December 10, 2018
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Maine law professor: Beaches should be public property

Jennifer Feals | York County Coast Star
Jennifer Feals | York County Coast Star
Goose Rocks Beach, Maine.

YORK, Maine — Orlando Delogu is on a mission. The University of Maine School of Law emeritus professor believes the state’s beaches belong not to the property owners who live along them but to the public. And he is using his time in retirement to find allies to fight the issue in the state’s high court or even the U.S. Supreme Court.

At its core is the question: Do the property owners along a Maine beach own the land in the intertidal zone — the portion of the beach between the mean high tide and the mean low tide marks? Or is it public, to be used unfettered by any person? Delogu argues that by laws dating back to before English Common law, it is public. The Maine Supreme Judicial Court has to date taken a different view and in Delogu’s mind “holds the wrong end of the stick.”

A key vehicle to bolster his argument may be found in the recent York County Superior Court ruling in favor of the town of Kennebunkport in its court battle over public access with property owners along Goose Rocks Beach.

But the underpinning of his argument deals with two cases brought against the town of Wells by Moody Beach property owners in the 1980s. In its decision, the Supreme Judicial Court sided with the property owners. It ruled the public’s use of the beach was limited to “fishing, fowling and navigation” activities laid out in a 1647 Massachusetts Colonial Ordinance. Lounging on a beach chair did not count, in essence.

Delogu, who spoke recently at the York Public Library, lays out his research in a recently published book, “Maine’s Beaches are Public Property.”

He said he has found only Massachusetts and Maine, which was part of Massachusetts until 1820, have “given away intertidal lands to upland owners.” In other states and jurisdictions, bolstered by U.S. Supreme Court decisions, the lands along waterways have been considered in the public use, he said.

He said states have in essence followed English Common Law, which keeps land seaward of the mean high water mark “in the public trust for all citizens.” That law in turn was based on early Roman law that stated the “the shores of the sea” were “incapable of private ownership.” He cites numerous cases unsuccessfully brought by private property owners asserting ownership of shoreline.

“So how did a Maine court in 1986 and 1989 manage to hold that the intertidal lands of an entire state were privately held? How can a judicial branch of government give away the entire intertidal land of an entire state?” he said. The answer is that it relied on the 1647 Massachusetts ordinance, he said, even though Maine is a sovereign state with the right to make its own laws.

In its 1989 order the Supreme Judicial Court characterized its ruling “as a type of ‘judicial legislation.’ I say that is an oxymoron,” Delogu said. “It doesn’t exist. It’s a fiction. The court decides cases, it doesn’t adopt policies that shape the future.”

Asked why the Moody Beach cases were never appealed to the U.S. Supreme Court, he said “timidity. They have every right to take it to the U.S. Supreme Court. Courts sometimes do grab the wrong end of the stick. Sometimes 50, 60 years later, a future court has said, ‘This is absurd’ and overturned a decision. They’re not rules in cement. Otherwise we would still have slavery.”

He said over time, he believes the upland property owners “will get more uppity. That’s the experience in Massachusetts, and it’s getting to be the case in Maine.” Since the Moody Beach case, the upland owners of Goose Rocks Beach in Kennebunkport have also taken the town to court.

In that case, he said, the town was able to show it had deeds from the founding of the town that showed it had rights to the intertidal land for the public. “That case is going to the law court (Supreme Judicial Court) and it may be the occasion” of dealing with the broader issue of public rights to that land. “The 22 parcels on Goose Rocks Beach may be the vehicle for recovery” of the intertidal zones along the entire coast, he said.

In addition, he said, the Maine seaweed industry has shown some interest in appealing the Moody Beach decisions because the decisions governed not only beaches but the coast including those rocky outcrops loaded with seaweed. “They want to make a big deal out of ownership, because 95 percent of Maine is amenable to harvesting seaweed.”

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