CITIZENS GUIDES TO OCEAN AND COASTAL LAW

Public Shoreline Access

AND THE

Moody Beach Case

MARFNE

LAW

INSTITUTE

hteretmh

Marine Law Institute

University of Maine School of Law

246 Deering Avenue

Portland Maine 04102

August 1990

In March 1989 the Maine Supreme Judicial

Court issued its decision inBell v Town of Wells

also known as the Moody Beach Case The case

has come to symbolize the conflict between public

versus private rights to the shore in Maine and it

has been cited as authority for the proposition that

the public has only very limited rights in the

intertidal zone the area between high and low

tide

Public access to and along the shore is a

sensitive issue in Maine which despite its mag

nificent 3500 mile coastline has only 27 mites of

publicly owned sandy beaches2 Furthermore an

ancient Colonial Ordinance applicable only in

Maine and Massachusetts extends private prop

erty rights to the low water mark subject to a

public easement for fishing fowling and naviga

tion The extent of permitted public uses of

private tidelands is therefore an extremely impor

tant issue and is directly affected by the Moody

Beach Case

How the Case Arose

Moody Beach is a sandy beach about a mile

long in the Town of Wells just north of the

Ogunquit town line About 100 private homes

adjoin the beach and in 1984 28 of these home

owners filed a quiet title action in Superior Court

against the Town of Wells the State Bureau of

Public Lands and various individuals The own

ers sought a court declaration to prevent the public

from walking swimming sunbathing or using the

beach in front of their homes for general recrea

tional purposes The owners were concerned about

the increase in the publics use of Moody Beach

and the Town was perceived as unwilling to treat

members of the public who were abusing their

beach privileges as trespassers The Superior

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Court however dismissed the case on the grounds

that the State may not be sued without its consent

sovereign immunity The property owners ap

pealed to the Maine Supreme Court

The First Decision Bell I

In 1986 the Supreme Court ruled in Bell 11

that the property owners suit should not have been

dismissed on the grounds of sovereign inununity

because the State was not an indispensable party to

the litigation In so doing the Court found that the

State was not the trustee of public rights in tide

lands in Maine and therefore the owners were not

required to sue the State along with the Town of

Wells The Court also found that the Colonial

Ordinance enacted by the Massachusetts Bay

Colonies between 16411647 altered Maines

common law by extending private ownership of

the beach to the low water mark extinguishing all

public rights in privately owned tidelands except

for fishing fowling and navigation

Bell had two effects First before the case

was decided in response to conflicting claims to

Moody Beach the State Legislature enacted The

Public Trust in Intertidal Land Actl in 1986 The

Act declared that the intertidal lands of the State

are impressed with a public trust and therefore

the public has the right to use intertidal land for

recreation Second the ruling inBell permitted

the case to proceed to trial in Superior Court on the

issue of whether the extensive public use ofMoody

Beach had created a public recreational easement

by prescription implied dedication or local cus

tom

After a fourweek trial in 1987 the Superior

Court decided that the public had acquired no

easement over Moody Beach by custom or any

other common law doctrine and that the 1986

Public Trust in Intertidal Land Act guaranteeing

public recreational use of intertidal lands was un

constitutional This decision was appealed to the

Maine Supreme Judicial Court

The Courts Final Decision BellII

In 1989 the Maine Supreme Court upheld the

lower court ruling and found that

InMaine public rights inpri vately owned

2

tidelands are limited only to those specifi

cally enumerated in the 1647 Colonial

Ordinance that is fishing fowling and

navigation The Court held that although

the Colonial Ordinance was never ex

pressly adopted by the State Legislature

and was annulled by the revocation of the

Massachusetts Colonial Charterin the late

17th century it has become part ofMaine s

common law by custom and usage

Since the Colonial Ordinance extends ad

joining private property rights down to the

low water mark Maines Public Trust in

Intertidal Land Act caused a physical in

trusion to private property by permitting

public recreational use of private tide

lands Therefore the Act was an uncon

stitutional taking of property for public

purposes without just compensation for

bidden by the 5th and 14th amendments to

the United States Constitution and Maines

State Constitution

No public rights beyond fishing fowling

and navigation were acquired at Moody

Beach by custom prescription orimplied

dedication If the State or the Town of

Wells wishes to extend public uses be

yond those prescribed by the Colonial Or

dinance it must purchase the beach or

exercise its powers of eminent domain

and pay just compensation

After Moody Beach What Are the

Publics Rights Along the Shore in

Maine

The public still has the right by virtue of an

easement created by the Colonial Ordinance to

use privately owned intertidal land but only if it

is engaged in fishing fowling or navigation The

land to which this easement applies is the area

between mean high water and mean low water or

to 1650 feet seaward from the high water if the

mean low watermark is even farther seaward If

the shoreline is beach this is the wet sand area If

the shoreline is marshmudflat orledge the inter

tidal area will commonly consist of gravel beaches

or mud flats See the following diagram for

further illustration

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Public Beach Rights After Moody Beach

ATLANTIC OCEAN

LOW TIDE

SUBMERGED LANDS

state owned

SANDY BEACH private property

no public trust rights in Maine

IIIGII TIDE

PRIVATE TIDELANDS TIDAL FLATS

OR FORESHORE subject to public trot

rights of only fishing fowling navigation

in Mainc

The lands seaward ofmean low water or 1650

feet from high water are called submerged

lands They are owned by the state Public use

is not restricted to fishing fowling or navigation

The public generally has unrestricted use of the

water and sea bottom subject to state regulations

However public rights to use certain submerged

lands may be restricted by leases between the State

and private individuals in which the lessee is

granted exclusive use of particular submerged

lands such as for aquaculture or marinas

The dry sand area or rocky shore area above

mean high water and adjacent uplands are gener

ally privately owned Only about7of the coast

line is in public ownership The public has no ab

solute light to make any use of that privately

owned land for recreation fishing fowling navi

gation or any other purpose Neither does the

public have a right to pass over privatelyowned

upland to obtain access to the intertidal area to

3

Anne Bernard

engage infishing fowling ornav igation In Maine

there has been a custom of permissive access or

permissive trespass which the public has relied

on to cross privately owned unimproved un

posted land with the assumption that they had

informal permission of the owner However this

customary use rarely achieves the status of a

legally enforceable right and depends on contin

ued land owner acquiescence

Clearly the public has rights to use the upland

if it is publicly owned subject to any governmen

tal regulations The public also has a right to use

the upland if the public has been granted an ease

ment over private land such as with a public road

or public path The public may also have a legally

enforceable right of use if the upland owner has

granted the public the right to use it by license

lease or otherwise Finally as discussed above

even though not a legally enforceable right the

public may be able to cross private unimproved

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unposted land through the tradition of permissive

access but only with the actual or impliedpermis

sion of the property owner

What Is Meant by Fishing Fowl

ing and Navigation

The Maine Court has been addressing this

question on a case bycase basis since the early

19th century There is however no comprehen

sive statement of appropriate public uses in the

intertidal zone under the Colonial Ordinance

The Court has held that the easement includes

uses reasonably incidental or related to fish

ing fowling and navigation The public ease

ment applies equally to protect those individuals

involved in fishing fowling or navigation for

sustenance business or pleasure

Since many of the cases date from the mid

19th century the case law is sometimes of limited

help in defining the modem parameters of these

terms The cases have held that the term fish

ing includes digging for worms and clams and

the taking of shellfish a person has a right to be

on the privately owned intertidal area as long as

he is engaged in those activities However there

are some apparent restrictions on removing items

located in the intertidal area while taking fish

shellfish sea manure and floating seaweed from

the intertidal zone is allowed cases have held that

the public may not harvest mussel bed manure

or seaweed cast upon the beach from within that

zone The cases also suggest that the public may

not remove sand and empty shells from the inter

tidal area The Court has previously found that

the publics right to fish does not include the right

to erect fish weirs or fasten seine or fishing equip

ment to private tidelands

The term fowling has not received nearly

the same judicial scrutiny It is generally inter

preted to mean bird hunting Some commenta

tors have suggested that the meaning should be

widened to include bird watching but there is no

indication that the Court would be willing to

extend the ordinance beyond the obvious mean

ing of the wont

The term navigation has been construed to

mean that the public can sail over the intertidal

lands can moor craft upon them and can allow

4

vessels to rest upon the intertidal land when the

tide is out These activities may be conducted for

profit such as ferry services in which the boat

operator picks up and discharges passengers on

intertidal land

As an incidental use if a person reaches the

intertidal land by means of navigation the person

can walk on the intertidal lands for purposes

related to navigation or to reach lands but not

necessarily the land of the upland owner which

are accessible by travelling along the intertidal

zone11 This right to travel through the intertidal

lands does not however include the right to

remain on the intertidal lands for bathing sun

bathing or recreational walking

A boat operator can also moor the vessel to

discharge and take on cargo in the intertidal

zone provided that the cargo does not spill over

onto the uplands and provided that the flats are

unoccupied In keeping with the importance of

the intertidal area for travel it has also been held

that the public can ride or skate over the intertidal

area when it is covered with ice

It has now been determined by the Maine

Supreme Court that this term does not include the

right to use private tidelands for general recrea

tional uses such as strolling along the beach

except if incidental to fishing fowling or

navigation sunbathing picnicking bathing

or frisbee throwing

What Are Private Property Rights in

the Intertidal Zone

The Moody Beach Case affirms that in Maine

owners of beachfront property or property adjoin

ing tidelands also called littoral or riparian own

ers have private property rights to the low water

mark or low tide area subject only to a public

easement for fishing fowling and navigation as

defined above Thus the public should be aware

that littoral orriparian owners may bring an action

for trespass against members of the public who

enter upon private tidelands without permission

except for the purposes of fishing fowling and

navigation as defined above

Although the public easement for fishing

fowling and navigation may in some cases be cut

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off by selling filling or developing private tide

lands public navigational rights may not be un

reasonably impeded Riparian owners have the

exclusive right to MOOT their boats on their pri

vately owned tidelands as long it does not interfere

with the publics reasonable use of the area for

shellfishing or other public trust uses fishing

fowling or navigation

Finally owners of private tidelands must still

obtain all necessary local state and federal per

mits prior to any tideland development Environ

mental laws prevent most construction activities

in tidelands except for wharves piers and in

exceptional circumstances fill for residential

commercial or industrial development

Ways to Address Public Shoreline

Access Needs in Maine After Moody

Beach

Even before the Moody Beach Case the prob

lem of securing access to Maines coastal shore

line was growing increasingly critical as tradi

tional access points were built upon fenced off

posted or purchased by new owners who were

unwilling to allow old patterns of usage to con

tinue

Conflicts were increasing as more people

tried to use the fewer remaining access points

With the decision in the Moody Beach Case the

problems were compounded by the determination

that even if a person is able to reach the shoreline

there is no broad right to use the intertidal area for

recreational pursuits The use has to be limited to

fishing fowling or navigation

As a result of the Moody Beach decision state

and local coastal managers have focused their at

tention on other ways to secure public shoreline

access and rights of use For example some have

explored asking the State Legislature to enact a

revised version of the 1986 Public Rights in Inter

tidal Zone Act found to be unconstitutional in the

Moody Beach decision which declared that the

public had a right to use intertidal land for

recreation In order to address the Courts con

cerns at a minimum a revised Act would have to

more clearly limit and define the permissible

5

public recreational activities and provide some

mechanism for compensating landowners for the

recreational easement

Other options for securing public access in

clude land use regulations purchasing rights of

access trading town lands negotiating a lease or

license conducting a rightofway rediscovery

project or receiving gifts which improve public

access All of these methods may be used by

towns State agencies may also be involved in

purchasing rights or accepting gifts to improve

public access

Land Use Regulation

There are several land use regulatory tech

niques that may be used to encourage or require

new real estate developments to make provisions

for public access to and use of the shoreline where

such development burdens public access These

methods however have no impact in areas such as

Moody Beach where the shoreline is already fully

developed

The techniqu es include incentive zoni ng bonus

zoning transfer of development rights systems

exactions and impact fees The use of any ofthese

techniques should be supported by a shoreway

access or open space component of a comprehen

sive plan If the provisions are mandatory ex

treme care needs to be taken in drafting the imple

menting ordinance

For further information see Maine Shore

AccessPublic Access Series Planning and Im

plementing Public Access Strategies available

through the Office of Comprehensive Planning

Department of Economic and CommunityDevel

opment 2896800 or contact your regional plan

ning council

Purchasing Rights of Access

As suggested by the Court one of the ways to

secure general recreational shoreline access is for

the town or state to acquire the land either by

purchasing it from a willing seller or by using

eminent domain to take it from an unwilling seller

in exchange for the payment ofjust compensation

Another variation is for the town to purchase only

an easement over the land for recreational uses

not the land itself

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The purchase of land or an easement is an ef

fective way to guarantee public access The obvi

ous drawback is the cost However for key

parcels where a permanent solution is desired the

public may determine that the benefits justify the

investment

There are State programs designed to help

communities acquire and develop shorefront land

to improve public assess For example Water

front Action grants and Land and Water Conserva

tion Fund grants are available through the Office

of Comprehensive Planning Department of Eco

nomic and Community Development 2896800

The Bureau of Parks and Recreation in the

Department of Conservation 2893821 admini

sters Boating Facilities Program grants for acqui

sition and improvement of boat access sites

In addition The Land for Maines Future

Board 2893261 administers a state bond funded

program to acquire lands with state significance

including some lands providing coastal access

Trading Town Lands

One variation on the purchase of land with

money is to trade parcels of town owned land or

public rights to use land for desirable access sites

or access rights Some of the land available for

trade may be identified in advance in a shoreway

access plan and in comprehensive plans but other

opportunities will present themselves as more

research is done on land in anticipation of develop

ment

For example the trade may involve the town

releasing its unclear rights to certain land in a

proposed subdivision eg an old street that may

or may not have been properly dedicated to the

public in exchange for the developer clearly

conveying an easement granting shoreway access

and shoreline use to a particular group eg li

censed clammers and wormers Other transac

tions maybe a more straightforward swap of one

piece of town land for another which is more fa

vorable for shoreway recreational use In either

case the town will need to work with appraisers

and attorneys to evaluate the advisability of a

trade

6

Lease or License

Instead of actually acquiring an ownership

interest in property a community may be able to

negotiate an agreement which allows the public

or some portion of the public to use land for

shoreline access and recreational use If an agree

ment can be reached this option is often less

expensive than acquisition

The document spelling out the rights and re

sponsibilities can be extremely flexible in ad

dressing unique issues including what would trig

ger a termination of the agreement specific re

strictions on public use protection from liability

and maintenance responsibilities However this

may be a relatively shortterm solution and is

dependent upon the owners willingness to enter

into an agreement The agreement negotiated but

not accepted at town meeting by the Town of

Wells see endnote 7 is one example of how this

technique could be used

Right ofWay Rediscovery Projects

In addition to seeking new points of access it is

important for towns to inventory and safeguard

already existing public access rights A Rightof

Way Rediscovery Project is a systematic commu

nity effort to research and reassert existing legal

rights of access which have been neglected or are

uncertain

Public rights to roads which run to the shore

and shoreline parcels may have been acquired

through the years by the town laying out and

voting to establish a road by the town accepting a

road which was dedicated offered by a private

owner ordeveloper by town purchase of a parcel

through gift by prescriptive use orthrough acqui

sition by lien for nonpayment of real estate taxes

Sometimesthe town loses track of those rightses

pecially as use patterns change For example a

public road to an old ferry landing may have fallen

into disuse when a bridge was built But public

rights might remain Careful research in public

records may allow the town to document continu

ing public rights and to reclaim a site for public

use

For further information or a copy of Maine

Shore AccessPublic Access Series Coastal Right

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principle of adverse possession that is open

continuous notorious and uninternipted use of

private property for a certain period of time 20

years in Maine under a claim of right adverse to

the owner will create a prescriptive easement to

continue such use Such an easement for public

use may also be created by implied dedication

where the owner clearly acquiesces to public use

and the publics enjoyment has lasted for such a

length of time that the public would be materially

affected by a denial or interruption of the

enjoyment Town of Manchester v Augusta

County Club 477 A2d 1124 Me1984 Finally

it has been argued but not conclusively settled in

Maine that public rights may also be acquired by

local custom where public use of the beach or

property by common consent and uniform

practice is peaceable free from dispute and

continuous so long as the memory of man

runneth not to the contrary 46212d 671

Ore1969

7 In fact in 1989 the Town of Wells had 10 of the

126 lots along Moody Beach appraised to assrss

the possibility of acquiring the intertidal portion

of Moody Beach through the use of eminent

domain That appraisal valued the intertidal area

of the 10 lots at $516000 If representative of

values for the other lots it was projected that it 17 Marshall v Walker 93 Me 53245 A497

would cost approximately $65 million to acquire 1900

the entire intertidal portion of the beach In lieu

of proceeding with acquisition of the land the

Town and beachfront property owners negotiated

a revocable license that would allow residents

and homeowners of Wells their accompanied

guests and specified seasonal residents to make

daytime use of the area of Moody Beach below

the high tide line for quiet recreational pursuits

This negotiated license was rejected by voters at

the town meeting in March 1990

8 Bell v Town of Wells 557 A2d 168 169

Me 1989

9 Barrows v McDermott 73 Me 441449 1882

10 Moore v Griffin 22 Me 350 356 1843 Hill v

Lord 48 Me 83 86 1861 Marshall v Walker

93 Me 532 53637

11 Mathews v Treat 75 Me 594 1884

12 Andrews v King 124 Me 361 1925

13 Id at 364

14 French v Camp 18 Me 433 1841

15 Bell v Town of Wells 557 Aid 168 17576

16 Storrer v Freeman 6 Mass 435 1810

18 WelVeet v Glaze 403 Mass 79 July 20

1988

Prepared by the University of Maine School ofLaw Marine Law Institute

Produced by the Sea Grant Communications office through a grant from the National

Oceanic and Atmospheric AdministrationSea Grant College Program Award Number

NA89AADSG020

Additional copies are available from Sea Grant Communications 30 Coburn Hall

University ofMaine Orono ME 04469 or the University of Maine School ofLaw

Marine Law Institute 246 Deering Avenue Portland ME 04402 Si 1q45

E

=

University of Maine

University of New Hampshire

Sea Grant College Program

EMSG 903 PAMPHLET 1CITIZENS GUIDES TO OCEAN COASTAL LAW 250

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