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Maine Supreme Court Decision on Intertidal Lands Public Rights


An important case on intertidal lands public rights recently came down that partially overturns the precedent of the Moody Beach cases from the 80's. Those cases held that the only rights of the public in the intertidal area (owned by the upland owner in most cases) is for "fishing, fowling, and navigation" - very narrowly construed. This new case says that the rights of the public in the intertidal area are evolving, and that scuba diving is a valid reason for crossing the intertidal area to get to the water. It stops short of deciding if the same is true for surfing and swimming. The court invited those questions in future cases, but declined to make any decision broader than that asked for by the litigant. Read the decision.

What does this mean for Maine land trusts? It means that, until the day when walking is a public right on the intertidal area, and swimming a public right in the waters of the intertidal area, land trusts still need to secure public access over public and private upland and intertidal areas. It also means that, for now, folks can use public access ways to get to private intertidal areas only for scuba, fishing, fowling and navigation.