The question of who has access to intertidal zones on Maine beaches will soon be decided by the state’s supreme court.
The Maine Supreme Judicial Court heard arguments about who can spend time on intertidal zones of the state’s beaches at Lewiston High School Thursday morning, in front of roughly 40 students.
Private property owners along Moody Beach in Wells argue that they own the beach to the low tide area, while members of the public say they have the right to use the beach up to the high tide mark. The hearing stems from an appeal in a lawsuit filed by Peter Masucci against Judy Moody’s LLC in 2021 in Cumberland County.
“This is a case to restore the public’s rights to intertidal land,” said attorney Keith Richard, who represents non-land owners.
Currently, the shoreline property owners own the beach to the low tide line, thanks to a 1989 ruling based on an ordinance from the colonial period. If the state supreme court rules in favor of the public, however, it could affect beachfront property owners throughout the state.
Richard and the Office of the Maine Attorney General argued the intertidal zones are public trust, which means the rights of the public are preserved. They want “reasonable recreational use” of the zone.
Meanwhile, there are “deeply rooted rights” that the land is private and property owners have the rights to the land down to the low tide mark, said attorney Chris Kieser, who represents some Moody Beach property owners.
“I would simply urge this court to stick with the course … and recognize that these private rights are deeply rooted and to alter them at this time without compensating landowners would be taking it from them,” Kieser said.
No land owners involved in the lawsuit have told members of the public they cannot walk along the beach, both sides agreed. There is “implied permission” that people can walk along the intertidal zone and it is a “Maine tradition” for people to walk along the state’s beaches, said attorney David Silk, who represents the property owners.
However, there are signs that say the beach is private and loitering is prohibited, which has a “chilling effect” for people who want to use the intertidal zone, Richard said.
The lawsuit includes three private property owners along Moody Beach, Kieser said. But the high court’s decision could affect many more people in Maine, he argued.
“If this court … was to say the state holds tidal up to the high water mark, that would affect thousands of properties across the state who aren’t here to defend their rights and do so without compensation,” Kieser said.
The state is responsible for the public’s interest in intertidal lands through a public trust, according to state law. The protected rights include fishing, fowling and navigation, which stems from a colonial ordinance, Assistant Attorney General Lauren Parker said. The court must decide what modern activities are included in that and strike a balance between private and public rights, she said.
“To end the acrimony, chaos and conflict we ask, legalize reasonable recreational use of the intertidal zone,” Richard said.
Justices Catherine Connors, Wayne Douglas, Andrew Horton and Andrew Mead participated in the hearing. Chief Justice Valerie Stanfill participated virtually because of illness but will be involved in the decisions before an opinion is issued, Mead said.
Justice Rick Lawrence recused himself from the case.
The supreme court justices will issue a written opinion in the coming months.
