Maine

Most courts are loath to redefine the law solely on the basis of the personal opinions of the justices. As noted here before, the doctrine of stare decisis — leaving settled legal questions settled–  does not seem to bother U.S. Supreme Court Chief Justice John Roberts, whose recent campaign finance decisions have demolished a century’s worth of restrictions on private and corporate fundraising.

Stare decisis does apply to Maine’s Supreme Judicial Court, however, which is why its decision concerning ocean access for scuba divers, handed down Aug. 25, is so interesting.

Coastal access has been hotly contested in Maine over the past half century, which is hardly surprising. The state has a 3,500-mile coastline, with both robust public recreational use and accompanying deference to private landowners.

The big decision came in 1986, when a group of private landowners successfully evicted beach-goers from their shoreline in Wells. It’s often called the Moody Beach decision, but its formal title is Bell v. Wells. A 4-3 majority of the court, applying a 1647 Massachusetts colonial ordinance, said public access is strictly limited to “fishing, fowling and navigation,” and that sunbathers and body surfers need not apply.

The ruling was made possible because, unlike many states, including neighboring New Hampshire, Maine does not own the so-called “intertidal zone” between low and high tide. Beyond those boundaries, things are simple. The state owns the immediate offshore area, the upland landowner everything above high tide. But between the tides, the landowner owns but the public has rights of use. Just how much use has been an evolving question.

Many of us thought the original Bell decision, and its even more definitive successor, Bell II, were flawed in their understanding of public use. At the time, I called it “cramped and crabbed,” and have seen no reason to change my mind.

It was clear from the historical record that the Massachusetts legislature, whose laws were incorporated into Maine statutes at statehood, was primarily interested in encouraging development of private wharves, and granted neighboring landowners those rights. But they also allowed all likely public uses practiced at the time. Puritans were not known for sunbathing.

But, unless you were actually fishing, boating, or duck hunting, the Supreme Court said you could be kept out. And so things have stood for 25 years.

The scuba diving case, involving a dispute between two landowners in Eastport, could mark a shift toward greater public access. The decision in McGarvey v. Whittredge was unanimous, but it reveals an interesting split that could prove significant. On the surface, the decision to allow scuba divers to walk across a neighboring landowner’s intertidal land could be seen as an expansion of the “navigation” exception.

But Chief Justice Leigh Saufley’s elegantly written opinion specifically denies that interpretation, saying “The dives do not involve the use of a boat, and no one engages in any form of fishing or fowling.” Later on in the opinion, Saufley takes a sly shot at the Bell decision’s reliance on the colonial ordinance, referring to it as “a historical artifact of the British and colonial attempts to encourage commercial wharf development at private expense.” She also slyly refers to “the three talismanic activities” —  fishing, fowling and navigation — covered by the 364-year-old ordinance.

Finally, Saufley asserts that “the three terms adequately provide context, but they simply do not and have never, until Bell II, been understood to wholly or exclusively define the public trust rights.”

In a concurrence, but one that reads more like a dissent, Justice Jon Levy concludes that Saufley’s views point toward overruling Bell II, and I suspect that’s exactly what’s going on.

While this decision is limited to scuba diving —  the court did not take up the requests of a surfing organization to gain access —  it seems to invite another case with a different legal premise. The stakes are high, as reflected in the 47 pages consumed by the two opinions, which include Saufley’s thorough review of the historical and legal record.

Currently, three judges  — Saufley, Andrew Mead and Joseph Jabar —  would revisit, and perhaps ease the barriers to public access erected in the Bell cases. Three others —  Levy, Ellen Gorman, and Donald Alexander —  would probably stick with Bell. That leaves Justice Warren Silver as a potential deciding vote. Silver did not participate in the McGarvey case.

Maine’s high court is wise not to make sudden changes in direction, but adjustments are possible. Before long, the public could gain rights to use our magnificent coast that in most other states are taken for granted.