Peg Duddy and Mary Marra, both of Wells, march last August in a protest at Moody Beach in Wells. Thirty-five years since Maine courts ruled for property owners, making the beach private to the low-tide mark, opponents are fighting to challenge the law. Carl D. Walsh/Staff Photographer
A ruling by a lower court justice on the matter of allowing public access at Moody Beach in Wells is heading to the Maine Supreme Judicial Court and possibly the U.S. Supreme Court, says an attorney representing the plaintiffs who want to be able to walk and recreate on the York County beach.
Benjamin Ford of the Portland law firm Archipelago said in an interview Monday that the plaintiffs will appeal to the state’s highest court Superior Court Justice John O’Neil Jr.’s Feb. 9 ruling that denied Maine Attorney General Aaron Frey’s motion for summary judgment and which dismissed the plaintiffs’ motion asserting their right to walk on intertidal lands.
The plaintiff, Peter Masucci, who lives near Moody Beach, is seeking to expand the rights of usage in the intertidal zone.
O’Neil granted the defendants’ motion upholding a previous court decision permitting fishing, fowling and navigation within the intertidal zone, but which does not allow for general recreational activity. The defendants are identified in court documents as OA 2012 Trust, Judy’s Moody LLC, and Ocean 503. Keith Dennis is identified in court documents as Judy’s Moody sole member. All of the defendants, according to court documents, claim ownership of the intertidal land and have posted signs to that effect, including no loitering, no dogs allowed and private beach.
Ford, who represents members of the public who want to guarantee the right of the public to be able to walk and recreate on Moody Beach, said a favorable ruling by the Supreme Judicial Court will not only impact Moody Beach, but public access to beaches along the coast of Maine.
“Although I disagree with the judge’s decision, I appreciate that it has come this early,” Ford said in a statement on Monday. “Inevitably, the defendants would have appealed had Judge O’Neil ruled in our favor, so now we can just move straight to the state’s highest court and save everyone a little time and money.”
A spokesperson for the Office of the Maine Attorney General said that the office doesn’t comment on pending litigation. Attorney General Aaron Frey was identified in court documents as a party in interest to the plaintiff’s case.
Ford said he will file an appeal with the Supreme Judicial Court this month. He said legal observers believe the case could ultimately be taken up by the U.S. Supreme Court.
Orlando Delogu, a plaintiff in the case and emeritus professor of law at the University of Maine School of Law, said having the case brought before the U.S. Supreme Court would be a good outcome for the people of Maine.
A Moody Beach front property displays a sign last August quoting the 1989 Maine court ruling making the beach private, to the low tide mark. Carl D. Walsh/Staff Photographer
“I am confident that the highest court in the land would reestablish widely shared principles of law,” Delogu said in a statement. “With limited exceptions, intertidal lands are incapable of private ownership. Title to these lands is held by the state in trust for the public.”
In 1986 and 1989, the Supreme Judicial Court considered a title case brought by property owners on Moody Beach. In those two opinions, the justices found that private owners own all the way to the low-tide line, but the public still had limited rights to use private land in the intertidal zone for “fishing, fowling and navigation.” That language dates to an ordinance from the 1640s, and its meaning has long been disputed.
Maine has 3,500 miles of tidal coastline – according to state officials, the fourth-longest in the United States. Most of that is rock, and sand beaches are rare. Of the sand beaches, only 30 miles are publicly owned
APPEAL NOT A SURPRISE
Portland attorney David Silk said he represents OA 2012 Trust and Judy’s Moody LLC. Silk said his clients are pleased with O’Neil’s ruling. Silk said O’Neil chose not to overturn the 1989 court case, known as Bell v. Town of Wells, in which the court said the only public rights recognized in intertidal areas are those that were outlined in the colonial ordinance: fishing, fowling and navigating.
Silk said he is not surprised that Ford will file an appeal with the state’s highest court.
“We see this as being a part of the process,” Silk said.
Silk said the plaintiffs are trying to persuade the public into believing that beachfront land owners are actively trying to prevent people from walking on the beach. He acknowledged that some beachfront landowners at Moody Beach have posted signs warning people that Moody Beach is a private beach to the low-water mark.
Silk, however, said it is important for the public to know that here has “never been an instance of a person being told they can’t walk on the beach.”
“This (case) is an attempt to manufacture an issue that just isn’t here,” he said.
Ford disagrees with Silk, saying he is aware of several cases where beachfront landowners have called local police departments to have people sunbathing in front of their homes removed.
Ford said he looks forward to arguing his case before the state’s highest court.
“The fight continues. We are not giving up,” he said. “This will be the first, direct full throated statewide challenge to the 1989 decision.”
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