- The Public Right of Access to the Sea for Scuba Diving
- September 30, 2011
- Law Firm: Petruccelli Martin Haddow LLP - Portland Office
- The Maine Law Court issued a decision on August 25, 2011, upholding a Superior Court decision that ruled in favor of the owner of a commercial scuba diving operation, declaring that the owner and his divers had the right to cross private intertidal lands to access the ocean for diving. The decision could have far reaching implications about the scope of the public’s use of private lands along the coast of Maine. McGarvey v. Whittredge, 2011 ME 97, P7 (Me. Aug. 25, 2011). Exactly what the implications are for other public uses of the intertidal lands is difficult to predict because the decision was split between two groups of three justices issuing concurring opinions that reached the same result by means of very different rationales.
The first concurrence, authored by Chief Justice Saufley, departed from past precedent by adopting the rationale expressed in a dissenting opinion in the landmark case of Bell v. Town of Wells (Bell II), 557 A.2d 168, 173 (Me. 1989). The second concurrence, authored by Justice Levy, criticized the Saufley opinion asserting that it would effectively overrule the Bell II decision without a compelling reason for doing so. In Bell II, the Law Court held that the public rights to use the intertidal lands did not include a general recreational easement because the public’s rights are derived from a Colonial Ordinance, which specifically limited the rights to "fishing," "fowling," and "navigation." The dissenting opinion in Bell II, criticized the majority opinion as “premised upon the erroneous assumption that the Colonial Ordinance is the exclusive and preeminent source of all public rights." The Saufley opinion in McGarvey agrees, concluding that the public’s rights in the intertidal zone have never been strictly limited to the rights enumerated in the Colonial Ordinance. While denying it is overruling Bell II, the Saufley opinion “expressly disavow[s]” Bell II, “to the extent that Bell II can be read to forever set the public's rights in stone as related to only "fishing," "fowling," and "navigation."
Both concurring opinions conclude that the commercial business owner and his clients have the right to gain access to the Bay for diving by walking across the intertidal land. The Saufley opinion concludes that the public rights are not limited to fishing, fowling and navigating and are “broad enough to allow the public to walk across the intertidal lands to enter the water and scuba dive.” The Levy opinion concludes that the public rights are limited to fishing, fowling and navigating, but the term navigation is broad enough to encompass scuba diving. It further concludes that walking across intertidal lands to reach the ocean in order to scuba dive is allowed because it is incidental to the right of “navigation.” Because this is a split decision, we don’t know which rationale might be applied in a future case seeking to broaden the public right to include other activities on the shore, like surfing, just as a for instance. The seventh Justice, who did not participate in this decision, may play a critical role in the outcome of future cases.