Friend Of The Court: An Array Of Arguments To Urge Reconsideration Of The Moody Beach Cases And Expand Public Use Rights In Maine\u27s Intertidal Zone

In the late-1980s, two cases decided by the Maine Supreme Judicial Court (Law Court) delineated littoral upland owner property rights vis-àvis public use rights in the intertidal zone. The cases involved intertidal land in Wells, Maine, known as “Moody Beach” and were titled Bell v. Town of Wells. Hereinafter, they will be referred to as Bell I and Bell II, respectively. Upland owner rights, to the surprise of even many upland owners, were significantly expanded; public use rights, to the disappointment of many, were correspondingly narrowed. The two cases were controversial at the time. The Marine Law Institute of the University of Maine School of Law submitted an extensive amicus brief on behalf of the public in the Bell II case; the Bell II opinion itself was a 4-3 decision of the Law Court which contained a stinging dissenting opinion by later Chief Justice Daniel Wathen. In the wake of the two decisions, the Maine Law Review published a critical symposium issue. The Bell cases have produced further cases parsing out upland owner and public use rights in the intertidal zone, and they continue to provoke judicial and scholarly comment. Most recently, two lower court cases, both raising upland owner challenges to asserted public uses of intertidal lands, Flaherty v. Muther and McGarvey v. Whittredge, were appealed to the Law Court. The briefing schedules for both cases were set two weeks apart, and concluded in August, 2010. Oral arguments in both cases were heard in November, 2010. Recognizing the importance of the two cases as possible vehicles for reexamination by the Law Court of one, or both, of the Bell holdings, the Maine Attorney General’s office, asserting a broadened view of public use rights in the intertidal zone, sought and was granted intervenor status in the Flaherty case, and subsequently, amicus curiae status in the McGarvey case. This author, a participant in the Marine Law Institute’s 1989 amicus brief, sought and was granted amicus status in both cases. Both of the author’s amicus briefs urged the Law Court to reexamine the Bell holdings, and then argued for an expanded view of public use rights in the intertidal zone. The two briefs were similar in many respects because the asserted Bell I and Bell II errors, i.e. the issues and arguments presented in each amicus brief, were similar. To avoid repetition, the second amicus brief, Flaherty, presented only new, alternative arguments in support of an issue already argued in the first amicus brief for McGarvey. Arguments in the McGarvey brief were incorporated by reference in the second amicus brief.8 Each brief also contained those arguments unique to that case. For whatever value it may have to scholars, those in Maine, or other states, called upon to defend public rights in intertidal lands, all of the issues, arguments, and footnotes contained in the author’s two amicus briefs are combined in this single article