Maine judge affirms that intertidal zone belongs to private property owners
A Cumberland County Superior Court justice has affirmed that the land between the high and low tide marks on Maine beaches belongs to private property owners, not the state, but he did not rule on whether the public could use that land for activities like running.
The ruling dealt a blow to the nearly two dozen plaintiffs who filed a lawsuit to overturn the private ownership of the intertidal zone. Superior Court Justice John O’Neil Jr. dismissed nearly all of the claims and half of the defendants in an order this week. But O’Neil also suggested that a future order could expand the allowed uses on that public land, and the entire case still could be bound for the state’s top court.
“This lawsuit is the latest battle in the war over the intertidal lands off Maine’s coast,” O’Neil wrote.
Most coastal states own the land between the low and high tide marks on their beaches. More than 30 years ago, when the Maine Supreme Judicial Court ruled that private owners own all the way to the low-tide line, it also said the public has limited rights to use the intertidal zone for “fishing, fowling and navigation.” That language dates back to an ordinance from the 1640s, and its meaning has long been disputed.
The plaintiffs have asked the court to expand that definition, and that part of the lawsuit is still alive.
Many of the 23 plaintiffs have a business interest in the intertidal zone as seaweed harvesters and processors, clammers, wormers and oyster farmers. One is a marine biologist; another is a professor emeritus at the University of Maine School of Law and a longtime voice in the legal debate over beach ownership. Others own property near Moody Beach in Wells – the same beach that was the focus of the 1980s rulings from the Supreme Judicial Court. They filed their complaint in Cumberland County Superior Court in April 2021.
Attorney Ben Ford, who represents the plaintiffs, issued a statement Wednesday that did not address the sweeping dismissal. He also did not answer follow-up questions via email about what appeal options are available to his clients and how this ruling will impact their ultimate goal of public beach ownership.
WEIGHING NEXT STEPS
“Today’s decision proves what every Mainer who relies on our shoreline knows to be true – Maine’s intertidal problem is far from settled,” Ford wrote in an email. “This decision gives us several options on next steps and we are weighing those options carefully. We thank the court for its diligence in addressing these issues and are eager to continue toward reclaiming the coast of Maine for all Mainers.”
Attorneys who represent most of the defendants said they were pleased with the decision. Five of 10 defendants will be entirely freed from the lawsuit. In 2019, the Supreme Judicial Court found that rockweed is on private property and can no longer be harvested without permission from landowners. In this case, O’Neil found that those five people were being sued only because they either called the Maine Marine Patrol on rockweed harvesters in the intertidal zones near their property or advocated for rockweed conservation.
“If the plaintiffs’ decision to name the Pages, Li and Newby had nothing to do with their reports to Maine Marine Patrol, then it is curious why every single shorefront property owner who claims title to adjacent intertidal land is not named in this suit,” O’Neil wrote.
O’Neil dismissed the claims against that group of defendants as a violation of Maine’s Anti-SLAPP statute, which is meant to deter such lawsuits. (SLAPP stands for “Strategic Lawsuits Against Public Participation.”)
“It’s a very good outcome and the outcome they were asking for,” attorney Gordon Smith, who represents those five people, said Wednesday. “They don’t want to be in litigation. They were just exercising their rights as they understood them.”
One of those defendants was Robin Hadlock Seeley, a marine scientist and one of the founders of the Maine Rockweed Coalition, a nonprofit that promotes conservation.
“It reinforced the rights of landowners, including coastal land trusts, to protect vital marine landscape and prevent indiscriminate habitat destruction,” she said of the order on Wednesday.
ARGUMENTS NEGATED BY PREVIOUS OPINIONS
The judge also dismissed three claims that put forth different arguments about why the state is the true owner of the intertidal zone. O’Neil said the Supreme Judicial Court had negated those arguments in previous opinions, and the plaintiffs could not make their case by challenging land conveyances from the seventeenth century.
“Based on the facts plead in this complaint, even viewed in the most favorable light possible, this action to quiet title to the intertidal lands on the State of Maine has been brought 120 years too late,” O’Neil wrote.
Attorney David Silk, who represents two LLCs that own beachfront property in Wells, said the question of ownership is “well-settled.”
“We are pleased to see the court agreed that the law in Maine is well-settled regarding ownership of Maine’s intertidal land,” Silk wrote in an email.
He did not address the remaining claim against his clients about public use of the intertidal zone near their properties. The complaint says access to the intertidal zone on Moody Beach has been restricted by signage or verbal instruction to leave or stay away from that stretch of sand. O’Neil wrote that it is not clear whether activities such as walking, running or doing research are allowed in the intertidal zone, but it is possible that they are. Settling that question could be one next step in the litigation.
An attorney who represented another LLC could not be reached Wednesday afternoon. Two defendants are not represented by any lawyer.
Maine has 3,500 miles of tidal coastline – according to state officials, the fourth longest in the United States. Most of it is rock, and sand beaches are rare. The justices who heard the Moody Beach case in the 1980s are no longer on the Supreme Judicial Court. But their successors have ruled multiple times about beach access and ownership in the decades since. Those cases have often focused on the meaning of “fishing, fowling and navigation” in a modern context.
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