By George Smith, A Bangor Daily News Blog Book Review — In 1989, Maine’s Supreme Court took away our right to enjoy our ocean intertidal zones. Looking all the way back to when Maine was part of Massachusetts, the Justices ruled that our opportunities to enjoy the intertidal zones are limited to fishing, fouling, and navigation.
Thankfully, Orlando Delogu has written a new book, Maine’s Beaches Are Public Property, that presents a detailed and thorough case proving that the Supreme Court decision, called the Bell cases, was very wrong.
Delogu says the court should have concluded that title to Maine’s intertidal lands is not held by adjacent upland owners, but in reality is held by the state in trust for the public.
He also notes that the plaintiff’s counsel in the Edward Bell et al. v. Town of Wells cases (also known as the Moody Beach cases) successfully argued that the 1647 Colonial Ordinance enacted by the Massachusetts Bay Colony ceded title to all intertidal land in what would become the state of Massachusetts to upland owners to encourage “wharfing out” (marine commerce).
In doing so, reports Delogu, they saddled Maine with Massachusetts’ intertidal land law. In sum, by simply repeating arguably incorrect judicial decisions, title to all intertidal land in two states has been ceded to littoral upland owners.
In this important book, you will learn that the Law Court ignored Maine’s 1820 Statehood Act; the Legislature’s 1975 Submerged Land Act; cases sustaining the 1981 Amendment to the 1975 Act; and cases holding that only the legislature can alienate intertidal lands held by the sovereign—such land cannot be alienated by judicial pronouncements. These errors (and more) are fully laid out in the book’s 14 chapters and detailed footnotes.
Orlando Delogu joined the University of Maine School of Law faculty in 1966 and worked 40 years as a full-time member of the faculty and 11 years as emeritus professor of law. He also helped found the Maine Civil Liberties Union, and served on the Board of Environmental Protection, the Portland City Council, and Portland Planning Board. Yup, he knows what he’s talking about!
The Bell cases focused on Moody Beach in Wells. Ironically, just before I read Delogu’s book, Linda and I and our kids and grandkids spent a long weekend in Wells, enjoying Wells Beach. Moody Beach is also in Wells. It is the only beach in Wells that is not available to the public.
Delogu’s analysis is very convincing, and we should thank him for defending our right to enjoy Maine’s wonderful beaches. Shame on the owners of property along Moody Beach for trying to deny us access to the beach, and on the Maine Supreme Court for ruling against us and setting aside legislative actions that firmed up our rights in the intertidal zone.
Delogu points out many failures in the Court’s examination of the issue. I was very pleased to learn that Chief Justice Saufley, a woman I greatly admire, has advocated for reopening these two cases, in a “strong and compelling argument.” She also argued that the court should overrule the earlier decisions, noting that Bell II is “founded upon a faulty legal analysis.” Thank you Chief Justice Saufley!
Delogu is now trying to stir up interest at the legislature and elsewhere in a new case that would give the Supreme Court an opportunity to right their wrong and restore our rights and opportunities in the intertidal zone. I can only hope he succeeds.