Scope of Public Rights to Use Intertidal Lands
In a decision issued late last month in the case of McGarvey v. Whittredge, 2011 ME 97, the Maine Supreme Judicial Court attempted to clarify the rights of the public in intertidal lands. Under Maine law, the waterfront landowner typically owns the intertidal lands (subject to any specific terms or exclusions in the waterfront landowner’s deed). However, the public has a right to use the intertidal lands for certain purposes.
The scope of the public’s right to use intertidal lands is rooted in a 17th century colonial ordinance that expired before Maine became a state but was incorporated into Maine common law by statute. That ordinance defined the public rights in the ocean as relating to fishing, fowling, and navigation. Over the years, the Court has interpreted the term navigation broadly, to permit such activities as digging for worms, clams, and shellfish; ice skating; mooring a vessel; discharging passengers; and taking on cargo.
Despite its “sympathetically generous” interpretation of the public’s rights in intertidal lands, in the 1989 case Bell v. Town of Wells, the Court ruled that those rights do not include a blanket public easement over intertidal lands. The Court’s reliance on the terms “fishing,” “fowling,” and “navigation” in that case suggested that the public rights were limited to those three activities and related uses.
Now the Court in McGarvey concluded that the public’s rights are not limited to those three activities and that the public also has the right to cross intertidal lands for ocean-based activities such as scuba diving. While the Court declined to address whether the public rights include uses related to surfing, the decision leaves open the possibility that other ocean-based activities may permitted.
The extent of public rights in intertidal lands has been, and continues to be, uncertain. If you have questions about your rights to use the intertidal lands of another, we invite you to set up an appointment with one of our real estate attorneys.
The Court’s decision in McGarvey may be viewed in its entirety on the Court’s website at http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me97mc.pdf.