Opinion of the Justices
| Decision Date | 16 July 1981 |
| Citation | 437 A.2d 597 |
| Parties | . Supreme Judicial Court of Maine. Questions Propounded by the Governor in a Communication Dated |
| Court | Maine Supreme Court |
On June 19, 1981, S.P. 598, L.D. 1594, "AN ACT to Clarify the Status of Certain Real Estate Titles in the State," a copy of which is attached hereto as Appendix "A," was passed by the House of Representatives and the Senate of the State of Maine. On the same day, the bill was presented to the Governor, and the first regular session of the 110th Legislature was adjourned sine die. Pursuant to Article IV, Part 3rd, Section 2 of the Maine Constitution, the bill is pending approval or return by the Governor. The Governor must act before the expiration of the third day after the convening of the next meeting of the 110th Legislature, which is in session for at least three days, or L.D. 1594 will become law by operation of the Maine Constitution.
The historical circumstances preceding the passage of L.D. 1594 may be briefly summarized. Over a period of many years, private parties have placed structures on, or The lands on which structures have been erected and which have been filled appear to include a substantial portion of the critically located submerged land within the State. For example, a substantial portion of the waterfront of Portland Harbor appears to be filled land. A map prepared by the Maine Department of Transportation depicting the low water line in 1833 compared to that in 1981 is attached hereto as Appendix "C."
filled in, submerged and intertidal lands within the State of Maine. In most instances, it appears that these actions were carried out without any conveyance or authorization from the State. In some cases, however, the parties did seek and secure State approval in the form of legislative resolves licensing the placement of structures on State-owned land. An example of such a resolve is attached hereto as Appendix "B." The private parties asserting ownership of the structures and filled land have used and conveyed the land as their own, often for long periods of time without payment of any consideration to the State and without any acknowledgement of the existence of a public trust in the lands.
In 1975, the State enacted legislation, now codified in 12 M.R.S.A. Sec. 558 (1981 Supp.), which delegated to the Bureau of Public Lands of the Department of Conservation the authority to lease for a limited period of time certain of the State's interests in submerged and intertidal lands to private parties for the purpose of permitting them sufficient right, title and interest to lawfully develop the land. The legislation also granted a 30-year easement to the owners of structures actually upon submerged or intertidal lands as of the effective date of the act.
L.D. 1594, the bill now pending action by the Governor, would go beyond the prior legislation by releasing the State's ownership interest in submerged and intertidal lands which were filled as of October 1, 1975, to the "owners" of those filled lands. By its terms, the bill would apply to the but not to rights or interests acquired by the State by gift, purchase or the power of eminent domain. As made clear in the preamble, L.D. 1594 is predicated on the assumption that the affected land is impressed with a public trust and that this trust responsibility will be served by releasing the State's interest in the land.
Serious questions have been raised as to whether L.D. 1594 may be validly enacted. The principal concern is whether enactment of the legislation would be consistent with the State's legal responsibilities as trustee of the submerged lands. In particular, we are concerned by the following specific aspects of the legislation:
First, the bill would release the State's interest in the affected lands without any restriction on, or knowledge of, the purposes for which those lands could be used. Second, L.D. 1594 would effect a wholesale conveyance of the State's interests, without any determination of the amount or location of the land to be affected. Third, the bill was passed by the House and the Senate apparently without any determination of its effect on the public interest in the remaining submerged and intertidal lands.
Given the potential effect of L.D. 1594 and the uncertainty surrounding its validity, the Governor has need of guidance on the nature of the State's trust responsibility over the submerged lands and intertidal lands and the manner in which that responsibility may be discharged. Such guidance is necessary not only to avoid the enactment of invalid legislation, but also to insure that, if L.D. 1594 is finally enacted into law, it will accomplish its purpose of clearing the way for the full use and development of the filled lands.
Therefore, I respectfully request answers to the following questions:
QUESTIONS OF LAW
1. Does the State of Maine have a trust responsibility for the benefit of the people of Maine in lands which are now or were formerly submerged under the territorial waters and great ponds, or in lands which are now or were formerly intertidal lands?
2. If the answer to Question 1 is in the affirmative, what are the rights of the beneficiaries and responsibilities of the trustee with respect to the filled, submerged and intertidal lands impressed with the trust?
3. Would L.D. 1594, if enacted into law, be invalid as exceeding the authority of the Legislature, under Article IV, Part 3rd, Section 1 of the Maine Constitution, to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to the Constitutions, of the State of Maine or the United States?
4. Would L.D. 1594, if enacted into law, be invalid as violative of the State's legal responsibilities as trustee for the public of the submerged and intertidal lands located in tidal waters and great ponds of Maine?
5. Would L.D. 1594, if enacted into law, effectively eliminate any claim of the State to an ownership interest in the filled land, as defined in the bill, based upon public trust principles?
APPENDIX C
1833 map and current aerial photograph not here reproduced.
ANSWERS OF THE JUSTICES
To the Honorable Joseph E. Brennan, Governor of Maine:
In compliance with the provisions of section 3 of article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following responses to the questions you propounded on July 16, 1981.
As we explain below, we understand both Questions 3 and 4 to ask whether enactment of the legislative document designated L.D. 1594 is within the legislature's constitutional authority. Our answers to those questions are the crux of the advice you seek. For convenience we therefore first consider those questions. Our responses to the other questions follow at the end.
QUESTIONS 3 and 4
We have the constitutional duty and authority to render an advisory opinion on Questions 3 and 4. The Governor is sworn to support the Constitution, as are we, and the constitutionality of a bill pending before him awaiting his signature presents an "important question of law" on a "solemn occasion" within the meaning of Me.Const. art. VI, § 3. See Opinion of the Justices, Me., 260 A.2d 142, 146 (1969).
We conclude that L.D. 1594, although presented to the Governor on June 19, 1981, is still awaiting his action in signing or vetoing it. Ordinarily, L.D. 1594 would have become law when not acted upon by the Governor within ten days. See Me.Const. art. IV, pt. 3, § 2. 1 However, the adjournment of the Legislature tolled that period, and the Governor has until three days after the next meeting of the 110th Legislature to act on the bill. Id. It is true that the Legislature met in special session for one day on August 3, 1981. We are of opinion, however, that article IV, pt. 3, § 2 requires that the same Legislature must be continuously in session for three days before the period in which the Governor may act on the pending bill expires. That is so because article IV, pt. 3, § 2 also provides that the Governor, if he disapproves a bill, shall return it to the Legislature, obviously for the purpose of the Legislature's reconsideration. The Legislature would have no opportunity to do that unless it is still in session. See 1979 Op.Me.Att'y Gen.No. 170 (September 21, 1979). L.D. 1594 has therefore not yet become law; it is still awaiting the Governor's signature; and whether he may constitutionally sign it into law is a question of "live gravity" on which he may require the Justices' opinions. 2 See Opinion of the Justices, Me., 355 A.2d 341, 389 (1976).
The operative provision of L.D. 1594 releasing "any such filled lands" 3 from any claims of state ownership in public trust gives such releases to the "owners" of those filled lands. See 12 M.R.S.A. § 559(3) proposed by L.D. 1594. That term "owners" is undefined and ambiguous, but it is not appropriate for the Justices in an advisory opinion to state their views on the future effect or application of a proposed statute without the benefit of adversary presentations in a litigated case by the parties who may be affected. See our comment below on Question 5. We will, solely for the purposes of this advisory opinion, assume that L.D. 1594 accomplishes the release of the State's public trust rights in any and all intertidal and submerged lands that were filled as of October 1, 1975, subject to the reservation of proposed 12 M.R.S.A. § 559(6). 4
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