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Abstract

This paper has its roots in the finality of what have come to be called the Moody Beach decisions. In the last of these two cases, Maine's Supreme Judicial Court, sitting as the Law Court, held that the public's right to use the intertidal zone was limited to those uses and activities spelled out in the Colonial Ordinance of 16411647: “We agree with the Superior Court's declaration of the state of the legal title to Moody Beach. Long and firmly established rules of property law dictate that the plaintiff oceanfront owners at Moody Beach hold title in fee to the intertidal land subject to an easement . . . permitting public use only for fishing, fowling, and navigation . . . .” This definition of public use rights in Maine's intertidal zone is unfortunately narrow. The definition is derived from a line of Massachusetts cases that the Maine court felt bound to follow. Maine, they reasoned, was formed in 1820 out of territory that was formerly a part of Massachusetts. Thus, the law and legal precedents of the latter arising before 1820, including the Colonial Ordinance, are fully received into Maine law. Though no Maine court had been called upon to precisely delineate private property and public use rights in the intertidal zone prior to 1989, the Moody Beach decisions made clear that the restrictive definition of public use rights in the intertidal zone is a reality that cannot be altered by wishing it away, by adopting expansive police power regulations, or by fashioning arguments predicated on the public trust doctrine. These unpleasant facts must be faced. The definition gives a relatively small number of littoral landowners along the coast of Maine a property rights windfall. They are unlikely to give it back. If this situation is to be turned around; if Maine's foreshore areas are to be prevented from becoming permanent enclaves of the few; if public use rights in the foreshore, particularly the use of sand beach areas, are to be enlarged, allowing succeeding generations of Maine citizens to use these areas in ways that cannot even be fully anticipated today; if these succeeding generations are to have a sense (as past generations have had) that Maine's foreshore, its beaches, and tidal pools belong to all of the people; then state government acting alone, or in conjunction with local governments, must develop and adopt new strategies and programs that increase public property rights in these foreshore areas. In short, public entities must purchase shorefront parcels for public use. It seems clear that the taxing, bonding, spending, and eminent domain powers of state and local government are sufficient to accomplish these ends. These broad powers should be used imaginatively, and in combination with one another, in ways designed to provide the public with a full range of rights in a foreshore broadly defined to include the intertidal zone and the immediately adjacent upland. It will, no doubt, take time and money to put these strategies and programs in place and bring them to fruition, but in the end all Maine citizens will once again have ready access to, and control of, the foreshore for any and all activities and uses they might wish to undertake. The real question is, do we as citizens, and do our governmental leaders, have the will to act? Are we prepared to obtain for all Maine citizens, present and future, the foreshore property interests we seek? That, of course, remains to be seen. This paper outlines an approach that might be taken to accomplish this goal.

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