We recommend you pick up the opinion of Maine's Supreme Judicial Court in Ross v. Acadian Seaplants, Ltd., No. Was-17-142 (Mar. 28, 2019), because it deals with property rights in an area subject to the public trust. We think the court did a pretty good job of setting out the competing claims and the background of the oft-misunderstood public trust doctrine.
The issue was whether the public (in this instance, Acadian Seaplants) has the right under the jus publicum to harvest living rockweed, a seaweed which anchors itself to "the rocky ledges that accent [Maine]'s coastline." Slip op. at 1.
Specifically, we are asked to determine whether rockweed is private property that belongs to the adjoining upland landowner who owns the intertidal soil in fee simple, or property that is held in trust by the State through the jus publicum for the public to harvest.
Id.
The court concluded that "rockweed in the intertidal zone belongs to the upland property owner and therefore is not public property, is not held in trust by the State for public use, and cannot be harvested by members of the public as a matter of right." Slip op. at 2. The court summarized the public trust law this way:
In short, the English common law tradition vested both “title” to and “dominion” over the intertidal zone in the crown. Shively v. Bowlby, 152 U.S. 1, 11 (1894). Title—the jus privatum—belonged to the crown “as the sovereign” but was held subject to the public’s rights of “navigation,” “commerce,” and “fishing”—the jus publicum—which the crown held in trust for the public. Id. After the American colonies gained independence, the ownership of intertidal land devolved to the particular state where the intertidal area was located. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988); Shively, 152 U.S. at 14-15; State v. Leavitt, 105 Me. 76, 78-79, 72 A. 875 (1909).
Slip op. at 7.
Private property rights are recognized in certain areas of the shoreland. In the intertidal zone -- as contrasted to land below the mean high water mark (which is public), and the dry sand beach (which is private) -- the land is privately owned, but not absolutely. It is "subject to certain public rights." Id. at 9.
Read the opinion (pages 12-18) for the reasons why the court concluded -- due to the nature of rockweed, and the "specialized equipment and skiffs required to harvest in in this area -- the right to harvest it belongs to the private upland owners. Overall, the rockweed harvesting did not really look like the usual activities (fishing, navigation) that are done in the water. The court balanced the competing interests, concluding that "Acadian’s activity is qualitatively similar to other uses of the intertidal zone that we have held are outside of the public trust doctrine." Slip op. at 21.
This opinion is a good read because it shows that mere invocations of the public trust should not be enough to completely discount private property rights. The public trust doctrine, after all, is supposed to be about protecting activities undertaken, and not ownership qua ownership. Check it out.
Ross v. Acadian Seaplants, Ltd., No. Was-17-142 (Maine Mar. 28, 2019)
