Beach Access, Legal
August 25 2011

Maine High Court Ruling –  Scuba Diving: 6, Exclusive Intertidal Zone: 0

by Angela Howe

Maine High Court Ruling –  Scuba Diving: 6, Exclusive Intertidal Zone: 0
Six Maine Justices Rule for an Expansive Interpretation of Public Trust Activities

Today, the Maine Supreme Judicial Court ruled in favor of beach access rights with the McGarvey v. Whittredge decision regarding the public access of recreationalists like scuba divers through the intertidal zone in Maine.  Specifically, the case was set in Eastport, Maine, but the ruling set statewide precedent.  Surfrider Foundation's Maine Chapter became involved as an amicus curiae or "friend of the court" party to the lawsuit to advocate for stronger public beach access rights at the highest court in the state of Maine. At the November 10, 2010 hearing, the Maine Chapter of Surfrider Foundation was represented in the high court by Attorney Adam Steinman who offered an oral argument as to why surfing and other recreation, including movement by artificial means in the water, should be considered under the definition of navigation.  The concurring justices agreed that the activity should be navigation or should otherwise be allowed as a public trust right.

I. The Holding

In this proceeding, broadening of the Public Trust Doctrine within the intertidal zone was at issue in providing statewide precedent for the interpretation of the Colonial Ordinance of 1647 and the Public Trust Doctrine.  The Surfrider Foundation Maine Chapter has been fighting on behalf of beachgoers to push for extending the definition of “fishing, fowling, and navigation” within the colonial ordinance to include surfing, scuba diving, and other forms of navigation.  The August 25, 2011 ruling by the Maine Law Court held that ownership of the intertidal lands has always been subject to the public's right to cross the wet sand to reach the ocean, and that this right should be upheld with regards to access for scuba divers in the state of Maine.  Specifically, on p.5 of the Opinion, the court states that under common law, “we understand the public’s right to use the intertidal zone to encompass the right of the public to pass over that land to reach the ocean in order to scuba dive.”  The court goes on to justify their interpretation of property rights by quoting Blundell v. Catterall, 106 Eng. Rep. 1190, 1194 (1821), stating: “It will not be disputed that the sea, which as been called the ‘Great highway of the world,’ is common to all.” Surfrider Foundation is encouraged by this ruling in that it opens up the state beach access laws to allow more types of recreational activities to be freely enjoyed at the state's beaches.

II. The Colonial Ordinance and Bell II

In the past, Massachusetts and Maine have opted to follow a 17th Century Massachusetts colonial ordinance to determine beach access rights in their states. The Colonial Ordinance of 1647 allows for access through the intertidal zone to engage in the activities of “fishing, fowling and navigation.”  According to a strict (and what some may argue an obsolete) interpretation of the colonial ordinance, beachgoers possess an easement over the intertidal zone for bird hunting, but not bird watching. Similarly, beachgoers are more prone to getting a ticket for carrying a big wave gun surfboard, rather than a harpoon gun. The Maine judicial system has acknowledged this flawed logic: “Pursuant to our holding in Bell, a citizen of the state may walk along a beach carrying a fishing rod or a gun, but may not walk along that same beach empty-handed or carrying a surfboard.” Eaton v. Town of Wells, 760 A.2d 232 (2000) (Saufley, J., concurring). In the Flaherty v. Muther case, 2011 ME 32, 17 A.3d 640, the lower court concluded that the intent for the walkway easement was for general recreation purposes and not for simply fishing, fowling and navigation as the antiquated ordinance explicitly lists.  However, the Bell II decision, 557 A.2d 168, 170-73 (Me. 1989), generally restricts the activities allowed to the public to the specific references in the Colonial Ordinance of “free fishing and fowling,” as well as “passage of boats or other vessels.”

As is explained on pp. 24-25 of the current opinion, while the decision in Bell I, 510 A.2d 509, 513-15 (Me. 1986), was on appeal, the Maine Legislature passed the Public Trust in Intertidal Land Act, that provided intertidal lands to be used for fishing, fowling, navigation, recreation and other trust rights not abrogated by statute.  However, the negative holding in Bell II declared the Public Trust in Intertidal Land Act to be unconstitutional because it expanded the public’s trust rights beyond that established by common law.  The Bell II decision and the resignation to the principle of stare decisis (or the historic policy to stand by precedent) are likely why this court was hesitant to expand the current ruling past the issue of scuba diving to include general recreation.

III.  The Concurring Opinions

Both concurring opinions concluded that the act of crossing intertidal land to go scuba diving would be allowable under Maine law.  The first three justices noted that this is because the public trust rights in Maine are at least broad enough to allow them to walk across the wet sand to reach the ocean, relying on "jus publicum", or the public's rights in the intertidal lands, provided for this extent of rights. This first concurring opinion relies on the general rule that common law in Maine has been modified to create private ownership of intertidal lands subject to the public trust rights reserved to the State.  In defining the extent of public activities that are subsumed within the public trust, the first concurring opinion posits that “nothing in the Colonial Ordinance or pronouncements of the common law…evidenced an intent to change or limit jus publicum – the public’s rights in the intertidal lands – except to the extent that those rights might interfere with the right of the landowner to wharf out.” (at p.19).

The second concurring three justices held that the Colonial Ordinance of 1647's rule that the land be used for fishing, fowling and navigation should be interpreted in a "sympathetically generous" way to include scuba diving as an activity that is within the public's right to use intertidal land for purposes of navigation. “We do not rigidly apply ancient common law principles without considering the changed realities of modern times,” said the Justices on p. 40 of the opinion.  The extension of this view is that “navigation” should be held to apply to other recreation, such as non-boating propulsion through the water.  This view could easily be opened up to surfing, boogie boarding, and even body surfing and swimming.  The second concurring opinion seems more willing to expand beyond the narrow holding of Bell II and open up the “fishing, fowling, navigation” triumvirate of activities to include other types of uses of ocean resources.

Overall, this decision will behoove beachgoers and beach rights activists because the high court in Maine is recognizing the fundamental principles of common law beach access through this McGaverty v. Wittredge decision.