Specific and Immediate Legislative Steps

July 26, 2018
  1. Passage of a Resolve and/or a legislative enactment, that makes clear to Maine’s Supreme Judicial Court (the Law Court) that any/all state “sovereign immunity” defenses to littoral upland owner claims of title to intertidal lands are “waived”. The question of ownership of these lands is critically important—the courts must fully and finally resolve this question. Further, if the Law Court does not proceed to reexamine the Bell cases, the Legislature should (by a Resolve or an enactment) direct the Attorney General’s Office to commence legal proceedings to resolve the question of ownership/title to Maine’s intertidal lands utilizing all of the arguments supporting state ownership of these lands outlined in the Delogu book. And, if necessary to fully and finally resolve intertidal land ownership, the AG’s Office should be directed to not shrink from taking the case to the federal courts, including the U.S. Supreme Court.[1]
  1. Passage of a legislative enactment (an updated and more detailed version of the 1986 Public Trust in Intertidal Land Act) expanding and regulating public uses on intertidal lands. Nothing prevents the state (and authorized municipal governments) from imposing police power controls on public and/or private property to protect the public’s health, safety, and general welfare. State and local zoning-type laws, expanding and contracting permitted uses on public and private property, and regulating such uses, have consistently been sustained by state and federal courts. The Bell II court’s reasoning striking down the 1986 Act as an unconstitutional taking of upland owner’s property is legally unsupportable.[2]
  1. Passage of a legislative enactment making explicit what is only implicit in the 1975 Submerged Lands Act (as amended in 1981), i.e., that the state owns (holds title to) it’s intertidal and submerged lands in trust for the public. The 1981 amendment was adopted to grant/confirm upland owners title only to discrete parcels of intertidal and/or submerged lands actually filled for marine commerce purposes prior to 1975; these fills were sometimes undertaken with, and sometimes without, legislative permission. In either case the legislation committed the state to relinquishing its title to the filled areas. Implicitly, title to all unfilled intertidal and submerged lands (the lion’s share of such lands) remained with the state; it remains in the hands of the state today. The fact that barely five years after passage of the 1981 amendment to the 1975 Act, the Bell courts could ignore and/or misconstrue the plain language of the amendment, the legislative history surrounding passage of the amendment, including the plain language of its own Opinion of the Justices indicates the need to statutorily and affirmatively proclaim Maine’s ownership of, and title to, all intertidal and submerged lands in the state, except for those discreet parcels actually filled for marine commerce or other public purposes.[3]
  1. Passage of a Resolve that makes clear to Maine’s Supreme Judicial Court (the Law Court) that it is the sense of the Legislature that the Bell holdings sustaining the alienation of all intertidal land in Maine to facilitate “wharfing out” (marine commerce) are legally unsupportable as shown by any of several cases/arguments/lines of reasoning laid out in the Delogu book, the Illinois Central case, for one. The Bell holdings are also barred by Maine’s Constitution. Some have argued that Maine’s Declaration of Rights, Me. Const. art. 1, §1 bars any/all alienation of intertidal land; but the scant case law on point suggests it does not. However, the 1981 Opinion of the Justices sustaining the Maine Legislature’s 1981 amendment to the Submerged Lands Act points us to an alternative Maine constitutional provision the Bell holdings clearly violate; the Opinion unequivocally states:

“Of course, legislation representing a gross or egregious disregard of the public interest such as occurred in the Illinois Central case would be unconstitutional for failure to meet the reasonableness test of Maine’s Legislative Powers Clause.”[4]

That said, we must recognize that the excess of the Illinois legislature’s original grant ceding all of Chicago Harbor to facilitate Illinois “wharfing out” needs is functionally identical to the excess of interpreting the Colonial Ordinance as ceding all intertidal lands in Maine to facilitate “wharfing out” needs. The U.S. Supreme Court in the Illinois Central case noted that the original Illinois grant was void or voidable. The Illinois legislature repealed its original grant and subsequently passed legislation alienating discreet portions of Chicago Harbor to meet marine commerce needs. This legislation (characterized as a “license”) was held to be permissible by the Supreme Court. It is functionally identical to the Maine Legislature’s 1981 amendment to the Submerged Lands Act—an amendment sustained by the 1981 Opinion of the Justices because it too alienated only discreet portions of intertidal land—land actually filled for marine commerce purposes; it too was a mere license. In sum, the 1981 amendment met Maine’s constitutional test of reasonableness. The Maine Legislature avoided the excess, “the prodigality” of the original Illinois grant. But in its zeal to impose Massachusetts intertidal land law on Maine, the Bell courts ignored Illinois Central, the 1981 Opinion, and the reasonableness limitations in Maine’s Legislative Powers Clause, Me. Const. art. 4, part 3, § 1. This factor alone fully justifies a reexamination of the Bell cases.[5]

[1] Pursuit of state intertidal land ownership claims in federal courts is made possible by virtue of the fact(s) that Maine’s Statehood Act is an Act of the Congress of the United States. The “equal footing” doctrine is rooted in Article IV, of the United States Constitution; it clothes Maine with sovereign power, (co-equal with the original states and all other new states) to fashion its own intertidal land law. And a dozen (or more) U.S. Supreme Court cases (spanning nearly 175 years) explicate the “equal footing” doctrine; they unequivocally state that: “…our cases firmly establish that the States, upon entering the Union, were given ownership over all lands beneath waters subject to the tide’s influence…” see Delogu book, chapters 5 and 6. Other U. S. Supreme Court cases go further; they hold that discreet portions of intertidal land may be alienated for marine commerce, but all intertidal in an entire state cannot be alienated. Moreover, permissible alienations of intertidal land held by government in trust for the public can only be accomplished by legislative action—it cannot be accomplished by a “judicial usage”, “a piece of judicial legislation”. The latter is an oxymoron, see Delogu book chapters 4 and 10. In sum, the Bell courts erroneously ignored these federal Acts, constitutional doctrines, and court cases relating to ownership of Maine’s intertidal lands. Moreover, because the full meaning of these federally rooted factors can only be ultimately determined by federal courts, the AG’s Office should be directed to use this forum, if necessary; see Delogu book, chapter 13.

[2] See Delogu book, chapter 11.

[3] See Delogu book, chapter 7, pgs. 111-116. Prior to adoption of the 1981 amendment to the 1975 Submerged Lands Act there was sufficient controversy to prompt the Governor to seek an Opinion of the Justices as to the constitutionality of the amendment. The Governor’s submission of this issue to the Law Court, the language of the amendment itself, and the Opinion of the court, 437 A2d 597 (1981), indicate that as recently as 1981 all three branches of Maine State government believed that the state owned, held title to, its intertidal and submerged lands. These views were confirmed again by the Law Court’s holding in James v. Inhabitants of West Bath, 437 A2d 863 (1981) which pointedly noted, “A consistent theme in the decisional law is the concept that Maine’s tidal lands and resources…are held by the State in trust for the people of the State.” The 1981 amendment, the legislative history, the Law Court’s Opinion, and the James case were misconstrued and/or erroneously ignored by the Bell cases.

[4] See Me. Const. art. 4, part 3, §1; also Opinion of Justices, 437 A2d at pgs. 609-610.

[5] See Delogu book, chapter 7, pgs. 116-123.