Chapter 7

The 1981 Amendment to Maine’s Submerged Lands Act and the Sustaining Opinion of the Justices


Chapter 7 examines two important documents—the 1981 amendment to legislation enacted in 1975, i.e., the Submerged Lands Act, and the 1981 Opinion of the Justices sustaining the amendment. The Opinion was requested by then Governor Brennan who, pursuant to provisions in Maine’s Constitution, sought the advice/judgment of the Law Court as to whether the amendment (denoted as LD 1594 and passed by the legislature), if enacted, was permissible. The court answered that the amendment was permissible; the Governor subsequently signed the amendment into law. The 1975 Submerged Lands Act (as amended) remains in force today.

The Governor’s cover letter accompanying his request provides some useful background; he states: “In 1975, the State enacted legislation … which delegated to the Bureau of Public Lands … 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 … to lawfully develop the land. LD 1594, the bill now pending action by the Governor, would go beyond this prior legislation by releasing the State’s ownership interest in submerged and intertidal lands which were filled (primarily for marine commerce and fishery related development) as of October 1, 1975, to the owners of those filled lands.”   Also noteworthy is the fact that the 1975 enactment and the 1981 amendment (LD 1594) repeatedly refer to “… submerged and intertidal lands owned by the State.” The point being made is that less than 45 years ago the Governor and two different sitting Legislatures (speaking for their respective arms of government) firmly believed that Maine owned (held title) to its intertidal and submerged lands—a title acquired upon statehood in 1820.

The 1981 Opinion of the Justices reflects the views of the third arm (the Judicial Branch) of Maine government. In finding LD 1594 permissible the Opinion made several points worth noting, e.g., that the common law viewed intertidal and submerged lands as “unique,” “not fungible with lands in the interior,” and “impressed with a public trust.” It further noted that at common law alienations of trust property could only be made by Parliament, a legislative body. Further still, the Opinion approvingly cites the Supreme Court holding in Illinois Central (see Chapter 4 comment above) which avoided “the prodigality of the [Illinois legislature’s] grant.” The Opinion holds that the Illinois legislature’s excess is avoided here by the fact that the 1975 Act, and LD 1594, both treat the granting language as a mere license—a license that alienates only that small portion of intertidal land that is leased or actually filled for marine commerce purposes. This logically leaves title to the lion’s share of Maine’s un-leased and unfilled intertidal land in the hands of the state in trust for the public. Finally, the Opinion makes clear that legislation (including presumably “judicial legislation”) that purported to alienate all intertidal land in Maine “… would be unconstitutional for failure to meet the reasonableness test of Maine’s Legislative Powers Clause,” see Maine Constitution, art. 1, § 1.

But all of this is ignored by the Bell cases—the reasoning of all three branches of Maine government, Supreme Court case law, as well as the holding in the one Maine case decided after the Opinion and before the Bell cases, James v. Town of West Bath. In late 1981 James held: “A consistent theme in [Maine] decisional law is the concept that Maine’s tidal lands … are held by the State in a public trust for the people of the State.” James too is ignored. In sum, for all of the reasons outlined in chapter 7 a reexamination of the Bell cases is again called for.