Fishing, Fowling, and Dockominiums: Maine\u27s Need for a New Approach to Public and Private Intertidal Rights

In the sixteenth century, Queen Elizabeth recognized the public’s inalienable right to the sea. Despite the intuitive concept embodied in the Queen’s pronouncement, a centuries-old debate over the public’s right to the seashore continues to occupy the attention of Maine’s bar and bench. In 2011, for example, the Supreme Judicial Court of Maine, sitting as the Law Court, handed down a decision that maintains Maine’s prevailing judicial analytical framework for resolving property disputes in the intertidal zone. In McGarvey v. Whittredge, the plaintiffs, claiming ownership of the intertidal zone, brought an action in trespass and sought a declaratory judgment that the neighboring commercial scuba diving business operators and their customers had no right to cross the intertidal zone to access the ocean to scuba dive.The court’s unanimous judgment resolved the property interest at issue by holding that, as a matter of Maine common law, the public has a right to walk across the intertidal zone to access the ocean for purposes of scuba diving