The Public Right of Access to the Sea for Scuba Diving

The Maine Law Court issued a decision on August 25, 2011, upholding a Superior Court decision that ruled in favor of the owner of a commercial scuba diving operation, declaring that the owner and his divers had the right to cross private intertidal lands to access the ocean for diving. The decision could have far reaching implications about the scope of the public’s use of private lands along the coast of Maine. McGarvey v. Whittredge, 2011 ME 97, P7 (Me. Aug. 25, 2011). Exactly what the implications are for other public uses of the intertidal lands is difficult to predict because the decision was split between two groups of three justices issuing concurring opinions that reached the same result by means of very different rationales. The first concurrence, authored by Chief Justice Saufley, departed from past precedent by adopting the rationale expressed in a dissenting opinion in the landmark case of Bell v. Town of Wells (Bell II), 557 A.2d 168, 173 (Me. 1989). The second concurrence, authored by Justice Levy, criticized the Saufley opinion asserting that it would effectively overrule the Bell II decision without a compelling reason for doing so. In Bell II, the Law Court held that the public rights to use the intertidal lands did not include a general recreational easement because the public’s rights are derived from a Colonial Ordinance, which specifically limited the rights to fishing