Fight over Maine beach access now comes down to one question

WELLS, Maine —  A decide has whittled down a wide-ranging lawsuit in opposition to intertidal seaside property house owners to a single query.

What precisely is the scope of the general public’s proper to entry such land?

With no exact solutions supplied, native plaintiffs could also be in a position to struggle one other day on a minimum of that entrance. In any other case, Superior Court docket Justice John O’Neil dominated in a call earlier this week that intertidal zones – these stretches of seashores between the high- and low-water marks – belong to the property house owners who dwell upland.

For Lawyer Benjamin Ford, who represents the plaintiffs within the case, the decide’s determination offered simply sufficient motive to maintain transferring ahead.

“As we speak’s determination proves what each Mainer who depends on our shoreline is aware of to be true: Maine’s intertidal downside is much from settled,” Ford stated in a ready assertion. “We thank the Court docket for its diligence in addressing these points and are desperate to proceed with the following steps towards reclaiming the Coast of Maine for all Mainers.”

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Final April, Ford stood close to a personal stretch of Moody Seaside in Wells and declared he had filed a lawsuit in Portland that sought to return non-public seashores alongside the Maine coast to the general public. The plaintiffs included each business and leisure beachgoers, and the swimsuit took purpose at eight defendants, three of whom personal intertidal properties in Wells: Judy’s Moody, LLC, OA2012 Belief, and Ocean 503, LLC.

Residents Peter and Cathy Masucci, of Wells, are amongst Ford’s shoppers. Others dwell in such communities as Waldoboro, Tub, Portland, Peaks Island, and Needham, Massachusetts.

Final summer time, attorneys for the house owners of personal seashores – in Harpswell and Friendship, Maine, along with Wells, for instance – filed motions to dismiss the case altogether.

In his determination, O’Neil granted the movement to dismiss the case because it pertained to the intertidal land house owners in Harpswell and Friendship who had been caught in a dispute with people who had been harvesting rockweed on their property for business functions.

Nonetheless, when it got here to the native defendants, Judy’s Moody, OA2012 Belief and Ocean 503, the decide solely granted their motions to dismiss partially – asserting that they did certainly personal their intertidal land however leaving imprecise the query of what constitutes acceptable public use.

In submitting the swimsuit final yr, Ford took purpose at a call that the Maine Supreme Judicial Court docket made a long time in the past. Ford known as the choice “an historic mistake” that “locked away hundreds of miles of the Maine coast.”

In 1984, householders alongside Moody Seaside in Wells accused native and state authorities of failing to deal with beachgoers on their non-public seashores as trespassers. The householders requested the courtroom to ban the general public from utilizing the seaside in entrance of their properties, not solely on the dry sand but in addition the intertidal zone, based on a report on public shoreline entry produced by the Maine Sea Grant School Program, the Maine Coastal Program, and the Wells Nationwide Estuarine Analysis Reserve.

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Two years later, the Maine Supreme Judicial Court docket dominated that the colonial ordinance enacted within the 1640s is a part of Maine’s frequent legislation. That ordinance had acknowledged non-public possession of beachfront property as together with the intertidal zone, extending all the best way to the low-tide mark. It had additionally acknowledged the general public’s proper to fish, fowl and navigate on privately owned tidelands, based on the report.

In 1989, in Bell v. City of Wells, referred to as the Moody Seaside case, the state’s high courtroom dominated that the one public rights acknowledged in intertidal areas are people who had been outlined within the colonial ordinance: fishing, fowling and navigating.

Meaning beachfront property house owners alongside Maine’s coasts have property rights all the best way right down to the low-tide space, aside from an easement to permit the general public to have interaction in these three permitted actions.

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In his determination, O’Neil famous that the scope of the general public’s utilization rights “has been pliable.”

“The Regulation Court docket has maintained a versatile strategy to figuring out what public makes use of are allowed within the intertidal space,” O’Neil wrote.

O’Neil added that the courtroom had endorses public makes use of of the land which might be associated to, “however not coextensive with,” fishing, fowling and navigation.

“Thus, what constitutes a permissible use of the intertidal zone by the general public has taken many kinds,” he added.

O’Neil famous that it was not clear which actions the plaintiffs want to pursue within the intertidal areas. Nonetheless, he did say it was “conceivable” that they’re wanting to have the ability to stroll, run or get pleasure from another types of motion on such land. O’Neil even referred to a plaintiff who’s a researcher who needs to entry intertidal lands for his skilled functions.

O’Neil famous that the Regulation Court docket has not particularly addressed whether or not actions associated to motion or analysis is permissible throughout the intertidal zone.

“Given the expansive and broad strategy that the Regulation Court docket has taken with regard to defining these utilization rights, it’s conceivable that motion associated or analysis primarily based exercise could also be an appropriate use,” he wrote.

The Related Press contributed to this report.