public trust doctrine in Maine

2019This 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 interpret

2014We note also that the presumption of permission applies to the intertidal zone as well as to the dry sand for all general recreational activities.20 19 The public trust doctrine states that “the owner of shoreland above the mean high water mark presumptively [holds] title in fee to intertidal land subject only to the public’s right to fish, fowl, and navigate.” Bell v. Town of Wells, 557 A.2d 168, 171 (Me. 1989) (citing Storer v. Freeman, 6 Mass. (1 Tyng) 435, 438 (1810)); see McGarvey, 2011 ME 97, ¶ 18 , 28 A.3d 620 . 20 General recreational activities include walking, sunbathing, picnicking,

2019McGarvey, 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.

2019McGarvey, 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.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2000Thus, when the State cedes that right to private parties by virtue of its right to regulate the intertidal area and the construction of docks there via the public trust doctrine, the release of such public rights by regulation to build docks must satisfy “a particularly demanding standard of reasonableness.” Opinion of the Justices, 437 A.2d at 607 .

1981Section 1917 reads in pertinent part: Any municipality may, by the adoption, amendment or repeal of ordinances or bylaws, exercise any power or function which the Legislature has power to confer upon it, which is not denied either expressly or by clear implication and exercise any power or function granted to the municipality by the Constitution, general law or charter. 5 .The continued vitality of the public trust doctrine was recently reaffirmed in Opinion of the Justices, Me., 437 A.2d 597 (1981).

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2014We note also that the presumption of permission applies to the intertidal zone as well as to the dry sand for all general recreational activities.20 19 The public trust doctrine states that “the owner of shoreland above the mean high water mark presumptively [holds] title in fee to intertidal land subject only to the public’s right to fish, fowl, and navigate.” Bell v. Town of Wells, 557 A.2d 168, 171 (Me. 1989) (citing Storer v. Freeman, 6 Mass. (1 Tyng) 435, 438 (1810)); see McGarvey, 2011 ME 97, ¶ 18 , 28 A.3d 620 . 20 General recreational activities include walking, sunbathing, picnicking,

2014The public trust doctrine states that "the owner of shoreland above the mean high water mark presumptively [holds] title in fee to intertidal land subject only to the public’s right to fish, fowl, and navigate.” Bell v. Town of Wells, 557 A.2d 168, 171 (Me.1989) (citing Storer v. Freeman, 6 Mass. (1 Tyng) 435, 438 (1810)); see McGarvey, 2011 ME 97, ¶ 18 , 28 A.3d 620 . 23 .

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. 7 See, e.g., Britton v. Dep’t of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. [7] See, e.g., Britton v. Dep't of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011There can be no question that, pursuant to the original public trust doctrine, the public has a right to use the ocean itself, subject to certain governmental regulation. 7 See, e.g., Britton v. Dep’t of Conservation (Britton I), 2009 ME 60, ¶¶ 2 , 10 n. 5, 974 A.2d 303, 305, 307 ; Norton v. Town of Long Island, 2005 ME 109, ¶¶ 21, 32 , 883 A.2d 889, 896, 899 ; see generally Andrews v. King, 124 Me. 361, 362-63 , 129 A. 298, 298-99 (1925); see also Marshall v. Walker, 93 Me. 532, 536-37 , 45 A. 497, 498 (1900), and cases cited therein.

2011Britton I, 2009 ME 60, ¶ 15 , 974 A.2d at 308 ; Great Cove, 672 A.2d at 95 . [¶ 9] The upland or shore owner’s common law riparian right of access was without remedy against private infringement prior to the enactment of the Wharves and Weirs Act.

2007Common law riparian rights include water access, installation of wharves "subject to reasonable restrictions," and unfettered use of water adjacent to the land "for the transaction of business associated with wharves." Great Cove Boat Club v. Bureau of Public Lands, 672 A.2d 91, 95 (Me. 1996).

2019See, 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.

2019See, 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.

2019See, 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.

2019See, 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.

2014See Dinan v. Alpha Networks Inc., 2018 ME 22, ¶ 16 , 60 A.3d 792 (“The prohibition on issuing advisory opinions is consistent with our defined judicial power.”).

2014See Dinan v. Alpha Networks Inc., 2018 ME 22, ¶ 16 , 60 A.3d 792 (“The prohibition on issuing advisory opinions is consistent with our defined judicial power.”).

2004Harding v. Commissioner of Marine Resources, 510 A.2d 533 (Me., 1986) (citations omitted), Under the public trust doctrine, the United States Supreme Court has established that “the individual states have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit.” Phillips 6 Specifically, the Petitioners point to the language in §6072(7-A), which states that the proposed project must not “unreasonably interfere” with the enumerated factors listed in the statute.

2004Me. 1993) (acknowledging the existence of the public trust doctrine in Maine); Harding, 510 A.2d at 537 (recognizing the presence of the public trust doctrine in Maine law).

2004The Petitioners argue that the use of these words “makes it plain that more is demanded of the Commissioner.” (See Petitioners’ Reply Brief, p. 2). ’ The Court notes that the long-standing rule in Maine is “an advisory opinion binds neither the Court nor the individual Justices who gave the opinion.” Harding v. Commissioner of Marine Resources, 510 A.2d 533, 537 (Me., 1986) (citing Martin v. Maine Savings Bank, 147 A.2d 131, 137 (Me., 1958)).

2000As the third prong of their related arguments that PBR 14 is invalid as contrary to law, the petitioners contend that it also violates the public trust doctrine. 24 The public trust doctrine “is the concept that Maine’s tidal lands and resources . . are held by the State in a public trust for the people of the State.” James v. Inhabitants of the Town of West Bath, 437 A.2d 863, 865 (Me. 1981).

1996Capune v. Robbins, 273 N.C. 581 , 160 S.E.2d 881, 886 (1968).

1996Capune v. Robbins, 273 N.C. 581 , 160 S.E.2d 881, 886 (1968).