The Universal Notebook: Take back our beaches

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In 1989, the Maine Supreme Judicial Court in Bell v. Town of Wells held that upland owners own to the low-water mark along the coast and that the only rights the public has in the intertidal zone are for the purposes of fishing, fowling and navigation.

Just about everywhere else in the United States upland owners only own to the high water mark.

The Bell decision amounted to what a subsequent chief justice of the court called “a regrettable error.”

“Pursuant to our holding in Bell, a citizen of the state may walk along a beach carrying a fishing rod or a gun,former Chief Justice Leigh Saufley wrote, “but may not walk along that same beach empty-handed or carrying a surfboard. This interpretation of the public trust doctrine is clearly flawed.”

Bell was a narrow 4-3 decision with an enormous impact.

It amounted to a bunch of Massachusetts residents who owned cottages on Moody Beach suing to keep a bunch of mostly Massachusetts residents who stayed at campgrounds up on Route 1 in Wells from using Moody Beach. And the law that the Bell court cited in giving all of Maine’s beaches to private property owners was, you guessed it, a Massachusetts law, the Colonial Ordinance of 1641-1647.

The four justices in the majority all owned property on or near the shore, but Justice Daniel Wathen was the only one of the seven who owned beachfront property. He knew, however, that the Bell decision was wrong.

In writing the dissent, Wathen argued, “That conclusion is premised upon the erroneous assumption that the Colonial Ordinance is the exclusive and preeminent source of all public rights. In fact, public rights in the intertidal lands existed at common law, long before the Ordinance.”

Now comes a group of beachgoers, clam diggers, seafood dealers, seaweed harvesters and resort owners to sue some of the most contentious shorefront owners in an attempt to right the biggest mistake the Maine SJC ever made.

The premise of the lawsuit filed on Earth Day in Cumberland County Superior Court is, according to University of Maine School of Law Professor Emeritus Orlando Delogu, “All the intertidal land in Maine is owned by the state in trust for the public.”

Delogu’s 2017 “Maine’s Beaches are Public Property” is the playbook for the lawsuit. The group seeking to correct the Moody Beach decision has a website that documents the case:

In the Moody Beach case, the state made the mistake of granting that upland owners owned to the low-water mark but tried to argue (unsuccessfully) that the public rights had expanded over the years.

Thirty-one states have intertidal lands. In all but a handful, the state owns the intertidal zone. Maine and Massachusetts are the only two that recognize private ownership to the mean low water mark and limit public access to fishing, fowling and navigation.

Until the Moody Beach decision, the understanding and the practice in Maine was that the intertidal zone was in the public domain. It should be and will be again if the lawsuit succeeds.

The suit was filed first in a state court to allow Maine to correct its own mistake. Depending on what the Maine Superior Court finds, the case will eventually wind up in a federal court, where Delogu likes the chances of the Maine public getting their beaches back.

“No federal court case,” he said, “has ever found that states do not hold title to the intertidal lands.”

Let’s hope he’s right.

Edgar Allen Beem has been writing The Universal Notebook weekly since 2003, first for The Forecaster and now for the Phoenix. He also writes the Art Seen feature.

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