Lawsuit alters access rights across beaches

A recent Maine Supreme Judicial Court ruling in an Eastport case is being viewed by some as fundamentally altering the law on the public's right to use privately owned intertidal areas, while others see the decision as still narrowly limiting those rights. The case involved whether the public has the right to walk across intertidal lands to reach the ocean in order to scuba dive. Although the court was unanimous in deciding to allow scuba divers to cross privately owned beaches, the justices were divided in their interpretation.
There may not be many surfers in the Eastport area, but the national Surfrider Foundation entered the legal battle as a friend of the court party to advocate for stronger beach access rights in Maine. The justices, though, only ruled on the issue of beach access for scuba diving and did not determine whether other uses of the intertidal zone, such as surfing, fall within the public trust rights. However, that did not prevent Adam Steinman, who argued the Surfriders' case, from stating, "This is being hailed as the broadest general public ocean access win in Maine in 30 years."
In 1989, the supreme court had struck down a coastal land-use law that asserted the public's right to use intertidal zones for general recreation, in a lawsuit involving Moody Beach in Wells. That case found that public rights in privately owned intertidal areas are limited to those specifically listed in the 1647 Colonial Ordinance, which are fishing, fowling and navigation.
The Eastport case started in 2008 and was brought by William "Skip" McGarvey Jr. and his mother, Mary Jo Kleintop, who has since passed away. They own property in Eastport's South End that extends to the mean low-water mark and that stretches in front of the property owned by Steven Whittredge and Jonathan Bird. McGarvey and Kleintop were represented by John Foster of Eastport, and Whittredge and Bird by Dennis Mahar, with an office in Calais. Bird operates a commercial scuba diving business, and he and his clients were not able to reach the water from his property without crossing McGarvey's intertidal land. In November 2008 McGarvey and Kleintop sought a court injunction prohibiting Bird from crossing his intertidal land for scuba diving. McGarvey also alleged trespass related to the scuba diving and social activities that Bird engaged in on the intertidal land. In January 2010, Superior Court Justice Kevin Cuddy found in favor of Bird, declaring that crossing of the intertidal land for recreational or commercial scuba diving is within the public's right to use intertidal land for navigation. The court also ruled that the social activities constituted a trespass and awarded McGarvey and Kleintop one dollar, together with interest and costs. That part of the judgment was not appealed.
Although all six supreme court justices agreed with the superior court decision, they split on their reasoning. In the analysis by three of the justices, they note that in Maine the upland owner "ordinarily has fee ownership of the intertidal land," but private ownership "is subject to the public right to use the intertidal zone." Those authorized public uses are related to fishing, fowling and navigation, with a "sympathetically generous" construction in Maine's common law. They note that common law "has regularly accommodated the public's right to cross the intertidal land to reach the ocean for ocean-based activities." For instance, upon landing a boat on the intertidal land, the operator may pass freely to the lands of others besides the owners of the flats. They also argue that the public trust rights in the intertidal zone should not just be strictly limited as related to only fishing, fowling and navigation. In their decision, they concluded that "the public trust rights are at least broad enough to allow the public to walk across the intertidal lands to enter the water and scuba dive." The standard they propose is to "strike a reasonable balance between private ownership of the intertidal lands and the public's use of those lands."
The other three justices, in their concurring opinion, concluded that some forms of non-boat-related propulsion through the water, including scuba diving, could be found to constitute a form of navigation. They argue that the opinion by the other justices would create a new right to cross privately owned intertidal land to gain access to the ocean, which "would exceed even the most 'sympathetically generous' interpretation of fishing, fowling and navigation." It would "fundamentally alter, rather than merely expand, Maine's existing common law." Instead, these three justices apply a broad interpretive approach in construing the uses arising from the public trust rights of fishing, fowling and navigation.

Rockweed harvesting implications
The decision could give an indication of how the court might view the question of harvesting rockweed on private property in the intertidal zone. The issue of ownership of the rockweed is not clearly settled, and many believe that a court case is needed to resolve the question.
Of the recent supreme court decision, Bob Morse of North American Kelp, which has been allocated sectors for harvesting rockweed in Cobscook Bay, comments, "It's another case indicating that people have the right to use the intertidal zone." He believes that a court case is not needed to settle the question of the right to harvest rockweed in the intertidal zone, since seaweed harvesting is a fishery. Under state law, fishing is the taking of a marine organism, which includes any animal, plant or other life that inhabits the waters below high tide. If rockweed harvesting is not allowed as a fishery in the intertidal zone, then clamming and worming also would not be allowed, he argues.
However, Robin Hadlock Seeley, one of the directors of the Rockweed Coalition, which seeks to protect intertidal rockweed, comments, "I'm a marine biologist, not a lawyer. However, having carefully read the court's decision, I see nothing that would change my understanding from a study done at the University of Maine concluding that rockweed belongs to the upland landowner. The state sells permits to cut rockweed, while asserting it does not actually know who owns the rockweed. No wonder landowners get upset."
The Maine Department of Marine Resources (DMR) has not taken a position on the question of ownership of rockweed. Meanwhile, the number of properties in Washington County that landowners have listed on a voluntary no-harvest registry for rockweed has increased to 500. Acadian Seaplants, which is respecting the no-harvest registry and previously had operations in Cobscook Bay, is not operating in the bay this year. Five other companies and individuals were also allocated sectors in the bay for rockweed harvesting by the DMR this year, and a mechanical harvester is being used on the sectors allocated to George "Butch" Harris of Eastport and Pat Driscoll of Yarmouth. So far the harvesters have not been cutting on properties on the no-cut registry. With such a significant percentage of the bay on the no-harvest list, it's not clear whether it will be feasible for companies to continue harvesting while respecting landowners' wishes. It's possible that a court case could ensue if harvesting does occur on those properties.