Shorelines and Public Rights-­‐ Background on Maine law John A. Duff, J.D., LL.M.,
School for the Environment
UMass/Boston
Boston, MA 02125
Fi:een Centuries of Public Trust Doctrine Law in Twenty Minutes John A. Duff, J.D., LL.M.,
School for the Environment
UMass/Boston
Boston, MA 02125
Public Trust Doctrine?
A.  Life, Liberty and the Pursuit of Happiness
B.  Fishing, Fowling and Navigation
C.  Peace, Order and Good Governance
D.  Eat, Drink and Be Merry
Public Trust Doctrine?
B. Fishing, Fowling and Navigation
But how do so many Mainers know this?
An Ancient Doctrine As Americans we developed a coastal idenEty " He has plundered our seas,
ravaged our
Coasts,
. . . and
destroyed the lives
of our people”
X
The Public Trust Doctrine From “Putting the Public Trust Doctrine to Work” p. 7 (2d ed., Coastal States Organization, 1997)
The Public Trust Doctrine From “Putting the Public Trust Doctrine to Work” p. 8 (2d ed., Coastal States Organization, 1997)
The Moody Beach case Bell v. Town of Wells (1989) -­‐ Majority opinion •  Maine used to be a District of Massachusetts, and Maine state
law evolved from English common law, colonial ordinances, and
MA common law;
•  Colonial ordinances gave (MA/ME) landowners fee title to
intertidal land (i.e. to the low water mark) or at least out to 100
rods (1650 feet);
•  Public trust doctrine is limited to give public rights of “fishing,
fowling, and navigation in the intertidal zone.”
•  State legislature may not expand PTD uses to include recreation;
•  Town seeking easement for public use must pay for it. Wathen’s Dissent in Moody Beach case •  The colonial ordinance did not extend to Maine by its terms, but rather applies by custom, and as such public rights should not be limited to fishing, fowling and navigaEon -­‐-­‐-­‐ –  “Although we must avoid placing any addi6onal burden upon the shoreowner, there is no reason to confine, nor have we in the past confined, the rights of the public to the usage prevailing in the 17th century.” Bell v. Town of Wells, 557 A.2d 168, 188 (Wathen, J. dissen6ng) Opportunity for change Eaton v. Wells (2000) •  State and town of Wells sought declaraEon that public had right to use porEon of Wells Beach owned by Eaton family; •  State Supreme Court ruled that town/public had right to use beach via easement by prescripEon; •  Majority (Wathen, C.J.) refrained from addressing state’s contenEon that PTD ought to be expanded Eaton v. Wells “I would overrule Bell v. Town of Wells … a
citizen of the state may walk along the beach
carrying a fishing rod or a gun, but may not
walk along that same beach empty-handed
or carrying a surfboard.”
Eaton v. Wells, 760 A.2d 232 248-249 (Me. 2000) (Saufley,
J., concurring)
McGarvey v. WhiZredge (2011) Issue:
Whether … the public has the right to
walk across intertidal lands for
purposes of scuba diving?
Answer: Yes (6-0)
Saufley
Mead
Jabar
“[Scuba diving] stretch[es] the definition
of navigation beyond its meaning …
our common law has regularly
accommodated the public’s right to
cross the intertidal land for ocean
based actvities.”
Levy
Alexander
Gordon
“scuba diving [is] an activity that is
within the public’s right to use
intertidal land for purposes of
navigation”
Does McGarvey v. Whittredge overrule
the Moody Beach FFN limitation?
Almeder v. Kennebunkport, No. RE-­‐09-­‐111 (York Sup. Ct., Oct. 16, 2012). Issue I: Whether and how the public has the
right to use this beach (Goose Rocks)?
Issue II: Whether the public has greater than
FFN interests in the intertidal land in
light of McGarvey v. Whittredge?
Almeder v. Kennebunkport, No. RE-­‐09-­‐111 (York Sup. Ct., Oct. 16, 2012). Judge Brennan’s rulings Re: Whether and how the public (and TMF
group) has the right to use this beach?
•  The public and TMF group have
demonstrated all elements of a prescriptive
easement at Goose Rocks.
•  The public has demonstrated all elements
of easement by custom (if Maine Law allows
such claims) at Goose Rocks.
Almeder v. Kennebunkport, No. RE-­‐09-­‐111 (York Sup. Ct., Oct. 16, 2012). Judge Brennan’s rulings Re: Whether the public has greater than
FFN interests in the intertidal land in
light of McGarvey v. Whittredge?
“the public, under the public trust doctrine,
has rights to use the intertidal zone at
Goose Rocks Beach for … the oceanbased activities described above”
Westmarine.com
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Peter Opatrny
Turtlebeachmarine.com
You can jet-­‐ski water-­‐ski knee-­‐board tube surf wind-­‐surf boogie-­‐board ra: paddle-­‐board snorkel You cannot swim bathe wade walk picnic play games Acknowledgments