December 11, 2018
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Time for Maine to reconsider public ownership of tidal lands

George Danby | BDN
George Danby | BDN

More than most states, Maine has a strong tradition of public access to the outdoors.

But changing land ownership patterns, questionable court rulings, continued litigation, and greater gentrification in property ownership in the woods and along coast are changing the way Mainers live, putting at risk traditional activities that are part of our culture and our economic strength.

No where is that more evident than along Maine’s coast, where more and more parcels of oceanfront land and ocean access are being gobbled up and closed off to the public.

There’s more at risk than where we’re able to play in the waves or lay on the beach, though those activities matter too. Entire industries are at risk, jeopardizing jobs and driving away smart investments.

A number of industries, such as seaweed and worm harvesting, rely on access to intertidal lands. As upland properties become increasingly gentrified, the conflicts between harvesters and property owners have increased.

The question posed earlier is right now before the Maine Supreme Judicial Court. The key argument is whether seaweed is a marine organism, which can be “fished” in intertidal waters or more like a tree, which would be owned by upland landowners.

Depending on the court’s decision, areas that have been open for seaweed harvesting for generations may suddenly be off limits. Rules could vary from one cove to the next, and from one lot to the next.

In 1989, the Maine Supreme Court turned hundreds of years of law on its head when it decided the Bell v. Town of Wells case. The case held that intertidal lands (the area between mean high and low tide) are owned by upland property owners instead of the state in trust for the public.

Since the case, commonly called the Moody Beach case, was decided, access to, and public use of, intertidal lands has become more contentious, unpredictable and inconsistent.

While the court decided oceanfront landowners owned adjacent intertidal lands, the decision left in place a colonial ordinance that allowed the public to continue to use these lands for “fishing, fowling and navigation.”

And that’s part of the problem. The courts in Maine have been deciding what “fishing, fowling and navigation” means on a case-by-case basis.

Does “fowling” mean just bird hunting or could it also include bird watching? If harvesting clams and worms on intertidal land is “fishing,” is harvesting seaweed (another type of marine organism found on intertidal land) also included in this broadly defined term? Keep in mind seaweed harvesting and processing is a traditional and rapidly growing industry in Maine.

As it stands now, a person can’t stroll along the beach in the intertidal zone if the owner objects, but they could bird hunt. They can’t sunbathe, but they can land a boat.

Orlando Delogu, professor emeritus at the University of Maine School of Law, recently published a new book on the legal issues surrounding Maine’s intertidal waters, “Maine Beaches Are Public Property.”

He points out that public access is a sensitive issue in Maine, which despite its magnificent 3,500-mile ocean coastline, has less than 100 miles of sandy beaches. Less than half of these beach areas are publicly owned.

Delogu argues that the Moody Beach case was wrongly decided and that the Maine public actually owns the lion’s share of intertidal land in the state.

Recognition of this fact would allow both recreational and economic uses, and the development of statewide regulations that would protect natural resources, upland owners, and keep this wide variety of uses from getting in one another’s way.

The current system isn’t working.

Maine would be better served by a comprehensive, consistent approach that regulated all uses of intertidal lands.

It’s time for the state to develop this regulatory framework, and to recognize that it is the Legislature, not the courts, that can best protect and maximize the benefits from this growing array of competing intertidal land uses — uses that range from working waterfronts to gathering clams, worms and seaweed, to modern recreational activities.

For the public good, we need to come together now to reaffirm the state’s ownership of its intertidal lands and develop a regulatory system that works for everyone.

Robert Morse is the president of Atlantic Labs Inc. in Waldoboro.

 


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