Maine high court ensures beach access at low tide

By Judy Harrison, BDN Staff
Posted Aug. 30, 2011, at 12 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court last week ruled that scuba divers may reach the ocean across land exposed at low tide even if it passes in front of private property.

The 6-0 decision last week upheld the right of an Eastport scuba diver to reach Passamaquoddy Bay by crossing the wet sand of beach property owned by a neighbor.

The justices heard oral arguments in the case in November when it convened at the Penobscot Judicial Center in Bangor. Justice Warren Silver recused himself from the case.

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.

Last 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.”

Although attorney Dennis Mahar of Calais, who represented Bird and Whittredge, urged justices to classify scuba diving as navigation, the court declined to go that far. Foster argued in November that the case was about swimming not navigation.

“Although Maine has a rich history of private ownership of intertidal lands,” Chief Justice Leigh I. Saufley wrote in a 31-page opinion, “that ownership has always been subject to the public’s right to cross the wet sand to reach the ocean. … In our view, the public trust rights are at least broad enough to allow the public to walk across the intertidal lands to enter the water and scuba dive.”

The law at issue was 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 for commerce or recreation.

The court’s decision was praised Monday in a press release issued by the Surfrider Foundation’s Maine Chapter, which filed a “friend of the court” brief in the case to advocate for stronger beach access rights.

“This is a big win for all beach users that simply want to enjoy the coastline here in Maine,” Janice Parente, who lives in Scarborough and is chairwoman of the Surfrider Foundation’s Maine Chapter. “Strolling along the beach should not be illegal. The ruling breaks down barriers and provides the groundwork we need to continue making progress on behalf of the public in many ongoing disputes. It feels good to know the momentum is finally on our side.”

The Associated Press contributed to the report.

http://bangordailynews.com/2011/08/30/news/court/maine-high-court-ensures-beach-access-at-low-tide/ printed on October 26, 2014