common law and statutes

A concise overview of the common law and statutory framework that governs shoreline ownership and public access in Maine.

A photo of a coastal scene

Who has rights to the shoreline in Maine?

In Maine, the answer is usually a combination of the following:

Private property holders may own the shore all the way down to the low water mark. The state or town may own shoreline areas including beaches. The public has certain legal interests in the shoreline, even where a private owner  holds the legal title. The public does retain access to the intertidal area for the purposes of fishing, fowling and navigation regardless of who holds the title to the land. This is granted to the public by the Public Trust Doctrine and a colonial ordinance. For each space and use of a space, there is a balance between public and private rights.

What are background legal principles governing coastal land ownership and access rights?

Maine is one of only a few states (DE, MA, ME, NH, PA, VA) in which coastal property owners own land out to the mean low tide line as defined in the Colonial Ordinance of 1641-47. These ownership interests are subject to a centuries- old public easement for “fishing, fowling and navigation”. This means that even though private coastal land owners may own the land to the low tide line, the public retains the right to fish, fowl, or navigate in the intertidal area (between the mean high tide line and mean low tide line). In most other coastal states this intertidal land is owned by the state in public trust for the public under the public trust doctrine, which you can read more about below. 

The right to own property and exclude others from it is a fundamental feature of colonial U.S. law. Under Maine common law, coastal property owners may prevent people from gaining access to the shoreline of their land. Gaining unauthorized access- either perpendicularly or horizontally to the shore- may be trespassing for which one may have charges brought up against them in a court of law. 

The government has the authority under its police powers to make laws protecting the welfare of its citizens, including regulating lands next to beaches and shores. Under the public trust doctrine, the government is obliged to act on behalf of the public to protect publicly- owned submerged lands below the mean low tide line, and publicly owned natural resources such as fish, shellfish, and seaweed that might be harvested from the shore.  

The U.S. Constitution and many state constitutions also give the government the right to take private property under the power of eminent domain but only if the landowner receives appropriate compensation. Sometimes the government’s attempts to merely regulate behavior on or use of land goes so far as to amount to a “taking” requiring the government to pay the landowner for the lost value of the land. You can read more about eminent domain and takings here. 

Long before the place now known as Maine was discovered by European colonists, legal principles and rules of engagement were established in Europe that continue to impact the ways in which we think about access and private property ownership to this day. In 1493, Pope Alexander VI issued a missal, now known as the Doctrine of Discovery which developed the legal and religious precedent for the seizure of Indigenous land by European colonists. The precedent set forth in this document has been cited by the Supreme Court of the U.S. in cases related to the seizure of lands from Indigenous people. In addition it sets precedent for the exclusion of particular groups of people (in this case Indigenous peoples) from spaces that are discovered, claimed, and made private. This is one of the earliest precedents for private property. The Mayflower Compact, Body of Liberties, and Charter of Massachusetts Bay set similar precedents while also echoing ideas from the Doctrine of Discovery. 

Jumping forward, we can see these colonial legal and religious precedents in action in multiple ways. Wabanaki peoples consistently excluded from coastal spaces and fisheries, despite living in, navigating, and gathering food on the coast for time immemorial. Unlike other coastal states, Maine does not offer any protections for Wabanaki people to be able to access their “usual and accustomed places” regardless of the federal legal precedent for these kinds of protections. In addition, colonial ideas of private property ownership prevent both Wabanaki and non-Wabanaki people from accessing the coast. In fact, ancient colonial precedents and principles that predate the state of Maine continue to be cited in modern case law such as in the Moody Beach case that is ongoing.

The Maine Supreme Judicial Court has been addressing the question of who can access the Maine coast, on a case-by-case basis since the early nineteenth century. While there is no comprehensive statement of appropriate public uses in the intertidal zone under the Colonial Ordinance, the Court has held that the easement includes uses reasonably incidental or related to fishing, fowling, or navigation, and also that the Court will apply a “sympathetically generous” interpretation of these terms.[1] In addition, the Court has noted that the easement applies equally to protect those individuals involved in fishing, fowling, or navigation for sustenance, business, or pleasure.[2] However, the easement does not extend to other recreational uses.

Since many of the cases defining fishing, fowling, and navigation date from the mid-nineteenth century, the case law is of limited help in defining the modern parameters of these terms. Nonetheless, the case law does demonstrate that the legal meaning of “fishing,” “fowling,” and “navigation” extends beyond a simple dictionary definition of each individual term.

The courts have found that the term “fishing” applies to finfish such as cod, herring, and bluefish, and also, includes digging for worms and clams, harvesting shellfish, and taking sea manure (organic detritus and waste of marine organisms) and floating seaweed. However, some court decisions have placed apparent restrictions on removing some resources from the intertidal area, including “mussel bed manure” or seaweed cast upon the beach from within that zone. The cases also suggest that the public may not remove sand and empty shells from the intertidal area. The public’s right to fish does not include the right to erect fish weirs or fasten seine or fishing equipment to private tidelands.

The term “fowling” has not received nearly the same judicial scrutiny but is generally interpreted to mean bird hunting. Some commentators have suggested that the meaning should be widened to include bird watching, but there is no indication that the Court would be willing to extend the ordinance beyond the obvious meaning of the word.

The term “navigation” has always been construed to mean that the public can sail over the intertidal lands, can moor craft upon them, and can allow vessels to rest upon the intertidal land when the tide is out. These activities may be conducted for profit, such as ferry services in which the boat operator picks up and discharges passengers on intertidal land.

As an incidental use, if a person reaches the intertidal land by means of navigation, the person can walk on the intertidal lands for purposes related to navigation.[3] This right to travel through the intertidal lands does not, however, include the right to remain on the intertidal lands for bathing, sunbathing, or recreational walking.

[1] Bell II, 557 A.2d 173.

[2] Barrows v. McDermott, 73 Me. 441, 449 (1882).

[3] Andrews v. King, 124 Me. 361 (1925).

  • There have been more recent case studies that will be added to this site soon

Maine is among multiple states that are exceptional in their approach to the intertidal zone. In most states, private owners hold title to the high-water mark and the states hold the intertidal zone, submerged lands, and coastal waters as trustees for the benefit of the public. This is known as the “Public Trust Doctrine,” a legal principle that dates back centuries to English law (and ancient Roman law before that) and was a protection against those, including kings and emperors, who might impede the public’s interests in important activities such as fishing, commerce, and navigation.

Simply stated, the Public Trust Doctrine is a common law principle that supports the public’s right of coastal access for certain coastal-dependent activities. While the Public Trust Doctrine has certain elements that apply to all states (i.e., the state holds certain legal interests in the coastal area for the benefit of its citizens) each state applies the Public Trust Doctrine in accordance with its property law and historical background. At the same time, the public may acquire coastal access rights in a variety of other forms, such as an easement.3 While these concepts and terms may seem like legal technicalities and jargon, their impact on public access is something everyone who has an interest in the coast can understand, especially when the issues are illustrated by some recent legal cases. Since the benefits and the operation of the Public Trust Doctrine strongly parallels the way the Colonial Ordinance works in Maine, some refer to the Colonial Ordinance as part of Maine’s variation of the public trust doctrine. Maine legislators and judges sometimes use the names of the rules interchangeably.

Who owns the shore in Maine?

Maine is one of only a few states in which coastal property owners can own land out to the mean low tide line. These ownership interests are subject to a centuries-old public easement allowing the public to use the intertidal zone for the limited purposes of “fishing, fowling, and navigation”. At present, this does not legally include public use for recreational purposes. 

In most other coastal states the intertidal land is owned by the state in trust for the public under the public trust doctrine. This generally entitles the public to use the intertidal zone for recreational purposes as well as such things as fishing and navigation.

What state and federal statutes are relevant to access issues?

State Statutes:

Relevant tax laws:

  • Maine Current Use Taxation for Working Waterfront
    • About the program
    • Designed to prevent the conversion of waterfront land that is used for or supports commercial fishing activities. Owners of working waterfront property may apply to have their properties valued according to their current use as working waterfront. In exchange, the landowner must maintain the property for working waterfront uses only, or risk a financial penalty. The reduced valuation and associated tax reduction apply only to the land, not to any structures or equipment on the property. This program defines working waterfront land as a parcel or portion of a parcel of land abutting tidal waters or is loathed in the intertidal zone (located between the high and low water mark) the use of which is more than 50% related to providing access to or in support of the conduct of commercial fishing activities.
  • Maine Open Space Taxation
    • About the program
    • Designed to prevent the conversion of open space land to more intensive uses as a result of economic pressure. Parcels enrolled as Open Space are assessed at current use with additional reductions possible for those parcels allowing public access.

Federal Statutes:

Laws affecting public access
Legal principles and doctrines