Douglas Rooks has been a Maine editor, columnist and reporter for 40 years. He welcomes comment at [email protected].

One of the toughest decisions for any court is to reconsider or reverse a ruling many believe was wrongly decided. Such is the case for the Maine Supreme Judicial Court and its Moody Beach decisions of 1986 and 1989, which relied on a 1641 Massachusetts colonial ordinance to rule that Maine’s coastal property owners have exclusive property rights to the “intertidal zone” — the land between high tide and low tide.

The Moody Beach rulings, which followed years of struggle over beach access, never made much sense. They were decided 4-3, and a subsequent law review article pointed out that the four majority justices all owned coastal property, while the three dissenters did not.

One hastens to add, in these days of highly politicized legal controversies, that no one accused the justices a conflict of interest, or the appearance of one. Still, unconscious biases can affect decision-making in difficult cases.

Moody Beach is in Wells, and one of the few stretches of beach — even along the southern sandy coast — where cottages are close to the high tide mark. Elsewhere, shorefront owners had long since made peace with beach-goers. But Moody Beach owners asked the SJC for the right to exclude them, and the court agreed, overturning the trial judge’s ruling.

Litigation hardly slackened. The high court has upheld public access, as in a case involving Kennebunkport decided in 2019, if it occurred regularly in the past. But it’s never revisited the original findings, and upheld property rights to rockweed in the case of Ross v. Acadian Seaplants.

Even in the 1980s, the argument appeared shaky. In most states and on federal lands, public access to ocean and tidal waters was guaranteed by the late 19th century. And a persuasive reading of the 1641 ordinance holds that it doesn’t confer ownership, only a license to use the land. No one contests that the public retains rights to “fishing, fowling and navigation.”

The most determined critic of the Moody Beach doctrine is Orlando Delogu, an emeritus University of Maine Law School professor who’s tirelessly pursued the case and published a 2017 book, “Maine’s Beaches Are Public Property.”

He’s also been instrumental in the current challenge, Masucci v. Moody, filed in federal court and argued before the SJC by Keith Richard of the Archipelago law firm. It was remanded from federal court because a state appellate court must be allowed to “cure” errors in previous decisions. The SJC has had the case for 16 months, but could rule at any time.

Until now, the focus has been on beach access, but there’s a lot more to the property ownership claims. For one thing, the supposed intertidal owners — 42,000 of them, in Delogu’s estimation — are not taxed, as Maine’s constitution seemingly requires. And ownership extends far beyond  “intruders” to almost any coastal activity.

One prominent casualty of Moody Beach was Nordic Aquafarms’ plan to build a $500 million fish farm in Belfast providing 60 well-paying jobs. Proposed in 2018, it had the full support of the Belfast City Council, which sold the company a 54-acre parcel of surplus water district land.

Nordic got required permits, and planned construction for 2019, but a lawsuit from an intertidal owner between the site and the ocean halted it. The council invoked eminent domain, but the SJC overruled it, citing Moody Beach, and the project was abandoned in 2025. The land was sold to a local conservation group that had opposed the project, and another coastal parcel will be added to our abundant supply of recreational land.

The only intertidal inconvenience would have been underground pipes drawing in seawater and discharging treated waste — like many other “outfalls” already legally operating.

Some see the cancellation as a desirable outcome, but consider: Why is Maine’s supply of recreational land growing by leaps and bounds while it appears nearly impossible to site any new industrial or agricultural uses? The U.S. currently produces 11% of the seafood it consumes — meaning 89% must be imported. Is a fish farm such an affront to Maine it must effectively be banned?

Neighbors generally oppose any development they see, rightly or wrongly, as threatening their property values, but only along the Maine and Massachusetts coasts do they wield such a potent trump card. Any substantial coastal uses — including the abundant offshore wind resource that someday will be tapped — face the same challenges.

The SJC will eventually rule and, if it upholds Moody Beach, the case will return to federal court. In the meantime, we should consider the balance between Maine as Vacationland and Maine as a place to do business, have jobs and raise families. Right now, something is out of whack.