Today the Maine Law Court released its decision in Kenneth W. Ross et al. v. Acadian Seaplants, Ltd., in which the Court held that rockweed attached to and growing in the land between the mean high-water and the mean low-water mark (referred to as the “intertidal zone”) is the private property of the adjacent upland property owner and is not held in trust by the State for public use. After recounting the long and much-debated history of Maine law on the scope and extent of the public’s intertidal property rights, the Court applied prior legal precedent in reaching its conclusion that the harvesting of rockweed does not fall within the public’s rights to “fish,” “fowl,” or “navigate” in the intertidal zone as the same were enumerated in the Court’s 1989 decision of Bell v. Town of Wells (Bell II).
It is worth noting that, in a concurring opinion, Chief Justice Saufley, Justice Mead, and Justice Gorman expressed their desire to overrule Bell II. While it was not a part of the majority opinion, and therefore does not result in a change in existing law, the concurring justices’ statement that the Court made a “regrettable error” in its imposition of the “constrictive trilogy” of public trust rights in Bell II is significant in its call for a departure from established precedent on the scope of the public trust doctrine in Maine.
A link to the full decision is available here: https://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2019/19me045.pdf
Practice Group: Real Estate
Industry: Commercial & Residential Developers