Beachfront ownership lawsuit challenges Maine Law Court errors
It remains to be seen whether Maine courts are willing to correct legal and scientific mistakes of the past.
This opinion column was originally published by the Portland Press Herald on Saturday, May 8, 2021.
On April 22 – Earth Day – 24 named plaintiffs, including myself, filed suit challenging Law Court errors of omission and commission in Ross v. Acadian Seaplants and the Moody Beach cases – errors that ceded title to all of Maine’s intertidal land to adjacent upland owners, and in Ross gave them title to rockweed growing in or on the intertidal land. The suit brought by these 24 plaintiffs is soundly rooted, although whether it succeeds in challenging the precedent set by the Law Court remains to be seen.
About The Author: Orlando E. Delogu of Portland, photographed on April 22, 2021 at a press conference at Moody Beach in Wells, is an emeritus professor at the University of Maine School of Law. He is a plaintiff in a lawsuit filed April 22 in Cumberland County Superior Court against property owners who claim ownership over intertidal land. For more information about him and the authoritative book he has written, “MAINE’S BEACHES ARE PUBLIC PROPERTY, “ visit his informative web site.
The plaintiffs represent a wide range of private activities and economic interests that are prohibited or put at risk by the arguably incorrect current state of Maine’s intertidal land law. Relying on a 1647 Colonial ordinance, the 1986 and 1989 Moody Beach cases held that upland owners were ceded title to adjacent intertidal land. This cut off the public’s long-exercised right to engage in recreational activities (walking, sunbathing, picnicking, playing in the surf, etc.) on Maine beaches – beaches were held to be private property.
A recent Law Court case, Almeder v. Town of Kennebunkport, examined Massachusetts Colonial legislation incident to the settlement of Goose Rocks Beach in the town of Kennebunkport. The Law Court affirmed the trial courts holding (except for one parcel at the mouth of the Little River) that intertidal land was not conveyed to founding settlers. Ownership of intertidal land was retained by the town for lateral passage and other public uses; the town retains that title today. These Colonial Legislatures did not believe that a 1647 ordinance had alienated all intertidal land in Massachusetts (and by extension) Maine. The Law Court’s holding in Almeder is facially inconsistent with the Moody Beach cases.
Further on this point, a U.S. Supreme Court case, Phillips Petroleum, handed down well before the 1989 Moody Beach holding (but brushed aside by the Law Court) clearly states: “… Our cases firmly establish that the States, upon entering the Union, were given ownership over all lands beneath waters subject to the tide’s influence … .” The Moody Beach cases (and Ross) are inconsistent with this and related U.S. Supreme Court cases.
Beyond its full embrace of the Moody Beach holdings, the Ross case held that rockweed is a plant and to the extent that it grows on intertidal land is the property of the upland owner. This holding is scientifically incorrect – rockweed is not a plant. Calling it a plant does not make it so. Marine biologists characterize it as a “marine organism.” It exists ferae naturae (wild by nature) in the intertidal zone.
Even when found on what is said to be private property, things that exist ferae naturae – ducks, geese, deer, moose, fish, marine organisms – are not owned by the landowner. If owned by anyone, such things are owned by the state in trust for the public. As such (contrary to Ross), the harvesting of this organism (rockweed) is seemingly permissible pursuant to statutory provisions authorizing state agencies to license and regulate the harvesting of a wide range of ferae naturae animals, birds, and marine organisms.
Ominously, Ross (as it now stands) invites pointing out and correcting other scientific errors fashioned by the judicial branch. For example, though the Colonial ordinance allowed the public to “fish, fowl or navigate” in or on intertidal land, the judicial characterization of clams, quahogs, mussels, bloodworms, etc. as a “fish or fishery,” thus permitting public harvesting of these animals, is scientifically incorrect.
Correct science would recognize that clams, quahogs, mussels, bloodworms, etc., are not “fish”; they, like rockweed, are “marine organisms.” If not “fish,” their harvesting is not a “fishery.” It follows that harvesting these organisms by the public is not permitted by the ordinance. In fact, the reasoning in Ross would hold that these organisms are the property of the upland owner, insofar as they exist on intertidal land. Little wonder Maine shellfish and worm harvesters see their livelihood as threatened.
In sum, a re-examination of the Moody Beach cases and Ross is fully justified. It remains to be seen whether Maine courts are willing to correct legal and scientific mistakes of the past. And, if not, whether the U.S. Supreme Court will adhere to a long line of cases holding that upon statehood, states gain title to their intertidal land. Supreme Court adherence, never sure, is certainly likely.