Intertidal musings


Onward to tackle the latest pile of SJC decisions (there are some interesting recent First Circuit decisions too, e.g., re filming police activities, that I will attempt to address anon).

Today we look at McGarvey v. Whittredge, 2011 ME 97 [], the latest in a long line (and, after this decision, what will no doubt be a longer line) of decisions regarding public rights on Maine intertidal land (the shore and flats between the mean high and low water marks, not exceeding 100 rods).  What I'm going to focus on here is the interface between this decision and Stop the Beach Renourishment, the latest U.S. Supreme Court ruling on takings law, upon which I blogged on June 10, 2010. 

In order to get this entry to a workable length, I must simplify everything, so bear with me. 

When last we left this issue in Maine before McGarvey, the SJC said 4:3 that the public uses within this zone were limited to fishing, fowling and navigating.  Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) [].  In McGarvey, the plaintiff wants to use the zone to carry out his commercial scuba diving activities; the scope of the decision covers "the act of walking across the intertidal land to reach the ocean to scuba dive."    

There are two 3-Justice decisions:  one written by CJ Saufley, joined by Justices Mead and Jabar, and one by Justice Levy, joined by Justices Alexander and Gorman.  Both decisions hold that the scuba diving use is allowed, but get to this result in different ways.  Justice Levy's decision concludes that scuba diving is navigating; CJ Saufley's decision is that allowed uses are not limited to fishing, fowling and navigating.

Before getting into (some) details and musings, two questions.  First, CJ Saufley's decision is first in the slip opinion, and Justice Levy's decision is second.  Both are referred to as "concurrences."  I thought that the decision in a split decision that has precedential weight is the narrowest, and wouldn't that be Justice Levy's?  So shouldn't it go first?

Second, where is Justice Silver?  I assume given this split that if he could've participated, he would have.  I have no idea if he owns waterfront property, but the geezers among us (I qualify) might recall that back in 1989 there was some discussion because the Justices with such property were not disqualified from participating in the ruling.  Have the conflict of interest rules changed?  I think back then 4 Justices had such property, 3 did not, so if the ones that did own such property couldn't rule, you'd only have a minority left.  Whether that would mean the rule of necessity put them all back on, or you could've plumped it up with some active retired justices, I don't know, and maybe if there's only 1 Justice (if there is even one) with such land now, so there's no minority problem, different rules apply. 

In any event, here's the interesting part to me.  CJ Saufley expends a lot of discussion explaining why she and her confreres joining in her opinion conclude that the allowed public uses were never limited to fishing, fowling and navigating historically, except maybe by aberrational Bell, and that the common law can and should evolve over time.  Justice Levy says hold the phone, you can't just toss Bell, because these are property rights we're talking about.  So, on one level this presents the question bandied about in Stop the Beach - when does common law "evolution" become a taking of private property?

At one end of the spectrum, of course, the common law identifying property rights must evolve.  No one is saying that to "fowl" in the intertidal zone you have to use a musket.  On the other hand, as Justice Scalia said (in dicta) in the plurality decision in Stop the Beach, "It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.”  Stop the Beach Renourishment, Inc. v. Florida Dep’t of Env’l Protection, 130 S. Ct. 2592, 2601 (2010).  So just like the Legislature can't suddenly eliminate property rights by legislation, one would assume, I think, that the same result could not be achieved through court decisions "interpreting" the "evolving" common law.  That said, as I noted in the June 10, 2010 blog and as the Justices themselves noted in the Stop the Beach decision, "judicial" takings raise all sorts of thorny substantive and procedural questions which I would love to drone on about, but will refrain.

Instead, I will focus on a couple of big picture observations.  First, can the legislature or court "evolve" the common law over time to take away property rights without running afoul of the Constitution if they do it incrementally?  Like everything else in takings law, the answer is complicated.  The majority in Palazzolo v. Rhode Island, 533 U.S. 606 (2001) said no - acquisition of title after the date that regulation allegedly causing a taking were enacted does not bar a takings claim.  That said, Justice O'Connor's concurrence stated that when the owner acquired the property is still relevant in weighing the "reasonable investment-backed expectations" prong of the three-prong Penn Central ad hoc test for determining whether a taking has occurred.  So ooching away at expanding public use rights bit by bit over time probably won't avoid the takings inquiry, at least in theory — but like everything else in takings, the jury is out (if you get one, which is another complicated question).

Second, what are the prospects of a judicial evolution of the common law triggering a viable takings claim?  From one perspective, extremely remote.  If you look at the owner's beachfront property as a whole and look at the value of that property before and after you expand the public uses allowed, the odds that you will ever get to the diminution in value needed to trigger compensation is practically nil.  That said, however, here we are talking about physically invading property.  Viewed from one perspective, all you are doing is expanding the uses an existing invader can do.  The teaching of the rent control cases is that once you let them in, it's the Penn Central diminution in value test, not Loretto physical invasion test.  Under this perspective, the fact that the legally permitted invader could fowl before and now both can fowl and scuba dive is not going to be deemed a regulatory taking.  

Viewed in a different way, however, you aren't just expanding the use, but are allowing in new invaders – Attack of the Scuba Divers!  Assuming CJ Saufley's opinion is correct and they aren't navigators, before, they couldn't come onto the land.  Now they can.  So do we apply the physical invasion test and not a regulatory taking analysis? 

In other words, if you look at this like a regulatory taking, no taking; if you treat the expansion like establishing an easement, taking.  In Bell, the Court seemed to treat the issue like the latter.  See Bell, 557 A.2d at 176, 177-79, 180.  Under this view, expansions are more likely no-no Nollan takings (that decision nixed an attempt to impose a visual easement).     

Perspective doesn't just affect substance, but procedure, too.  If it's an easement, then you may be able to challenge the change facially – look at Bell, striking down the Inter-tidal Act.  So you can avoid those insurmountable Williamson ripeness obstacles and proceed directly to – federal court?  You can hardly go to state court if you are alleging that it's the state court that took your property, can you?  (Justice Kennedy talks about that jurisdictional thicket presented with a "judicial" taking in his concurrence in Stop the Beach.)  If you can go to federal court, you can get a jury (Monterey) and attorney's fees under Section 1983.

I could go on forever, but I will end with this observation.  I really have no ox to gore here – I do believe in property rights, but I also live a few blocks from a beach and like to throw the ball to Fido there.  So who is right on this issue and whether uses can be expanded in the inter-tidal zone without a constitutional problem, I leave to those in charge (not that anyone was asking me anyway).  But one difficulty I do have with CJ Saufley's decision is that I can't tell what the test is that is being applied.

I know scuba diving is allowed; but I don't know why. I can't predict whether surfing or other recreational uses will be allowed (I assume the amici surfers are percolating such a decision as we speak; CJ Saufley's opinion states that this issue and whether public trust rights include "a general, or more limited, recreational easement to use the intertidal lands" "is neither before us nor necessary to the resolution of this case.")

Right or wrong, I do understand Justice Levy's test – can you shoehorn the use (be "sympathetically generous") into fishing, fowling or navigating?  It can be some pretty darn creative shoehorning, but I still understand what the test is.  Whether surfing or any other use can be similarly shoehorned may remain an open question, but I think I comprehend the test that's going to be applied in answering that question. 

In contrast, with the "evolving common law" approach, I don't know what factors are weighed or how.  I understand that this approach is based on the conclusion that you cannot shoehorn scuba diving into navigation, but that the use should still be deemed allowed.  It's also clear that this approach prefers a case-by-case determination, because the issue is viewed as a question of evolution.  What I can't tell is what reasoning is applied to determine whether the common law has yet evolved such as to permit the use.  I think that the people coming into the inter-tidal zone have to keep moving – the opinion references how "our common law has regularly accommodated the public's right to cross the intertidal land to reach the ocean for ocean-based activities."  I don't know whether throwing the ball in the ocean for Fido falls within this crossing the land to carry out ocean-based activities test — or if that is the test.  

What I am sure of is that we are eventually going to find out, as the next cases testing additional uses come down the pike.