Firm that helped overturn Chevron involved with lawsuit over Maine public beach access

Moody Beach in Wells, Maine. (Courtesy of William C. Penney)

A public interest law firm that helped get the Chevron doctrine overturned by the U.S. Supreme Court is part of the legal battle over public access to shorelines in Maine.

The Pacific Legal Foundation, which typically champions conservative and libertarian causes, is representing a defendant in a case involving public access to intertidal land in the town of Wells. About two years ago, the California-based firm was brought onto the case that is now en route to the Maine Supreme Judicial Court, said Chris Kieser, an attorney with Pacific Legal Foundation working on the case.

The firm, which represents clients for free in cases nationwide involving individual and property rights, like the one in Wells, brought in more than $25 million in 2023, according to tax forms available on its website.

Meanwhile, those fighting for public access rely on donations to cover their legal fees. “Here we are, holding fundraisers,” said Donna M. Cummings, who has lived one street back from Moody Beach for 25 years.

Legal experts say Chevron deference decision puts Maine’s reliance on federal partners at risk

As of late April, Pacific Legal Foundation said it had won 18 out of 20 cases it litigated before the U.S. Supreme Court. And that was before the Chevron decision was handed down in late June.

In July 2023, Pacific Legal filed an amicus brief asking the Supreme Court to overrule Chevron v. Natural Resources Defense Council and end the practice of deferring to federal agencies to interpret relevant laws, and make rules to follow those laws. The decision to overturn that ruling will significantly diminish federal agencies’ power to implement and interpret laws and make state reliance on federal partners risky .

Maine isn’t the only place the group is working on behalf of waterfront property owners to stem public access. The firm scored another victory this month in Rhode Island when a Superior Court judge ruled that a 2023 law amounted to an unconstitutional taking of land from beachfront property owners.

“Maine people need to know”

While Cummings said she appreciates that Pacific Legal Foundation “believes passionately in what they are doing,” she isn’t sure it’s for the betterment of the public at large. To her, it feels more like an “agenda” that pushes private ownership.

“I just feel like Maine people need to know about this,” Cummings said.

Five generations of Bill Penney’s family have enjoyed Moody Beach thanks to their vacation home that’s just a short walk away. Penney lives in Florida full-time, but keeps up with the case and said he is “very concerned” about Pacific Legal Foundation’s involvement.

Because, he said, this case is about more than his ability to play in the sand with his grandchildren; it’s also about the seaweed harvesters and fishermen who make their livelihood in intertidal land.

“There is so much at stake here,” Penney said. “It’s not just Moody Beach. It’s not just this one mile strip of beach. It affects the entire coastline of Maine.”

Public access to intertidal lands in Maine

In April 2021, more than 20 plaintiffs filed Peter Masucci v. Judy’s Moody , which challenged the limited public use and private ownership of intertidal land on Moody Beach.

The case hopes to reverse a 1989 decision by the Supreme Judicial Court of Maine that established private ownership down to the low-tide mark and limited public use to “fishing, fowling, and navigation” — language from a 400-year-old ordinance, when Maine was still part of Massachusetts. The plaintiffs’ argue the state of Maine assumed the title to all intertidal lands when it became its own state in 1820.

Case seeking to expand coastal access headed to Maine Supreme Judicial Court

As Pacific Legal Foundation sees it, “this is an important case because it’s a challenge to this longstanding precedent,” Kieser told Maine Morning Star in late May. He explained that their argument is that the 1989 decision was correct, so overturning it would be a “taking” of private property, which can’t be done without compensation.

A judge reaffirmed that property belongs to private owners in a 2022 decision, but didn’t rule on public use of the land, as reported by the Portland Press Herald. Maine Attorney General Aaron Frey asked for a summary judgment on public use of the land, but that was denied in January.

The plaintiffs have since appealed to the Maine Supreme Judicial Court. Both sides are expected to file briefs in the coming months, according to a schedule outlined by the courts.

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