Surfers are among those celebrating a Maine Supreme Judicial Court ruling that expands beach rights for scuba divers and leaves room for others to argue that they, too, should have greater access to the ocean.

In a 6-0 decision last week, the court 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 public’s right to use the intertidal zone – the land between the mean high- and low-tide marks – has long been a bone of contention in Maine, where coastal ownership law dates back to a 17th century ordinance limiting public use of the area between high and low tide to “fishing, fowling and navigation.”

Adam Steinman, a lawyer who also surfs, filed a brief in the case – taken up by the court last November – on behalf of the national Surfrider Foundation.

“From the Surfriders’ perspective and from the perspective of the people of Maine and getting access to a very unique resource, the ocean is not really very good if you can’t get there,” Steinman said. “And if the only way to get there at low tide is by crossing what arguably is private land, then you have a problem. I think this case opens that up.”

Although the decision in McGarvey v. Whittredge was unanimous, justices split 3-3 on their interpretation of why a scuba diver is allowed to use the intertidal zone.

Chief Justice Leigh Saufley emphasized the ruling’s narrow scope when she wrote: “Because the relevant activity here involves use of the intertidal land only to enter the sea, rather than to stand or to stay, we do not determine whether other, additional uses of the intertidal zone fall within the public trust rights, including the uses of surfing. . . . Instead, we leave the next question in the evolution of this area of common law for future determination.”

Saufley and two concurring justices harkened back to the historical origins of the Massachusetts Bay Colony’s Colonial Ordinance of 1647, which “allowed private ownership of intertidal lands to promote commerce by encouraging the construction of wharves at private expense.”

The three justices argued for broader public rights to coastal beaches “except to the extent that those rights might interfere with the rights of the landowner to wharf out.”

Three other justices, in an opinion written by Justice Jon Levy, declared allegiance to the court’s 1989 ruling in a case involving Moody Beach in Wells. In a 4-3 decision, the court upheld striking down a 1986 coastal land-use law asserting the public’s right to use intertidal zones for general recreation.

Only activity involving one of the three uses stated in 1647 – fishing, fowling or navigation – is lawful, according to the Moody Beach decision.

However, Levy latched on to a prior ruling describing navigation as “passing freely over and through the water without any use of the land underneath” and applied a “sympathetically generous” interpretation to declare that scuba diving fits within the realm of navigation and, thus, is permitted.

“Whether scuba diving is navigation, that was not our issue,” said Sidney Thaxter, lead attorney for property owners in the Moody Beach case and also a brief filer in the Eastport dispute. “We all know this is about public recreation. That’s what the state wanted and they didn’t get it,” he said.

Thaxter conceded that surfing would likely fit Levy’s interpretation of navigation as well as scuba diving.

Again, he said, property owners generally have no problem with surfers crossing the beach to reach the water.

The original lawsuit stemmed from crowds of rude and unruly beach users causing problems.

“So it doesn’t change anything, practically. . . . We consider it a big victory because the Moody Beach . . . cases are still good law,” Thaxter said of the ruling.

Deputy Attorney General Paul Stern, who has been arguing the state’s case for three decades, said the decision upholds a public trust doctrine for reasonable use of the intertidal zones that had been under attack over the past quarter century.

“Since the (Moody Beach decision),” Stern said, “certainly some – but not all – beachfront property owners have stated quite clearly and loudly that . . . the public uses are very narrow and need to be very narrowly constrained.”

The opinions of Saufley and Levy – reached through different legal paths – expand public use, Stern said, if only – for now – for those wearing fins and snorkels and carrying air tanks.

“But certainly,” he said, “one could take these opinions, either one of them, and apply them to surfing, boogie boarding or inner tubing – which is what I used to do down at the shore all the time – and one would hope the decisions would come out the same.”

A broader case in the ongoing battle for access to Maine’s beaches is a lawsuit involving Goose Rocks Beach property owners and the town of Kennebunkport. That lawsuit currently awaits judicial action in York County Superior Court and has yet to be heard.

Janice Parente of Scarborough, who chairs Maine’s Surfrider Foundation chapter, read through last week’s 49-page decision and said it felt like a door had been opened.

“It feels good to know the momentum is on our side, the side of the public,” she said. “Hopefully, we can make a lot more progress over the upcoming years and make sure that we’ve procured public access forever.”

 

Staff Writer Glenn Jordan can be contacted at 791-6425 or at: gjordan@pressherald.com

 

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