(Illustration by Dan Kirchoff)
(Illustration by Dan Kirchoff)
“... a member of the public has been allowed to stroll along the wet sands of Maine’s intertidal zone holding a gun or a fishing rod, but not holding the hand of a child.”— Chief Justice Leigh Saufley, in a recent Maine Supreme Judicial Court decision (“Ross”) on activities legally allowed on Maine’s privately owned shore. She wanted to expand the activities. She didn’t prevail.

Maine courts have said — forcefully, in recent decades — that the (often, rich) people on the coast own the beaches and rocks between high and low tide in front of their (often, summer) homes. And that they have the right to kick people off who swim from, sunbathe on, or just walk along “their” shore.

This year, legislators are trying to change this picture so seemingly at odds with the publicity images of families happily strolling on the state’s idyllic beaches. The bill to do it, LD 1323, has bipartisan support.

Republican Senate Minority Leader Dana Dow is the prime sponsor. The Agriculture, Conservation and Forestry Committee recently voted 11-1, with one legislator absent, to support the bill, after adopting amendments suggested by the attorney general’s office.

The legislation doesn’t tackle the ownership question directly. In legal terms, ownership famously is a “bundle of rights.” LD 1323 would take some rights from the landowners and give them to the public to do things that, practically speaking, they have long done in the “intertidal zone” — such as swim, sunbathe, and walk.

Although my database searches couldn’t find any news stories about arrests for trespassing on the state’s beaches, in recent decades controversy about the intertidal zone has grown: “no trespassing” signs put up, people told to get off the beach, complaints to police and local officials. Most important, property owners have been successful in their court suits to try to block public uses of the sandy or rocky shores.

Why the controversy? “Daddy Warbucks came along,” said a spirited promoter of LD 1323, Independent Rep. Jeffrey Evangelos, of Friendship. He meant rich people who didn’t have much tolerance for the locals. In the old days, he said, the Rockefellers or the Wyeths might have picked up their paintbrushes when they saw clamdiggers in front of their cottages. Not so the nouveau riche.

SueAnn Wilson, of Freeport, in testimony submitted to legislators on LD 1323, appeared to agree: “Many Mainers can no longer afford to live on the coast, including fishing men and women. Meanwhile, people that have moved onto the shore do not appreciate the cultural coastal traditions of Mainers.... The intertidal belongs to all of us, not just a wealthy few.”

Legislators also heard from the other side: “Should the intertidal areas be usurped by the state,” wrote Robert and Bundy Boit, of Penobscot, “we most certainly will be subjected to objectionable, unreasonable noise and obstacles that will prevent our ever being able to use the waterways and mudflats for recreational or other uses.”

Ancient history

The current era of debate began when the state’s highest court, the Maine Supreme Judicial Court, a.k.a. the Law Court, rendered a decision in 1986 and a broader one in 1989 about the use of Moody Beach in Wells. In legal circles they’re called the “Bell” decisions, after the name of one of the landowners who sued to assert ownership rights.

Both decisions said emphatically that the “upland” property owners owned the tidal property below their land. In their 1989 pronouncement the justices struck down a law passed a few years previous that had expanded the public’s recreational rights to the shore.

The main contention of the shorefront real-estate owners was that their title was fixed in the 1640s in a set of laws, known as the Colonial Ordinance, promulgated by the Puritans of the Massachusetts Bay Colony. This was even before the region now known as Maine formally became part of Massachusetts, and well before Maine separated from the Bay State in 1820.

The shoreland owners also contended that, given the Colonial Ordinance, if the state allows the public to use the intertidal zone without their permission, that constitutes what is known as a “taking” by the state of their property—more precisely, the taking of rights associated with their property—without just compensation, which is unconstitutional.

In the Moody Beach cases, judges came down hard on the general public. The only rights the Colonial Ordinance specifically allowed to the public were for fishing, “fowling,” and navigation (fowling is an antique word meaning bird hunting), although through the years the courts squeezed a few other rights into this formula, such as clamming and worm digging.

(Cynics point out that the four justices in the majority in the 1989 case each owned shorefront property, as journalist Edgar Allen Beem reported in 2017. The three in the minority didn’t.)

With LD 1323, the Legislature is considering reasserting rights the Law Court struck down in the 1980s—and a specific right the Law Court struck down this year in a decision involving seaweed harvesting, called the Ross case.

Kenneth and Carl Ross, brothers, had sued to prevent a Canadian company, Acadian Seaplants, from harvesting rockweed in front of their property on Cobscook Bay in Washington County. The court concluded that intertidal rockweed “is the private property of the upland property owners,” again relying on the Colonial Ordinance.

Didn’t the Revolution occur?

“Why are we honoring this when we don’t honor the Stamp Act, the Sugar Act, and the tea tax?” Rep. Evangelos asked sarcastically, referring to the Colonial Ordinance and British laws that helped ignite the American Revolution.

It baffles many people that becloaked representatives of the King of England, the same sort of officials who sent the Salem “witches” to the gallows, could after nearly 400 years shoo away Mainers’ children and grandchildren making sandcastles on the beach.

But the law and its pillars of precedent and custom sometimes become detached from common sense, said Orlando Delogu, a University of Maine law professor emeritus. Maine judges “just wrapped our arms around Massachusetts law” even though each state is legally on “an equal footing” with every other state.

Delogu is the author of a book, “Maine’s Beaches Are Public Property.” His thesis is that Maine isn’t at all bound by the 1640s’ Colonial Ordinance.

In his writings, Delogu refers to the great historical tides that Maine’s law on the intertidal ignores. Look back, he says, 1,500 to 2,000 years “to the beginning of organized western society, to a recognition ... that some things, the air, oceans, intertidal lands were ... incapable of private ownership.”

Curiously, when I looked back on the legal debates on this issue, I couldn’t find a reference to the Native Americans from whom the shorefront property was taken. By historical accounts, they had a very different view of ownership from the invaders.

William Williamson, the early 1800s’ Maine historian, comments: “The Indians are a very peculiar race. Their territories are holden by the tribe in common; individuals are willing strangers to an extended commerce and to accumulated wealth.”

Private claims to the public domain, especially in the service of “extended commerce” and the organized accumulation of wealth, have resulted in the appropriation and exploitation of the rivers, lakes, oceans, the air, and much of the land, with pollution among the results. With global warming, we’re discovering just how immense the pollution has been.

Business to the rescue?

But if business is the culprit in the destruction of much of the common good, it’s ironic that in Maine at the moment business interests and their exploitation of the environment may be the principal reason the Legislature could give the public more rights to the beaches and rocky shores.

The Ross case, deciding that seaweed belonged to the upland property owners, “quickened everyone’s pulse” on the intertidal issue, Delogu said. Especially, it would seem, the pulse of seaweed harvesters and legislators who represent them.

Waldoboro, which has two such businesses and happens also to be one of the most productive towns on the coast for clam diggers, is where much of the energy is coming from in the effort to change the law. Sen. Dow lives in Waldoboro, and Rep. Evangelos lives on Waldoboro Road in nearby Friendship.

George Seaver, of Ocean Organics, one of the seaweed-harvesting businesses in Waldoboro, testified to legislators that “since the early 1970s Waldoboro and Brunswick have become the largest processors of rockweed in the country.” In Waldoboro alone, “there are about a hundred people paying their bills with dollars that started as rockweed.”

Sen. Dow admitted frankly that the push for the bill is coming from the seaweed harvesters. He reconciled Republican support for government expansion of authority over private-property rights — not a usual GOP position—by drawing a parallel between seaweed harvesting and clam digging and what some hunters call the harvesting of deer on private land during hunting season: “I might own the land, but I don’t own the deer.” He added: “I look at it as the government upholding its rights to the public trust.”

Dow’s reference to the “public trust” is to a specific legal doctrine allowing the government to assert public rights against private interests: that the state holds in trust certain common resources for the use and enjoyment of all people.

Delogu had a pithy explanation of why Republicans are supporting LD 1323: “It’s business!”

But it’s “not just large corporate interests,” he said. The seaweed harvesters are generally small businesses. Total raw seaweed gathered in Maine in 2018, the state has calculated, was worth less than $1 million — though, when processed, it has many times that value. And the state’s several thousand clammers and worm-diggers mostly operate as individuals.

Nevertheless, what appears to count politically in the impetus for LD 1323 is not so much the millions of people — including visitors — who run up and down the beaches and scramble over the rocks every summer, but business interests.

No guarantee

If seaweed harvesters obtain legal rights to the intertidal zone, however, there may be no guarantee that the exploitation of seaweed will be benign.

A Colby College biology professor, Herbert Wilson, sent legislators testimony opposed to LD 1323 because he was worried that current mechanical seaweed harvesting was being performed in a way that was damaging to the intertidal biological “community.”

The principal rockweed harvested — knotted wrack or Ascophyllum nodosum — has a critical role “as food for intertidal herbivorous snails and crustaceans, provides a nursery habitat for crustaceans and cod, and foraging habitat for fish, sea ducks and shorebirds.”

It was being cut way too severely, he said, “turning a knotted wrack stand from a forest to a meadow,” diminishing its value for the intertidal life around it.

Also opposing the granting of access rights to seaweed harvesters, Christine Carey, of Addison, testified: “We welcome people walking across our land to work in the ocean. They do not destroy the bounty of the ocean.” But, “We have seen rockweed harvesters rake and now vacuum the ocean floor clean of any vegetation. There is no reason to allow them to come onto our property to do that damage.”

Kenneth Ross, a retired political science professor, wrote eloquently in a recent Portland Press Herald op-ed that his suit against the rockweed harvesters came from similar ecological concerns.

As a child in the 1940s on Cobscook Bay, he said, he “waded among the urchins, snails, mussels, hermit crabs, sand dollars and starfish; small flounders brushed my ankles.” Herring, salmon, and pollock were abundant. “Now almost all these creatures are scarce or gone.”

He blamed pollution and the warming ocean, but also overharvesting of the sea’s bounty: “Mass cutting of wild rockweed in Maine has been a blind, poorly conducted, irresponsible, destructive and unnecessary experiment at the expense of the Maine coast.”

Proper regulation, of course, could prevent destructive harvesting. The state Department of Marine Resources regulates seaweed harvesting, clamming, and other uses of the intertidal zone. Delogu believes it does a “credible job.”

Acadian Seaplants told Mainebiz magazine that it obeys a 17-percent state limit on the amount of rockweed available that it can harvest. The seaweed industry uses this common brownish alga — 90 percent or more of the seaweed on our shores—for fertilizer, nutritional supplements, and other products.

Don’t forget the judges

If the Legislature passes LD 1323 and Democratic Gov. Janet Mills signs it, the law still could be overturned by the Maine courts, as a similar, if less expansive, law was in 1989. As of press time, Mills had not taken a position on the bill.

In the 1989 Moody Beach case, then-Supreme Judicial Court Justice Daniel Wathen was a losing-side dissenter. In his written opinion, he expressed the view that public rights in the intertidal lands existed in common law long before the Colonial Ordinance. He also opined that in practice Maine had expanded and could continue to expand public rights, such as recreational rights, consistent with common law.

In a recent interview, Wathen said he suspected LD 1323, if enacted, could run into trouble in Maine’s courts. (After 1989 he served as chief justice for nine years and currently serves as the courts’ “special master” overseeing the treatment of mentally ill people in Maine.)

Despite the sympathy he previously expressed for an expansive view of public rights, Wathen said that the 1989 Bell decision made it clear that upland owners had a property interest subject only to narrow exceptions. He said the Legislature “may not be able to change the property rights established by that decision.”

Or, as a recent Maine Law Review article bluntly put it: “The court favors a private property regime that in many ways reveres at its center the notion of private property as an absolute individual entitlement.”

On the other hand, three of the seven Law Court justices in the recent Ross case wanted to expand the public’s rights. Chief Justice Leigh Saufley called the ’89 Bell decision “a regrettable error.” One more justice thinking along those lines and LD 1323’s provisions could be home free.