SAUFLEY, C.J., with whom MEAD and JABAR, JJ., join.
[¶ 1] This case requires us to revisit a question that we have addressed
[¶ 2] William A. McGarvey Jr. and Mary Jo Kleintop are owners of intertidal land who appeal from a summary judgment entered in the Superior Court (Washington County, Cuddy, J.) in favor of Steven R. Whittredge and Jonathan Bird declaring that Whittredge and Bird engaged in a permitted public use of McGarvey and Kleintop's intertidal land when crossing that land to access the ocean for scuba diving. The parties do not dispute the following facts, which are established in the summary judgment record. See Searle v. Town of Bucksport, 2010 ME 89, ¶ 2, 3 A.3d 390, 393.
[¶ 3] McGarvey and Kleintop's oceanfront property borders Passamaquoddy Bay in the Town of Eastport. For brevity, we refer to the two property owners as McGarvey. McGarvey's property line extends eastward to the Bay's mean low-water mark and stretches in front of the property of the landowners beside them. Those landowners are Whittredge and Bird, whom we refer to simply as Bird. They own property near the ocean that is bounded to the south and east by the McGarvey property. To the east, the Bird property extends to just below high water where it abuts McGarvey's intertidal land.
[¶ 4] The result of the configuration of land is that the upland Bird property borders the McGarvey intertidal region, and Bird cannot reach the ocean from his property without crossing McGarvey's intertidal land. As we understand the record, Bird does not cross any of the upland portion or dry sand of McGarvey's land to reach McGarvey's intertidal land.
[¶ 5] Bird operates a commercial scuba diving business that takes clients on shore dives in Passamaquoddy Bay. To access the ocean for these dives, Bird and his clients walk with their scuba equipment from Bird's lot onto and across McGarvey's intertidal land where they enter the water. The dives do not involve the use of a boat, and no one engages in any form of fishing or fowling.
[¶ 6] In November 2008, McGarvey filed a declaratory judgment action seeking a determination that Bird has no right to cross McGarvey's intertidal land for scuba diving and seeking an injunction prohibiting such use. Bird counterclaimed seeking a judgment declaring that this use is lawful. McGarvey also alleged trespass related to the scuba diving and the social activities that Bird engaged in on the intertidal land.
[¶ 7] In January 2010, the court granted a summary judgment in favor of Bird, declaring that crossing the McGarvey intertidal land to access the water for recreational or commercial scuba diving is within the public's right to use intertidal land for navigation. The court also concluded that the social activities constituted a trespass and awarded McGarvey and Kleintop
[¶ 8] Describing the nature and extent of the public's right to use the intertidal zone has challenged courts in the United States for centuries. Many jurists and authors have struggled to balance the public's rights with the rights of private landowners.
[¶ 9] In Maine, the upland owner ordinarily has fee ownership of the intertidal land, and that private ownership is subject to the public's right to use the intertidal zone.
[¶ 10] The common law does not always develop along a straight path. This particular area of common law, involving important competing property interests, certainly has not developed with linear precision. Interpreting the common law available to us, however, we understand the public's right to use the intertidal zone to encompass the right of the public to pass over that land to reach the ocean in order to scuba dive.
[¶ 11] Additionally, because the relevant activity here involves use of the intertidal land only to enter the sea, rather than to stand or to stay, we do not determine whether other, additional uses of the intertidal zone fall within the public trust rights, including the uses related to surfing presented by amicus curiae Surfrider Foundation. Instead, we leave the next question in the evolution of this area of common law for future determination.
[¶ 12] We begin by recognizing the foundational purpose for the public's rights to the intertidal zone: access to the ocean and tidal region. There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation.
[¶ 13] Just as the public's right to use the ocean is not completely unregulated, however, the public's access to the ocean is not unrestricted. Because each state's law, common and statutory, has developed independently, the rights of the public to reach the ocean differ from state to state. These rights of the public also vary in Maine depending on which of the three zones of property that lead into the ocean is being used—the submerged land below the mean low-water mark; the wet sand of the intertidal zone, which is the shore and flats between the mean high-and low-water marks, but not exceeding 100 rods; and the dry upland sand. See Britton v. Donnell (Britton II), 2011 ME 16, ¶ 6, 12 A.3d 39, 42.
[¶ 14] On either side of the intertidal zone, ownership and allowable uses of the land are relatively clear. The State of Maine owns the submerged land below the mean low-water mark and holds that land in trust for public uses. See id. ¶ 7, 12 A.3d at 42; Britton I, 2009 ME 60, ¶¶ 2, 10 n. 5, 974 A.2d at 305, 307; 12 M.R.S. § 1862(2)(A)(6) (2010); see also Norton, 2005 ME 109, ¶ 21, 883 A.2d at 896. The State has the authority to lease the submerged land, see Britton II, 2011 ME 16, ¶¶ 6-7, 12 A.3d at 42, thereby occasionally limiting the public's access to the covering waters, see 12 M.R.S. § 1862 (2010).
[¶ 15] On the dry upland side, the upland owner holds the fee title to the property above the mean high-water mark. When oceanfront property includes dry sand, the upland owner, in Maine, owns the dry sand portion of the beach in fee, subject, of course, to any encumbrance. See Bell v. Town of Wells (Bell II), 557 A.2d 168, 170-73 (Me.1989). The public has no special rights to the land above mean high water.
[¶ 16] Thus we reach the land at issue in this litigation: the intertidal zone, which is the land between the mean low-water mark and the mean high-water mark. Flaherty v. Muther, 2011 ME 32,
[¶ 17] Not surprisingly, the extent of the public's rights of access to, and use of, the intertidal zone has been the subject of litigation in many states, producing diverse results. In several eastern coastal states, including Connecticut and Maryland, the state, rather than the upland owner, owns the intertidal zone in trust for the public, up to the mean high-water mark. See, e.g., Bloom v. Water Res. Comm'n, 157 Conn. 528, 254 A.2d 884, 887 (1969) ("The state, as the representative of the public, is the owner of the soil between high- and low-water mark upon navigable water where the tide ebbs and flows."); Van Ruymbeke v. Patapsco Indus. Park, 261 Md. 470, 276 A.2d 61, 64-65 (1971) (stating that private landowners bordering tidal waters own to the mean high-water mark); West v. Slick, 313 N.C. 33, 326 S.E.2d 601, 617 (1985) ("In North Carolina private property fronting coastal water ends at the high-water mark and the property lying between the high-water mark and the low-water mark known as the `foreshore' is the property of the State."); see also Robin Kundis Craig, A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries, 16 Penn St. Envtl. L. Rev. 1, 4-5 (2007).
[¶ 18] In Maine, Massachusetts, and Virginia, states whose common law was influenced by colonial ordinances from the 17th Century, see Craig at 4, private property immediately adjacent to the ocean extends past the mean high-water demarcation to the mean low-water mark, a historical artifact of the British and colonial attempts to encourage commercial wharf development at private expense. See Bell v. Town of Wells (Bell I), 510 A.2d 509, 513-15 (Me.1986); Trio Algarvio, 795 N.E.2d at 1150-51; Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875, 879-80 (1904); see also State ex rel. Buckson v. Pa. R.R. Co., 267 A.2d 455, 459 (Del.1969) (recognizing that private ownership extends to the mean low-water mark of the foreshore); Craig at 33-35, 61-62, 64-67, 105-08.
[¶ 19] In addition to the differing forms of intertidal land ownership, the scope of the public's right to use this specific land also varies significantly among the coastal states. In New Hampshire, where the private ownership only extends to the high-water mark, the public may access the intertidal lands not only for fishing and navigation, but also "for all useful purposes," including recreational
[¶ 20] In Massachusetts, Virginia, and Maine, colonial ordinances, which were created primarily during the 17th Century and drew from English common law, continue to influence the scope of the public's right to cross the intertidal region in order to reach the ocean. See Bell I, 510 A.2d at 514; Trio Algarvio, 795 N.E.2d at 1151-52; Taylor, 47 S.E. at 880. In these states, the public trust rights generally have been articulated in terms of activities that involve or are incidental to obtaining sustenance or economic benefits through the harvesting of the sea, usually summarized as fishing, fowling, and navigation. See, e.g., Bell II, 557 A.2d at 173; Moot v. Dep't of Envtl. Prot., 448 Mass. 340, 861 N.E.2d 410, 412 (2007); Evelyn v. Commonwealth of Va. Marine Res. Comm'n, 46 Va.App. 618, 621 S.E.2d 130, 133-34 (2005).
[¶ 21] On the west coast, the development of the common law uses of the intertidal zone has been more generous to the public. For instance, the Supreme Court of California adopted a flexible approach and held that the public trust rights could include uses beyond traditional public uses such as fishing and navigation. Marks v. Whitney, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374, 380 (1971). The court reasoned, "The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs." Id. The court specifically considered the "growing public recognition that one of the most important public uses of the tidelands ... is the preservation of those lands in their natural state." Id.
[¶ 22] In short, there is no uniform system of intertidal land ownership in the United States and no single interpretation of the circumstances under which the public may cross the intertidal lands to reach the ocean. Yet what is common among all legal constructs is the premise that the public may use the intertidal lands in some form to obtain access to the ocean and tidal water.
[¶ 23] In Maine, we have always recognized private ownership of the intertidal land as a part of our common law. At the same time, the public's right to cross the intertidal zone to reach the ocean has also existed since statehood and, in fact, existed long before our state's inception. See Bell I, 510 A.2d at 511-15, and cases cited therein. Accordingly, we return to our historical roots to examine whether the common law of the public trust rights can be understood to include the right to cross the intertidal lands to enter the water to scuba dive.
[¶ 24] In Maine, as in Massachusetts, the determination of public and private ownership of the intertidal lands, an area of law derived from the prevailing interpretation of English common law, is now a
[¶ 25] After the American Revolution, "the people of each state became themselves sovereign; and in that character [held] the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government." Martin v. Lessee of Waddell, 41 U.S. 367, 410, 16 Pet. 367, 10 L.Ed. 997 (1842). In 1988, the United States Supreme Court confirmed that the original thirteen states and all new states acquired title to lands under waters subject to the ebb and flow of the tide and, like the crown in traditional English common law, held the title in trust for the people. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473-74, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988); see Bell II, 557 A.2d at 181 (Wathen, J., dissenting). Accordingly, each coastal state owned its intertidal lands unless and until it modified this traditional common law.
[¶ 26] In Maine, the common law has been modified to create private ownership of intertidal lands subject to the public trust rights reserved to the State. See Lapish v. Bangor Bank, 8 Me. 85, 93 (1831). The historical development of the fee simple private ownership of intertidal lands has been much discussed in our jurisprudence. See Bell I, 510 A.2d at 511-15. Key to private ownership of intertidal lands in Maine and Massachusetts was the enactment of the Massachusetts Bay Colony's Colonial Ordinance of 1641-47.
[¶ 27] The Colonial Ordinance allowed private ownership of intertidal lands to promote commerce by encouraging the construction of wharves at private expense. See Storer, 6 Mass. at 438. In Storer, the Massachusetts Supreme Judicial Court summarized the Colonial Ordinance's historical origins as follows:
Id.
[¶ 28] In acknowledging the existing and unmodified rights of the public, however, the Colonial Ordinance expressly referred to those rights as connected to "fishing," "fowling," and the passage of boats and vessels, which later was summarized as a right of "navigation." John J. Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine xxxvi-xxxvii (1932); see Bell II, 557 A.2d at 173.
[¶ 29] Although the Colonial Ordinance expired by its own terms, the Massachusetts Supreme Judicial Court incorporated the concept of private intertidal ownership set forth in the Colonial Ordinance into its common law in 1810:
Storer, 6 Mass. at 438.
[¶ 30] Thus, although the private ownership of the intertidal lands announced in the Colonial Ordinance had become a part of Massachusetts common law, the Ordinance itself was not in effect as a matter of positive statutory law at the time that Maine separated from Massachusetts in 1820. See id. Additionally, the "Ordinance did not apply to the territory that is now Maine, nor did the legislative body responsible for its enactment have governing authority over that territory." Bell II, 557 A.2d at 183 (Wathen, J., dissenting);
[¶ 31] When Maine achieved statehood in 1820, the Act of Separation and the Maine Constitution incorporated Massachusetts common law into Maine law. Me. Const. art. X, §§ 3, 5;
[¶ 32] Accordingly, the upland owners' fee ownership of the intertidal zone is solidly established in Maine's common law. See Britton II, 2011 ME 16, ¶ 7, 12 A.3d at 42 ("The ownership of the intertidal zone is as land and not a mere easement" (quotation marks omitted)); Sawyer v. Beal, 97 Me. 356, 358, 54 A. 848, 848 (1903) ("Within the limits of his ownership he has all the exclusive rights of an owner."); State v. Wilson, 42 Me. 9, 26, 28 (1856); see also Commonwealth v. Charlestown, 18 Mass. 180, 183-84 (1822) (describing the expansive fee simple ownership rights of the riparian owner in Massachusetts).
[¶ 33] Just as solidly established, however, is the public's uninterrupted right to make appropriate use of those lands. See Marshall, 93 Me. at 536, 45 A. at 498. As was clarified in 1845, the upland owner has no "exclusive right" to the portion of the flats on which there is no wharf or pier, and "the public have the same rights to the open space, which they had before, provided they do not interfere with his permanent erections." Deering v. Proprietors of Long Wharf, 25 Me. 51, 65 (1845).
[¶ 34] Thus, neither the establishment of private ownership rights through the Colonial Ordinance, nor the consequent recognition in common law of private ownership rights, has diminished the public trust rights in the intertidal lands. See Gerrish v. Proprietors of Union Wharf, 26 Me. 384, 392 (1847). The challenge, of course, has been to define the extent of the public activities that are subsumed within the trust. We explored this question extensively in Bell II, in both the majority and the dissent, see 557 A.2d at 173, 185, and we do so again here because declaring the parameters of the common law requires review and evaluation of past uses to provide a context for current uses. See Pendexter, 363 A.2d at 749 (Dufresne, C.J., concurring).
[¶ 36] These uses reserved to the public before the adoption of the Colonial Ordinance were described in various ways. As Sir Matthew Hale described them,
Sir Matthew Hale, A TREATISE, IN THREE PARTS. PARS PRIMA: De Jure Maris et Brachiorum ejusdem. From a Manuscript of Lord Chief-Justice Hale 13, 35 (Francis Hargrave ed., 1st ed. 1787).
[¶ 37] Were it not for the specific and somewhat contradictory language contained in our most recent discussion of the public's rights, see Bell II, 557 A.2d at 173, we would have no difficulty in determining that the judicially accepted "expansive" definition of the public's rights would readily accommodate the right to walk across the intertidal zone to scuba dive. Indeed, well before Bell II, our courts had consistently acknowledged that the public trust rights in the intertidal land adapted to reflect the realities of use in each era. See id. at 173 & n. 16; Marshall, 93 Me. at 536-37, 45 A. at 498.
[¶ 38] Until our decision in Bell II, 557 A.2d at 173, we had never treated the language of the Colonial Ordinance as permanently defining or circumscribing the sum of the public's rights to the intertidal zone. For example, the Colonial Ordinance referred to the right of free fishing as available to "Everie Inhabitant who is an hous-holder." See Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine at xxxvi; see also Duncan v. Sylvester, 24 Me. 482, 486 (1844); Parker v. Cutler Milldam Co., 20 Me. 353, 357-58 (1841). Later, however, we construed the right as one belonging not just to householders but also to the "public." See Andrews, 124 Me. at 363-64, 129 A. at 299; Marshall, 93 Me. at 536-37, 45 A. at 498 ("[T]he public may enjoy all these rights in common with the owner [of intertidal land]."). We similarly declined to give effect to the language of the Colonial Ordinance that restricts free fishing to locations "within the precincts of the town where [householders] dwell." See State v. Leavitt, 105 Me. 76, 80-82, 72 A. 875, 877-78 (1909) (upholding legislation that excepted inhabitants of towns from restrictions on clamming, but noting that, where towns did not issue permits or otherwise "take action," "there is free fishing for every one").
[¶ 39] Just as we have not treated the Colonial Ordinance as defining or restricting which member of the "public" would receive the benefit of the jus publicum, we had not, until Bell II, restricted the activities allowed by the jus publicum to the specific references in the Colonial Ordinance: "free fishing and fowling," and unhindered "passage of boats or other
[¶ 40] Pursuant to our broad understanding of the public trust rights, we have authorized public uses that are somewhat related to, but not coextensive with, "fishing," "fowling," and "navigation." For example, upon landing a boat on the intertidal land, we held that the operator, no longer navigating on the water, also may "pass freely to the lands and houses of others besides the owners of the flats." Deering, 25 Me. at 65; see Andrews, 124 Me. at 363, 129 A. at 299. We even concluded, without a direct connection to fishing, fowling, and navigation, that the public may lawfully cross intertidal lands by riding or skating when that land is covered with ice.
[¶ 41] Despite our expanding interpretation of the rights of the public in relation to private ownership of intertidal lands, an interpretation we characterized as "sympathetically generous" in Bell II, 557 A.2d at 173, we also defined the public's rights in a manner that did not unreasonably interfere with the rights of the riparian owner. See McFadden v. Haynes & DeWitt Ice Co., 86 Me. 319, 325, 29 A. 1068, 1069 (1894) (stating that the public trust rights do not include cutting ice on the intertidal flats); Moore v. Griffin, 22 Me. 350, 356 (1843) (holding that the public trust rights do not include the taking of mussel-bed manure from the intertidal land of another). Similarly, the public trust rights have excluded the use of the intertidal land for hygienic, bathing-related purposes. See Butler v. Attorney General, 195 Mass. 79, 80 N.E. 688, 689 (1907). Thus, until the decision in Bell II, 557 A.2d 168, the common law developed along lines that were generous to the public, but continued to balance that expansive approach against the upland owners' rights.
[¶ 42] Such was the development of Maine common law related to the intertidal zone until our holdings in Bell I, 510 A.2d 509, and Bell II, 557 A.2d 168, in 1986 and 1989. In Bell I, owners of shorefront
[¶ 43] In the first appeal, we concluded that the Colonial Ordinance was incorporated into Maine's common law pursuant to article ten, section three of the Maine Constitution and section six of the Act of Separation between Maine and Massachusetts, and that our later holdings clearly recognized the validity of the Colonial Ordinance as a part of our common law. Id. at 513-14. Although we noted that the Colonial Ordinance recognized private ownership of the intertidal lands, we again clarified that the private title remained "subject to the public right of use declared by the Colonial Ordinance." Id. at 516.
[¶ 44] On April 25, 1986, while the Bell I appeal opinion was pending, the Maine Legislature enacted The Public Trust in Intertidal Land Act, P.L. 1985, ch. 782 (codified at 12 M.R.S. §§ 571-573 (2010)). See Bell II, 557 A.2d at 190 (Wathen, J. dissenting). The Act provided that the intertidal lands were impressed with a public trust, that the public trust included use of the intertidal land for fishing, fowling, navigation, recreation, and "[a]ny other trust rights to use intertidal land recognized by the Maine common law and not specifically abrogated by statute." 12 M.R.S. § 573(1); see Bell II, 557 A.2d at 190 (Wathen, J., dissenting).
[¶ 45] Upon remand in Bell I, the Superior Court held a four-week bench trial. Bell II, 557 A.2d at 169. The court entered a judgment in favor of the property owners that declared The Public Trust in Intertidal Land Act, see 12 M.R.S. §§ 571-573, unconstitutional because it expanded the public's trust rights beyond that established by the common law. Bell II, 557 A.2d at 169. The court also concluded that the public had not acquired a common law easement for general recreational use and found insufficient evidence to establish a public easement by local custom to use the beach for recreational purposes. Bell II, 557 A.2d at 173-79.
[¶ 46] Notwithstanding earlier approved common law activities that were not defined within the three enumerated uses, in Bell II we held that the public trust rights to the intertidal lands did not include a general recreational easement. Id. at 176. We stated that the public trust rights had never been divorced from "fishing," "fowling," and "navigation," but also that these uses had been given a "sympathetically generous" and broad construction in Maine's common law. Id. at 173.
[¶ 47] Writing for the three-member dissent, then-Justice Wathen concluded that a reasonable interpretation of the public rights in intertidal zones extends beyond "fishing," "fowling," and "navigation" and includes "other recreational uses [that] have developed and received public acceptance."
[¶ 48] Accepting Bell II's description of the public's rights in the intertidal zone as excluding a general recreational easement, see 557 A.2d at 173, we turn to the narrow issue before us: whether in the context of Maine's common law as addressed above, the public has a right to cross the intertidal portion of the beach on the private owner's property to reach the ocean to scuba dive. Although several amici curiae invite us to assess more broadly whether the public trust rights include a general, or more limited, recreational easement to use the intertidal lands, that issue is neither before us nor necessary to the resolution of this case. See Dickey v. Vermette, 2008 ME 179, ¶ 1, 960 A.2d 1178, 1179 (2008) (declining to reach an issue raised by amicus curiae but not essential to the opinion).
[¶ 49] To undertake our analysis, we ask two questions. First, does the intended activity fall readily within the Bell II categories of "fishing," "fowling," or "navigation"? If so, there is no need to continue further. If not, it is necessary to determine whether the common law should be understood to include that activity—here specifically the right of passage over the intertidal sand to reach the water to scuba dive.
[¶ 50] Beginning with the first question, although our colleagues in concurrence have concluded that some forms of non-boat-related propulsion through the water, including scuba diving, can be found to constitute a form of "navigation," we conclude that such an analysis requires stretching the definition of navigation beyond its meaning. Instead, we will determine whether Bird's purpose for crossing the intertidal zone is among the purposes consistent with the common law of the jus publicum, even when such access is for activities that do not strictly fall within the triumvirate of descriptors. Cf. Bell II, 557 A.2d at 173.
[¶ 51] Moving then to the second question, we conclude that, although not expressly stated in any one opinion, our common law has regularly accommodated the public's right to cross the intertidal land to reach the ocean for ocean-based activities. The list of uses that have been accepted within the common law, but which do not fall strictly within the definitions of "fishing," "fowling," and "navigation," is significant. See supra ¶¶ 38-40. As we have held, the public may engage in activities that are not directly related to the three descriptors. See, e.g., Marshall, 93 Me. at 536-37, 45 A. at 498; Deering, 25 Me. at 65; cf. Moulton, 37 Me. at 489.
[¶ 52] We must also acknowledge, as the concurrence notes, that our language in Bell II appears to set in stone the three talismanic activities to which the walk to the ocean must be tied: "fishing," "fowling," and "navigation." See 557 A.2d at 173. Resigned to those categories in light of principles of stare decisis, the concurrence has found a way to define "navigation" generously, as including scuba diving.
[¶ 53] Rather than stretching the definitions of these three terms beyond their reasonable limits, however, we return to the roots of the common law. Ultimately, the public trust rights in the intertidal zone are not, and have never been, strictly enumerated rights. To the extent that Bell II can be read to forever set the public's rights in stone as related to only "fishing," "fowling," and "navigation," we would expressly disavow that interpretation.
[¶ 54] We must also respectfully disagree with the concurring opinion's conclusion that courts must strictly adhere to principles of stare decisis when addressing the development of the common law. "[T]he common law gives expression to the changing customs and sentiments of the people," State v. Bradbury, 136 Me. 347, 349, 9 A.2d 657 (1939), and its genius is the "flexibility and capacity for growth and adaptation," Pendexter, 363 A.2d at 749 (Dufresne, C.J., concurring). "While we recognize the unquestioned need for the uniformity and certainty the doctrine [of stare decisis] provides, we have also previously recognized the dangers of a blind application of the doctrine merely to enshrine forever earlier decisions of this court." Adams v. Buffalo Forge Co., 443 A.2d 932, 935 (Me.1982).
[¶ 55] As is clear from the history of our cases, long before Bell II was decided, the public's use of the intertidal zone was not so severely limited that only a person with a fishing rod, a gun, or a boat could walk upon that land. Indeed, a careful reading of Bell II demonstrates that limiting the public trust rights narrowly to precisely the three uses specifically referenced in the Colonial Ordinance would conflict with our acknowledgement in Bell II of the need for a "sympathetically generous" assessment of those very rights.
[¶ 56] In short, our judicial unease with a rigid interpretation of the public trust rights urges clarification of the Bell II holding's scope. See Shaw, 1998 ME 208, ¶¶ 8-9, 717 A.2d at 370-71. Warping and straining the definitions of "fishing," "fowling," and "navigation" to include such modern uses as clamming, worming, skating, or scuba diving, creates further confusion as to authorized public usage of intertidal lands. The three terms adequately provide context, but they simply do not and have never, until Bell II, been understood to wholly or exclusively define the public trust rights.
[¶ 57] In the end, to the parties before us, it does not matter whether the public's rights to cross the intertidal land to reach the ocean to scuba dive is a matter of general common law, or is liberally classified as a form of "navigation." In either event, all six justices conclude that it is an
[¶ 58] Although Maine has a rich history of private ownership of intertidal lands, that ownership has always been subject to the public's right to cross the wet sand to reach the ocean. As Sir Matthew Hale originally described the public's rights to this important land, "the people have a publick interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances or impeached by exactions." Hale, De Jure Maris at 36. In our view, pursuant to the common law of Maine, the public trust rights are at least broad enough to allow the public to walk across the intertidal lands to enter the water and scuba dive.
LEVY, J., with whom ALEXANDER and GORMAN, JJ., join.
[¶ 59] The public's common law right to use Maine's intertidal lands has historically been defined using the terms "fishing, fowling, and navigation." See Bell v. Town of Wells (Bell II), 557 A.2d 168, 173 (Me.1989); Marshall v. Walker, 93 Me. 532, 536-37, 45 A. 497, 498 (1900). In Bell II, the Court's majority unequivocally stated: "The terms `fishing,' `fowling,' and `navigation,' liberally interpreted, delimit the public's right to use this privately owned land." 557 A.2d at 173 (footnote omitted). Today, however, the separate opinion of my colleagues in concurrence suggests an approach that would effectively overrule Bell II by concluding that "[t]he three terms adequately provide context, but they simply do not and have never, until Bell II, been understood to wholly or exclusively define the public trust rights." Saufley Concurring Opinion ¶ 56. Further, that approach would bestow upon the public a general right to cross privately-owned intertidal land to gain access to the ocean—a newfound right that would exceed even the most "sympathetically generous" interpretation of fishing, fowling, and navigation. See Bell II, 557 A.2d at 173. I do not agree with such an expansion of Maine's common law because, in my view, it would violate the doctrine of stare decisis and misapply the Court's common law authority.
[¶ 60] In Bell II, the Court's majority surveyed more than one and one-half centuries of Maine decisions regarding the public's right to use the intertidal land and concluded that the public has no common law right to engage in general recreation. 557 A.2d at 173, 176. That decision recognized that the public's rights in this sphere have never been divorced from the three public uses reserved in the Colonial Ordinance—fishing, fowling, and navigation: "The Colonial Ordinance as received into the common law of Maine and Massachusetts reserved out of the fee title granted to the upland owner a public easement only for fishing, fowling, and navigation." Id. at 173.
[¶ 61] Bell II did not treat the terms fishing, fowling, and navigation as shorthand or code for broader public trust rights untethered to these three enumerated uses. The Bell II majority opinion explained:
557 A.2d at 173 (footnote omitted).
[¶ 62] To "delimit" means "to fix or determine the limits of." Webster's Third New International Dictionary 597 (2002). It is true that we have historically applied what the concurrence alternately describes as an "expansive," "liberal," "broad," and "sympathetically generous" approach to the public's right to use intertidal lands. Saufley Concurring Opinion ¶¶ 37, 39, 40, 41, 57. With that approach, we have, over time, greatly expanded the scope of the "public" that benefits from the right to fish, fowl, and navigate, and we have construed those terms far beyond their traditional meanings. We have never understood fishing, fowling, and navigation to merely establish a context for some broader right or rights. By asserting that fishing, fowling, and navigation do not "wholly or exclusively define the public trust rights," Saufley Concurring Opinion ¶ 56, the concurrence proposes a holding that would fundamentally alter, rather than merely expand, Maine's existing common law.
[¶ 63] The doctrine of stare decisis "is the historic policy of our courts to stand by precedent and not to disturb a settled point of law." Myrick v. James, 444 A.2d 987, 997 (Me.1982). It exists because respect for legal precedent lends stability to the law and enables the public to place reasonable reliance on judicial decisions affecting important matters. Even when we have a certain "unease" with the analysis of a prior decision, we do not overrule the decision without a compelling and sound justification. See Shaw v. Jendzejec, 1998 ME 208, ¶¶ 8, 12, 717 A.2d 367, 370-71, 371-72; Alexandre v. State, 2007 ME 106, ¶ 35, 927 A.2d 1155, 1164.
[¶ 64] Society's interest in being able to rely on established precedent is at its apex with regard to judicial precedents that exposit property rights. See Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 381, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977). Legal questions affecting ownership of land, once answered, "should be considered no longer doubtful or subject to change." United States v. Title Ins. & Trust Co., 265 U.S. 472, 486-87, 44 S.Ct. 621, 68 L.Ed. 1110 (1924) (quotation marks omitted). "Such decisions become rules of property, and many
[¶ 65] In Bell v. Town of Wells (Bell I), we noted the importance of stare decisis and "the stability of the legal concepts of property in the State," and in connection with our common law's adherence to the principles of the Colonial Ordinance, we quoted the decision of the Massachusetts Supreme Judicial Court in Barker v. Bates, 30 Mass. 255, 258 (1832):
Bell I, 510 A.2d 509, 513, 518 (Me. 1986) (quotation marks omitted); see also Barrows, 73 Me. at 448 ("[the Colonial Ordinance] has been so largely accepted and acted on by the community as law that it would be fraught with mischief to set it aside"). The Bell II majority continued to respect the property rights of fee owners of intertidal lands by holding that the establishment of a public easement that exceeds uses within the scope of fishing, fowling, and navigation is an unconstitutional taking of private property without just compensation, whether the easement is created by the Legislature or the judiciary. See Bell II, 557 A.2d at 176, 177-79, 180; see also Opinion of the Justices, 365 Mass. 681, 313 N.E.2d 561, 569-71 (1974) (declaring that proposed legislation creating a footpath along privately-owned intertidal land would constitute an unconstitutional taking).
[¶ 66] Because Maine's roughly 3500 miles of ocean coastline
[¶ 67] The standard ultimately proposed by the concurrence—that the Court will henceforth "strike a reasonable balance between private ownership of the intertidal lands and the public's use of those lands"—would be bounded only by what a majority of the Court determines to be reasonable at any given time. Saufley Concurring Opinion ¶ 57. With this new approach, the jurisprudential anchor provided by the terms fishing, fowling, and navigation would be lifted, and with it, the guidance and stability that those terms have brought to property rights would be lost. We should remain true to the doctrine of stare decisis and not effectively overrule our decision in Bell II.
[¶ 68] In Bell II, we acknowledged, consistent with our long-standing approach
[¶ 69] A sympathetically generous and broad interpretation of the public's rights is not, however, without limits. See McFadden v. Haynes & DeWitt Ice Co., 86 Me. 319, 325, 29 A. 1068, 1069 (1894) (stating that the public right of fishing does not include cutting ice in intertidal areas); Moore v. Griffin, 22 Me. 350, 356 (1843) (holding that the public right of fishing does not include the taking of mussel-bed manure from the intertidal land of another). In Bell II, we followed two Massachusetts cases that held that the public's right to use intertidal land does not include "bathing." 557 A.2d at 175 (citing as persuasive precedent, Butler v. Attorney General, 195 Mass. 79, 80 N.E. 688 (1907), and Michaelson v. Silver Beach Improvement Ass'n, Inc., 342 Mass. 251, 173 N.E.2d 273 (1961)).
[¶ 70] Since our earliest decisions concerning ownership and use of intertidal lands, we have adhered to our common law approach centered on the three enumerated public uses. See, e.g., Bell II, 557 A.2d at 171, 173; accord id. at 183 (Wathen, J., dissenting); Bell I, 510 A.2d at 513-15; Lapish v. Bangor Bank, 8 Me. 85, 93 (1831). That approach has not prevented us from accounting for the ever-changing circumstances of society when applying the principles of the Colonial Ordinance. See Barrows, 73 Me. at 448-50; Woodman v. Pitman, 79 Me. 456, 460-63, 10 A. 321, 323-25 (1887) (recognizing the emergence of the ice harvesting industry and the declining need for travel on frozen navigable waterways). We do not rigidly apply ancient common law principles without considering the changed realities of modern
79 Me. at 458, 10 A. at 322. The common law requires courts to account for "the ever varying circumstances of new cases presented and ... the newly developed industries of the age [while not] setting aside its plain doctrines because they are not in accord with our own views of what it should be." Barrows, 73 Me. at 449-50; see also In re Robinson, 88 Me. 17, 23, 33 A. 652, 654 (1895) ("The common law would ill deserve its familiar panegyric as the `perfection of human reason,' if it did not expand with the progress of society and develop with new ideas of right and justice.").
[¶ 71] In short, we should apply, as have the generations of Maine jurists that have preceded us, a sympathetically generous and broad interpretive approach when construing the uses arising from the public trust rights in Maine's intertidal lands, but we should do so without deviating from the core requirement that the uses are delimited by the terms fishing, fowling, and navigation as these terms have and will continue to evolve.
[¶ 72] Framed in terms of Maine's established common law, the question this case ultimately presents is whether, as the Superior Court determined, scuba diving is an activity within the ambit of the enumerated public right of navigation. McGarvey and Kleintop assert that navigation requires the use of a boat or vessel, the traditionally identified instruments used to navigate through the water. They also argue that scuba diving involves underwater swimming, and because "bathing" was a facet of the general recreational activity that we considered and rejected in Bell II, our decision in Bell II should control. See Bell II, 557 A.2d at 174-76.
[¶ 73] The majority in Bell II explicitly relied on Butler, a 1907 Massachusetts decision, to support the proposition that bathing, an aspect of the asserted right of general recreation, is not within the public's right to use intertidal lands. See Bell II, 557 A.2d at 175 (citing Butler, 80 N.E. 688). The Butler court explained:
80 N.E. at 689 (citations omitted). The Butler court concluded that intertidal lands are held in fee "subject ... to the easement of the public for the purposes of navigation and free fishing and fowling,
[¶ 74] Butler thus distinguished bathing from swimming. See also Bell II, 557 A.2d at 174-76, 177 (addressing "bathing," not "swimming"). Bathing, as it was "commonly understood," was not included in the right of navigation, and therefore it was not within the public's right to use intertidal lands. Butler, 80 N.E. at 689; see also Michaelson, 173 N.E.2d at 278 (applying the holding in Butler without discussion).
[¶ 75] By the functional definition relied on in Butler, scuba diving is not bathing because it primarily involves "passing freely over and through the water without any use of the land underneath." See Butler, 80 N.E. at 689. As a matter of function, scuba diving has qualities of navigation because it is only possible with the use of external apparatus such as breathing gas cylinders, breathing regulators, swim fins, weight belts, and buoyancy compensators. This equipment enables scuba divers to travel and remain submerged in the water for extended periods. See NOAA Diving Manual: Diving for Science and Technology 5-8 to 5-12, 5-26 to 5-30 (James T. Joiner, ed. 4th ed.2001).
[¶ 76] Modern scuba diving did not exist when Butler was decided in 1907, or when we last interpreted "navigation" in Andrews in 1925. Certainly, it did not exist at the time of the Colonial Ordinance. It is of little moment whether the colonists could have foreseen that there would come a day when it was possible for persons to "pass[] freely over and through the water without any use of the land underneath" without the use of a boat or vessel. See Butler, 80 N.E. at 689. What matters is that the public's right of navigation includes that usage—passing freely over and through the water—and our common law enables us to recognize newly developed methods of travel associated with such usage. By this approach, we have previously concluded that the public's right of navigation includes the right to travel by skate across intertidal lands covered with ice, see Marshall, 93 Me. at 536, 45 A. at 498, and by horse over navigable rivers when frozen, French, 18 Me. at 434. Neither of these modes of travel involves a boat or a vessel.
[¶ 78] Because this case implicates long-established property rights, we should remain true to the common law and apply it so as to account for "the ever varying circumstances of new cases presented and ... the newly developed industries of the age [while not] setting aside its plain doctrines because they are not in accord with our own views of what it should be." Barrows, 73 Me. at 449-50. The right to fish, fowl, and navigate has been the touchstone for determining the scope of the public's common law rights in intertidal lands, and, absent a compelling reason, it should remain so. For these reasons, I do not join the separate opinion of my colleagues in concurrence, but I agree that the judgment of the Superior Court should be affirmed.
The entry is:
Judgment affirmed.
Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine at xxxvi-xxxvii; The Book of the General Lauus and Libertyes Concerning the Inhabitants of the Massachusets (1648), reprinted in The Laws and Liberties of Massachusetts 35 (1929). There are only slight changes in punctuation and spelling in later editions of the Colonial Ordinance. Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine at xxxvii-xl.
