beach ownership.

Maine has 3,500 miles of tidal coastline – according to state officials, the fourth-longest in the United States. Most of that is rock, and sand beaches are rare. Of the sand beaches, only 30 miles are publicly owned.

The justices who heard the Moody Beach case in the 1980s are no longer on the Supreme Judicial Court. But their successors have ruled multiple times about beach access and ownership in the decades since. Those cases have often focused on the meaning of “fishing, fowling and navigation” in a modern context.

One directly considered rockweed harvesting. In 2019, the court found that rockweed is on private property and can no longer be harvested without permission from landowners. A central question in that lawsuit was whether the harvest should be considered fishing, but the justices decided no.

This latest complaint highlights the harm to rockweed harvesters under that precedent.

“Upland owners are demanding absolute dominion over the shoreline,” Ford said. “Clammers, wormers and seaweed harvesters are being harassed, some are being thrown off of the land that their families have worked for generations, all because people don’t want to look out their windows and see someone who works for a living.”

Smith, an attorney for the landowners in the 2019 case, said the plaintiffs turned to the court because they felt the state wasn’t doing enough to regulate the industry.

“No one wants to prevent someone from earning a living,” he said. “But there are larger conservation and ecological concerns that weigh in favor of protecting the rockweed. … This litigation was a means to obtain that conservation.”

Related Headlines


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

filed under: