The recent Maine Supreme Judicial Court ruling regarding the interpretation of the historic Colonial Ordinance appears to take precedent over the original Public Trust Doctrine established many years before and recognized throughout the U.S. as the established rule of law.

The Public Trust Doctrine holds that all coastal states as sovereigns hold the submerged lands and waters, waterward of the mean high-water line, in trust for the public, whether beach, rocky shore or open water.

In Connecticut there are 78 miles of beaches, 30 of which are public. In Leydon v. Greenwich, reasonable access to the beach is guaranteed under the Public Trust Doctrine. The town of Greenwich denied beach access to a nonresident. Connecticut’s Appellate Court ruled that the municipal ordinance violated the Public Trust Doctrine.

A Feb. 9 Sunday Telegram article (“Maine high court ruling on land access sends out tremors”) stated that the Colonial Era interpretation applies only in six states.

One of those is New Jersey, which has 127 miles of beaches – all public. That state published a booklet titled “Coastal Public in New Jersey: Public Trust Doctrine and Practical Steps to Enhance Public Access.” New Jersey, designated as a “Colonial-era” affected state, determined that private ownership of beaches is not acceptable.

Jennifer Rowden of the New Hampshire Department of Environmental Services summarizes history of the Colonial Ordinance and Public Trust Doctrine. She states that riparian rights are incidental rights under law, meaning that shorefront property may have a dock as long as it does not unreasonably interfere with the public use of the water. Rights are always subject to the state’s rights to control “reasonably” for public purposes.

If New Jersey and New Hampshire, two states touched by the Colonial Ordinance, found that the public’s right to beaches/coastal water access are an essential part of the people’s constitutional rights, then Maine needs to re-examine its current interpretation.

Deborah L. McDonald


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