As coastal erosion continues to shrink beaches, the sand that remains has become ever more valuable; and in Maine, a battle over the beach has reached the state’s highest court.
In most coastal states, the intertidal land — (the land subject to the ebb and flow of the tides) — is owned by the state in trust for the public under the public trust doctrine. Thus, the public is generally entitled to use the intertidal zone for recreational purposes. Maine is one of only a few states (Delaware, Massachusetts, New Hampshire, Louisiana, and Virginia) in which coastal property owners (“upland owners”) own land out to the mean low-tide line (subject to a public easement for fishing and navigation).
In 1986, amidst a trial concerning the recreational use of Moody Beach, a sandy mile-long strip in the Town of Wells with approximately 100 private homes adjoining the beach, the Maine Legislature enacted The Public Trust in Intertidal Land Act, which declared that “the intertidal lands of the State are impressed with a public trust,” and, therefore, the public has the “right to use intertidal land for recreation.”
In 1989, the Maine Supreme Judicial Court in Bell v. Town of Wells 557 A.2d 168, 173-76 (Me. 1989), found The Public Trust in Intertidal Land Act to be unconstitutional and in violation of the Taking Clauses of both Constitutions of both Maine and the United States, and held that the common law right to a public easement on the intertidal lands was strictly limited to “fishing, fowling, and navigation” (citing case law back to 1810 which references the “Ordinance of 1641” and Maine’s common law roots from its time as part of the English colony of Massachusetts).
Today, another case about the public use of Moody Beach has found its way to Maine’s highest court (Peter Masucci et al., v. Judy’s Moody, LLC, et al., Docket No. Cum-24-82), this time from an underlying action where a class of plaintiffs seeking to use the beach to fish, walk, track birds, body surf, and harvest seaweed were seeking declaratory relief regarding the common law easement. The Appellants are now seeking to completely overturn Maine’s intertidal land doctrine based on first principal sovereignty arguments and arguments employing the Equal Footing Doctrine, or in the alternative, seeking to expand the intertidal land easement to include reasonable ocean-related recreational uses that do not interfere with the upland owners’ peaceful enjoyment of their property.
The Peter Masucci case will be fully briefed by the end of August, and an oral argument is expected in fall. If the appellants are successful in their ultimate goal of upending Maine’s intertidal property laws, there would be additional litigation expected relating to the Takings Clause, with beachfront property owners expecting “just compensation” for the regulatory taking/restriction of the use of their property (i.e., the restriction of the right to exclude others).
[In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), in which the United States Supreme Court ruled that when government actions take economic value from a property — in that case, preventing the building owner from placing any habitable structures on their property under a new law — the government owes just compensation to the owner, just like with eminent domain.] With Maine’s coastline being longer than California’s, we would expect plenty of litigation in the fallout.
We will continue to monitor this sandy dispute and the waves that flow from it, in both the silo of intertidal land disputes and with respect to the broader land and constitutional elements at play.
The briefs/filings for the Peter Masucci v. Judy’s Moody, LLC et al. matter can be found here.
The Bell v. Wells, 557 A.2d 168 decision can be found here.
A University of Maine School of Law Publication on public access to the shoreline can be found here.
