William A. Mcgarvey Jr. v. Whittredge

• Decision Date: 25 August 2011
• Docket Number: Docket No. Was–10–83.
• Citation: 28 A.3d 620,2011 ME 97
• Parties: William A. McGARVEY Jr. et al.v.Steven R. WHITTREDGE et al.
• Court: Maine Supreme Court

28 A.3d 620

2011 ME 97

William A. McGARVEY Jr. et al.

v.Steven R. WHITTREDGE et al.

Docket No. Was–10–83.

Supreme Judicial Court of Maine.

Argued: Nov. 10, 2010.Decided: Aug. 25, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as Unconstitutional12 M.R.S.A §§ 571–573

John P. Foster, Esq. (orally), Kathleen A. Mishkin, Esq., Eastport, ME, for William A. McGarvey, Jr. and Mary Jo Kleintop.Dennis L. Mahar, Esq. (orally), Teresa E. Stepan, Esq., Fletcher & Mahar, P.A., Calais, ME, for Steven R. Whittredge and Jonathan Bird.Adam Steinman, Esq. (orally), Neal Weinstein, Esq., Portland, ME, for amicus curiae Surfrider Foundation.Janet T. Mills, Attorney General, Paul Stern, Dep. Atty. Den., Office of Attorney General, Augusta, ME, for amicus curiae State of Maine.Sidney St. F. Thaxter, Esq., David P. Silk, Esq., Susan E. Schorr, Esq., Curtis Taxter Stevens Broder & Micoleau LLC, Portland, ME, for amicus curiae Sidney St. F. Thaxter.Orlando E. Delogu, Esq., University of Maine School of Law, Portland, ME, for amicus curiae Orlando E. Delogu.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.Concurring: SAUFLEY, C.J., and MEAD and JABAR, JJ.Concurring: ALEXANDER, LEVY, and GORMAN, JJ.SAUFLEY, C.J., with whom MEAD and JABAR, JJ., join.

[¶ 1] This case requires us to revisit a question that we have addressed several times in recent decades: how may the public use intertidal lands on the Maine coast? Specifically, we are asked to determine whether, as a matter of Maine common law, the public has the right to walk across intertidal lands to reach the ocean for purposes of scuba diving. All six justices answer that question in the affirmative. Three justices arrive at this result through the analysis set forth in the discussion section of this opinion, and three justices reach the same result through the analysis articulated in the separate concurrence.

I. BACKGROUND

[¶ 2] William A. McGarvey Jr. and Mary Jo Kleintop are owners of intertidal land who appeal from a summary judgment entered in the Superior Court (Washington County, Cuddy, J.) in favor of Steven R. Whittredge and Jonathan Bird declaring that Whittredge and Bird engaged in a permitted public use of McGarvey and Kleintop's intertidal land when crossing that land to access the ocean for scuba diving. The parties do not dispute the following facts, which are established in the summary judgment record. See Searle v. Town of Bucksport, 2010 ME 89, ¶ 2, 3 A.3d 390, 393.

[¶ 3] McGarvey and Kleintop's oceanfront property borders Passamaquoddy Bay in the Town of Eastport. For brevity, we refer to the two property owners as McGarvey. McGarvey's property line extends eastward to the Bay's mean low-water mark and stretches in front of the property of the landowners beside them. Those landowners are Whittredge and Bird, whom we refer to simply as Bird. They own property near the ocean that is bounded to the south and east by the McGarvey property. To the east, the Bird property extends to just below high water where it abuts McGarvey's intertidal land.

[¶ 4] The result of the configuration of land is that the upland Bird property borders the McGarvey intertidal region, and Bird cannot reach the ocean from his property without crossing McGarvey's intertidal land. As we understand the record, Bird does not cross any of the upland portion or dry sand of McGarvey's land to reach McGarvey's intertidal land.

[¶ 5] Bird operates a commercial scuba diving business that takes clients on shore dives in Passamaquoddy Bay. To access the ocean for these dives, Bird and his clients walk with their scuba equipment from Bird's lot onto and across McGarvey's intertidal land where they enter the water. The dives do not involve the use of a boat, and no one engages in any form of fishing or fowling.¹

[¶ 6] In November 2008, McGarvey filed a declaratory judgment action seeking a determination that Bird has no right to cross McGarvey's intertidal land for scuba diving and seeking an injunction prohibiting such use. Bird counterclaimed seeking a judgment declaring that this use is lawful. McGarvey also alleged trespass related to the scuba diving and the social activities that Bird engaged in on the intertidal land.

[¶ 7] In January 2010, the court granted a summary judgment in favor of Bird, declaring that crossing the McGarvey intertidal land to access the water for recreational or commercial scuba diving is within the public's right to use intertidal land for navigation. The court also concluded that the social activities constituted a trespass and awarded McGarvey and Kleintop one dollar together with interest and costs. None of the parties have appealed that latter aspect of the judgment. Thus, although McGarvey initially alleged that Bird and his clients remained on the wet sand for a variety of purposes unrelated to scuba diving, the facts before us for purposes of McGarvey's appeal are narrower. Our analysis focuses solely on the act of walking across the intertidal land to reach the ocean to scuba dive.

II. DISCUSSION

A. Common Law Roots of Shoreland Property Rights

[¶ 8] Describing the nature and extent of the public's right to use the intertidal zone has challenged courts in the United States for centuries. Many jurists and authors have struggled to balance the public's rights with the rights of private landowners.

[¶ 9] In Maine, the upland owner ordinarily has fee ownership of the intertidal land, and that private ownership is subject to the public's right to use the intertidal zone.² Both the origin of the private ownership of intertidal land and the public's right to use that land are a matter of common law.³ The common law, with “its flexibility and capacity for growth and adaptation,” Pendexter v. Pendexter, 363 A.2d 743, 749 (Me.1976) (Dufresne, C.J., concurring), has continually evolved to reflect the realities of a changing world. As this unique body of common law has developed, generations of jurists have searched for a basic set of principles to govern the ownership and use of the intertidal land.

[¶ 10] The common law does not always develop along a straight path. This particular area of common law, involving important competing property interests, certainly has not developed with linear precision. Interpreting the common law available to us, however, we understand the public's right to use the intertidal zone to encompass the right of the public to pass over that land to reach the ocean in order to scuba dive.⁴

[¶ 11] Additionally, because the relevant activity here involves use of the intertidal land only to enter the sea, rather than to stand or to stay, we do not determine whether other, additional uses of the intertidal zone fall within the public trust rights, including the uses related to surfing presented by amicus curiae Surfrider Foundation. Instead, we leave the next question in the evolution of this area of common law for future determination.⁵ Today we answer only the question before us: consistent with the common law, may Bird and his guests use McGarvey's intertidal land to reach the ocean to scuba dive? ⁶

B. Property Rights in Maine's Coastal Lands

[¶ 12] We begin by recognizing the foundational purpose for the public's rights to the intertidal zone: access to the ocean and tidal region. There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation.⁷ See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2, 10 n. 5, 974 A.2d 303, 305, 307; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32, 883 A.2d 889, 896, 899; see generally Andrews v. King, 124 Me. 361, 362–63, 129 A. 298, 298–99 (1925); see also Marshall v. Walker, 93 Me. 532, 536–37, 45 A. 497, 498 (1900), and cases cited therein. As was written long ago, “It will not be disputed that the sea, which has been called the ‘Great highway of the world,’ is common to all.” Blundell v. Catterall, 106 Eng. Rep. 1190, 1194 (1821) (Opinion of Best, J.).

[¶ 13] Just as the public's right to use the ocean is not completely unregulated, however, the public's access to the ocean is not unrestricted. Because each state's law, common and statutory, has developed independently, the rights of the public to reach the ocean differ from state to state. These rights of the public also vary in Maine depending on which of the three zones of property that lead into the ocean is being used—the submerged land below the mean low-water mark; the wet sand of the intertidal zone, which is the shore and flats between the mean high-and low-water marks, but not exceeding 100 rods; and the dry upland sand. See Britton v. Donnell (Britton II), 2011 ME 16, ¶ 6, 12 A.3d 39, 42.

[¶ 14] On either side of the intertidal zone, ownership and allowable uses of the land are relatively clear. The State of Maine owns the submerged land below the mean low-water mark and holds that land in trust for public uses. See id. ¶ 7, 12 A.3d at 42; Britton I, 2009 ME 60, ¶¶ 2, 10 n. 5, 974 A.2d at 305, 307; 12 M.R.S. § 1862(2)(A)(6) (2010); see also Norton, 2005 ME 109, ¶ 21, 883 A.2d at 896. The State has the authority to lease the submerged land, see Britton II, 2011 ME 16, ¶¶ 6–7, 12 A.3d at 42, thereby occasionally limiting the public's access to the covering waters, see 12 M.R.S. § 1862 (2010).

[¶ 15] On the dry upland side, the upland owner holds the fee title to the property above the mean high-water mark. When oceanfront property includes dry sand, the upland owner, in Maine, owns the dry sand portion of the beach in fee, subject, of course, to any encumbrance. See Bell v. Town of Wells (Bell II), 557 A.2d 168, 170–73 (Me.1989). The public has no special rights to the land above mean high water.

[¶ 16] Thus we reach the land at issue in this litigation: the intertidal zone, which is the land between the mean low-water mark and the mean high-water mark. Flaherty v. Muther, 2011 ME 32, ¶ 1 n. 2, 17...