owned by the State in Trust for the public

Chapters 1 and 2 are introductory.

Chapter 3  points out that over 1500 years ago the Justinian Code and early Roman law held that intertidal lands, by their very nature, were among a group of "things" incapable of private ownership. These "things" included "air, running water, the sea and consequently the shores of the seas." The Code and early Roman Law also noted that wild animals, birds, fishes that roam freely, "...on the earth, in the sea, or in the air...belong to no one, unless/until there is a capture."  Today we might include outer space and water in some stage of movement through the hydrologic cycle, in the same category of "things" incapable of private ownership. In sum, the Justinian Code made clear that these "things...cannot be said to belong to anyone as private property."

After Magna Charta these views were assimilated into English Common Law, (i.e., land seaward of the high water mark was held by the King and Parliament in"public trust for all subjects.") These views with respect to the ownership of intertidal lands were part and parcel of English Common Law brought to Colonial Settlements in North America. Early and more recent Massachusetts case law recognized this legal status with respect to the ownership of intertidal land; published cases noted: "...there was no such things as [private] property in tide waters. Tide waters were res omnium, that is, they were for common use."

How these historic views with respect to the ownership and use of intertidal lands were abandoned in Massachusetts (and subsequently in Maine) in favor of judicial holdings said to emanate from language in a 1647 Masschusetts Bay Colony ordinance (an ordinance subsequently repealed), is inexplicable. As the colonies became a new nation the case law in both states narrowed public uses on intertidal lands and granted title to such lands in the two states to upland owners purportedly to facilitate marine commerce. These views were not followed by other of the original colonies (now states) or by any other state subsequently admitted into the Union. The large majority of coastal states (historically and today) adhere to English Common Law with respect to ownership and use of intertidal lands. The position of Massachusetts and Maine stands alone. It is arguably founded on Judicial error. The relinquishing of public ownership of all intertidal land in an entire state to facilitate marine commerce was not needed (or wanted) during the Colonial Era in either state; it was not needed during the 1700's and 1800's as marine commerce grew; it is NOT needed today.

Chapter 4 examines the U.S. Supreme Court case Illinois Central Railroad v. Illinois. This case outlines the trust duties of states with respect to lands held by the state in trust for the public. In 1869, as marine commerce was burgeoning in Chicago, the Illinois Central Railroad persuaded the Illinois legislature to grant it virtually all of the bed of Chicago Harbor to build wharves, warehouses, rail and marine terminal facilities. Four years later (after some facilities utilizing lake bed areas had been built) the legislature repealed this over-generous grant replacing it with a more modest grant that would allow future facilities to be built in defined areas of the harbor. The railroad company brought suit claiming the repeal measure violated the U.S. Constitution's contract clause and amounted to a taking of its property. 

Chapters 5 & 6 lay out the U.S. Constitutional basis for the "equal footing" doctrine, and past as well as more recent Supreme Court cases explicating the doctrine. The doctrine originated in debates and enactments incident to the formation of the Union. It was seen as fundamentally important that all of the states, the thirteen original states, and states subsequently formed, be equal in every respect. There was to be no second-class statehood. This history was most fully laid out in the 1894 case, Shively v. Bowlby. Shively made clear that the common law of England dictated intertidal land law in the colonies. It went on to note: "Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders..." The court went on: "The new states admitted into the Union since the adoption of the Constitution have the same rights as the original states in the tide water and in the lands under them within their respective jurisdictions." This SURELY must include Maine.

Chapter 7 examines two important documents - the 1981 amendment to legislation enacted in 1975, i.e., the Submerged Lands Act, and the 1981 Opinion of the Justices sustaining the amendment. The Opinion was requested by then Governor Brennan who, pursuant to provisions in Maine's Constitution, sought the advice/judgement of the Law Court as to whether the amendment (denoted as LD 1594 and passed by the legislature), if enacted, was permissible. The court answered that the amendment was permissible; the Governor subsequently signed the amendment into law. The 1975 Submerged Lands Act (as amended) remains in force today.

Chapters 8, 9, and 10 retrace historic actions, and retrace the Bell Cases.

Conclusion: A synopsis of a 267 page book with nearly 700 footnotes must, of necessity, leave much out. Here, the depth and detail, the nuances, of individual arguments have been omitted. Whole background chapters, whole arguments of importance, and almost all footnote references have been ommitted in favor of brief comments on seven core chapters each of which outline Bell court errors. These errors can and should be corrected. Hopefully, the laying out of these core arguments will lead the reader to buy and read the book, or to conclude without the benefit of the full volume that a reexamination of the Bell cases by Maine's highest court (or failing that, by the Supreme Court) is called for. It is the Author's view that such a reexamination will, in correcting past errors, realign Maine's intertidal land law with that of almost all other coastal states in holding that the State holds title to the lion's share of it's intertidal lands in trust for the public; that title to those relatively few parcels of intertidal land that are needed, suitable and actually filled for marine commerce (or other public purposes) may be alienated to upland owners; and that a broad range of public uses on intertidal lands may be permitted and regulated to meet present and future needs. Buy the book here!