MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	45

Docket: Was-17-142

Argued: November	14,	2017

Decided: March	28,	2019

Revised: July	11,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

Majority: ALEXANDER,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

Concurrence: SAUFLEY,	C.J.,	and	MEAD	and	GORMAN, JJ.

KENNETH	W.	ROSS	et	al.

v.

ACADIAN	SEAPLANTS,	LTD.

HJELM,	J.

[¶1]		This	case	draws us	again	into	the	confluence of	public	and	private	

property	rights	within the	intertidal	zone—this	time,	to	address	the	ownership	

of	rockweed,	a	species	of	seaweed	that	grows	in Maine’s intertidal	zone	and is

often	found	on	the	rocky	ledges	that accent the	State’s	coastline.		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.		

[¶2]		Acadian	Seaplants,	Ltd., appeals	from a	summary	judgment	entered	

by	the	Superior	Court	(Washington	County,	Stewart,	J.)	in	favor	of Kenneth	W.	
2

Ross,	 Carl	 E.	 Ross,	 and	 Roque	 Island	 Gardner	 Homestead	 Corporation	

(collectively,	Ross),	who	 are	owners	 of	upland	property	where—without	 the	

landowners’	permission—Acadian has	harvested	rockweed that	is	attached	to	

the	intertidal	land.

1 In	its	judgment,	the	court	declared that	rockweed	growing	

in	the	intertidal	zone	is	the	private	property of	the	upland	property	owners.		We

agree 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.		Accordingly,	we affirm	the	judgment.

I.		BACKGROUND

[¶3]	 	 The	 following	 facts	 are	 taken	 from	 the	 parties’	 stipulated	 joint	

statement	 of	 material	 facts,	 submitted	 to	 the	 court	 on	 cross-motions for	

summary	judgment.		See	BCN	Telecom,	Inc.	v.	State	Tax	Assessor,	2016	ME	165,	

¶	3,	151	A.3d	497.	

 1	 	On	 this	 appeal,	 amici	 briefs	 have	 been	 filed	 by	 the	 Cobscook	 Bay	 Fishermen’s	 Association;	

Conservation	Law	Foundation;	Downeast	Coastal	Conservancy;	Downeast	Lobstermen’s	Association;	

Hale	 Miller;	 Jonesport	 and	 Beals	 Commercial	 Fishermen	 and	 Lobstermen;	 Maine	 Clammers	

Association,	 Independent	Maine	Marine	Worm	Harvesters	Association,	North	American	Kelp,	and	

Gulf	 of	 Maine,	 Inc.;	 Maine	 Coast	 Fishermen’s	 Association;	 Maine	 Coast	 Heritage	 Trust;	 Maine	

Department	 of	Marine	Resources;	Maine	Seaweed	Council;	Pacific	Legal	Foundation	and	Property	

and	Environment	Research	Center;	and	Pleasant	River	Wildlife	Foundation.		See	M.R.	App.	P.	9(e)	

(Tower	2016).	
3

[¶4]	 	 Rockweed is	 the	 common	 name	 for	 several	 species	 of	 brown	

seaweed,	 or	 macroalga.	 	 The	 most	 abundant	 of	 the	 species	 is	 known	 by	 the	

scientific	name	Ascophyllum	nodosum and	is	often found	on	rocks	and	ledges	in	

the	intertidal	portions	of Maine’s seacoast.		Rockweed is	a	plant.		 It does	not	

grow	in	intertidal	sand but obtains	its	nutrients	from	the	surrounding	seawater	

and	 air.		Rockweed attaches	 to	hard, stable	 objects such	as ledges and rocks	

using	a	disc-like	structure	called	a	holdfast.		The	sole	function	of	the	holdfast is	

to	secure the	rockweed	in	place by	penetrating	the	surface	of	substrate	by up	

to	 four	 millimeters.	 A	 rockweed’s	 holdfast	 typically	 remains	 intact	 and	

attached	to	a	substrate	for	decades,	allowing	rockweed	to	generate	new	growth.		

If	 the	 rockweed	 becomes	 detached	 from a	 substrate,	 it cannot reattach	 its	

holdfast to	a	different	substrate	and will	float	freely	in	the	water	or	be	cast	onto	

the	land.		Rockweed,	which	is	typically	two to four feet	in	length	but	can	grow	

to	be	more	 than six feet,	is	important to	Maine’s	coastline ecology because	it

moderates	temperatures	and	provides a	habitat	for	marine	organisms.		

[¶5]	 	Acadian is	 a	 commercial	 entity	 that	 operates	in	 Maine	 and	Nova	

Scotia and harvests	rockweed	from	the	Maine	intertidal	zone	for use	in various	

commercial	 products,	 such	 as	 fertilizer	 and	 animal	 feed.	 	 Acadian	 harvests	

rockweed	during	mid-tide,	using three-to-four-ton-capacity	skiffs	and specially
4

designed	cutting	rakes.	 During	the	harvesting	operation,	Acadian	operates	the	

watercraft	in	intertidal	waters	without	walking	 or	 traveling	 on	 the	intertidal	

land itself.	 	 The	 Department	 of	 Marine	 Resources	 regulates	 the	 harvest	 of	

rockweed	 in	 Cobscook	 Bay.	 	 See	 12	 M.R.S.	 § 6803-C	 (2018);	 see	 also	 id.	

§ 6001(7),	(13).

2 Acadian	annually	harvests	the	statutory	maximum 17 percent

of	eligible harvestable	rockweed	biomass	in	Cobscook	Bay.		See	id.	§	6803-C(9).		

[¶6]		Ross	owns	coastal	intertidal	property	on	Cobscook	Bay,	and	Acadian	

has	harvested	rockweed	 from	Ross’s intertidal	property	without	his consent.		

In	 December	 of 2015,	 Ross	 commenced	 this	 action	 by	 filing a	 two-count	

complaint	against	Acadian,	seeking,	in	Count	1, a	declaratory	judgment that	he	

exclusively	 owns	 the	 rockweed	 growing	 on	 and	 affixed	 to	 his intertidal	

property,	and,	in	Count	2, injunctive	 relief	that	would prohibit Acadian	 from	

harvesting	rockweed	from	his	intertidal	land	without his permission.		Acadian’s	

answer	to	the	complaint included	a	counterclaim	for a	judgment declaring that	

 2		The	Department	of	Marine	Resources,	as	amicus	curiae,	argues	that	1	M.R.S.	§	2(2-A)	(2018),	

which	governs	State	regulation	of	harvesting	of	marine	resources,	establishes	the	public’s	right	to	

harvest	rockweed	from	the	intertidal	zone	because the	statute	vests	ownership	of	that	seaweed	with	

the	State	and	therefore	not	with	the	upland	property	owners.		In	a	one-sentence	footnote	in	its	reply	

brief,	Acadian	states	that	it	adopts	the	Department’s	arguments.		This	contention,	however,	was	not	

meaningfully	developed	in	the	trial	court	and	is	therefore	not	preserved	for	appellate	consideration.		

See	Penkul	v.	Matarazzo,	2009	ME	113,	¶ 11,	983	A.2d	375 (stating	that	an	issue	“not	presented	to	the	

trial	court	.	.	.	is	not	properly	before	this	Court	on	appeal”); see	also	Jacobs	v.	Jacobs,	507	A.2d	596,	

597	n.1	(Me.	1986) (stating	that	we	will	consider	an	argument	raised	in	an	amicus	brief	“only	to	the	

extent[] that	 it	 addresses	 issues	 raised	 before	 the	 trial	 court	 and	 pursued	 here	 by	 the	 parties	

themselves”).		
5

harvesting	 rockweed	 from the	 intertidal	 water	 is	 a	 form	 of	 “fishing”	 and	

“navigation”	within	 the	meaning	of the	Colonial	Ordinance	and	is	therefore	a	

public	 right.3	 	 The parties	 filed	 cross-motions	 for	 summary	 judgment	

predicated	on a	joint	statement	of	material	facts.		See	M.R.	Civ.	P.	56. In	March	

of 2017, after	holding	a	hearing, the	court	(Stewart, J.)	granted	Ross’s motion in	

part by	 entering summary	judgment	for	 Ross	 on	 his	 request	 for	 declaratory	

judgment	in	Count	1	of	his	complaint.		The	court	also	entered	judgment	for	Ross	

on	Acadian’s	counterclaim	and	denied	Acadian’s	motion.		Ross	then	moved to	

dismiss	Count	 2	 of	the complaint, and	the	 court	 granted the	motion without	

objection	from	Acadian,	resulting in	the	entry	of a final	judgment.		Acadian	filed	

a	 timely	 notice	 of	 appeal.	 	 See	14	M.R.S.	 § 1851 (2018);	M.R.	 App.	 P.	 2(b)(3)

(Tower 2016).4

II.		DISCUSSION

[¶7]	 	 Because the	 facts	 presented	 are	 not	 in	 dispute,	 we review the

summary	judgment	de	novo	for	errors	of	law in	the	court’s	interpretation	of	the	

 3		Acadian also filed	a	motion	to	dismiss Ross’s complaint for	failure	to	join	the	State	as	a	necessary	

party. See	M.R.	Civ.	P.	12(b)(7),	19.		The	court	(Stokes,	J.)	denied	the	motion	after	concluding	that	the	

State	was	not	exposed	to	any	current	or	future	litigation as	a	result	of	the	private	claims	asserted	in	

this	action.		No	party	challenges	that	determination	on	appeal.		

4		Because	this	appeal	was	filed	before	September	1,	2017,	the	restyled	Maine	Rules	of	Appellate	

Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rules).
6

relevant	legal	concepts.	 See	Beane	v.	Me.	Ins.	Guar.	Ass’n,	2007	ME	40,	¶	9,	916	

A.2d	204;	see	also Remmes	v.	Mark	Travel	Corp.,	2015	ME	63,	¶ 19,	116	A.3d	466

(“Cross	 motions	 for	 summary	 judgment	 neither	 alter	 the	 basic	 Rule	 56	

standard,	 nor	 warrant	 the	 grant	 of	 summary	 judgment	 per	 se.” (quotation	

marks	omitted)).

[¶8] The	limited	issue	before	us	is	whether	living rockweed,	growing	on	

and	attached	to	intertidal	land,	is—as	Ross	asserts—the	private	property	of	the	

adjoining	 upland	 landowner	 who	 owns	 the	 intertidal	 zone	 in	 fee,	 or—as	

Acadian	counters—a	public	resource	held	in	trust	by	the	State.		

A. Intertidal	Property	Rights

[¶9]	 	Our	 consideration	 of	 this	 dispute	takes us back	 to	 the	 analytical	

foundations of the	law	governing	rights	to	the	intertidal	zone: the	interrelated	

common	 law	 public	 trust	 doctrine	 and	 the	 rights	 embodied	 in	 the	

Massachusetts	Bay	Colony’s	Colonial	Ordinance	of	1641-47.		In	past	opinions,

we	 have	 described	 the	legal	 principles	 emanating	 from	 these	laws. See,	 e.g.,

McGarvey	v.	Whittredge,	2011	ME	97,	¶¶	8-41,	28	A.3d	620;	Bell	v.	Town	of	Wells	

(Bell II),	557	A.2d	168,	170-79,	180-89 (Me.	1989);	Bell	v.	Town	of	Wells	(Bell	I),	

510	 A.2d	 509,	 511-17	 (Me.	 1986).	 Given	 the	 extensive	 discussion	 in those	
7

opinions,	 we	 need not	 describe	 the	 historical	 origins	 and	 developments	 in	

detail here.		

[¶10]		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). Each	 state nonetheless	 remained	 free	 to	 modify	 its	 laws	

governing	ownership	of	the	intertidal	zone. Shively,	152 U.S.	at	18. In	a	decision	

issued	in	1810,	the	Massachusetts	Supreme	Judicial	Court ratified	the	vitality	of	

the	 Colonial	 Ordinance. Storer	 v.	 Freeman,	 6	 Mass.	 435,	 438	 (1810).	 	 The	

Colonial	Ordinance	had	conveyed	fee	title	to	the	intertidal	zone—described as	

the	area	from	the	mean	high-water	mark	to	the	mean	low-water	mark	but	not	

more	than	100 rods—to the	upland	landowner subject	to	the	public’s	right	to	

use	the	wet	sand	for	“navigation,” “fishing,” and	“fowling”—the	latter	being	an	
8

additional use	 allowed	 by	 the	 Ordinance that	 augmented	 the	 uses	 already	

allowed	 by	 the	 English	 public	 trust	 doctrine. See	Bell I,	 510	 A.2d	 at	 512-15.		

Thus,	 the	upland	 owners	 obtained	 fee	 title	 to	 the	wet	sand	 to	allow	 them	 to	

“wharf	out,”	see	Conservation	Law	Found.	v.	Dep’t	of	Envtl.	Prot.,	2003	ME	62,	

¶ 36,	 823	 A.2d	 551,	 and	 the	 public	 retained	 an	 easement	 interest	 in	 that

intertidal	zone, see Norton v.	Town	of	Long	Island,	2005 ME	109,	¶	32,	883	A.2d	

889;	Bell	I,	510	A.2d	at	516.

[¶11]	 	When	 Maine	 attained	 statehood	 in	 1820,	 by	force	 of	 the	 Maine	

Constitution the	arrangement	of	private	ownership	by	the	upland	owners	and	

the	right	of	the	public—the	jus	publicum—was engrafted	into Maine	common	

law.		See	Me.	Const.	art.	X,	§§	3,5 5;6 see	also	Bell	I,	510	A.2d	at	513-14;	State	v.	

Wilson,	 42 Me.	 9,	 28	 (1856) (acknowledging	 that	 “[s]o	 far	 as	 the	 public	 had	

authority	to	use	the	shore	under	the	common	law	of	the	State,	as	declared	in	

the	proviso of	the	Colonial	[O]rdinance	of	1641	.	.	.	[s]ubject	to	this	public	right,	

[the	property	owner’s]	title	to	the	shore	was	as	ample	as	to	the	upland”);	Lapish	

 5		Article	X,	section	3	of	the	Maine	Constitution	provides	in	full,	“All	laws	now	in force	in	this	State,	

and	not	repugnant	to	this	Constitution,	shall	remain,	and	be	in	force,	until	altered	or	repealed	by	the	

Legislature,	or	shall	expire	by	their	own	limitation.”		

6		Article	X,	section	5	 of	 the	Maine	Constitution	provides	and	adopts	 the Massachusetts	Act	of	

Separation.		That	provision	is	omitted	 from	printed	copies	of	 the	Constitution	but	 remains	in	 full	

force.		See	Me.	Const.	art.	X,	§	7;	1	Laws	of	Maine	1821	at	45-50 (text	of	article	X,	section	5).		
9

v.	 Bangor	 Bank,	 8	 Me.	 85,	 93	 (1831) (stating	 that	 “[e]ver	 since	 [Storer	 v.	

Freeman,	6	Mass.	435	(1810)],	as	well	as	long	before,	the	law	on	this	point	has	

been	considered	as	perfectly	at	rest”).

[¶12]	 	The	 result	is	 that,	in	 Maine,	 there are	 three	 separate	 shoreland	

areas	 subject	 to distinct	 public	 and	 private	 rights.	 	 See	 Britton	 v.	 Donnell

(Britton II),	 2011	 ME	 16,	 ¶	 6,	 12	 A.3d	 39.	 	 First,	 the	 land	 below	 the mean

low-water	mark	is	owned by	the State.		See	id.	¶	7.		Second,	the	dry	sand,	above	

the	mean	high-water	mark,	belongs	exclusively	to	the	upland	property	owner.		

See	id.	¶¶	6-7.		Finally,	there	is	the	area	that	is	the	subject	of	the	present	dispute:	

the	intertidal	zone—the	land	between	the	mean	high-water	mark	and	the	mean	

low-water	mark up	 to	100	 rods, 12	M.R.S.	 §	572	 (2018) (defining	 “intertidal	

land”	 as	 “all	 land	 of	 this	 State	 affected	 by	 the	 tides	 between	the	 mean	 high	

watermark	and	either	100	rods	seaward	from	the	high	watermark	or	the	mean	

low	 watermark,	 whichever	 is	 closer	 to	 the	 mean	 high	 watermark”); see	 also	

Britton II,	2011	ME	16,	¶	6,	12	A.3d	39;	Bell	I,	510	A.2d	at	515.		The	intertidal	

zone	 belongs	 to	 the	 owner	 of	 the	 adjacent	 upland	 property,	 or	 some	 other	

person	to	whom	that	part	of	the	land	has	been	transferred	by	the	upland	owner,	

“subject	to	certain	public	rights.” Britton II,	2011	ME	16,	¶	7,	12	A.3d	39.
10

[¶13]		The	nature	and	extent	of	the	public’s	interest	in	the	intertidal	zone	

has	 been	 a	 subject	 of	 much	 debate,	 litigation,	 and	 judicial	 writing.	 	 Our	

jurisprudence has	 not	 clearly	 established,	 for	 all	 purposes, the	 delineation	

between	 the	public	and	private	rights	in	and	 to	 the	intertidal	area.		Differing	

views	within	this Court	regarding	the	nature	and	scope	of	the	public’s	right	to	

use	the	intertidal	zone	became	evident	in our	1989 decision in Bell	II.		Those	

differences	 were	 most	 recently	 brought	 into	 sharp	 focus	 in	 McGarvey v.	

Whittredge,	 2011	 ME	 97,	 28	 A.3d	 620. There, the	 question	 presented	 was	

“whether,	as	a	matter	of	Maine	common	law,	the	public	has	the	right	to	walk	

across	intertidal	lands	to	reach	the	ocean	for	purposes	of	scuba	diving.”		Id.	¶	1.		

All six	justices	who	participated	in	that	case	agreed	that	that	use	was	within	the	

scope	of	the	public	trust	doctrine.		Id.		The	Court was	evenly	divided,	however,	

on	 the	 rationale	 supporting	 that	 conclusion.	 	 Compare	 id.	 ¶¶	 48-58,	 with	

¶¶ 59-78.

[¶14]	 Despite	these	divergent	views	concerning	the	scope	of	the	public’s	

intertidal	property	rights,	only	one	conclusion	obtains in	this	case:	the	public	

may	 not	 harvest	 living	 rockweed	 growing	 in	 and	 attached	 to	 the	

privately-owned intertidal	zone.		We	explain	this	outcome	with	reference	to	the	

two	analytical	frameworks	articulated	in	McGarvey.
11

B. McGarvey	v.	Whittredge

[¶15]	 	 In	 the	 first	 of	 the	 two doctrinal	 views	 discussed	 in	 McGarvey	

regarding the	nature	of	the	public	trust	rights,	Chief	Justice	Saufley	wrote that	

“[r]ather	than	stretching	the	definitions	of	these	three	terms	[fishing,	fowling,	

and	navigation]	beyond	their	reasonable	limits .	.	.	,	we	return	to	the	roots	of	the	

common	 law.” Id. ¶	 53.	 	 Pursuant	 to	 that	 approach, the	 terms	 “‘fishing,’

‘fowling,’ and	 ‘navigation’”	 must	 be	“broad[ly] underst[ood]” and,	 over	 time,	

have been	“adapted	to	reflect	the	realities	of	use	in	each	era.”	Id.	¶¶ 37,	39.		This	

approach	 is	 consistent	 with	 the analysis articulated	 in Justice	 Wathen’s

dissenting	opinion	in	Bell II,	557	A.2d	at	188, which	“rejected a	rigid	application	

of	the	terms	of	the	Ordinance	and	resorted	to contemporary	notions	of	usage	

and	public	 acceptance	in	 order	 to	 strike	a	 rational	and	 fair	balance	between	

private	ownership	and	public	rights.”		

[¶16]		This broad	and	adaptive	approach reflects	“judicial	unease	with	a	

rigid	interpretation”	of	the	terms	“fishing,” “fowling,” and	“navigation”—terms	

that were referenced in	the Colonial	Ordinance and	that	may,	pursuant	to	the	

broader	 interpretations	 urged	 originally	 by	 Chief	 Justice	 Wathen	 and	 more	

recently	 by	 Chief	 Justice	 Saufley,	 too	 narrowly	 describe	 the	 public	 trust	

doctrine.		McGarvey,	2011	ME	97,	¶	56,	28	A.3d	620.		
12

[¶17]		Therefore,	even	if	an	activity	carried	out	by	a	member	of	the	public	

does	not	“fall	readily”	within the	notions	of “fishing,” “fowling,” or	“navigation,”	

the	activity	may	nonetheless	be protected	by	the	public	trust	doctrine	so	long	

as,	pursuant	to	the common	law, the	activity	constitutes “a	reasonable	balance	

between	private	ownership	of	the	intertidal	lands	and	the	public’s	use	of	those	

lands.”	 	 Id.	 ¶¶	 49, 57. On	 the	 particular facts presented	 in McGarvey,	

Chief Justice Saufley’s opinion	concluded that	even	though passing over	the	wet	

sand	in	order	to	scuba	dive could	not	“readily” be	seen	as	a	type	of “navigation,”	

the	 public	was	 nonetheless	 entitled	 to	 engage	in	 that	 activity	 as	 a	 matter	 of	

general	common	law because	it	represents “a	reasonable balance” between	the	

private	and	public	rights	to	the	intertidal	zone.		Id. ¶¶	49-50,	56-58.		

[¶18]		In	a	separate	opinion,	Justice	Levy,	writing	for	the	other	half	of	the	

Court’s	panel	in	the	case, analyzed	the	question based	on	the	limiting	principle	

that	the	enumerated	rights of	“fishing,” “fowling,” and	“navigation” were	“never	

understood	.	.	.	to	merely	establish	a	context	for	some	broader	right	or	rights.”		

Id.	 ¶	 62.	 	 Pursuant	 to	 this	 approach,	 while	those terms delimit	 the	 public’s	

rights,	they must be	interpreted	in	a	way that	is	“sympathetically	generous	and	

broad.”		Id.	¶	71;	see	also	Bell	II,	557	A.2d at	173	(summarizing	prior	case	law	

as	 allowing	 for	 “a	 sympathetically	 generous	 interpretation	 to	 what	 is	
13

encompassed	 within	 the	 terms	 ‘fishing,’	 ‘fowling,’	 and	 ‘navigation,’	 or	

reasonably	 incidental	 or	 related	 thereto”). Construing	 “navigation”	 in	 that	

expansive	way—but	not	looking	beyond	it—Justice	Levy’s concurring	opinion	

concluded	that	scuba	diving	fell	within	the	ambit	of	“navigation”	because	it is	

an	activity	that involves	equipment and	methods that	are	similar	to	those	used	

in	traditional	forms	of	navigation.		McGarvey,	2011	ME	97, ¶¶	75-76,	28	A.3d	

620.

C. Application	of	the	Two	Doctrinal	Views

[¶19]		We	now	turn	 to	 the	narrow	issue	presented here:	is	harvesting

living	rockweed,	growing	in	and	attached	to	the	intertidal	zone,	an	activity	that	

is	authorized	and	protected	by	the	public	trust doctrine?		

[¶20]		In	 addressing	 the	 harvesting	activity,	we	first	consider	whether

harvesting	living	 rockweed	 from	 the	intertidal	 zone	is	 a	 form	 of	 “fishing”	 or	

“navigation” as	those	activities	are	understood	in	Justice	Levy’s	concurrence	in	

McGarvey.	 	 We	 conclude	 that,	 contrary	 to	 Acadian’s	 contention,	 harvesting	

living	rockweed	secured	to	the	intertidal	bed	cannot	be	seen	as	either	“fishing”	

or	“navigation,”	even	when	 those	 terms	are	interpreted	in	a	“sympathetically	

broad	 and	 generous”	 way.	 	 Id.	 ¶ 71.	 	 Then	 we	 apply	 the	 more	 expansive	

“common	law”	approach	urged	by	the	Chief	Justices	and	the concurrence	to	this	
14

opinion	and address	whether	 the	common	law	permits	 the	public	 to	harvest	

rockweed	 as	 an	 activity	 that	 constitutes	 a	 “reasonable	 balance”	 between	 the	

public’s	rights	within	the	intertidal	zone	and	the	private property	interests	held	

by	the	upland	property	owner.		Id.	¶¶	49,	57.		Ultimately,	we	also	answer	this	

question	in	the	negative.

1. Application	of	the	Trilogy

[¶21]	 	 We	 first	 address	 the	 two	 relevant	 constituents	 of	 the	 trilogy:	

“navigation”	and “fishing.”7

a. Navigation

[¶22]	 	 “Navigation” has	 been	 interpreted	 to	 involve	 some	 mode	 of	

transportation,	 whether	 traveling	 over	 frozen	 intertidal	 water,	see	 French	 v.	

Camp,	18	Me.	433,	434-35	(1841),	passing	on	intertidal	land	to	get	to	and	from

land	or	houses,	see	Deering	v.	Proprietors	of	Long	Wharf,	25	Me.	51,	65	(1845),

or	mooring	vessels	and	loading	or	unloading	cargo,	see id.;	Wilson,	42	Me.	at 24.

8		

In	each	of	these	instances,	the	primary	activity	is crossing the	intertidal	water	

or	land	itself.		See,	e.g.,	French,	18 Me.	at	434	(stating	that	State-owned	waters	

 7		Acadian	does	not	argue—nor	could it—that	harvesting	rockweed	is	a	type	of	“fowling,”	which	is	

the	third	part	of	the	trilogy.		

8		As	is	discussed	above,	some	members	of	this	Court	also	concluded	that	scuba	diving	is	a	type	of	

navigation.		McGarvey	v.	Whittredge,	2011	ME	97,	¶¶	75-77,	28	A.3d	620 (Levy,	J.,	concurring).		This	

was	not	the	majority	view,	however,	because	the	Court	was	evenly	divided	on	that	question.		Id.	¶	1.
15

are	 “of	 common	 right,	 a	 public	 highway,	 [available]	 for	 the	 use	 of	 all	 the	

citizens”).		Although	there	is	a	navigational	component	to	harvesting	rockweed,	

it is	secondary	to what	Acadian seeks	to	do.		Rather,	the	harvesters	operate	the	

skiffs	in	intertidal	waters	for	the	principal purpose	of	engaging	in	a	different,	

nonnavigation activity,	 namely, cutting	 and	 taking significant	 portions	 of	

rockweed plants.		The	harvesting	of	rockweed,	even	by	boat,	involves	the	use	of	

the	intertidal	land	itself because living	rockweed	is	attached	 to the	intertidal	

substrate	even	if	it	does	not	draw	nutrients	from	the	land. Therefore,	Acadian	

uses	 the	intertidal	waters not	 for	“navigation” in	its	own	right,	but merely to	

gain	access to the	attached	rockweed.		See	Gerrish	v.	Brown,	51	Me.	256,	262	

(1863)(“The	term	navigation,	as applied	to	waters	which	are	used	as	highways,	

imports	 something	 different;	 it	 denotes	 the	 transportation	 of	 ships	 or	

materials[] from	place	to	place	.	.	.	.”).		

[¶23]		Therefore, no	matter	how	broadly	“navigation”	is	viewed, it	does	

not	encompass	harvesting	living	rockweed	from	the	intertidal	zone.

b. Fishing

[¶24]		Harvesting	rockweed—which	the	parties	stipulated is	a	plant—is	

not a	 form	 of “fishing.”	 	 See Small	 v.	Wallace,	 124	 Me.	 365,	 367,	 129	 A.	 444

(1925) (stating	 that	 a	 landowner’s	 right	 to	 fish	 “arises	 not	 out	 of	 their	
16

ownership	of	the	soil	but	from	[the	landowner’s] right	to	share	in	the	common	

right	 of	 fishery	 reserved	 to	 the	 public”).	 	 The	 two	 types	 of	 ventures	 are	

qualitatively	different	from	each	other.				

[¶25]		In	cases	involving	the	public’s	rights	within	the	intertidal	zone,	we	

have	viewed	the	concept	of	“fishing” broadly.		We	have	not	imposed	limitations	

based	 on the fishery	 or	 the	 method	 used	 for	 fishing,	see	 Moulton	 v.	 Libbey,	

37 Me.	472,	489-90 (1854),	and	we	have	recognized	the	public’s	right	to	use the	

intertidal	 zone	 to	 dig	 for	 shellfish,	see	 Leavitt,	 105	 Me.	 at 79-81,	 72	 A.	 875;	

Moulton,	37	Me.	at	493-94,	and	bloodworms,	see State	v.	Lemar,	147	Me.	405,

409,	87	A.2d	886 (1952). See	also	State	v.	Norton,	335	A.2d	607,	610	(Me.	1975)

(recognizing	 the	 State’s	 authority	 to	 regulate	 the	 harvest	 of	 shellfish by	 the	

public).

[¶26]	 	 Nonetheless,	 even a	 “sympathetically	 generous	 and	 broad	

interpretation	of	the	public’s	rights”—something	that “is	not .	.	.	without	limits,”	

McGarvey,	 2011	 ME	 97,	 ¶	 69,	 28	 A.3d	 620	 (Levy,	 J.,	 concurring)—cannot

transform	the	harvesting	of	a	marine	plant	into	“fishing.”		Cf. Moore	v.	Griffin,	

22 Me.	350,	356	(1843)(holding	that	the	taking	of	mussel-bed	manure	does	not	
17

fall	 within	 the	 public	 trust	 rights);9 Marshall	 v.	 Walker,	 93	 Me.	 532,	 537,	

45 A. 497 (1900)(stating	that	the	public	“may	not	take	shells or	mussel	manure	

or	deposit scrapings	of	snow	upon	the ice	over	[the	intertidal	land]”).		

[¶27]	 	 Rockweed	 is	 biologically	 dissimilar	 from fish,	 lobster,	 clams,	

oysters,	and bloodworms—it	draws	nutrients	from	the	air	and	seawater	using	

a	photosynthetic	process	and,	 once	attached to	 the	intertidal	 substrate,	does	

not	 move.	 	 See	 Moulton,	 37 Me.	 at 489-90 (stating	 that	 “the	 general	 term	

‘piscaria,’	or	its	equivalent,	is	used	as	including	all	fisheries,	without	any	regard	

to	 their	 distinctive	 character,	 or	 to	 the	method	 of	 taking	the	fish”	 and	 giving	

examples	 of	 regulated	 “fisheries”	 to	 include	 oyster,	 lobster,	 salmon,	 herring,	

and	pilchard (second emphasis	added)). After arguing	in	its	brief	that	“seaweed	

is	 a	 marine	 organism,	 not	 a	 terrestrial	 plant,”	 at	 oral	 argument	 Acadian	

acknowledged that	there	is	no	legal	distinction	between	plants growing	in	the	

soil	in	the	intertidal	zone	and	those	growing	on	the	rocks	in	that	same	area.		The	

 9		Mussel-bed	manure	comprises	shells	mixed	with	the	soil.		See Opinion	of	Justices,	313 N.E.2d	561,	

567	(Mass.	1974)	(stating	that	mussel	mud	consists	of	“living	and	dead	shell	fish	.	.	.	and	the	soil	or	

clay	in	which	they	were	found”	(alteration	in	original)	(quoting Porter	v.	Shehan,	73	Mass.	435,	436	

(1856));	E.H.	Jenkins	&	John	Phillips	Street,	Manure	from	the	Sea, 194	Conn.	Agric.	Experiment	Station	

1,	11	(1917)	(referring	to	“marine	mud”	as	“mud	taken	from	flats	at	low	tide	or	cast	up	on	the	shore	

of	an	inlet	.	.	.	[and	i]n	some	places	vast	quantities	of	small	shells,	ground	fine	by	the	waves,	are	cast	

up	with	the mud”).	
18

fundamental	dissimilarities	between	the	harvesting	of fish	and	of	rockweed	as	

a marine	plant	demonstrate	that	Acadian	is	not	in	the	business	of	“fishing.”10

 10		The	parties	have	addressed	two	of	our	opinions	that	make	reference	to	intertidal	seaweed.		For	

differing	reasons,	we	find	neither	to	be	dispositive.		

The	earlier	of	the	two	opinions,	which	was	issued	more	than	150	years	ago,	states	that	“seaweed	

belongs	to	the	owner	of	the	soil	upon	which	it	grows,	or	is	deposited,	unless	some	other	person	has	

acquired the	right	to	take	it.”		Hill	v.	Lord,	48	Me.	83,	99	(1861) (emphasis	omitted).		The	analysis,	

however,	contains	several	statements	about	the	nature	of	seaweed	that	do	not	fully	square	with	the	

stipulated	record	here.		For	example,	Hill	states	that	seaweed	grows	partially	“on	the	beach.”	Id. at	

96.		This	was	significant	to	the	conclusion	that	seaweed	is	a	profit	“in	the	soil”	and	not	subject	to	the

public’s	easement	rights	to	use	the	intertidal	waters.		Id.	at	99-100.		Here,	in	their joint	statement	of	

material	facts,	the	parties	stipulated	that rockweed is	an	intertidal	seaweed—meaning that	it	“does	

not	grow	on	intertidal	sandy	beach	except	[attached	to]	hard	.	.	.	objects.”		

We	do	not	entirely	reject	Hill,	however.		As	Acadian	acknowledged	at oral	argument,	there	is	no	

principled	 legal	 distinction	 between	 plants	 growing	 in	 the	 soil	 in	 the	 intertidal	 zone	 and those	

growing	on	 the	rocks	in	 that	same	area, which	supports	the	application	of	 the	doctrine	of	profit	a	

prendre	that	underlies	the	analysis	in	Hill.	 Further,	Hill	has	been	invoked	as	authority	in	more	recent	

case	law.		See,	e.g.,	Bell	v.	Town	of	Wells	(Bell	II), 557	A.2d 168,	187	(Me.	1989)(Wathen,	J.,	dissenting).		

To	the	extent	that	Hill has	persuasive	effect,	 the	case	 favors	Ross,	but	we	do	not	place	dispositive	

weight	on	it.		See	Appeal	of	Robinson,	88	Me.	17,	23,	33	A.	652	(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.”);	 Woodman	 v.	 Pitman,	

79 Me. 456,	458,	10	A.	321	(1887) (“The	inexhaustible	and	ever-changing	complications	in	human	

affairs	are	constantly	presenting	new	questions	and	new	conditions	which	the	law	must	provide	for	

as	they	arise	.	.	.	.”); see	also	Mitchell	W.	Feeney,	Comment,	Regulating	Seaweed	Harvesting	in	Maine:	

The	Public	and	Private	Interests	in	an	Emerging	Marine	Resource	Industry,	7	Ocean	&	Coastal	L.J.	329,	

343	 (2002) (discussing	 the	 erroneous	 scientific	 principles	 upon	 which	 the	 Court	 in	 Hill	 v.	 Lord	

appears	to	rely,	and	noting	that	it “is	now	known	that	seaweeds	do	not	receive	their	nutrients	from

the	soil,	but	from	the	surrounding	water	column	[and t]heir	only	reliance	on	the	soil	is	for	anchorage	

purposes”).		

The	second	case	is	Marshall	v.	Walker,	93	Me.	532,	45	A.	497 (1900),	which	Acadian	cites	favorably.		

That	opinion	states	that	the	public	is	entitled	to	“take	sea	manure”	(which	includes	seaweed	and	is	

given	that	description	because	of	its	use	as	a	fertilizer,	see	generally Jenkins	&	Street,	supra;	see	also	

1	 F.H.	 Storer,	 Agriculture	 in	 Some	 of	 Its	 Relations	 with	 Chemistry 462	 (4th ed. 1892)) from	 the	

intertidal	zone.		Marshall,	93	Me. at	536-37,	45	A.	497.		No	authority,	however,	is	offered	 for	 that	

assertion.		Further,	Marshall was	a	quiet	title	action	and	did	not	determine	the	nature	of	the	public’s	

rights	 to	 the	 land	 or	 implicate	 questions	 of	 public	 ownership.	 	 Therefore,	 the	 opinion’s	 general	

discussion	of	the	nature	of	the	public’s	rights	is	dictum	on	which	we	do	not	place	weight.		See Legault	

v.	Levesque,	150	Me.	192,	195,	107	A.2d	493	(1954) (stating	that	obiter	dictum	is	“an	assertion	of	law	

not	necessary	to	the	decision	of	the	case” (quotation	marks	omitted)).
19

2. Application	 of	 the	 Common	 Law	 and	 “Reasonable	 Balance”

Approach

[¶28]		Having	concluded	that	harvesting	rockweed	is	neither	“navigation”

nor	“fishing” pursuant	to	the	“sympathetically	generous and	broad”	approach

described	 in	 Justice	 Levy’s	 McGarvey concurrence, see	 2011	 ME	 97,	 ¶	 71,	

28 A.3d	 620,	 we	 further conclude	 that,	 likewise, the	 activity	 does	 not	 “fall	

readily”	within	either	category	of	“navigation”	or	“fishing,” as	discussed	in	Chief	

Justice	Saufley’s	concurring	opinion	in	McGarvey, see	id. ¶	49.	 Thus,	we	turn	to	

the	additional	inquiry	explained by	both Chief	Justice	Saufley	in	McGarvey and	

by	the	Bell	II	dissent,	which calls	for	an	assessment	of	whether	the	removal	of	

rockweed	by	members	of	 the	public	 from	privately	owned	land is	within	 the	

common	law	principle	that looks	to achieve a	“reasonable	balance” between	the	

private	landowner’s	interests	and	the	rights	held	by	the	State	in	trust	for	the	

public’s use	of	that	land.		See	id. ¶¶ 41,	49,	57.

[¶29]		In	answering	this	question,	we	draw further guidance	from	Chief	

Justice	 Wathen’s dissenting	 opinion	 in	 Bell	 II,	 557	 A.2d	 at	 188-89,	 which	

espouses	 the	 same	broader	 view	 of	 the	public	 trust	 rights described in	Chief	

Justice	Saufley’s	discussion	of	the	extent	of	those	rights	in	McGarvey,	2011	ME	

97,	¶¶	47, 49, 28 A.3d	620.		We	conclude	that	even pursuant	to that	school	of	
20

thought,	the	harvesting	of	seaweed attached	to	the	intertidal	land falls	outside	

the	scope	of	activities	that	can	be	carried	out	as	a	matter	of	public	right.		

[¶30]	 	 The	 criterion	 used	 in	 the	 Bell	 II dissenting	 opinion	 calls	 for	

consideration	 of	 “contemporary	 notions	 of	 usage	 and	 public	 acceptance	 in	

order	 to	 strike	 a	 rational	 and	 fair	 balance	 between	 private	 ownership	 and	

public	rights.”		557	A.2d at	188.		In	finding	the	appropriate	balance,	“we	must	

avoid	placing	any	additional	burden	upon	the	shoreowner”—a	burden	that	can	

result when	 something	 is	 taken	 from	 the	 intertidal	 lands.	 	Id.	 at	 188-89.	 	 In	

formulating	 that	 standard,	 the	 dissent	 drew	 on	 a	 collection	 of	 our	 cases,	

including	Hill	v.	Lord,	48	Me.	83, 96 (1861),	which	prohibited	 the	removal	of	

seaweed	from	intertidal	lands	belonging	to	another.		Bell	II,	557	A.2d	at	185-89.		

It is	significant here that	even	a	broad	view	of	the	public	trust	rights explained	

in	the	Bell	II	dissent does not	encompass	the	harvesting	of	seaweed.11		

 11		We	are	careful	not	to	push	the	limits	of	the dissenting	analysis	in	Bell	 II	too	 far.		While	the	

dissent concluded	 that,	 in	 his	 view,	 the	 public’s	 rights	 included	 “such	 recreational	 activities	 as	

bathing,	 sunbathing	 and	 walking,”	 he	 specifically	 did	 “not	 attempt	 to	 provide	 a	 comprehensive	

definition	of	the	recreational	activities”	that	are	within	the	scope	of	the	public’s	common law	rights.		

Bell	II,	557	A.2d	at	189.		Setting	aside	the	question	of	whether,	for	purposes	of	determining	the	scope	

of	 intertidal	 rights,	 commercial	 activities	 can	 be	 equated	 with	 recreational	 activities,	 the	 core	

principle	 urged	 by	 the	 dissent	was	drawn	 from	 the	lessons	 of	 our	 case	law,	including	Hill.	 	Id.	at	

181-89.		Thus,	although—given	the	explicit	limitation	noted	above—the	dissent	in	Bell	II	cannot	be	

read	 to	 state	 directly	 that	 removing	 seaweed	is	 outside	 the	 scope	 of	 the	public’s	 right	 to	 use	 the	

intertidal	waters,	 the	 dissent’s	 use	 of	Hill	to	 derive	 the	 baseline	 principle	 of	 a	 “rational	 and	 fair	

balance”	of	public	and	private	rights,	id.	at	188,	is	significant	here.
21

[¶31]	 	 This	 is a	 reasonable	 and	 proper	 demarcation	 between	 the	

competing	 interests	 at	 stake	 here.	 	 The	 “additional	 burden”	 imposed	 on	 the	

owner	of	the	intertidal	zone,	id. at	188, is	not	reasonable	when	the	nature	of	the	

interference	consists	of	cutting	and	removing	marine	plants	from	the	intertidal	

zone, proximate	to	the dry	sand on	which	the	public	has	no independent	rights,

with	the	use	of	specialized	equipment	and	skiffs	that	have	a	multi-ton	capacity.

Furthermore,	 Acadian’s	 activity	 is	 qualitatively	 similar	 to	 other	 uses	 of	 the	

intertidal	zone	that	we	have	held	are outside	of	the	public	trust doctrine. See,	

e.g.,	McFadden	v.	Haynes	&	DeWitt	Ice	Co.,	86	Me.	319,	325,	29	A.	1068	(1894)

(holding	 that	 although	 a	 person	 may pass	 over intertidal	 land	 to	 fish,	 that	

person	may not	enter	that	land	for	the	purpose	of	cutting	ice); King	v.	Young,	

76 Me.	 76,	 80	 (1884) (holding	 that	 the	 Colonial	 Ordinance	 does	 not	 permit	

taking	mussel-bed	manure	from	another’s	intertidal	land);	Moore,	22 Me.	at 356	

(same);	see	also	Mitchell	W.	Feeney,	Comment,	Regulating	Seaweed	Harvesting	

in	 Maine:	 The	 Public	 and	 Private	 Interests	 in	 an	 Emerging	 Marine	 Resource	

Industry,	7	Ocean	&	Coastal	L.J.	329, 340-41	(2002) (“[N]owhere	in	the	body	of	

Maine	 case	 law	 has	 fishing	 been	 held	 to	 include	 the	 collection	 of	 vegetable	

matter.	 Migratory	resources	(like	fish,	and	presumably	shellfish	and	worms)	
22

have	 traditionally	 been	 less	 protected	 by	 private	 property	 rights	 than	

stationary	resources	such	as	attached	seaweed.”).

[¶32]		Therefore, the harvesting	of	rockweed	is	not	encompassed	within	

the	 rights	 held	 by	 the	 public	 even	 when	 those	 rights	 are	 viewed	 from	 the	

broader	of	the	perspectives	explained	in	our	case	law.

III.		CONCLUSION

[¶33]	 	 For	 these	 reasons,	 we	 conclude	 that,	 pursuant	 to	 both of	 the	

differing	legal	constructs our	opinions	have	articulated to	define the	scope	of	

the	public’s	intertidal	property	rights,	rockweed	attached	to	and	growing	in	the	

intertidal	 zone is	 the	 private	 property	 of	 the	 adjacent	 upland	 landowner.

Harvesting	 rockweed	 from	 the	 intertidal	 land	 is	 therefore	 not	 within	 the	

collection	of	rights	held	in	trust	by	the	State,	and	members of	the	public	are	not	

entitled	to	engage	in	that	activity	as	a	matter	of	right.		And	because	neither	view	

of	 the	 public’s	 right	 to	 use	 the	 intertidal	 zone	 accommodates the	 activity	 at	

issue	here,	we	determine—contrary	to	the	position of	the	concurring	justices—

that	this	case	does	not	present	us	with	the	occasion	to	consider	the	vitality	of	

the	holding	in	Bell	II.

The	entry	is:

Judgment	affirmed.	
23

SAUFLEY,	C.J.,	with	whom	MEAD	and	GORMAN,	JJ.,	join, concurring in	part.

[¶34]	 	 In	 1989,	 the	 Law	 Court,	 in	 a	 sharply	 divided	 opinion,	 made	 a	

regrettable error, limiting public	 access	 to	 the	 intertidal	 zones	 on	 Maine’s	

beaches	in	Bell	v.	Town	of	Wells (Bell	II),	557	A.2d	168	(Me.	1989).		Since	that	

time,	a	member	of	the	public	has	been allowed	to	stroll	along	the	wet	sands	of	

Maine’s	intertidal	zone	holding	a	gun	or	a	fishing	rod,	but	not	holding	the	hand	

of	a	child.		

[¶35]		Recognizing,	as	the	majority	concludes, that	the	pronouncement	of	

that	 four-justice	majority	in	Bell	 II is	not	ultimately	dispositive	in	 the	matter	

before	us,	we	would,	nonetheless,	clarify	the	applicable	law	and	set	aside	the	

holding	in	Bell	II.		Accordingly,	we	concur	in	the	result	of	the	Court’s	opinion,

but	 we do	 not	 join	 the	 analysis	 because	 we would	 take	 this	 opportunity	 to	

explicitly	overrule	Bell	II.		

[¶36]	 	 Bell	 II,	 which	 addressed	 the	 intertidal	 zone	 at	 Moody	 Beach	 in	

Wells,	 was	 decided thirty years	 ago.	 	Id. at	 170.	 	 Prior	 to	 that	 decision,	 as	 a	

matter	of	common	law,	 the	public	had	long	enjoyed	reasonable	access	 to	 the	

intertidal	zone.		Id. at	180,	184-85	(Wathen,	J.,	dissenting). The	extent	of	and	
24

limitations	on	that	access	had	evolved	over	centuries	to	adapt	to	the	differing	

and	reasonable	uses	of	the	public.12		See	id. at	185-89.

[¶37]	 As	 predicted	 in	 the	 Bell	 II dissent,	 id. at	 192,	 and	 in	 another	

separate	opinion	issued	in	its	wake,	Eaton	v.	Town	of	Wells,	2000 ME	176,	¶	52,	

760 A.2d	 232 (Saufley,	 J.,	 concurring),	 Bell	 II has	 generated	 significant	 and	

expensive	 litigation	 resulting	 from	 the	 Court’s	 limitation	 of	 the	 public’s	

allowable	activities	to	those	that	can	be	forced	into	the	definitions	of	“fishing,	

fowling,	and	navigation,” Bell	II,	557	A.2d	at	169.		The	constrictive	trilogy	of	that	

holding	has	bedeviled	the	State	of	Maine	since	that	opinion	was	issued,	and	we

 12	 	 Permissible	 activities	 that	 had	 been	 held	 to	 fall	 within	 the	 public	 trust	 rights	 before	 the	

imposition	of	the	constrictive	trilogy	in	Bell	v.	Town	of	Wells	(Bell	II),	557	A.2d	168,	173	(Me.	1989),	

included	the	following:	digging	for	worms,	State	v.	Lemar,	147 Me.	405,	408-09,	87	A.2d	886	(1952);	

landing	on,	receiving	and	discharging	passengers	from,	and	walking	across	intertidal	land	to	access	

a	power	boat	for	hire,	Andrews	v.	King,	124	Me.	361,	362-64,	129	A.	298	(1925);	clamming,	State	v.	

Leavitt,	105	Me.	76,	77-80,	72	A.	875	 (1909);	transporting	merchandise,	 rafting,	driving	logs,	and	

floating	or	propelling	boats	across	intertidal	land,	whether	for	commercial	or	recreational	purposes,	

Smart	v.	Aroostook	Lumber	Co., 103	Me.	37,	47-48,	68	A.	527	(1907);	sailing	over,	mooring	a	vessel	

on,	walking	across,	riding	or	skating	on	ice	over,	digging	shellfish	in,	and	 taking	sea	manure	 from	

intertidal	 land,	 Marshall	 v.	 Walker,	 93	 Me.	 532,	 536-37,	 45	 A.	 497	 (1900);	 mooring	 a	 vessel,	

discharging	 passengers,	 and	 taking	 on	 cargo,	 State	 v.	 Wilson,	 42	Me.	 9,	 24-25	 (1856);	 fishing	 for	

shellfish,	Moulton	v.	Libbey,	37	Me.	472,	489-90	(1854);	passing	to	other	property	after	landing	a	boat,	

Deering	v.	Proprietors	 of	 Long	Wharf,	25	Me.	51,	64-65	 (1845);	and	 traveling	over	 frozen	waters,	

French	v.	Camp,	18	Me.	433,	434-35	(1841).

Activities	of	the	public	prohibited	in	the	intertidal	zone	before	Bell	II included	taking	shells	or	

mussel	manure,	or	depositing	snow	or	ice,	Marshall,	93	Me.	at	536-37;	cutting	ice	or	depositing	snow,	

McFadden	v.	Haynes	&	DeWitt	Ice	Co.,	86 Me.	319,	325,	29	A.	1068	(1894);	harvesting	seaweed,	Hill	v.	

Lord,	48	Me.	83,	100	 (1861);	and	 removing	mussel-bed	manure,	ballast,	 or	sand,	Moore	v.	Griffin,	

22 Me.	350,	355-56	(1843).		With	the	issuance	of	the	Bell	II decision,	the	prohibited	activities	have	

thus	far	been	expanded	to	include	general	recreation,	such	as	walking	along	the	wet	sand,	entry	and	

exit	for	swimming,	sunbathing,	frisbee-throwing,	and	picnicking.		Bell	II,	557 A.2d	at	175-76.
25

fear	 that	 the	 Court’s	 holding	 will	 become	 enshrined	 in	 increasingly	

uncorrectable law.

[¶38]		As	Justice	Wathen	wrote	eloquently	in	his	dissent	to	Bell	II:	“This	

Court’s	 opinion	does	nothing	 to	dispel	 the	 obvious	conclusion	 that	 from	 this	

moment	 on,	 at	 Moody	 Beach	 and	 every	 other	 private	 shore	 in	 Maine,	 the	

public’s	 right	 even	 to	 stroll	 upon	 the	 intertidal	 lands	 hangs	 by	 the	 slender	

thread	 of	 the	 shore	owners’ consent. I	will	not	hazard	a	guess	whether	 that	

consent	will	be	forthcoming.		In	my	judgment,	the	public	rights	should	not	be	

so	quickly	and	completely	extinguished.”		Id. at	192	(Wathen,	J.,	dissenting).		

[¶39]		Although	judicial	efforts	to	loosen	the	strings	of	Bell	II have	been	

undertaken—for	 example,	 in	 the strained	 interpretation	 of	 “navigation”	 in	

McGarvey	 v.	 Whittredge,	 2011	 ME	 97,	 ¶¶	 72-77,	 28 A.3d	 620 (Levy,	 J.,	

concurring)—these	 anemic	 efforts	 have	 failed	 to	 do	 what	 must	 be	 done.		

Although	three of	the	six	sitting	Justices	sought	to	avoid	further	enshrining	the	

constrictive	trilogy	in	Maine	law,	no	majority	holding	to	that	effect	occurred, id.

¶¶	1, 53 (Saufley,	C.J.,	concurring),	thus	leaving	in	place	the	jurisprudence	that	

led	to the	tortuous	shoehorning	of	various	activities	into	the	constrictive	trilogy	

by	declaring	the	simple	walk	of	a	scuba	diver	across	the	intertidal	zone	to	the	
26

ocean	 as	 fitting	 into	 the	 definition	 of	 “navigation.”	 	 Id. ¶¶	 72-77 (Levy,	 J.,	

concurring).

[¶40]		As	 time	marches	on,	concepts	of	stare	decisis	may	begin	 to	take	

root	in	this	critical	aspect	of	Maine	law,	and	Maine	landowners,	understandably,	

may	 begin	 to	 rely	 on	 the	 restrictions	 placed	 on	 the	 public’s	 access	 to	 the	

intertidal	zone.13		The	Bell	II decision was built	in	great	part	on	a	literal	reading	

of	 the	Colonial	Ordinance, 557	A.2d	at	175	 (“The	Massachusetts	court	 noted	

that	 the	 Colonial	 Ordinance	 mentioned	 no	 public	 rights	 except	 for	 fishing,	

fowling,	and	navigation.”), which	was	actually	no	longer	extant	at	 the	 time	of	

 13	 	 The	 doctrine	 of	 stare	 decisis preserves	 the	 reliance	 interests	 of	 the	 public	 by	 counseling	

adherence	to	the	previously	established	rule	of	law	created	by	precedent:	

Litigants	have	a	right	to	transact	business	with	reference	to	the	law	enunciated	

by	the	court.		Most	valuable	property	rights	may	be	predicated	upon	the	law,	as	thus	

declared.	 	 These	 rights	 should	 not	 be	 impaired	 nor	 sacrificed	 by	 a	 reversal	 or	

modification	of	the	law	except	upon	cogent	and	necessary	reasons.		Stability	of	the	

law	 should	 be	 the	 one	 great	 outstanding	 feature	 of	jurisprudence	 upon	which	 the	

profession	as	well	as	the	people	should	have	a	right	to	rely.	.	.	.

Jordan	v.	McKenzie,	113	Me.	57,	59,	92	A.	995	(1915);	see Adams	v.	Buffalo	Forge	Co.,	443	A.2d	932,	

935	 (Me.	 1982) (“Courts	properly	seek	 to	 create	 a	 framework	 of	 continuity	amidst	a	 universe	 of	

continuous	change	in	order	that	those	citizens	and	litigants	who	rely	upon	the	legal	doctrines	and	

principles	 they	announce	may	conduct	 their	day-to-day	affairs	without	 fear	 that	 their	 reasonable	

expectations	will	be	torn	asunder	by	an	unforeseen	and	radical	departure	from	precedent.”).

If	we	do	not	stem	the	tide	of	Bell	 II’s	influence	now,	therefore,	we	 fear	that	stare	decisis	will	

impose	rigid	results	“restrained	by	the	bonds of	the	past”	that	perpetuate	a	“cultural	lag	of	unfairness	

and	injustice”—exactly	the	consequence	we	must	take	care	to	avoid.		Moulton	v.	Moulton,	309	A.2d	

224,	 228	 (Me.	 1973);	 see	 Adams,	 443	 A.2d	 at	 935	 (discussing	 that	 the	 court’s	 discretion	 in	

determining	whether	 to	 apply	 stare	 decisis	 in	 a	 given	 matter	 “must	 be	 exercised	 with	 a	 view	 to	

whether	 adherence	 to	 past	 error	 or	 departure	 from	 precedent	 constitutes	 the	 greater	 evil	 to	 be	

suffered”).
27

Maine’s	statehood,	see	McGarvey,	2011	ME	97,	¶¶	29-30,	28	A.3d	620	(Saufley,	

C.J.,	concurring).		That decision—Bell	II—has	been	questioned,	see	Eaton,	2000	

ME	 176,	 ¶¶ 50-55,	 760	 A.2d	 232	 (Saufley,	 J.,	 concurring); pretzeled, see

McGarvey,	 2011 ME	 97,	 ¶¶	 72-77,	 28	 A.3d	 620	 (Levy,	 J.,	 concurring); and	

avoided, see	id. ¶¶ 48-49	(Saufley,	C.J.,	concurring).		Accordingly,	because	of	the	

passage	 of	 time,	 which	 will	 eventually	 diminish the ability	 of	 the	 Court	 to	

correct	 the	 wrong	 created	 by	 the	 Bell	 II	 decision,	 we would	 take	 this	

opportunity	to	correct	the	judicial	error	that	restricted	the	rights	of	the	public	

to	engage	in	reasonable	ocean-related	activities	that	do	not	interfere	with	the	

upland	 owners’	 peaceful	 enjoyment	 of	 their	 own	 property	 or	 their	 right	 to	

wharf	out.

[¶41]	 	 The 1989	 decision	 in	 Bell	 II erroneously	 limited the	 public’s	

reasonable	and	nonabusive	use of	the	intertidal	zone.		That	use	should	include	

the	right	to	walk	unfettered	upon	the	wet	sand	of	Maine	beaches to	peacefully	

enjoy	one	of	the	greatest	gifts	the	State	of	Maine	offers	the	world.		

[¶42]		Simply	put, we would	overrule	Bell	II once	and	for	all.		We would	

adopt	 the	 original	 Wathen	 analysis,	 Bell	 II,	 557	 A.2d	 at	 180-92	 (Wathen,	 J.,	

dissenting), and	allow	the	common	law	of	public	access	and	use	of	the	intertidal	
28

zone	to	continue	to	develop	as	it	has	over	the	centuries.		The	public	deserves	

our	correction.

[¶43]		We would	then,	as	the	Court	has	done	today,	conclude	that,	even	

according	 to	 the public’s	common	law	access rights	to	 the	intertidal	zone,	 the	

public does not	have	the	right	to take attached	plant	life	from	that	property	in	

contradiction	to	the	fee	owner’s	wishes—not	because	such	activity falls	outside	

of	 the	 constrictive	 trilogy,	 but	 because	 the	 taking	 of	 attached	 flora	 from	 fee	

owners	 was	 not	 within	 the	 reasonable	 access	 contemplated	 when	 the	 jus	

publicum was	established.14 See	id. at	180-81,	189.

Benjamin M. Leoni, Esq. (orally), Curtis Thaxter LLC, Portland, for appellant 

Acadian Seaplants Limited

Gordon R. Smith, Esq. (orally), Verrill Dana, LLP, Portland, for appellees Kenneth 

W. Ross, Carl E. Ross, and Roque Island Gardner Homestead Corporation

Catherine R. Connors, Esq. (orally), Pierce Atwood LLP, Portland, for amicus curiae 

Maine Department of Marine Resources

 14		Of	note,	the	people	of	Rhode	Island	have	amended	their	state	constitution	to	allow	the	public	

to	 take	 seaweed,	 even	when	 attached	 to	 the	land: “The	 people	 shall	 continue	 to	 enjoy	 and	 freely	

exercise	all	of	the	rights	of	fishery,	and	the	privileges	of	the	shore,	to	which	they	have	been	heretofore	

entitled	under	the charter	and	usages	of	this	state,	including	but	not	limited	to	fishing	from	the	shore,	

the	gathering	of	seaweed,	leaving	the	shore	to	swim	in	the	sea	and	passage	along	the	shore;	and	they	

shall	be	secure	in	their	rights	to	the	use	and	enjoyment	of	the	natural	resources	of	the	state	with	due	

regard	 for	the	preservation	of	their	values	.	.	.	.”		R.I	Const.	art.	 I,	§	17	(LEXIS	through	ch.	2	of	the	

Jan. 2019	Session).
29

Brian W. Thomas, Esq., Stocking & Thomas, LLC, Lamoine, for amicus curiae 

Downeast Coastal Conservancy

Karin Marchetti-Ponte, Esq., Maine Coast Heritage Trust, Mount Desert, for amicus 

curiae Maine Coast Heritage Trust

John A. Churchill, Esq., Calais, for amicus curiae Cobscook Bay Fishermen’s 

Association

Mary A. Denison, Esq., Lake and Denison, Winthrop, for amici curiae Maine 

Clammers Association, Independent Maine Marine Worm Harvesters Association, 

North American Kelp, and Gulf of Maine, Inc. 

Robert Miller, Dean W. Alley, Wendell Alley, Shawn L. Alley, Nathan Fagonde, 

and Ordman Alley Jr., amici curiae, jointly as “Jonesport and Beals Commercial 

Fishermen and Lobstermen”

Severin M. Beliveau, Esq., Jonathan G. Mermin, Esq., and Matthew S. Warner, Esq., 

Preti Flaherty Beliveau & Pachios, LLP, Portland, for amicus curiae Maine Seaweed 

Council

Leah B. Rachin, Esq., and Benjamin T. McCall, Esq., Bergen & Parkinson, LLC, 

Kennebunk, for amicus curiae Hale Miller

Gerard P. Conley., Jr. Esq., Cloutier, Conley & Duffett, P.A., Portland, for amicus 

curiae Downeast Lobstermen’s Association

Kurt E. Olafsen, Esq., Olafsen & Butterfield, LLC, Portland, for amicus curiae 

Maine Coast Fishermen’s Association

Mariah D. Mitchell, Esq., Eaton Peabody, Brunswick, for amicus curiae Pleasant 

River Wildlife Foundation

Sean Mahoney, Esq., Conservation Law Foundation, Portland, for amicus curiae 

Conservation Law Foundation

Ryan P. Dumais, Esq., Eaton Peabody, Brunswick, for amici curiae Pacific Legal 

Foundation and Property and Environment Research Center
30

Washington County Superior Court docket number CV-2015-22

FOR CLERK REFERENCE ONLY