Maine’s Beaches are Public Property:  A Review

By Brenda Buchanan, Esq.

Orlando Delogu does not mince words in in his just-released book, Maine’s Beaches Are Public Property. The controversial 1986 and 1989 cases that declared intertidal zone private property were wrong as a matter of law, he says, and the time has come for the Maine Law Court to correct its error.

Professor Delogu’s position will come as no surprise to those involved in the ongoing debate about use of Maine’s intertidal lands. He has been a consistent and forceful advocate for the public’s rights since the first Bell case[1] was decided in 1986. But Maine’s Beaches Are Public Property also deserves to be read by lawyers (and lay people) outside the fray, for its articulate and impassioned arguments about the import of Maine’s shoreline to its citizens.

The Bell cases[2] stand for the proposition that the intertidal zone—the land between the high and low tide lines—is the private property of beachfront landowners, and the public’s rights are mere easements for “fishing, fowling and navigation.” In basing its reasoning on the Colonial Ordinance of 1684, Delogu says, the Bell I Court ignored fifteen hundred years of property law that held some things are incapable of private ownership, jus publicum principles that underlie Roman law and English Common law.

The book examines the Bell I court’s failure to address actions of the Maine Legislature that asserted a public trust in intertidal land (the 1981 amendment to the Submerged Lands Act, which granted title to upland owners who filled intertidal lands prior to October 1, 1975), to consider the applicability of its own prior decisions (Cushing v. Cohen,[3] which addressed State’s capacity as sovereign in holding title as trustee in certain public lands in unorganized townships and the 1981 Opinion of the Justices in which the Law Court provided guidance on the nature of the State’s trust responsibility over submerged and intertidal land under the Submerged Lands Act), and the relevance of federal case law (particularly Illinois Central R. Co. v. State of Illinois et al City of Chicago, 146 U.S. 387 (1892), in which the U.S. Supreme Court upheld the State of Illinois’ revocation of a grant to the Illinois Central Railroad of over a thousand acres of tidal and submerged land off the Chicago waterfront).

But the central fault in Bell I, Delogu says, was the court’s dismissal of the State as a party defendant in the case, which knocked aside a viable sovereign immunity defense. The Court’s evaluation of the Attorney General’s arguments misconstrued Cushing I, he says, which led to the irrational ruling that the State was not an indispensable party to the proceedings

because it did not assert any rights of ownership in the intertidal zone. Delogu explains how this portion of the Bell I decision implicitly overruled Cushing’s holding that sovereign immunity may be asserted not only when title to land is at issue, but also when other rights are in dispute.

Taking the State of Maine—the party best positioned to assert the rights of the public—out of the mix drove an outcome that venerated private rights over the common good, Delogu says, and contrary to the Bell I Court’s assurance, the Town of Wells and other parties were unable to fully defend the public’s rights. He argues dismissal of the State as a party defendant violated the separation of powers provision found in Article III of the Maine Constitution, as the Attorney General was asserting the public’s rights on behalf of the Legislature.

Another major fault in the Bell I Court’s decision, Delogu says, was its reliance on Massachusetts court rulings in regard to legal rights to the intertidal zone. The Bell I Court misinterpreted the 1819 Massachusetts Act of Separation and the Maine Constitution, he says, errors sufficiently grave to justify reexamination of the underlying question of whether Maine is bound to follow Massachusetts law in this area. He convincingly argues that the “equal footing” doctrine as articulated by the U.S. Supreme Court means that Maine’s statehood in 1820 “changed the paradigm,” freeing the new State of Maine from any obligation to follow Massachusetts precedent. In particular, he flags a 1988 U.S. Supreme Court case, Phillips Petroleum Co. v. Mississippi[4], which held that upon entering the Union, states took title to tidal lands in trust for the public. Phillips is directly on point, Delogu says, and was handed down prior to the Bell II decision, but went unaddressed by the Law Court.

In fact, when the Law Court took up the Bell case three years after remand to the trial court[5], Delogu says the majority of the Bell II Court “without any independent examination of Justinian/Roman law, English common law, public trust principles, the scope of sovereign immunity, and whether the AG’s office was an appropriate party to [the] proceedings, simply wrapped its arms around [the Bell I decision.]”

The impact of the Bell cases extend far beyond Moody Beach in Wells, where the original skirmish unfolded. Defendants in subsequent cases, most recently at Goose Rocks Beach in Kennebunkport[6], are hobbled by the Bell holdings, a circumstance Delogu argues is intolerable in a state with such a remarkable shoreline. Delogu urges the Law Court to use its inherent authority to reexamine its prior rulings and says if it declines to do so, advocates for public use of Maine’s shoreline should bring the matter to the U.S. Supreme Court.

There is much more in Maine’s Beaches Are Public Property, an inspired piece of work that deserves to be read by a wide audience. Delogu’s blunt arguments are likely to make some waves, as they should. But there can be no argument that the Bell cases and their progeny have put Maine out of step with most other states on the issue of private ownership of intertidal land.

Brenda M. Buchanan, Esq. is a partner at the Portland firm of Warren, Currier & Buchanan. As a reporter at the York County Coast Star, she covered the Bell trial in the Superior Court as well as the 1986 decision of the Law Court.

[1] Bell v. Town of Wells, 510 A. 2d 509 (Me. 1986) (hereinafter, “Bell I”).

[2] After remand, the Law Court delivered a second ruling in Bell v. Town of Wells, 557 A. 2d168 (Me. 1989) (hereinafter, “Bell II”).

[3] Cushing v. Cohen, 420 A. 2d 919 (Me. 1980) (hereinafter, “Cushing I”).

[4] 484 U.S. 469 (1988)

[5]The purpose of the remand was to address a variety of other defenses raised but unaddressed on the first Superior Court go-round, including prescription, custom, implied dedication and estoppel.

[6] Almeder v. Town of Kennebunkport, 2014 Me 12.