Commentary

April 2021 - Transcript of Speech for Maine Intertidal Land Litigation

​The following is the transcript of a speech given on the behalf of the backlot property owners at the press conference for the filing of the Maine Intertidal Land Litigation (MILL).  This press conference occurred on April 22, 2021 at 2 PM on the border between Ogunquit and Moody Beach:

Hi, my name is Jim.  I am from the Boston area where I was born, raised, and now live with my wife and son. 

Moody Beach Until 1989

I have been coming to, and recreating on Moody Beach (MB) for every summer for just about my entire life – about 50 years.  Starting when I was very young, my family rented a back-lot cottage at MB each summer for a family vacation.  Then after several years of this, in 1979 my parents bought one of the cottages we had been renting near Right-Of-Way (ROW) #2, which is towards the northern end of MB.  And my family has been coming to that cottage ever since.

With easy walking access to and from MB, summer vacations at these cottages were idyllic as a kid and a young adult.  During that time, MB was a place where the community would come together, relax, and enjoy, ALL areas of MB.  And as you can see, MB at low-tide is a large area.  And believe me, me and my three siblings enjoyed the beach countless times and in innumerable ways.

Moody Beach After 1989

Things began to change following the 1989 Bell or Moody Beach decision.  Today, as you can see, signs looking to keep people off MB are prevalent.  And on warm summer days, people who aren’t from beachfront properties mostly crowd on the sand where a ROW is.  There are 3 ROW’s - each ROW about 40 feet wide - interspersed along the 1.5 mile long MB (7,920 feet).  …….. MB is a shadow of the beach I grew up with.

This transformation didn’t happen overnight, it has been a progression over 30+ years.  Some beachfront owners, even to this day, allow people and neighbors to recreate on the beach in front of their property – and really, they should be COMMENDED for this.  But, every year the number of such beachfront properties diminishes.  And every year the number of restrictive signs that go up is more and more.  In addition, the number of beachfront properties that actively restrict access to the beach increases over time.

For me, the final straw came during the summer of 2014, when me and my son, who was 4 years old at the time, were kicked off the beach in front of a beach front property by the beach front owner.

Trying to Improve Moody Beach

From that day on, I have tried to improve the situation at MB.  About 4 years after that incident, a group of like-minded backlot households formed with the goal to gain the right to recreate on MB.  Now today, we are joined by other groups and people across Maine who were also denied access to the coast by the Bell decision.  We are very appreciative and fortunate to be part of this effort to correct the injustices throughout the state.

For me, my hope for this case is that someday my son, and maybe his family, will be able to experience the MB of my youth – when the whole community came together to relax and enjoy as ONE.

Thank you 

June 2018: How the Goose Rocks Beach Decision Helps Moody Beach

The recent Goose Rocks Beach (GRB) decision, and the overall fight for recreational access to GRB, provides hope to the Moody beach community for improving their access to Moody Beach.  More-so, the GRB efforts provide a blue-print on how this might be achieved.

By understanding the latest GRB decision and its context within GRB’s overall fight for beach access rights, the Moody Beach community can learn valuable lessons to assist in their own quest for improved access to Moody Beach.  Moody Beach’s similar circumstances to GRB imply that what worked in Kennebunkport can work for Moody Beach too.

The Campaign for Recreational Access to GRB

Recent decision:
The April 2018 decision by the Maine Superior Court was based on the title/deed histories for Goose Rocks Beach, as well as the Town of Kennebunkport’s historical dealings with regards to common lands. 

The case resulted in awarding the Town of Kennebunkport ownership of the beach for  22 of the 23 ocean-front properties considered.  This means the public has restored recreational access rights to the beach from the seawall to the ocean in front 96% of the beach-front properties that were part of this case.  Evidence showed that the deed histories of 96 % of the properties considered did not legally convey ownership to the beach.

(The full court decision can be found here: https://www.kennebunkportme.gov/home/news/court-decision-goose-rocks-beach-title-trial-040918)

Earlier decisions:  
This most recent decision trumps earlier decisions that were made during the 2009 to 2014 timeframe.  

In 2012, a lower court decided that the public had recreational access rights to GRB.  This decision awarded the public a ‘prescriptive easement’ to GRB.  A prescriptive easement basically means that since the public had used the beach for an extended period of time, it had the right to keep using it. 

In 2014, the Maine Supreme Court reversed the 2012 decision and decided the public only had access rights to GRB for the purposes of “fishing, fowling, and navigation”.  This decision assumed that the ocean-front properties of GRB had legally conveyed deeds to the beach.  However, this decision was also remanded so that the Town of Kennebunkport had a path to challenge ocean-front properties' deeds to the beach on a lot-by-lot basis (which ultimately resulted in the April 2018 superior court decision).    

The rest of the GRB properties / Beach-Users-Agreement:
Beyond the beach areas in front of the 23 ocean-front properties involved in the recent case, there are ~67 Goose Rocks ocean-front property owners who signed a Beach Users Agreement with the Town of Kennebunkport. For the 67 properties of the beach user’s agreement, once signed this agreement was in effect in perpetuity (forever), and they are unaffected by the recent decision.

This agreement was signed in-between the 2012 court decision and the 2014 court decision.  This agreement a.) Provides the town (back-lot owners and public) recreational access to the beach, b.) Reserves an area of beach directly in front of the sea-wall for the ocean-front owners if they so desire, and c.) Outlines beach maintenance plans and beach-goer code-of-conduct.

How GRB Applies to Moody Beach
There are many similarities between GRB and Moody Beach, and Moody Beach can learn a lot from GRB’s success.  These lesson learned can be applied to our own efforts to improve beach access.  Specifically:

A Title/Deed Case:  Moody Beach could initiate its own case regarding the beach deed histories.  Although the recent ruling is specific to Goose Rocks Beach only, and the decision may be appealed, my initial review of the decision shows many of the circumstances of this GRB case are similar or the-same for Moody Beach.  This includes the beaches having similar beach deed histories.  The 2016 deed history study (partially funded by the Town of Wells), revealed a lot of uncertainty regarding whether most ocean-front properties have legally conveyed deeds to Moody Beach.  Links to the research study as well as a presentation on the study can be found here:

http://www.wellstown.org/641/Coastal-Beach-Land-Deed-Research-Study
https://www.youtube.com/watch?v=AS4w3nOnOCU

Beach Users Agreement:  The community and Moody Beach’s ocean-front owners could negotiate their own Beach Users Agreement.  The recent GRB decision (not to mention Professor Delogu’s efforts to overturn the Moody Beach / Bell Supreme Court decisions), provide the community leverage for negotiating such an agreement.

Although this needs to be a community decision, a Beach Users Agreement might be a way to put the court battles behind us once and for all, while a.) Providing the community the right to recreate on Moody Beach, and b.) Recognizing the ocean-front owners and their unique relationship to the beach.

Town support:  The Town of Kennebunkport was a staunch ally of preserving the public’s right to recreate on GRB, and led the charge in many areas.  Moody Beach should look for similar support from the Town of Wells regarding community efforts to improve recreational access to Moody Beach.

Community Effort: The Goose Rocks Beach community should be commended for coming together and fighting for the public’s right to recreate on GRB.  After 2014, GRB was in similar circumstances to where Moody Beach has been since 1989 – at the short-end of a court decision that took away the community’s recreational beach access rights.  Like GRB, Moody Beach can come together as a community and successfully improve their access-to and enjoyment-of Moody Beach!!!

6/9/2016:  Best Strategies and Approaches to Improve Access to Moody Beach

• Improving the Moody Beach community’s access to “Town Beach Passes” to other beaches in Wells.

• Engaging in “Beach Access Negotiations”, where the town could moderate negotiations between the ocean-front property owners and for the Moody Beach community for improved beach access.

• Initiating efforts for the town to purchase sections of Moody Beach for community access via “Eminent Domain”.Although buying large sections is probably cost prohibitive for the town short term, buying smaller sections (possibly from ocean-front properties that are for sale), seems more viable.

Making the town aware that this is an important issues to many people and starting a dialogue with the town on what to do about it is essential to any efforts to improve access to Moody Beach.

Initially, local approaches may be more viable than statewide approaches.  Court cases are going to be very costly and have less than certain results.  Maybe approaches through the courts become more viable over time as the community’s and town officials’ support for the efforts is gauged.

11/11/2014: Part 4 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series

The 4th and final event of the “From Moody Beach to Goose Rocks” Beach Access series was held at Laudholm Farm in Wells on 10/23/2014. The final event featured two speakers who have both been big allies in the public’s fight for beach access in Maine over the years: Judge Daniel Wathen – former chief justice on the Maine Supreme Court, that gave the dissenting opinion in the Moody Beach case (the opinion that was for full public access to Moody Beach); and Adam Steinman – an attorney from the Surfrider Foundation that has been a major advocate for the public’s right to access the beach in Maine. See the following link for more info on these speakers:

http://www.wellsreserve.org/visit/calendar/1016-from_moody_to_goose_rocks_perspectives_from_a_judge_and_an_access_advocate

The 4th night provided a wealth of detailed info and ideas on Maine beach access, and provided some specific thoughts and recommendations on where the fight over Maine beach access will go to next. Here are the major takeaways that I got from the meeting:

1.) GR Reconsideration: The Goose Rocks case is under reconsideration by the Maine Supreme Judicial Court (SJC). Neither speaker understood the Supreme Court’s initial ruling on the GR case. Mr. Steinman said he was shocked that the SJC did not solidify a major victory for beach access in Maine – he had thought that all the court proceedings since the Moody Beach decision pointed to a major beach access improvement decision….. Judge Wathen said in his tenure within the Supreme court (~20 year tenure), he could remember only 2 cases where a reconsideration reversed significant portions of the initial ruling. The part that seems to be under reconsideration is whether the Public Trust Doctrine (PTD) is expanded to cover public use of the intertidal beach areas for such activities as surfing, boogie boarding, etc. …. The thought is that the SJC has 3 judges who support expanding the PTD and 3 who do not, with a new judge (the 7th) whose stance on this is unknown…

2.) Future Court Challenge Possibilities: The speakers gave insight into future court challenge possibilities IF the GR reconsideration kept the initial SJC ruling in tact. Judge Wathen emphasized that these were just his best guesses and they were far from certainty.

a.) PTD Expansion

• Both speakers thought that PTD expansion was likely. Judge Wathen stated that judges are unlikely to have rigid interpretations of laws that originated from custom – and the 1647 Colonial ordinance is such a law.

• The is text in the Moody Beach decisions that state there should be a sympathetically generous interpretation of the PTD and include activities incidental to PTD activities.

• Judge Wathen stated that future PTD expansions are unlikely to cover recreational use.

• Mr. Steinman stated that the most likely expansion of the PTD were activities affiliated with navigation. Activities such as swimming, boogie boarding, surfing, etc. The MacGarvey decision is an example of this which determined that scuba –diving was a form of navigation.

b.) Overturn Moody

• Judge Wathen stated that it was possible, but unlikely that the Moody Beach (Bell) decision would be overturned.

• The Colonial Ordinance originally granted beachfront property owners ownership of intertidal beach area’s for the purposes of ‘wharfing’, which is building a wharf to accept the many schooners around during that time. Wharfing was a practice that during that time would stimulate the local economy.

c.) Prescriptive Easement

• Future court efforts focusing on prescriptive easement would yield inconsistent results and access and would vary on a beach by beach basis. Furthermore, such efforts and their associated legal costs would be very expensive.

d.) Deeds

• A resident of Wells/Moody in the audience – Peter Moody - repeated what he had revealed during the 1st meeting of the series. He researched the deeds in Wells at the time Maine became part of Massachusetts in 1652 (a few years after the MA Colonial Ordinance on beach ownership was written). At that time, ALL the deeds (60 total) of Wells stated that the oceanfront properties owned to the HIGH water mark. Mr. Moody also understood (but hadn’t verified), that when ME became a part of MA, MA agreed to honor Maine’s deeds over the Colonial Ordinance.

• The lawyers in attendance stated that there had been no court ruling during the Moody (or Goose Rocks?) case on the applicability of deeds with respect to ownership (or lack thereof) of the beach intertidal lands.

• Audience members stated that it was a disconcerting that beachfront property owners were presumed to own the beach regardless of property deeds under the Moody Beach ruling, while the public has had to scratch and claw for any and all access to the beach since then.

3.) State Legislature

The State legislature could be turned to for passing a statute that improves beach access and would be applicable statewide. This occurred in the 1980’s (?) when the legislature passed the Intertidal Land Act which included allowing recreational use of Maine’s beaches. This Act was overturned by the Moody Beach case.

• The State of Maine could be expected to always be on the side of expanding beach access. This is both because public opinion overwhelmingly supports public beach access, and because of the economic benefits of expanding beach access which would improve tourism.

• Recommended that any such legislative effort pass a law that fell short of allowing recreational use of the beach or else the law would be at risk of being overturned by the courts.

4.) Enforcement of PTD

• Some suggested that people take water pistols down the beach for the sake of “fowling”.

• Mr. Steinman stated that he would bring a fishing rod or kayak when concerned that his surfing on a particular beach might be contested by ocean-front property owners.

10/20/2014:Part 3 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series

The event was held in the Moot Court Room as the University of Southern Maine in Portland. (http://www.wellsreserve.org/visit/calendar/1011-from_moody_to_goose_rocks_public_access_and_private_ownership_of_maines_shoreline).  Part 3 really proved to be the highlight of the entire series.

An all-star panel was compiled for Part 3 with people who have been intimately involved with Maine beach access issues over the last 30 years. Each panelist spoke for ~10-15 minutes followed by the entire panel taking questions from the audience. The speakers presented in the following order:

• Sidney (“Pete”) Thaxter [ocean-front owner’s attorney for both the Moody Beach and Goose Rocks cases]

• Professor Orlando Delogu [professor at the University of Southern Maine Law School and long-time advocate for the public’s access to the beach]

• Amy Tchao [attorney for the town of Kennebunk in the Goose Rocks Beach case]

• Durward Parkinson [attorney for the town of Wells in the Wells Beach case, more recently involved in negotiations in property disputes including acting as the court appointed moderator which resulted in the Goose Rocks Beach Agreement]

• Ben Leoni [an attorney for the oceanfront owners in the Goose Rocks Beach case, and advocate for resolving land disputes through negotiations]

• Tim Glidden [president of the Maine Coast Heritage Trust]

Below are questions that my family and I compiled for the meeting. Some of them we asked the panel directly, some were addressed in part either by answers to other audience members’ questions or during the panelists’ initial talks. We also handed out all of the questions as a flyer once the meeting had concluded. I summarized the info obtained from the meeting after each question.

1. Maine is 1 of only 2 states in the country (MA is the other) that DOES NOT allow unrestricted recreational use of the beach areas between high and low tide. This is a national embarrassment to a state that calls itself “Vacationland”. Shouldn’t the state take bold steps to correct this injustice such as eminent domain, federal court challenges, further state court challenges, etc? Accepting the Goose Rocks and Moody Beach decisions will most certainly impact tourism as this ruling gets wider public awareness and is applied to more and more beaches in Maine (such as Long Sands Beach in York, Drakes Island Beach in Wells, etc) [Meeting feedback: There are several potential court challenges to a.) the portion of the Moody Beach decision stating that under the 1647 Colonial Ordinance the ocean-front home-owners owned the beach, and b.) to the Public Trust Doctrine (PTD) interpretation that the public can only use the beach for the purposes of “fish, fowl, and navigation”. Although not directly addressed during the meeting, the PTD could presumably be challenged to include recreational use under the umbrella of the public's economic pursuits such as tourism. Professor Delogu provided most of the information on this and also handed out his Law Journal article: “Friend of the Court: An Array of Arguments to Urge Reconsideration of the Moody Beach Cases and Expand Public Use Rights in Maine's Intertidal Zone” 2010, and lecture notes on the subject from a class he teaches.]

2. Back-lot owners of Moody Beach and Goose Rocks Beach, who had decades and generations-worth of recreational beach access (and who literally built their properties under such assumptions), now have absolutely NO recreational beach access rights under the present Maine Supreme Court rulings. Doesn’t this show that the ‘prescriptive easement’ concept in Maine is totally flawed? And don’t all back-lot owners in Maine deserve bold initiatives to regain beach access in a legal system that has abandoned them? Bold initiatives that do not necessarily include the process of negotiating for beach access where it’s a pre-requisite to accept oceanfront properties ownership and control of the beach, and where the public/back-lot owners have no leverage and are pitted against a very wealthy party on the other side. [Meeting feedback: Amy Tchao stated that this question “really hit the nail on the head”, and that if they attempted to negotiate access to Goose Rocks Beach AFTER the Supreme Court’s Goose Rocks decision, then the Goose Rocks Beach Agreement would not have happened….. The two lawyers on the panel advocating using negotiations – Leoni and Parkinson - to settle beach access disputes were notably SILENT to this question…… Professor Delogu inferred that back-lot owners were now in the same boat as the public in gaining beach access.]

3. During this series, we’ve heard Mr. Thaxter talk several times about the “generosity” of the oceanfront owners in granting the public beach access. The concept now being promoted to negotiate access with these owners would depend on this supposed generosity……… As someone whose family has owned a back-lot property and been coming Moody Beach for 45 years, my 4 year old son and I were kicked off the beach this July by an oceanfront owner and the Wells police who supported her. I would like to warn beach communities and the state of Maine against a negotiating process that in the wake of the Goose Rocks decision leaves the public and back-lot owners’ little leverage beyond the generosity of these ocean-front owners. [Meeting feedback: An attorney in the audience representing the public and beach community in the Cedar Beach/Cedar Island legal dispute - David Bertoni – stated that in the wake of the Goose Rocks decision that beach communities had little more than ocean-front homeowners generosity as a vehicle to gain beach access, and furthermore the ocean-front owners within disputes have a distinct advantage because they tend to be very wealthy and are able to handle courts costs better than the people they are in conflict with.]

4. One of the 3 evenings of this beach ownership and access series was totally focused on the oceanfront owners’ perspective on beach access, while zero nights were dedicated to the perspective of the public and/or back-lot owners. ….. With this series being publicly funded and supported by the federal NOAA Sea Grant Program, and with public opinion overwhelmingly supporting the public’s right to access the beach for recreational purposes, shouldn’t this series/forum offer a more balanced view on beach access? And shouldn’t more focus be placed on initiatives looking to overturn the unjust rulings of the Goose Rocks and Moody Beach cases as opposed to promoting a negotiation process that will solidify property owners’ rights to restrict beach access? [Meeting feedback: The meeting organizers redeemed themselves by planning a 4th night for the series that will primarily focus on a Supreme Court justice who wrote the dissenting opinion in the Moody Beach case (dissenting opinion was for the public). This 4th event was added out of the blue, and one wonders if it was put together due to attendee complaints (including complaints from FreeMoodyBeach.com). Regardless, it should bring some balance to the night dedicated to ocean-front owners perspectives…….. Although Part 3 had 2 panelists that are actively involved in resolving beach access disputes by negotiations, it didn't seem like the organizers are 'promoting' beach negotiations necessarily. Panelist Amy Tchao stated she was skeptical about the viability of a negotiations process for back-lot owners given the Maine Supreme Courts’ Goose Rocks decision…….. Professor Delogu also offered many specifics on how future court challenges could improve maine beach access.]

5. Oceanfront ownership to the low water mark at Moody Beach was neither on the original property deeds, nor on the majority of house deeds at the time the Moody case was brought to trial. Why did the court rule in favor of oceanfront owners based on a minority of deeds? Didn’t the state of Maine, then, de facto, take public land and give it to oceanfront homeowners for free? [Meeting feedback: Professor Delogu responded to the latter question with a resounding “YES”. Furthermore, he believes all ocean-front owners regardless of their deeds were given beach ownership due to a misinterpretation of the Colonial Ordinance…… The Moody Beach decision did not rule specifically on whether beach ownership was justified due to property deeds.]

9/6/2014:  Part 2 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series

I attended Part 2 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" series on August 28th at Laudholm Farm in Wells. Part 2 featured the attorneys representing the ocean-front property owners in the Goose Rocks and/or Moody Beach cases (Sidney "Pete" Thaxter and Ben Leoni). Here is a summary of my observations from the meeting:

1. According to Mr. Thaxter, the driving reasons for the lawsuits were as follows:

• Moody Beach – increased crowds, lack of public facilities, and no lifeguards, resulted in beach-goer transgressions such as public urination, littering, drinking alcohol, dog refuse, etc. The ocean-front owners looked for help from the town to provide public facilities and lifeguards, but the town refused……….. [Note that with my family and I having been at Moody Beach through-out this period, I do not doubt that some of these transgressions occurred from time to time, but we personally witnessed very few of them.]
  

• Goose Rocks Beach – according to Mr. Thaxter, there was shift in town policy that was seen as an attempt by the town to gain public access to the beach by ‘prescriptive easement’. The town lawyer (Amy Tchao) who was in the audience, disputed this claim.
  

• 2. ‘Prescriptive Easement’ is a way that the public or individuals can gain access to private property due to historical usage. The minimum historical usage period for a prescriptive easement in Maine is 20 years. [Note that in the Moody Beach and Goose Rocks cases the Maine Supreme Court decided prescriptive easements were not applicable despite decades and generations worth of beach access by back-lot owners and the public.]
  

• 3. At one point Mr. Thaxter quipped that back-lot property owners’ best path to beach access was to make friends with ocean-front owners so that they would allow them to use their beach. Mr. Thaxter also implied that if a back-lot owner could not make friends with at least one oceanfront owner then there must be something wrong with them.
  

• 4. Mr. Leoni stressed "consensus building" through “collaborative negotiations”. This process emphasizes using negotiations to settle beach disputes between the public and the ocean-front property owners as opposed to using litigation. Mr. Leoni claimed that the collaborative negotiations would yield better results for all parties at a much lower cost.
  

• 5. The extremely biased presentation of Mr. Thaxter was made worse by the moderator. He chose not to offer any sort of commentary to insinuate that there were other perspectives and interested parties from those that Mr. Thaxter represented. Furthermore, his only action as moderator seemed to be to discourage any questions that differed from the presenters. He suggested that people write their questions on notecards so that he could relay the audiences most common concerns, but then never even collected the notecards before the evening was over.
  

• Synopsis: Part 2 of the Beach Ownership and Access series was an extremely biased affair. Apparently Mr. Thaxter thought that being invited to talk in a public forum was a great opportunity to solicit more business from ocean-front property owners.  Despite all the subjectivity, I did learn a few things. Although I found the “collaborative negotiations” concept interesting, I couldn’t help but wonder what leverage beach communities would have in this process given that the Maine Supreme Court decision in the Goose Rocks beach case reiterated ocean-front owners’ full ownership and control of beach access.
  

7/23/2014:  Part 1 of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" Series

I attended Part 1 of of the " From Moody Beach to Gooserocks: Whose Shoreline Is It?" series at Laudholm Farm in Wells.  I learned the following during the course of the night:

1. Beach. access in Maine centers around the Public Trust Doctrine (PTD) which states that the public has the right to access the beach for "fish, fowl, and navigation" purposes, but otherwise the property owners own and control to the low tide. The moody beach case essentially resulted in this.

2. Several cases have had to do with how literal the "fish fowl and navigation" is interpreted, and decisions have widened this interpretation to cover clamming, scuba-diving, digging for worms, etc.  In the times the colonial ordinence was written, the "fish, fowl, and navigation" activities covered people's economic pursuits.  Some suggest a modern interpretation of economic pursuits would include tourism.

3. All states except Maine and Massachusetts allow full public access from high to low tide beach areas.

4. Tracing back to the original deeds of the Moody beach ocean-front property owners found that ALL deeds show beach ownership to high tide (high-water mark) only.  The deeds also state that older laws are not applicable (I.e. Colonial Ordinance stating ownership to low tide and PTD is trumped by deeds). The moody case did not consider deeds in its ruling, but gooserocks did.