Charles Dickens might well have been thinking about Maine’s intertidal zone — the area between the low and high tide marks — when a character in the novel “Oliver Twist” declaimed that “the law is a ass,” but there are signs the beast may be moving.
Last week, a unanimous Maine Supreme Judicial Court ruled that seaweed “growing in and attached to” the intertidal zone belonged to the owner of the contiguous shoreland and could not be harvested without permission. The basis for the decision was the Colonial Ordinance, which dates to the 1640s when Maine was still a part of Massachusetts and which remains in effect. That ancient law made the rockweed case — Ross v. Acadian Seaplants Ltd. — an easy call.
The Colonial Ordinance confers ownership of the land in intertidal zone to the upland owner, subject to the public’s rights of “fishing, fowling and navigation.” That position was reinforced by the Law Court’s divided decision in Bell v. Town of Wells (Bell II) in 1989.
What rights does the public have to use the intertidal zone?
The court defines fishing “broadly” without reference to the species or method, and the right to harvest shellfish and marine worms remains undiminished, subject to reasonable regulation.
More recently, the court stretched the idea of navigation to allow crossing through the intertidal zone to access the water for scuba diving, but activities such as picnicking, tossing a ball or even strolling along the strand with a child or sweetheart remain prohibited in the privately owned intertidal zone.
While the extent of the public’s rights is subject to growing debate, the court said, even the most generous interpretation of the harvest of living rockweed can’t be considered either fishing or navigation now matter how broadly those terms might be interpreted. The public — in this case a commercial seaweed harvesting company from Canada — has no more right to come onto someone’s property and cut rockweed than it would to harvest tomatoes from that person’s garden.
The decision in the rockweed case suggests that a change may be on the horizon. Although the court’s ruling was unanimous, three justices, including Chief Justice Leigh Saufley, joined in a concurring opinion calling for the court to overrule Bell II to protect the public’s “reasonable and nonabusive use” of the intertidal zone and allow the common law defining such use “to continue to develop as it has over the centuries.”
Read as a whole, the Law Court’s decision suggests that there may well be a majority of justices who are prepared to do just that when the right case comes along.