In the packed auditorium, a stream of Wells residents approached the podium. As Steven Levesque began to address the town’s Board of Selectmen on May 21, he briefly looked back at the audience.

“My hope is after this, that we remain friends,” Levesque said.

It was the first of two highly attended public hearings this summer to discuss a lawsuit filed against private landowners who say the shores of Moody Beach are theirs.

Several speakers accused the landowners of calling police on their small children and not paying enough in taxes. Landowners felt they were being harassed and vilified and warned the beach would descend into chaos if it was open to just anyone.

The town has voiced its cautious support for the plaintiffs, a group of beach access advocates who argue that the state of Maine is the rightful owner of all intertidal property – the land between the high and low tide marks.

It’s a question that has been asked, tweaked and appealed for centuries. People are constantly litigating what the public is allowed to do on private beaches. And Moody Beach, a small strip of shoreline with roughly 100 homes, has been at the center of it all.

Since statehood, Maine courts have held that individuals can own land as far as the low-tide line, but the public is allowed to “fish, fowl and navigate” between the high and low tide marks. The language stems from a 1647 colonial ordinance that was enacted 170 years before Maine’s statehood.

In 1989, it was at Moody Beach that the Maine Supreme Judicial Court upheld this private ownership system.

Now more than 30 years later, two dozen people are asking the high court to reconsider their ruling. Arguments are scheduled for October.

The plaintiffs want to expand the public’s right to use the intertidal land for “recreation.”

The defendants say the arguments are an attack on their property rights; Moody is a private beach, the public has no right to access it.

And it’s not just in Wells where coastal neighbors are feuding.

Nearly 85 miles north, in a subdivision beside Popham Beach State Park, two families are headed to court in Wiscasset on Tuesday to debate who has the land rights to the neighborhood beach. Benjamin Ford, a lawyer for one of the families who want the beach to be a common area, is also representing the plaintiffs in the Moody case.

“It’s along the same themes,” he said. “It’s people buying land that really belongs to everyone, and trying to claim land for themselves that’s previously been claimed or used by everyone.”

‘PUT THIS TO BED’

Maine courts have, over decades, considered many cases on intertidal ownership and public rights.

Though they always uphold private ownership, there’s often debate among the justices on whether people should be allowed to do more than fish, fowl and navigate.

In the 1989 decision, three justices – including former Chief Justice Daniel Wathen – dissented. They believed the allowed public uses of intertidal land should be more dynamic than what was outlined 300 years earlier.

“In my judgment, the public rights should not be so quickly and completely extinguished,” Wathen wrote at the time.

In 2011, the court was again divided on the issue.

The justices were asked whether scuba divers had a right to walk in the intertidal zone to reach the water. Some of them believed it was an opportunity to entirely revisit the 1989 decision and expand public access. But there wasn’t majority support for bigger change, and so the court released an incremental decision, siding with the scuba divers.

Ford and his co-counsel on the latest Moody case, Keith Richard, say that since 1989, the court has been in this situation a lot, forced to address “increasingly absurd questions about what is considered fishing, fowling and navigation.”

“So you can go fowling, you can go bird hunting,” Richard said during a joint interview. “But can you go bird watching? … You can literally (shoot) at birds, but you can’t watch birds?”

“And then the question becomes, ‘Well, what is navigation?’ ” Ford said. “Running and walking, everyone seems to agree that is navigation. But what about stretching before a run? At what point do you stop becoming a runner and become a trespasser?”

The Office of the Maine Attorney General has intervened in the case to cautiously support expanding the public’s right to walk on intertidal land, but the office isn’t pushing for state ownership.

“Walking does not overburden the landowner,” Attorney General Aaron Frey wrote in a brief to the court. “It is a transitory activity. It is an inherent part of already recognized public trust activities like loading and unloading cargo, clamming, reaching the ocean to scuba dive, and passage to reach houses. It is not extractive.”

The property owners along Moody Beach disagree.

Christopher Kieser, who is representing Judy’s Moody LLC, one of the defendants, said Maine has a deep-rooted history of respecting property rights.

“Over the years there’s been a lot of litigation about what fishing, fowling and navigating mean,” said Kieser, who works in California and has represented landowners in similar cases in other states. “But there’s never been a decision of any court in Maine that has held that the public rights are broader.”

Kieser said he believes that even if the court were to rule in the plaintiffs’ favor, “the dispute is destined to continue.”

“The only way to put this to bed would be for the court to emphatically say, ‘This is the law and we’re sticking to it,'” Kieser said. “The litigation is not going to end if they win.”

‘FULL, FRONTAL ASSAULT’ 

Orlando Delogu, an emeritus professor at the University of Maine School of Law, has followed every intertidal case in the high court since he arrived in the state in 1966.

Delogu specializes in land use issues and has always believed that the state of Maine is the inherent owner of all of its intertidal land dating back to its statehood. He says the high court’s many decisions stating otherwise are wrong.

He’s written briefs as an interested party in these cases. He published a book. And he helped construct the very lawsuit that the high court is now considering, in which he is one of 24 plaintiffs.

“The case came into being because we found 24 individual citizens of Maine, all of whom derive either a portion of their economic livelihood or some of their recreational pleasures, by using intertidal land,” he said. 

Those citizens include nearby property owners and a resort who argue they and their guests should be able to enjoy the beach. They also include businesses and individuals that harvest rockweed and clams and a marine biologist – not all of whom are suing for access to Moody but for the right to harvest anywhere on Maine’s coast.

Richard and Ford said the case was designed as a “full frontal assault” on the 1989 decision.

“This current Moody litigation has been structured so that they have to rule on these other recreational uses,” said Richard.

Delogu says he is eager to directly address the high court.

His arguments haven’t changed, he said, but the times have – intertidal access is even more important to the public now that the land is so much more commercially lucrative.

“As seaweed is found to be more useful in a wider range of purposes that people will pay good money for, then the intertidal land becomes economically just much more valuable,” said Delogu.

If you control the land too much, you kill the industry, he said.

The court has already ruled on this issue, too, but Ford, Richard and Delogu hope their case will compel the court to overturn the 2019 decision that said the public doesn’t have the right to harvest rockweed from intertidal land.

They said it relied too heavily on the 1989 decision, which their case was designed to take on as a “full frontal assault.”

“This current Moody litigation has been structured so that they have to rule on these other recreational uses,” said Richard

To get at that question, seven of the defendants they named have objected to rockweed being taken from private, intertidal property. Their properties are in Harpswell, Friendship and Pembroke, more than 70 miles north of Moody Beach, and hardly an area where people recreate, because their property is so rocky.

Five of those individuals were named because they called Maine Marine Patrol on harvesters.

“I don’t think that they did so out of a belief that they didn’t want anyone on their property,” said Gordon Smith, the attorney for the “rockweed defendants.”

“I think they understood that rockweed is an important part of the ecosystem and they understood that the Maine Supreme Court has said in (2019) that you can’t harvest rockweed without permission,” Smith said. 

TAPPENS AND HILLS

In the Popham Beach case, two families – the Tappens and the Hills – are suing each other over access to their neighborhood beach.

The Tappens argue that this is a neighborhood argument and not an issue about public rights.

“This is a private dispute between two neighbors in an oceanfront subdivision in Phippsburg, Maine,” their attorney Glenn Israel wrote in an email. “It does not implicate any public rights, and my clients are not interested in mounting a public relations campaign against their neighbor. We will say what needs to be said in the courtroom.”

But Ford, who represents the Hills in addition to his work on the Moody case, says there is a broader question at play.

“We’re passionate about this issue, but we hate litigating cases about the beach,” said Ford. “The beaches are places for people to have fun and to relax. They’re not places for people to get lawsuits. Ultimately, what we’re fighting for is to preserve in Maine what we have now, which is free and open access at the beach, to prevent the closing off of all our intertidal land.”

The debate began when Richard Tappen bought a “release deed” from another neighbor, which allows someone to sell any interest they have in a piece of land even without definitely knowing what that interest is.

Tappen believes the deed extends all the way to the low water mark and that the Hills and those who rent their homes can’t use that part of the beach. But the Hills argue that they’ve been using it for so long – decades – that they have rights. They also argue that the release deed means little and that early subdivision maps zoned the beach as a common area.

Dick Hill said in an interview that he and Tappen have been neighbors in this seasonal subdivision for a long time. They’re close in age and have been visiting Phippsburg for decades.

“And for him to all of a sudden think he can buy the beach that he and his family have used willy-nilly for all of their lives – they’ve been there for the same 70, 80 years that I’ve been there,” Hill said.

Since the lawsuits, he said, things have become uncomfortable between the neighbors. They’re finally scheduled to go to trial Tuesday.

“The terrible part of this is that in the long run, God forbid, that he wins the case – we can’t use our beach anymore,” Hill said.

This story was updated at 11:30 a.m. Sept. 16 to correct the name of the attorney representing one of the defendants in the Moody Beach case. His name is Christopher Kieser. 

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