Chris Kieser and Paige Gilliard are attorneys at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberties against government overreach and abuse. PLF is representing one of the homeowner defendants in the Masucci case.

As the editorial board of this paper recently highlighted (July 27), the Maine Supreme Judicial Court is weighing a case that could drastically expand public rights along Maine’s beaches. While popular sentiment often favors greater public beach access, there is another important side to the story.

Private property rights down to the low-water mark along the coast are deeply rooted in Maine law, dating back to the Colonial Ordinance of 1641. Since then, the default rule has been that private homeowners own the part of the beach between the ordinary high and low water marks, subject to limited public uses. Today’s coastal homeowners purchased their properties relying on centuries of precedent affirming private ownership of the so-called “intertidal zone.” In a landmark 1989 decision, the state’s high court confirmed both private ownership and the limited nature of the permitted public uses, which include fishing, fowling and navigation but not general recreation.

In Masucci v. Judy’s Moody, plaintiffs sued several coastal homeowners along Moody Beach in the town of Wells — the same beach involved in the 1989 case. They did not accuse the homeowners of any wrongdoing in the traditional sense, but of simply exercising the property rights the Maine Supreme Judicial Court had long held were theirs. The plaintiffs sought to upend the established law. They asked for a court declaration that, under federal law, the state of Maine has always been the true owner of the intertidal zone. Failing that, they asked the court to declare an expansive easement for general public recreation in the area. After losing in Superior Court in Portland, the plaintiffs appealed to the high court, hoping that the new group of justices would give them a different result this time.

There are many flaws in the plaintiffs’ argument, beginning with the fact that nothing in federal law stops Maine from recognizing private ownership of the intertidal zone. Although private property ends at the ordinary high-water mark in many states, Maine and Massachusetts have always been different. The Colonial Ordinance recognized private rights to spur development in early Massachusetts Bay Colony, and after statehood, both Massachusetts and Maine courts adopted it into their common law. The Supreme Court of the United States has referenced this distinction and long understood that states have the power to recognize private rights in this area.

The biggest concern is the implications of the plaintiffs’ argument for property rights nationwide. Our Constitution forbids any government from taking private property for public use without compensating the owner. Maine law has recognized the homeowners of Moody Beach as the rightful owners of the intertidal zone for centuries, complete with the right to exclude the public unless they are engaged in fishing, fowling or navigation. No matter how desirable this area is to the public, the government cannot simply declare that long-held private property is public without paying for it. A court decision stripping coastal Mainers of their property rights would blatantly violate this guarantee.

This protection is not only for those fortunate enough to own beachfront homes along Maine’s beautiful coastline. The Constitution’s prohibition of uncompensated takings protects every homeowner in America from being forced to provide a public road or park for free at the government’s whim. If the state or the town of Wells believes Moody Beach should be made public, either government may condemn the beach through eminent domain and pay compensation to the residents, just as the neighboring village of Ogunquit did years ago. But the responsibility of providing a public beach should fall on everyone — not just the handful of Moody Beach homeowners.

The Maine Supreme Judicial Court should uphold these constitutional principles and reject the plaintiffs’ attempt to upend centuries of Maine law.