May 23, 2018
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Court navigates terminology in private property case

By Judy Harrison, BDN Staff

BANGOR, Maine — If a person walks across private property located in intertidal waters to scuba dive, is he trespassing or legally accessing ocean waters for the purpose of navigation?

The Maine Supreme Judicial Court on Wednesday was asked to answer that question and define the word “navigation” in an appeal from Washington County Superior Court.

One side maintained that “navigation by definition requires a boat.” The other argued that scuba diving is akin to boating and divers simply use fins and oxygen tanks to propel themselves underwater rather than the paddles canoeists and kayakers use.

The law that attorneys argued over Wednesday is the Colonial Ordinance of 1647. It created a public easement on privately owned oceanfront property for fishing, fowling and navigation. Maine and Massachusetts, which were one colony when the law was written, are the only states in the nation that allow such broad public access to the ocean across intertidal land.

In the past century, courts in both states have interpreted the law to exclude a right to bathing, sunbathing or walking on privately owned intertidal land, but have allowed access for fishing, fowling and navigation whether for commerce or recreation.

William A. McGarvey and Mary Jo Kleintop own a home and land in Eastport, bounded on the east by the low water line of Passamaquoddy Bay, according to briefs filed in the case. Jonathan Bird and Steven R. Whittredge own a vacant lot adjacent to the McGarvey-Kleintop property, but it does not extend to the low water line.

Bird conducts scuba diving tours of Passamaquoddy Bay based out of his home, according to a brief filed by attorney John P. Foster of Eastport, who represents McGarvey and Kleintop. To get to the water, Bird leads his guests across his neighbors’ property.

Earlier this year, Superior Court Justice Kevin Cuddy found “the right to navigation has expanded to include the right to use waters as a public highway, even when frozen, and for recreational purposes.” That decision was correct, Dennis Mahar, the Calais attorney for Bird and Whittredge, told the justices Wednesday.

“The comparison to a highway is particularly helpful in determining which activities are allowable,” Mahar said in his brief. “The intertidal zone is used as an avenue to get from Point A to Point B. This is substantially different than the prohibited conduct of bathing or even swimming. Similar to a highway, those actions could be considered loitering and generally impermissible. However, using the intertidal zone merely as a passage should not fall under such prohibited conduct.”

Foster disagreed.

“This is a case about swimming,” he told the justices. “Navigation, as it has been used historically, requires the use of a boat. Swimming is not navigating.”

Portland lawyer Adam Steinman represented the Surfrider Foundation and filed a friend-of-the-court brief on behalf of the San Clemente, Calif.,-based nonprofit organization. He urged the court to overturn previous rulings and allow access across intertidal land for recreational purposes as well as traditional uses.

There is no timetable under which the court must issue a decision.

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