Who owns the beach?

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Maine’s Supreme Judicial Court is currently hearing the appeal of a case that could take significant property rights from every waterfront property owner in the state: intertidal rights. The case began when escalating tensions between beachgoers and property owners along Moody Beach in the town of Wells led to the beachgoers filing a lawsuit for their right to enjoy the beach on someone else’s property. 

Ever since Maine was part of the English colony of Massachusetts, it has been one of the few places in the United States where property rights of waterfront property extend not to the high tide line but the low tide line, as is certified by an English ordinance from the 1600s. In the 1980s, another lawsuit over the same issue was filed and the Maine Supreme Court confirmed that Maine’s coastal property rights extend farther than in most other states. This case, however, asks the Court to take a significant amount of property from beachfront property owners, and the Court should be very cautious when considering such a reduction in Mainers’ property rights.

When Massachusetts and Maine were still the Massachusetts Bay Colony in 1641, a colonial ordinance was passed that guaranteed the right to intertidal land to the owner of the land above the high water mark. Then, when Maine became a state in 1820, the state Constitution enshrined all previous rights and laws not in conflict with other state laws in Article X Section 3. 

Then, in 1989, the Maine Supreme Judicial Court heard a case calling into question the ordinance. The 1600s ordinance provided a list of “public easement” exceptions, specifically for fishing, fowling, and navigation. Legally, a public easement means that members of the general public can use a part of someone else’s property, but only for specific purposes. The plaintiffs in the 1989 case argued that these exceptions are not exclusive and indicate a general recreational easement for the public to use the intertidal zone as they please.

The Court, however, disagreed with this interpretation and pointed to a long series of Maine and Massachusetts cases interpreting this public easement over private intertidal property as being limited in scope. It is important to remember that courts when making rulings like this rely on their role as legal interpreters rather than policymakers. If you want a law changed, you should contact your legislator, not your local judge, and the fact that no previous cases had made this interpretation of the law meant that the Maine Supreme Court would have to be seriously stretching its role (and potentially violating the separation of powers) by changing their interpretation.

The same rule applies now, so the Court should be cautious in reinterpreting law. They are not lawmakers and should not be able to write new laws because they don’t like the old ones. If the plaintiffs feel that the right to sunbathe in intertidal spaces should be protected, they should pass a state law rather than request that the judiciary act outside of its authority.

Another reason the Court should be cautious when considering this case is the massive potential costs it could have. While only 2% of Maine’s coastline is sandy beach, our state’s total coastline is massive, even longer than California’s. By taking away the right of landowners to disallow beachgoers from wandering on their property for any purpose, a significant property right, the right to exclude others, would be taken away.

Under the Fifth Amendment, the government can’t take someone’s property without “just compensation.” This is called the “takings clause” and applies to any physical or regulatory taking of value from a property. While the most well-known use of this eminent domain usually applies to the seizure of entire pieces of property, takings clause violations also apply to government action that reduces the value of property or rights of property owners.

One example is Lucas v. South Carolina Coastal Council, in which a property owner was allowed to keep his beachfront property. Still, a new local ordinance prevented him from building any habitable structures on it. The United States Supreme Court ruled that when government actions take economic value from a property—in that case, all economic value—the government owes just compensation to the owner, just like with eminent domain.

Suppose Maine’s high court does rule that the right to exclude others from the intertidal zone no longer exists. Maine may have to pay property owners millions of dollars in reduced property value if it is found that the ability to exclude those not hunting, fishing, or navigating is a significant piece of a property’s value. Even worse is if Maine were to entirely remove ownership of the intertidal strip, as the protestors proclaim, “This sand is yours! This sand is mine! Reverse the curse of ’89!” A total seizure of a part of someone’s land by the state would be directly analogous to eminent domain takings and would likely mean even more compensation for landowners.

An attorney for the plaintiffs has said that under the current law, “You can take aim and fire at birds, but you can’t go birdwatching.” But that is not true as long as you bring a fishing rod and claim you’re fishing. Then you can watch any birds you want. Even if this statement were entirely true, a law treating fishing differently from sunbathing is not enough for a court to step outside its judicial role. 

This case is yet another before Maine’s courts asking the judiciary to step outside of its constitutional role, and hopefully, the Maine Supreme Court will refuse.