A cause worth fighting for

Dear Editor:

I am writing to voice support for LD 1323, An Act to Revise the Laws Regarding the Public Trust in Intertidal Lands, currently under consideration by the Maine Legislature. I support this act for both philosophical and economic reasons.

The Public Trust Doctrine holds that certain natural resources such as navigable waters are held in common by the state, or “we the people,” for public use and enjoyment. These include the Great Lakes and other lakes, rivers and marine waters. In most coastal states these also include marine lands between high and low tide, otherwise known as wet sand. In an age of increasing disparity between the wealthy and the not wealthy, the haves and the have nots, and the privileged and the disadvantaged, the Public Trust Doctrine is truly worth fighting for.

Maine and Massachusetts are just two of six states where private coastal landowners are permitted to own wet sands out to the mean low tide. In Maine, this is an archaic artifact of the state’s former status as a Massachusetts Bay colony. The privilege of private ownership of the tidelands, which are considered by most as rightfully part of the Public Trust, was never formally put into law by the sovereign state of Maine. Instead, it was allowed to continue as a holdover even after Maine achieved statehood in 1820. Although the Public Trust Doctrine still applies, it’s limited in scope by the Massachusetts Charter to allow wet sand access only for “fishing, fowling, and navigation.”

This status has led to confusion, conflict and litigation over the years to this day. It has led to twists of legal logic, where a scuba diver can cross intertidal lands on foot but a swimmer or surfer may not; where digging for marine worms is considered fishing, but harvesting rockweed isn’t. In the latter case, the perversity was compounded by the Supreme Court ruling on the case as though rockweed were a plant, which it most assuredly is not.

The most straightforward remedy for this state of affairs is for the Maine Legislature to put into law that the wet sands are owned by the state in trust for the people. Unfortunately, this would run afoul of the U.S. Constitution, which only allows the taking of private land under the power of eminent domain. Under eminent domain, landowners must be compensated for the lost value of the taken land. Just what this value is for intertidal land is anyone’s guess. In truth, most of the usual rights associated with private property were long ago taken from owners of the wet sands. A multitude of state and federal laws strictly regulate what activities are allowed there. Coastal property owners are not allowed to build a house, garage or even a shed on intertidal land. They can’t mine it for sand or rocks, pave it, fence it in or fill it in. They can’t plant a garden on it, landscape it or put a scenic winding path on it. They can’t even grow shellfish on it without a permit. In fact, there’s little one can do with intertidal property other than keep others out.

Unfortunately, for some coastal landowners this seems to be the point, and a privilege worth fighting for. If their intertidal property is posted with no trespassing signs, they can have the local constabulary remove their dog-walking neighbors, or the neighbor they don’t like. They can prevent the frolicking tourists from walking along the beach and keep out the surfers, the swimmers and the Frisbee throwers. And now that they own the rockweed, a marine organism, they can prevent rockweed harvesters from practicing a fishery that’s been in existence for decades, even when it’s practiced at high tide from a boat. This should be chilling to all harvesters of shellfish and worms.

LD 1323 offers a partial solution and a way forward. It may not be perfect, and it’s likely to be challenged by coastal property owners. Some of them may argue against overturning 300 years of precedent, but by that logic we’d still have slavery, women would be disenfranchised and gay people couldn’t marry. Progress toward a greater social good often requires overturning precedent. Perhaps most importantly, this legislation sends a strong message that Maine is truly hospitable to tourists. Imagine the consequences to Maine’s tourism sector if thousands of coastal property owners, newly emboldened by recent publicity on this matter due to the Supreme Court’s rockweed ruling, decided to post their intertidal lands with “Keep Out, Private Property” signs?

Steve Eddy


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