Friday, September 2, 2011
Last week, the Maine Supreme Court issued an opinion that will be of interest to anyone interested in coastal access rights or the public trust doctrine.
The case marks the latest chapter in long legal drama. Maine, unlike many states, allows private ownership rights in the intertidal zone. It traces those rights to an ordinance enacted in 1647 by the colony of Massachusetts (which then included Maine). Those private rights are not exclusive, however; the ordinance qualified the private ownership rights by preserving a public trust easement to use the intertidal zone, and it specifically mentioned fishing, fowling, and navigation as allowed uses. In Bell v. Town of Wells, 557, A.2d 168 (Me. 1989), a closely divided court held fishing, fowling, and navigation were the only public uses protected by the public trust doctrine, and it found unconstitutional a state statute that purported to provide broader access. That decision has received its fair share of criticism, and eleven years ago, in a concurrence in another beach access case, the current chief justice argued that Bell should be overturned. See Eaton v. Town of Wells, 760 A.2d 232 (Me. 2000). Last week, for the first time in over a decade, the court revisited the issue.
The core issue before the court was narrow. Scuba divers were walking across the intertidal zone to go diving. The owner of the intertidal area wanted them to stop. The question before the court was whether the public trust easement encompassed scuba access. The court’s actual holding also is narrow. It declined invitations to rule expansively on the scope of the state’s public trust doctrine, and instead held, unanimously, that the doctrine did allow scuba divers access to the intertidal zone. The justices disagreed on the reasoning, however. Three justices concluded that the “fishing, fowling, and navigation” language in the colonial ordinance was illustrative of a broader and more flexible principle of public access, and found scuba access consistent with that principle. Three other justices (one justice recused himself) wrote that fishing, fowling, and navigation were the only permissible public uses, but concluded that scuba access qualified as navigation. Each opinion contains extensive discussion of the public trust doctrine and of the proper mode of evolution of the common law, and that discussion, rather than the narrow holding, is what makes this a case worth reading.
Despite that fairly thorough discussion, one potentially important question escaped analysis. Neither Bell nor the more recent decision discusses the role of the legislature in common law change. The Maine statute allowing broader public access remains on the books, notwithstanding the Bell decision. Yet that statute did nothing to inform the court’s common law interpretation in Bell. Similarly, last week’s opinion contains no evidence that legislative enactments mattered to the court’s deliberations. Why not? If the common law derives from some mysterious set of deeper principles and ancient texts, their meaning revealed uniquely unto judges like scripture unto priests, then exclusive judicial authority to shape the common law makes sense. But if the path of the law is experience, and if common law should respond to evolving circumstances and societal preferences (as all of the justices seemed to agree it should) shouldn’t a legislative enactment at least inform judicial deliberations? The Maine Supreme Court doesn’t seem to think so. I wonder why not.