McGarvey v. Whittredge
28 A.3d 620, 2011 Me. LEXIS 95, 2011 ME 97 (2011)
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Rule of Law:
The public's common law right to use privately-owned intertidal land includes the right to cross that land to access the ocean for the purpose of scuba diving. This right derives either from the common law's flexible capacity to balance public and private interests or from a broad, modern interpretation of the traditional public right of navigation.
Facts:
- William A. McGarvey Jr. and Mary Jo Kleintop (McGarvey) own oceanfront property bordering Passamaquoddy Bay in Eastport, Maine.
- McGarvey's property ownership extends to the mean low-water mark, encompassing the intertidal land (the area between high and low tide).
- Steven R. Whittredge and Jonathan Bird (Bird) own adjacent property located upland, just above the high-water mark.
- Due to the configuration of the properties, Bird cannot access the ocean without crossing over McGarvey's intertidal land.
- Bird operates a commercial scuba diving business and, to conduct shore dives, Bird and his clients walk from Bird's property across McGarvey's intertidal land to enter the water.
- The scuba diving activities do not involve the use of boats and do not constitute fishing or fowling.
Procedural Posture:
- McGarvey filed a declaratory judgment action against Bird in the Superior Court of Washington County, Maine, seeking to prohibit Bird from crossing McGarvey's intertidal land for scuba diving.
- Bird filed a counterclaim, seeking a judgment declaring that their use of the intertidal land was lawful.
- The Superior Court granted summary judgment in favor of Bird, declaring that crossing the intertidal land for scuba diving is a permitted public use under the right of navigation.
- The trial court also found that other social activities constituted a trespass and awarded nominal damages to McGarvey, a ruling which was not appealed.
- McGarvey (appellant) appealed the summary judgment ruling concerning scuba diving to the Maine Supreme Judicial Court, the state's highest court.
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Issue:
Does the public's common law right to use privately-owned intertidal land include the right to cross that land to access the ocean for scuba diving?
Opinions:
Majority - Saufley, C.J.
Yes, the public has the right to cross intertidal land to access the ocean for scuba diving. The public trust rights in intertidal lands are not, and have never been, a static list of enumerated rights strictly limited to 'fishing, fowling, and navigation' as referenced in the Colonial Ordinance. The common law has the flexibility to adapt to changing times and uses. Rather than straining the definition of an archaic term like 'navigation' to encompass modern activities, the better approach is to recognize that the core purpose of the public trust doctrine is to balance private ownership rights with the public's right to access and use the ocean. Allowing the public to cross intertidal land to engage in an ocean-based activity like scuba diving strikes a reasonable balance and is consistent with the historical, 'sympathetically generous' interpretation of public rights. To the extent our prior decision in Bell II is read to forever limit public rights to only 'fishing, fowling, and navigation,' that interpretation is disavowed.
Concurring - Levy, J.
Yes, the public has a right to cross intertidal land for scuba diving, but this right must be found within the traditional common law framework. The majority's 'reasonable balance' approach improperly abandons the holding of Bell II and violates the doctrine of stare decisis, which is especially important in property law as it creates instability and uncertainty for landowners. The correct analysis is to apply a 'sympathetically generous' interpretation to the established public rights of 'fishing, fowling, and navigation.' Scuba diving can be construed as a modern form of 'navigation.' Like skating on ice or traveling by horse on a frozen river—activities previously held to be within the public trust—scuba diving is a method of 'passing freely over and through the water' that uses modern technology (tanks, buoyancy compensators, compasses) to navigate. It is distinct from 'bathing,' which was previously disallowed. Therefore, crossing the intertidal zone to engage in this form of navigation is a permissible public use.
Analysis:
This decision expands public access rights to Maine's privately-owned intertidal zones but reveals a deep jurisprudential fissure on the court regarding how to adapt common law to modern recreational activities. The Saufley opinion champions a flexible, evolving public trust doctrine that balances interests, potentially opening the door for courts to recognize other uses like surfing or kayaking. In contrast, the Levy concurrence argues for strict adherence to precedent (stare decisis), preferring to stretch the definitions of the traditional 'fishing, fowling, and navigation' categories to fit new activities. The case's primary significance lies in this unresolved conflict, setting the stage for future litigation over the scope of public rights where the key battle will be which of these two competing methodologies prevails.
