Law Court hands down important decision regarding public access to beaches

In a prior article, I wrote about a Maine Supreme Court case about seaweed ownership. The Court recently handed down its decision in Ross v. Acadian Seaplants, holding that the waterfront property owner owns the seaweed growing in the intertidal zone. The Law Court reasoned that taking seaweed is not “fishing” and accordingly not within public trust rights to fish, hunt, and navigate in the area between high and low tide. Given the broad reading of these rights in prior court decisions—walking over sand to scuba dive has been held to constitute “navigating,” and taking sea worms and shellfish counts as “fishing,” I thought that taking seaweed could make the cut. Not so, says the Court.

More significant than the seaweed, though, was a concurrence authored by Chief Justice Leigh Saufley and joined by Justice Ellen Gorman and Justice Andrew Mead. The Saufley concurrence signals that three of the seven Justices stand ready to cast aside a controversial decision from the 1980s that has spawned decades of litigation and confusion about rights in Maine’s shores. That decision, Bell v. Town of Wells (widely known as “the Moody Beach case”), positioned Maine as one of the most conservative states in the country with respect to public rights to access the beaches and water (for a synopsis of that case and decisions thereafter, State of Maine agencies have issued informational citizens’ guides).

The Saufley concurrence adopts a common sense approach to public use of the beach. Chief Justice Saufley criticizes the narrow interpretation of public trust rights, and the judicial contortions to fit activities within those rights, and states plainly that Bell should be overruled. Ross, 2019 ME 45, ¶ 34, — A.3d — (“Since [Bell], a member of the public has been allowed to stroll along the wet sands of Maine’s intertidal zone holding a gun or a fishing rod, but not holding the hand of a child.” (Saufley, J., concurring)).  If any of the four sitting Justices that did not join the Saufley concurrence were to step down from the bench, the concurrence could well become law—which would expand and clarify public rights along Maine’s coastline. Stay tuned.