Maine Supreme Judicial Court justices hear arguments from lawyers for private property owners and those who believe the intertidal zone, the area between the high and low tide lines, should be public, during a session at Lewiston High School on Thursday. Derek Davis/Staff Photographer

LEWISTON — It’s divided neighbors and sparked heated debates throughout the state. But does the conflict behind a legal effort to expand public access to Maine beaches deserve a new ruling from the state’s law court?

The Maine Supreme Judicial Court considered that question Thursday during a traveling session at Lewiston High School as the justices heard more than an hour of oral arguments about whether the intertidal zone, the area between the high and low tide lines, should be public.

More than a dozen people, including business owners, harvesters, beachgoers and researchers, sued a handful of businesses and people who own property on the Maine coast, arguing that the intertidal land should be public. Their case was dismissed after a trial judge found that some of the plaintiffs didn’t have “standing” and there wasn’t enough of a “live controversy” to their claims. So they appealed the case to the high court.

Since 1647, the public has only been allowed to “fish, fowl and navigate” on intertidal land. The Supreme Judicial Court reinforced those rights in a 1980s case involving Moody Beach in Wells, saying that intertidal land could be privately owned and subject to those three limited public uses.

The court also ruled in 1989 against expanding public uses to include “recreation.” Maine  Attorney General Aaron Frey has indicated he would support adding “walking” to the allowable activities, but he has not argued the land should be made public.

But the plaintiffs in the latest case believe that the intertidal land belongs to the public – and, if it is not owned by the state, then it should at least be subject to a broader swath of public uses, including recreation.

“Almost everyone believes in these public rights,” attorney Keith Richard argued before the court Thursday. “Only a few of the very few, who own waterfront property, want to retain the right to exclude (people). And their view is extreme.”

Both sides, however, believe that how the justices rule will have widespread implications in Maine.

Lawyers for the property owners said that any ruling in the plaintiffs’ favor would result in the state unfairly taking property from its citizens.

“When a judicial decision does expand rights at the expense of previously recognized private rights, that would be a taking,” lawyer Christopher Kieser said on behalf of one of the Moody Beach defendants.

Assistant Attorney General Lauren Parker argued that simply expanding allowable activities wouldn’t harm property rights because “narrow” uses like walking shouldn’t create any burdens for landowners. She said previous court rulings have favored letting those public uses evolve.

Thursday’s arguments, however, centered on whether all of the plaintiffs have a right to sue these property owners, since none of the Moody Beach defendants had actually kicked the plaintiffs off the beach for walking.

‘NO CONFRONTATION’

Richard described the “private property,” “no trespassing” and “no loitering” signs that property owners have placed on Moody Beach in Wells. He argued the signs have frightened beachgoers, who have some limited rights to the intertidal zone.

Some Mainers have complained of private property owners calling police on their children and shouting threats. But none of this was mentioned in Thursday’s arguments and lawyers for the three defendants on Moody Beach said their clients have no problem with people walking across the intertidal zone.

“This is a case to restore the public’s rights on intertidal land,” Keith Richard, an attorney for the plaintiffs, told the justices Thursday. Derek Davis/Staff Photographer

The landowners’ lawyers also questioned whether these signs have actually injured beachgoers enough to warrant a lawsuit.

While some of the plaintiffs have crossed the intertidal zone on Moody Beach, Emily Arvizu, a lawyer for one of the defendants, said her clients have never asked them to leave.

“They have never interacted with my clients to the best of my knowledge,” said Arvizu. “There’s been no confrontation, no objection, no action at all.”

Arvizu said there was nothing wrong with nor confusing about a “no loitering” sign.

“There doesn’t seem to be any conflict here, in the sense that I haven’t heard from any of the property owners that there’s an objection to the public walking through the intertidal zone,” Associate Justice Wayne Douglas told Richard, who pushed back. 

“The signage and the chilling effect overstates their rights,” Richard said. “‘No loitering,’ I think … is a misstatement, an overstatement, of their rights.”

“How is it an overstatement that they own it?” asked Associate Justice Catherine Connors. “I mean, you don’t like that they own it, but is that enough to give you standing?”

A sign on Moody Beach references the 1989 Maine Supreme Judicial Court ruling that property owners own the beach down to the low water line. Gregory Rec/Staff Photographer

Richard argued there’s enough confusion and controversy to support their case, agreeing with Associate Justice Andrew Horton, who suggested that some property owners might consider fishing to be loitering.

ROCKWEED CLAIMS

This case isn’t just about the beach. The group also sued seven individual property owners who have objected to “rockweed theft” from their property, which nearly all of them had called Maine Marine Patrol to report.

Rockweed can be found and harvested from the state’s rocky shores and is a growing industry. The harvesters are hoping the court might overturn a 2019 ruling in which it found the public does not have the right to harvest rockweed from intertidal land.

Gordon Smith argued that his client Robin Hadlock Seeley wasn’t even accused of calling the police. He said she was sued for advocating that people report unauthorized harvesting. Most of the rockweed defendants, including Seeley, were dismissed because the lower court agreed they were being sued for protected activity.

“She was sued solely because she’s a rockweed conservationist, or advocate, rather,” said Smith.

Maine Supreme Court Justices heard oral arguments at Lewiston High School on Thursday. Derek Davis/Staff Photographer

“In your opinion, was the lawsuit frivolous?” Associate Justice Andrew Mead asked at one point.

“It certainly borders on frivolous,” Smith said, nodding.

Benjamin Ford, an attorney for the plaintiffs, disagreed. He said that the 2019 ruling was decided using incomplete information.

“They’re being sued for claiming ownership of land and over a marine resource that we don’t think they have rights to,” said Ford. “If you are stating that you own something and the law that supports your ownership of it is in question, then your claim is also in question.

“So, in other words, we don’t bring these cases to punish people. It’s never about punishing people, it’s always about getting clarity in a law.”

The court has no timeline for its decision.

“They take these cases very seriously and they don’t go into these things with their minds made up,” Ford said of the court. “What you saw was the court wrestling with some of the key issues in this case – and they’re not easy. We think that the decision really has to be one way, and the judges will eventually get there, but today what you saw them questioning was how they can get there.”