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.
Background
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 Takings Clauses of the 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).
Present Day
Recently, 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 Clauses, 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).
This article originally appeared on Goldberg Segalla.
About the Author:
Thomas S. Holmgren is an associate at Goldberg Segalla.