Justices Weigh in on
Public Access Debate

by Sarah Craighead Dedmon

In their decision on Ross v. Acadian Seaplants all seven Maine Supreme Court justices agreed that rockweed is the exclusive property of the upland land owner.

However, even as fears about public and working waterfront access to Maine’s coastline ripple out from this decision, three justices used their concurrence to affirm their belief in preserving public intertidal zone access in Maine.

Chief Justice Hon. Leigh Saufley, Hon. Andrew Mead and Hon. Ellen Gorman wrote the concurrence, which censures a 1989 Law Court decision in the case of Bell v. Town of Wells (Bell II), calling it a “regrettable error, limiting public access to the intertidal zones on Maine’s beaches.”

“Since that time, 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.”

“Bell II has generated significant and expensive litigation resulting from the Court’s limitation of the public’s allowable activities to those that can be forced into the definitions of ‘fishing, fowling, and navigation.’ The constrictive trilogy of that holding has bedeviled the State of Maine since that opinion was issued, and we fear that the Court’s holding will become enshrined in increasingly uncorrectable law.”

The justices go on to quote the 1989 opinion given by Justice Wathen in his dissent to Bell II. “This Court’s opinion does nothing to dispel the obvious conclusion that from this moment on, at Moody Beach and every other private shore in Maine, the public’s right even to stroll upon the intertidal lands hangs by the slender thread of the shore owners’ consent...In my judgment, the public rights should not be so quickly and completely extinguished.”

Citing multiple cases that have taken place since Bell II, the justices went further in their censure of limiting public access to the intertidal zone.

“That decision, Bell II, has been questioned, pretzeled and avoided. Accordingly, because of the passage of time, which will eventually diminish the ability of the Court to correct the wrong created by the Bell II decision, we would take this opportunity to correct the judicial error that restricted the rights of the public to engage in reasonable ocean-related activities that do not interfere with the upland owners’ peaceful enjoyment of their own property or their right to wharf out.”

“The 1989 decision in Bell II erroneously limited the public’s reasonable and nonabusive use of the intertidal zone. That use should include the right to walk unfettered upon the wet sand of Maine beaches to peacefully enjoy one of the greatest gifts the state of Maine offers the world.”

“Simply put, we would overrule Bell II once and for all.”