The long-running legal fight over access to the intertidal zone in Maine is headed to court once again. A group of nearly two-dozen Mainers plans to file suit over what they say is the loss of public recreation and commerce in what should be a public resource.
Since a precedent-setting state Supreme Judicial Court ruling three decades ago, Maine's courts have ruled time and again that in most cases, the public does not have a right to use the "intertidal zone" — the wet-sand area between the high tide and low tide marks.
And over that period, some say, property owners have increasingly told members of the public, whether its people pitching a towel down on the sand or harvesters cutting seaweed, to shove off.
"Things have changed. The working waterfront has become an endangered species," says Bonnie Tobey, co-owner of Source Micronutrients, a Brunswick-based company that's harvested rockweed since the 1970s for veterinary and human supplements.
Tobey says that in the past couple of years the company has gone from three shifts to just one, thanks to a court ruling specifically saying rockweed growing in the intertidal zone belongs to upland property owners.
"Places that we have harvested for decades are now off limits, And people are claiming to own everything they see from their windows. We've been yelled at, verbally threatened and some harvesters have been assaulted. This is not what Maine is about," she says.
She was joined by dozens of people gathered at a public section of Moody's Beach in Wells to announce the lawsuit. The plaintiffs also include shellfish harvesters, a worm harvester, beach-goers and a marine scientist.
Attorney Benjamin Ford says Maine's high court made a "historical mistake," in a 1989 ruling, based on colonial law, that ensured unfettered access to the intertidal zone only for fishing, bird hunting and navigation. In 1989, he says, the ruling's statewide significance was not so apparent — but since then, as properties have changed hands, new owners have increasingly cracked down.
"Now we have no trespassing signs. We have the police being called to remove children from the beach. If the back lot owners, many of who you see here, want to have a sandcastle contest on that beach there, they need a permission slip. And it wasn't just here, it was all up and down the Maine coast," he says.
The group names 10 defendants, including the owner of a Moody's Beach rental property that advertises its "private beach" on Airbnb, midcoast shorefront owners and a scientist who has crusaded for limits on rockweed harvesting.
"You know people say there are these terrible problems but there really aren't," says Sidney "Pete" Thaxter, who has represented waterfront property owners in several similar cases.
Thaxter says that in the 1989 dispute, property owners properly sought authority to keep rowdy beachgoers from their land. And he says knowing that they can enforce against damaging intrusions encourages landowners to provide access to responsible members of the public.
"Clearly there's a doctrine on Maine law, that if people use your property you don't have to worry if they are going claim public rights because they use it. And they've done that to encourage landowners to allow snowmobiles, beach (goers) and people to use it. And you know it's really worked very well for a long time," he says.
But the lawyers for the plaintiffs say that the passage of time has made overturning the precedent all the more urgent. And this time, they say, they're prepared to take their case all the way to the U.S. Supreme Court.