Resolve, Directing the Attorney General To Pursue the State's Claim That It Holds Title to Maine's Intertidal Lands
Maine Legislature, Session 129, LD 1388
Committee: Judiciary
Sponsors: DOW, EVANGELOS

Legislative Document
No. 1388
S.P. 432
In Senate, March 26, 2019
Resolve, Directing the Attorney General To Pursue the State's 
Claim That It Holds Title to Maine's Intertidal Lands
(EMERGENCY)
Reference to the Committee on Judiciary suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator DOW of Lincoln.
Cosponsored by Representative EVANGELOS of Friendship.
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas,  both the date of adjournment of the 129th Legislature and the date of the 
pending Law Court's decisions involving title to Maine's intertidal lands are unknown; 
and
Whereas, it is unknown whether the State's claim of title to its intertidal lands will 
be fully vindicated by pending decisions of the Law Court; and
Whereas, the State's claim of title to its intertidal lands is rooted in part in 
provisions and doctrines within the United States Constitution, federal laws and United 
States Supreme Court case law; and
Whereas, a final determination of the scope and meaning of these federal 
provisions, doctrines, laws and cases that leads to the conclusion that Maine in fact holds 
title to its intertidal lands can be made only by the United States Supreme Court; and
Whereas, prior Law Court cases, said to cede Maine's intertidal lands to upland 
owners, were not appealed to the United States Supreme Court, thus leaving unresolved 
these federally rooted claims that Maine holds title to its intertidal lands; and
Whereas, petitions for certiorari to the United States Supreme Court must be timely 
filed in order to raise these federally rooted claims that Maine holds title to its intertidal 
lands; and
Whereas, in the judgment of the Legislature, these facts and uncertainties create an 
emergency within the meaning of the Constitution of Maine and require the following 
legislation as immediately necessary for the preservation of the public peace, health and 
safety; now, therefore, be it
Sec. 1.  Certiorari review by the United States Supreme Court of 
unresolved federal questions related to intertidal lands in Maine.  Resolved:  
That, inasmuch as prior Law Court cases have ceded title to all of this State's intertidal 
land to upland owners in contexts where certiorari review by the United States Supreme 
Court of contrary claims of title by the State to these lands, rooted in part in federal 
constitutional provisions and doctrines, congressional enactments and United States 
Supreme Court cases, was not sought, and recognizing that the United States Supreme 
Court is the final arbiter of the scope and meaning of all federally rooted claims of land 
ownership, the Attorney General shall seek United States Supreme Court review of any 
future Law Court decision that does not fully vindicate the State's claim of title to its 
intertidal lands.  In any such review the Attorney General shall raise not only the full 
range of federally rooted claims of title by the State to its intertidal lands but also the 
failure of the State's present judge-made intertidal land law to adhere to provisions of the 
Constitution of Maine requiring reasonableness in the alienation of trust property and 
imposing separation of powers limitations on the judicial branch of this State's 
government.
Sec. 2.  An alternative to certiorari review by the United States Supreme 
Court of a future Law Court decision that does not fully vindicate the State's 
claim of title to its intertidal lands.  Resolved:  That, if present law of this State 
ceding title to all of the State's intertidal lands to upland owners remains in place without 
an opportunity within 2 years after the effective date of this resolve for certiorari review 
by the United States Supreme Court of federal constitutional provisions and doctrines, 
congressional enactments and United States Supreme Court cases that leads to the 
conclusion that the State does in fact hold title to its intertidal lands, the Attorney General 
shall commence in federal court an original proceeding in the form of a declaratory 
judgment action, asserting the State's claim of title to its intertidal lands based on these 
ignored federal grounds, and pointing out that the State's present judge-made intertidal 
lands law fails to adhere to provisions of the Constitution of Maine requiring 
reasonableness in the alienation of trust property and imposing separation of powers 
limitations on the judicial branch of this State's government.
Emergency clause.  In view of the emergency cited in the preamble, this 
legislation takes effect when approved.
SUMMARY
Pending before the Law Court are cases addressing the State's title to intertidal lands.  
This resolve directs the Attorney General to seek review in the United States Supreme 
Court of any decision by the Law Court that does not fully vindicate the State's title to 
intertidal lands.  If there is no Law Court decision to appeal within 2 years, the Attorney 
General shall bring a declaratory judgment action in federal court to declare the State's 
title to intertidal lands, pursuing the case through to an appeal to the Supreme Court if 
necessary.