August 29 2011

The Surfrider Foundation won an important victory on August 25 when the Maine Supreme Judicial Court unanimously ruled in William A. McGarvey Jr. et al. v. Steven R. Whittredge et al. that private ownership rights in the intertidal lands do not allow oceanfront property owners to exclude the public from crossing the wet sand to reach the ocean in order to SCUBA dive or run a SCUBA diving business.

“This is being haled as the broadest general public ocean access win in Maine in 30 years” said Adam Steinman, who argued and briefed the case on behalf of the Surfrider Foundation. “While the issue before the Court was extremely narrow, ‘Does the public have a right to cross intertidal land owned by a private party for the purpose of accessing the ocean in order to SCUBA dive,’ the two concurring opinions seemed to go out of their way to open the door to allow public access over privately owned intertidal lands in order to access the ocean to engage in many activities including surfing, and possibly swimming and general ocean recreation.  Three of the six justices, including the Chief, ruling in the case also appeared to express their willingness to effectively overturn the line of cases which has put the public’s rights in the intertidal zone in a state of confusion for the last three decades.”

In the case petitioners asked the Court to determine if the public has the right to walk across privately owned intertidal lands to reach the ocean for purposes of SCUBA diving.  All six justices found in favor of public rights.  The decisions by the Court provide statewide precedent for a broader interpretation of the Colonial Ordinance of 1647 with respect to navigation, and addressed the Public Trust Doctrine.

Both concurring opinions concluded that the act of crossing privately owned intertidal land to go SCUBA diving is allowed under Maine law.  Justices Saufley, Mead and Jabar noted that access is allowed because the public trust rights in Maine are broad enough to permit divers to walk across the wet sand to reach the ocean regardless of the Colonial Ordinance.  Justices Alexander, Levy and Gorman in their concurring opinion held that the Colonial Ordinance of 1647, which protects the public’s right to use intertidal land for fishing, fowling and navigation should be interpreted in a “sympathetically generous” way to include SCUBA diving as an activity that falls within the Colonial Ordinance’s definition of navigation.

The Surfrider Foundation’s Maine Chapter entered into the legal battle as an amicus curiae (friend of the Court) party to advocate for stronger beach access rights.  The 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, while also advocating that the Public Trust Doctrine provides the public with rights in the intertidal zone that go beyond the Ordinance’s three enumerated rights of fishing, fowling, and navigation.  The ruling pleases the Surfrider Foundation, as it provides the judicial foundation to open up Maine beaches to allow the public to enjoy more types of recreational activities.

“This is a big win for all beach users that simply want to enjoy the coastline here in Maine,” said Janice Parente, Surfrider Foundation Maine’s Chapter Chair.  “Strolling along the beach should not be illegal.  The ruling breaks down barriers and provides the groundwork we need to continue making progress on behalf of the public in many ongoing disputes.  It feels good to know the momentum is finally on our side.”