Orlando Delogu is an emeritus professor at the University of Maine School of Law.

Relying on a 1641 Colonial Ordinance, counsel for upland owners in the Aug. 24 Maine Sunday Telegram (“Maine beach access case carries huge implications for private property“) assert that Maine’s intertidal land is private property, that any expansion of limited public rights, “fishing, fowling and navigation,” is an impermissible “taking” of private property. 

This reasoning is incorrect. It ignores an array of arguments and Supreme Court case law that supports a contrary view.

First, the Colonial Ordinance was only in place for about 40 years; it was never extended to settlements in Maine.

Second, the ordinance ignores early Roman law going back 1,500 years holding that some things, for example “air, running water, the sea and seashore, i.e., intertidal land,” are incapable of private ownership. These principles became part of English common law. This view (public ownership of intertidal land) has been adopted in almost all states and coastal nations.

Third, the op-ed ignores early Supreme Court cases. For example, Martin v. Lessee of Waddell noted “…when the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them.” It follows that Maine holds title to its intertidal land.

Fourth, this position ignores Pollard v. Hagan, an early Supreme Court case holding that new states enter the Union “…on an equal footing with the original states in all respects whatever.” Congress in passing Maine’s Statehood Act stated that Maine is “… admitted into the Union, on an equal footing with the original states in all respects.” It follows that Massachusetts cannot dictate Maine’s intertidal land law and that Maine (having been clothed with title to its intertidal land in Martin) was/is free to fashion its own intertidal land law. It has chosen to alienate only discrete parcels of intertidal land.

Fifth, no Maine legislature has adopted the Colonial Ordinance, nor has it ever passed legislation alienating all of Maine’s intertidal land. Had it done so, Supreme Court case law holds that such legislation would be “void” or “subject to revocation.”

 Sixth, the argument ignores the fact that the Massachusetts case, Storer v. Freeman, said to have been adopted in an early Maine case, Lapish v. Bangor Bank, would permit the alienation of all intertidal land in Maine by the judicial branch of government. Storer , after acknowledging that the Colonial Ordinance was annulled, goes on to note that “… from that time to the present, a [judicial] usage has prevailed, which now has force as our common law.” This may suffice to alienate all Massachusetts intertidal land.  

Maine, however, a separate state entitled to fashion its own intertidal land law, is barred from adhering to a “judicial usage” to alienate trust (public) property. Separation of powers principles in Maine’s Constitution, Article III, sections 1 and 2, are clear. “The powers of this government shall be divided into three distinct departments [branches]….” “No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others…”  In short, a judicial usage may not alienate all intertidal land in Maine.

Seventh, the argument ignores the fact that Massachusetts legislative bodies for over 150 years in establishing settlements in Maine did not believe that the Colonial Ordinance alienated all intertidal land within their jurisdictional authority. They saw the ordinance as a license to fill discrete parcels to facilitate marine commerce, nothing more. Coastal settlements in Maine explicitly retained title to intertidal land — it was essential for survival. Private property ran from mean high landward. 

More could be said, but the point is sufficiently made.