Court to rule on beach access, answering debate for Eastport

Questions regarding beach access are being raised in both Eastport and across Maine as residents and businesses test the limits of what's possible in a state that allows private property rights to extend to a beach's low‑water line.

Currently, the majority of private oceanfront property includes the land known as the intertidal zone – the strip of land between the high‑ and low‑tide marks. That's different from many states where the intertidal zone is public land, useable for many purposes.

And that has proven a problem for many people in Maine who want to use the intertidal zone for jogging, beachcombing, sunbathing or even business purposes such as rockweed harvesting. Unless the owners agree to allow such use of their property, those intertidal zones remain closed to trespassers.

"You can't just use the intertidal zone as a beach," explains Eastport City Manager Brian Schuth. "Typically, these people own right down to the low‑water line."

In Eastport, that has come into play as residents have pushed to ensure that beach access points such as right‑of‑ways through private property to the water are kept open. The closure of one such access point for construction recently raised questions about the fate of not only that single point, but about the 12 other access points noted on city maps.

Social media anger erupted when the path that formerly led people down to the water opposite the end of Warren Street was blocked off to allow for the construction of a private home. At that time, the city had no documentation this public access had been officially granted. Since then, that documentation has been located.

"It's a road, and it runs to the water," Schuth says, adding that the access point will be reopened once construction is completed.

City Assessor Wes Farley says the city will also review the additional beach access points over the winter when work slows. "If needed, we're going to try to get signs up at all the different access points."

However, even if access to the water is guaranteed, public access to property next to the deeded access is extremely limited. The creators of the original laws on these intertidal rights realized that Maine's citizens depended on certain endeavors to exist and so allowed intertidal access on private property only for fowling, fishing or navigation.

"These things used to be the primary ways that people supported themselves," Farley explains. "They needed to get out to the water to make money or to feed themselves. Water was economically the most important thing they had."

Since those early years, scuba diving has been added to the activities permitted on intertidal zones. But, purely recreational uses have always been disallowed, as have more commercial endeavors such as the harvesting of rockweed.

However, a lawsuit currently being considered by the Maine Supreme Judicial Court could change everything. That suit, Masucci vs. Judy's Moody, focuses on whether the intertidal areas should be open for either recreation or commercial uses.

The supreme court will decide the two uses separately and could issue a ruling that opens the intertidal zone for one use but not the other, opens it for both uses, or leaves the intertidal as it currently is  inaccessible to either. If the court chooses to open the intertidal zone for either use, it will overturn legal precedent that had previously said such uses were not allowed.

Gordon Smith, an attorney at Portland's Verrill law firm who represents the defendants in the case, says he expects to hear something soon. "We argued the case a year ago, and the court's been sitting on it for a year."

When it does finally rule, whatever is decided "will apply to all beaches across the state," Smith adds.

People such as Jo Ann Dewitt Wright, who grew up in Eastport but now lives in South Carolina, says she will be excited to see the outcome of the lawsuit. She was the initial person to post on social media regarding beach access in Eastport.

"That's reassuring," Wright said upon hearing about the lawsuit. "Whatever way it goes, of course I sincerely hope they [the beaches] will be open for recreation. It's law, and there's nothing that can be done about it."