Intertidal zone status debated by lawmakers

ELLSWORTH — Who owns Maine’s tidal flats, who can use them and how? Two of Maine’s legislative committees have struggled with those questions over the past few months and a bit of clarity has begun to emerge.

On May 10, the Committee on Agriculture, Conservation and Forestry killed LD 1316, a bill offered by Rep. Jeffrey Evangelos (I-Waldoboro), proclaiming that the state owned all unfilled intertidal land. The committee voted that the proposed legislation “ought not to pass.”

On Tuesday, May 21, the Marine Resources Committee killed two other bills affecting intertidal lands.

LD 1285, offered by Rep. Lydia Blume (D-York), would have given the Department of Marine Resources explicit authority to “establish criteria for a permit to conduct research in the intertidal zone.”

LD 1419, offered by Rep. Joyce McCreight (D-Harpswell), would have allowed towns with municipal shellfish management ordinances to create “active municipal shellfish management areas” where individuals would have the exclusive right to set up predator control systems including nets, traps cages and boxes in the intertidal zone.

Each area would be limited to no more than two acres in size, and the management areas could not take up more than 10 percent of the intertidal zone within the town.

The last bill on this topic on the Agriculture Committee docket was LD 1323, offered by Sen. Dana Dow (R-Lincoln County), a comprehensive revision of the law governing Maine’s intertidal lands — the area between the high and low tide marks but no farther than 1,650 feet from the high tide line.

In March, the Maine Supreme Judicial Court ruled that seaweed growing on the intertidal lands belonged to the land owner — most frequently the owner of the adjacent upland — and could not be harvested without permission.

The court also reaffirmed that, in Maine, intertidal land is private property and that the public has only limited rights — the historically based fishing (which in Maine includes harvesting shellfish and marine worms), fowling (bird hunting) and navigation — to use it.

That doctrine was the basis of the decision of a sharply divided Maine Supreme Court some 30 years ago in Bell v. Town of Wells, the so-called Moody Beach case.

A couple of years ago, the court extended its definition of those activities to allow a scuba diver to cross the lands to access the water, but it still barred nearly every other common use — throwing a ball or Frisbee, building a sandcastle, eating a picnic lunch or walking hand-in-hand, for example — without permission.

In the seaweed case, three of the court’s justices concurred, in part, in the result of the case but, in an opinion by Chief Justice Leigh Saufley, said that the common law had long allowed the public “reasonable access” to intertidal lands and that the “constrictive trilogy” of fishing, fowling and navigation “has bedeviled the state of Maine” since the Moody Beach case was decided.

Saufley and two other justices argued that the 1989 decision “erroneously limited the public’s reasonable and nonabusive use of the intertidal zone,” which should include “the right to walk unfettered upon the wet sand of Maine beaches to peacefully enjoy one of the greatest gifts the state of Maine offers the world.”

That appears to be the aim of LD 1323, but the bill encompasses a far greater change in the control of intertidal lands and an expansion of the state’s jurisdiction under existing “public trust” laws that already protect some activities.

The proposed legislation drew vocal opposition as well as considerable support, including the support of Maine’s attorney general in the form of a letter from assistant AG Lauren E. Parker.

While recommending some amendments to the bill, Parker wrote that the attorney general “cannot overstate the importance of the Legislature, through LD 1323, reiterating its understanding that the public’s trust rights to use the intertidal zone is, and has always been, more expansive than fishing, fowling and navigation only.”

Also supporting the proposed legislation were representatives of Maine’s seaweed industry and, at least according to postings on its Facebook page, the Independent Maine Marine Worm Harvesters Association, primarily because of concerns that the courts could extend the prohibition against seaweed harvesting in the intertidal zone to include the harvest of marine organisms such as worms and shellfish.

The many opponents to the legislation included many shorefront property owners, the Maine Association of Realtors and the Maine Municipal Association.

Some expressed concerns that, as written, the bill would decrease access to the intertidal zone by encouraging the growth of shellfish aquaculture leases that would actually keep the public out of the intertidal zone.

After a work session on May 23, it was evident that opinion on the bill was far from unanimous in the Committee on Agriculture, Conservation and Forestry.

The committee filed a divided report with the Legislature as a whole. On June 12, the House voted to accept the majority “ought not to pass” report and killed the bill.

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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