Lead Opinion
Concurring: SAUFLEY, C.J., and MEAD and JABAR, JJ.
Concurring: ALEXANDER, LEVY, and GORMAN, JJ.
with whom MEAD and JABAR, JJ., join.
[¶ 1] This case requires us to revisit a question that we have addressed
I. BACKGROUND
[¶ 2] William A. McGarvey Jr. and Mary Jo Kleintop are owners of intertidal land who appeal from a summary judgment entered in the Superior Court (Washington County, Cuddy, J.) in favor of Steven R. Whittredge and Jonathan Bird declaring that Whittredge and Bird engaged in a permitted public use of McGar-vey and Kleintop’s intertidal land when crossing that land to access the ocean for scuba diving. The parties do not dispute the following facts, which are established in the summary judgment record. See Searle v. Town of Bucksport,
[¶ 3] McGarvey and Kleintop’s oceanfront property borders Passamaquoddy Bay in the Town of Eastport. For brevity, we refer to the two property owners as McGarvey. McGarvey’s property line extends eastward to the Bay’s mean low-water mark and stretches in front of the property of the landowners beside them. Those landowners are Whittredge and Bird, whom we refer to simply as Bird. They own property near the ocean that is bounded to the south and east by the McGarvey property. To the east, the Bird property extends to just below high water where it abuts McGarvey’s intertidal land.
[¶ 4] The result of the configuration of land is that the upland Bird property borders the McGarvey intertidal region, and Bird cannot reach the ocean from his property without crossing McGarvey’s intertidal land. As we understand the record, Bird does not cross any of the upland portion or dry sand of McGarvey’s land to reach McGarvey’s intertidal land.
[¶ 5] Bird operates a commercial scuba diving business that takes clients on shore dives in Passamaquoddy Bay. To access the ocean for these dives, Bird and his clients walk with their scuba equipment from Bird’s lot onto and across McGar-vey’s intertidal land where they enter the water. The dives do not involve the use of a boat, and no one engages in any form of fishing or fowling.
[¶ 6] In November 2008, McGarvey filed a declaratory judgment action seeking a determination that Bird has no right to cross McGarvey’s intertidal land for scuba diving and seeking an injunction prohibiting such use. Bird counterclaimed seeking a judgment declaring that this use is lawful. McGarvey also alleged trespass related to the scuba diving and the social activities that Bird engaged in on the intertidal land.
[¶ 7] In January 2010, the court granted a summary judgment in favor of Bird, declaring that crossing the McGarvey intertidal land to access the water for recreational or commercial scuba diving is within the public’s right to use intertidal land for navigation. The court also concluded that the social activities constituted a trespass and awarded McGarvey and Kleintop
II. DISCUSSION
A. Common Law Roots of Shoreland Property Rights
[¶ 8] Describing the nature and extent of the public’s right to use the intertidal zone has challenged courts in the United States for centuries. Many jurists and authors have struggled to balance the public’s rights with the rights of private landowners.
[¶ 9] In Maine, the upland owner ordinarily has fee ownership of the intertidal land, and that private ownership is subject to the public’s right to use the intertidal zone.
[¶ 10] The common law does not always develop along a straight path. This particular area of common law, involving important competing property interests, certainly has not developed with linear precision. Interpreting the common law available to us, however, we understand the public’s right to use the intertidal zone to encompass the right of the public to pass over that land to reach the ocean in order to scuba dive.
[¶ 11] Additionally, because the relevant activity here involves use of the intertidal land only to enter the sea, rather than to stand or to stay, we do not determine whether other, additional uses of the intertidal zone fall within the public trust rights, including the uses related to surfing presented by amicus curiae Surfrider Foundation. Instead, we leave the next question in the evolution of this area of common law for future determination.
B. Property Rights in Maine’s Coastal Lands
[¶ 12] We begin by recognizing the foundational purpose for the public’s rights to the intertidal zone: access to the ocean and tidal region. There 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.
[¶ 13] Just as the public’s right to use the ocean is not completely unregulated, however, the public’s access to the ocean is not unrestricted. Because each state’s law, common and statutory, has developed independently, the rights of the public to reach the ocean differ from state to state. These rights of the public also vary in Maine depending on which of the three zones of property that lead into the ocean is being used — the submerged land below the mean low-water mark; the wet sand of the intertidal zone, which is the shore and flats between the mean high-and low-water marks, but not exceeding 100 rods; and the dry upland sand. See Britton v. Donnell (Britton II),
[¶ 14] On either side of the intertidal zone, ownership and allowable uses of the land are relatively clear. The State of Maine owns the submerged land below the mean low-water mark and holds that land in trust for public uses. See id. ¶ 7,
[¶ 15] On the dry upland side, the upland owner holds the fee title to the property above the mean high-water mark. When oceanfront property includes dry sand, the upland owner, in Maine, owns the dry sand portion of the beach in fee, subject, of course, to any encumbrance. See Bell v. Town of Wells (Bell II),
[¶ 16] Thus we reach the land at issue in this litigation: the intertidal zone, which is the land between the mean low-water mark and the mean high-water mark. Flaherty v. Muther,
C. Ownership and Use of Intertidal Lands in the United States
[¶ 17] Not surprisingly, the extent of the public’s rights of access to, and use of, the intertidal zone has been the subject of litigation in many states, producing diverse results. In several eastern coastal states, including Connecticut and Maryland, the state, rather than the upland owner, owns the intertidal zone in trust for the public, up to the mean high-water mark. See, e.g., Bloom v. Water Res. Comm’n,
[¶ 18] In Maine, Massachusetts, and Virginia, states whose common law was influenced by colonial ordinances from the 17th Century, see Craig at 4, private property immediately adjacent to the ocean extends past the mean high-water demarcation to the mean low-water mark, a historical artifact of the British and colonial attempts to encourage commercial wharf development at private expense. See Bell v. Town of Wells (Bell I),
[¶ 19] In addition to the differing forms of intertidal land ownership, the scope of the public’s right to use this specific land also varies significantly among the coastal states. In New Hampshire, where the private ownership only extends to the high-water mark, the public may access the intertidal lands not only for fishing and navigation, but also “for all useful purposes,” including recreational
[¶20] In Massachusetts, Virginia, and Maine, colonial ordinances, which were created primarily during the 17th Century and drew from English common law, continue to influence the scope of the public’s right to cross the intertidal region in order to reach the ocean. See Bell I, 510 A.2d at 514; Trio Algarvio,
[¶ 21] On the west coast, the development of the common law uses of the intertidal zone has been more generous to the public. For instance, the Supreme Court of California adopted a flexible approach and held that the public trust rights could include uses beyond traditional public uses such as fishing and navigation. Marks v. Whitney,
[¶ 22] In short, there is no uniform system of intertidal land ownership in the United States and no single interpretation of the circumstances under which the public may cross the intertidal lands to reach the ocean. Yet what is common among all legal constructs is the premise that the public may use the intertidal lands in some form to obtain access to the ocean and tidal water.
D. Ownership and Use of the Intertidal Lands in Maine
[¶ 23] In Maine, we have always recognized private ownership of the intertidal land as a part of our common law. At the same time, the public’s right to cross the intertidal zone to reach the ocean has also existed since statehood and, in fact, existed long before our state’s inception. See Bell I,
1. Enactment of the Colonial Ordinance and Its Incorporation in Maine’s Common Law
[¶ 24] In Maine, as in Massachusetts, the determination of public and private ownership of the intertidal lands, an area of law derived from the prevailing interpretation of English common law, is now a
[¶ 25] After the American Revolution, “the people of each state became themselves sovereign; and in that character [held] the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” Martin v. Lessee of Waddell,
[¶ 26] In Maine, the common law has been modified to create private ownership of intertidal lands subject to the public trust rights reserved to the State. See Lapish v. Bangor Bank,
[¶ 27] The Colonial Ordinance allowed private ownership of intertidal lands to promote commerce by encouraging the construction of wharves at private expense. See Storer, 6 Mass, at 438. In Storer, the Massachusetts Supreme Judicial Court summarized the Colonial Ordinance’s historical origins as follows:
When our ancestors emigrated to this country, their first settlements were on harbors or arms of the sea; and commerce was among the earliest objects of their attention. For the purposes of commerce, wharves erected below high water mark were necessary. But the colony was not able to build them at the public expense. To induce persons to erect them, the common law of England was altered by an ordinance, providing that the proprietor of land adjoining on the sea or salt water, shall hold to low water mark, where the tide does not ebb more than one hundred rods, but not more where the tide ebbs to a greater distance.
Id.
[¶28] In acknowledging the existing and unmodified rights of the public, however, the Colonial Ordinance expressly referred to those rights as connected to “fishing,” “fowling,” and the passage of boats and vessels, which later was summarized as a right of “navigation.” John J. Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine xxxvi-xxxvii (1932); see Bell II,
[¶ 29] Although the Colonial Ordinance expired by its own terms, the Massachusetts Supreme Judicial Court incorporated the concept of private intertidal ownership set forth in the Colonial Ordinance into its common law in 1810:
This ordinance was annulled with the charter by the authority of which it was made; but, from that time to the present, a usage has prevailed, which now has force as our common law, that the owner of lands bounded on the sea or salt water shall hold to low water mark, so that he does not hold more than one hundred rods below high water mark....
Storer,
[¶ 30] Thus, although the private ownership of the intertidal lands announced in the Colonial Ordinance had become a part of Massachusetts common law, the Ordinance itself was not in effect as a matter of positive statutory law at the time that Maine separated from Massachusetts in 1820. See id. Additionally, the “Ordinance did not apply to the territory that is now Maine, nor did the legislative body responsible for its enactment have governing authority over that territory.” Bell II,
[¶ 31] When Maine achieved statehood in 1820, the Act of Separation and the Maine Constitution incorporated Massachusetts common law into Maine law. Me. Const. art. X, §§ 3, 5;
[¶ 32] Accordingly, the upland owners’ fee ownership of the intertidal zone is solidly established in Maine’s common law. See Britton II,
2. Public Trust Rights in the Intertidal Zone
[¶ 33] Just as solidly established, however, is the public’s uninterrupted right to make appropriate use of those lands. See Marshall,
[¶ 34] Thus, neither the establishment of private ownership rights through the Colonial Ordinance, nor the consequent recognition in common law of private ownership rights, has diminished the public trust rights in the intertidal lands. See Gerrish v. Proprietors of Union Wharf,
[¶ 36] These uses reserved to the public before the adoption of the Colonial Ordinance were described in various ways. As Sir Matthew Hale described them,
For the jus privatum of the owner or proprietor is charged with and subject to that jus publicum which belongs to the king’s subjects; as the soil of an highway is, which though in point of property it may be a private man’s freehold, yet it is charged with a publick interest of the people, which may not be prejudiced or damnified.
Sir Matthew Hale, A TREATISE, IN THREE PARTS. PARS PRIMA: De Jure Maris et Brachiorum ejusdem. From a Manuscript of Lord Chief-Justice Hale 13, 35 (Francis Hargrave ed., 1st ed. 1787).
[¶ 37] Were it not for the specific and somewhat contradictory language contained in our most recent discussion of the public’s rights, see Bell II,
[¶ 38] Until our decision in Bell II,
[¶ 39] Just as we have not treated the Colonial Ordinance as defining or restricting which member of the “public” would receive the benefit of the jus publicum, we had not, until Bell II, restricted the activities allowed by the jus publicum to the specific references in the Colonial Ordinance: “free fishing and fowling,” and unhindered “passage of boats or other
[¶ 40] Pursuant to our broad understanding of the public trust rights, we have authorized public uses that are somewhat related to, but not coextensive with, “fishing,” “fowling,” and “navigation.” For example, upon landing a boat on the intertidal land, we held that the operator, no longer navigating on the water, also may “pass freely to the lands and houses of others besides the owners of the flats.” Deering,
[¶ 41] Despite our expanding interpretation of the rights of the public in relation to private ownership of intertidal lands, an interpretation we characterized as “sympathetically generous” in Bell II,
3. Recent Maine Common Law
[¶42] Such was the development of Maine common law related to the intertidal zone until our holdings in Bell I,
[¶ 43] In the first appeal, we concluded that the Colonial Ordinance was incorporated into Maine’s common law pursuant to article ten, section three of the Maine Constitution and section six of the Act of Separation between Maine and Massachusetts, and that our later holdings clearly recognized the validity of the Colonial Ordinance as a part of our common law. Id. at 513-14. Although we noted that the Colonial Ordinance recognized private ownership of the intertidal lands, we again clarified that the private title remained “subject to the public right of use declared by the Colonial Ordinance.” Id. at 516.
[¶ 44] On April 25, 1986, while the Bell I appeal opinion was pending, the Maine Legislature enacted The Public Trust in Intertidal Land Act, P.L.1985, ch. 782 (codified at 12 M.R.S. §§ 571-573 (2010)). See Bell II,
[¶ 45] Upon remand in Bell I, the Superior Court held a four-week bench trial. Bell II,
[¶ 46] Notwithstanding earlier approved common law activities that were not defined within the three enumerated uses, in Bell II we held that the public trust rights to the intertidal lands did not include a general recreational easement. Id. at 176. We stated that the public trust rights had never been divorced from “fishing,” “fowling,” and “navigation,” but also that these uses had been given a “sympathetically generous” and broad construction in Maine’s common law. Id. at 173.
[¶47] Writing for the three-member dissent, then-justice Wathen concluded that a reasonable interpretation of the public rights in intertidal zones extends beyond “fishing,” “fowling,” and “navigation” and includes “other recreational uses [that] have developed and received public acceptance.”
[¶ 48] Accepting Bell II’s description of the public’s rights in the intertidal zone as excluding a general recreational easement, see
[¶49] To undertake our analysis, we ask two questions. First, does the intended activity fall readily within the Bell II categories of “fishing,” “fowling,” or “navigation”? If so, there is no need to continue further. If not, it is necessary to determine whether the common law should be understood to include that activity — here specifically the right of passage over the intertidal sand to reach the water to scuba dive.
[¶ 50] Beginning with the first question, although our colleagues in concurrence have concluded that some forms of non-boat-related propulsion through the water, including scuba diving, can be found to constitute a form of “navigation,” we conclude that such an analysis requires stretching the definition of navigation beyond its meaning. Instead, we will determine whether Bird’s purpose for crossing the intertidal zone is among the purposes consistent with the common law of the jus publicum, even when such access is for activities that do not strictly fall within the triumvirate of descriptors. Cf. Bell II, 557 A.2d at 173.
[¶ 51] Moving then to the second question, we conclude that, although not expressly stated in any one opinion, our common law has regularly accommodated the public’s right to cross the intertidal land to reach the ocean for ocean-based activities. The list of uses that have been accepted within the common law, but which do not fall strictly within the definitions of “fishing,” “fowling,” and “navigation,” is significant. See supra ¶¶ 38-40. As we have held, the public may engage in activities that are not directly related to the three descriptors. See, e.g., Marshall,
[¶52] We must also acknowledge, as the concurrence notes, that our language in Bell II appears to set in stone the three talismanic activities to which the walk to the ocean must be tied: “fishing,” “fowling,” and “navigation.” See 557 A.2d at 173. Resigned to those categories in light of principles of stare decisis, the concurrence has found a way to define “navigation” generously, as including scuba diving.
[¶ 53] Rather than stretching the definitions of these three terms beyond then-reasonable limits, however, we return to the roots of the common law. Ultimately, the public trust rights in the intertidal zone are not, and have never been, strictly enumerated rights. To the extent that Bell II can be read to forever set the public’s rights in stone as related to only “fishing,” “fowling,” and “navigation,” we would expressly disavow that interpreta
[¶ 54] We must also respectfully disagree "with the concurring opinion’s conclusion that courts must strictly adhere to principles of stare decisis when addressing the development of the common law. “[T]he common law gives expression to the changing customs and sentiments of the people,” State v. Bradbury,
[¶55] As is clear from the history of our cases, long before Bell II was decided, the public’s use of the intertidal zone was not so severely limited that only a person with a fishing rod, a gun, or a boat could walk upon that land. Indeed, a careful reading of Bell II demonstrates that limiting the public trust rights narrowly to precisely the three uses specifically referenced in the Colonial Ordinance would conflict with our acknowledgement in Bell II of the need for a “sympathetically generous” assessment of those very rights.
[¶ 56] In short, our judicial unease with a rigid interpretation of the public trust rights urges clarification of the Bell II holding’s scope. See Shaw,
[¶ 57] In the end, to the parties before us, it does not matter whether the public’s rights to cross the intertidal land to reach the ocean to scuba dive is a matter of general common law, or is liberally classified as a form of “navigation.” In either event, all six justices conclude that it is an
III. CONCLUSION
[¶ 58] Although Maine has a rich history of private ownership of intertidal lands, that ownership has always been subject to the public’s right to cross the wet sand to reach the ocean. As Sir Matthew Hale originally described the public’s rights to this important land, “the people have a publick interest, a jus 'publicum,, of passage and repassage with their goods by water, and must not be obstructed by nuisances or impeached by exactions.” Hale, De Jure Maris at 36. In our view, pursuant to the common law of Maine, the public trust rights are at least broad enough to allow the public to walk across the intertidal lands to enter the water and scuba dive.
Notes
. Much of the scuba diving activity is centered on photographing fish and other' sea life.
. See Bell v. Town of Wells (Bell II),
. See Lapish,
. See, e.g., Andrews v. King,
.The author of this concurrence acknowledges the inconsistency of this incremental jurisprudential approach with the more direct approach urged unsuccessfully on the Court eleven years ago in the concurrence in Eaton v. Town of Wells,
. We review the grant of a summary judgment de novo to determine whether Bird was entitled to a judgment as a matter of law. See M.R. Civ. P. 56(c); Beal v. Allstate Ins. Co.,
. See, e.g., 12 M.R.S. § 6431(1) (2010), amended by P.L.2011, ch. 266, § A-9 (effective Sept. 28, 2011) (establishing minimum and maximum length for buying, selling, giving away, transporting, shipping, or possessing lobsters); 12 M.R.S. § 13068-A(4)(A)(3) (2010) (requiring the public to wear proper safety equipment while canoeing or kayaking between January 1st and June 1st).
. This is trae unless the intertidal lands have been separated by deed from ownership of the adjacent upland. See, e.g., Flaherty v. Muther,
. But see Sir Matthew Hale, A TREATISE, IN THREE PARTS. PARS PRIMA: De Jure Maris et Brachiorum ejusdem. From a Manuscript of Lord Chief-Justice Hale 13, 35 (Francis Hargrave, ed., 1st ed. 1787), suggesting that private ownership, subject to a public right of access, existed long before the colonial ordinances were enacted.
. The Colonial Ordinance traces its genesis to the "Body of Liberties,” which was adopted by the Massachusetts Bay Colony’s General Court in 1641 and later expanded. John J. Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine xxxii, xxxv-xxxvii (1932); see Bell v. Town of Wells (Bell I),
Everie Inhabitant who is an hous-holder shall have free fishing and fowling, in any great Ponds, Bayes, Coves and Rivers so far as the Sea ebs and flows, within the precincts of the town where they dwell, unles the Free-men of the same town, or the General Court have otherwise appropriated them. Provided that no town shall appropriate to any particular person or persons, any great Pond conteining more then ten acres of land: and that no man shall come upon anothers proprietie without their leave otherwise then as hereafter expressed; the which clearly to determin, it is declared that in all creeks, coves and other places, about and upon salt water where the Sea ebs and flows, the Proprietor of the land adjoyning shall have proprietie to the low water mark where the Sea doth not ebb above a hundred rods, and not more wheresoever it ebs farther. Provided that such Proprietor shall not by this libertie have power to stop or hinder the passage of boats or other vessels in, or through any sea creeks, or coves to other mens houses or lands.
Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine at xxxvi-xxxvii; The Book of the General Lauus
. Article X, section 5 of the Maine Constitution reproduces and adopts the Massachusetts Act of Separation. Although section 5 "shall hereafter be omitted in any printed copies [of the Constitution] prefixed to the laws of the State,” it retains full force. Me. Const. art. X, § 7; see also 1 Laws of Maine 1821 at 45-50 (printing the text of article X, section 5).
. In Massachusetts, the public also may use the intertidal lands to swim, but not to bathe. See Butler v. Attorney General,
. In the dissent’s view, the majority’s approach to intertidal property ownership was "premised upon the erroneous assumption that the Colonial Ordinance is the exclusive and preeminent source of all public rights.” Bell II, 557 A.2d at 180 (Wathen, J., dissenting).
. Eleven years later, we addressed a beachfront property dispute that involved a portion of the beach in the Town of Wells that historically was used by the public without the permission of the upland shore owners. Eaton v. Town of Wells,
. The Bell II court found as "persuasive precedent” two Massachusetts cases: Butler,
Concurrence Opinion
with whom ALEXANDER and GORMAN, JJ., join.
[¶ 59] The public’s common law right to use Maine’s intertidal lands has historically been defined using the terms “fishing, fowling, and navigation.” See Bell v. Town of Wells (Bell II),
A. The Public’s Common Law Right to Use the Intertidal Land is Limited to Fishing, Fowling, and Navigation
[¶ 60] In Bell II, the Court’s majority surveyed more than one and one-half centuries of Maine decisions regarding the public’s right to use the intertidal land and concluded that the public has no common law right to engage in general recreation.
[¶ 61] Bell II did not treat the terms fishing, fowling, and navigation as shorthand or code for broader public trust rights untethered to these three enumerated uses. The Bell II majority opinion explained:
We have held that the public may fish, fowl, or navigate on the privately owned*637 land for pleasure as well as for business or sustenance, Barrows v. McDermott, 73 Me. [441, 449 (1882) ]; and we have in other ways given a sympathetically generous interpretation to what is encompassed within the terms “fishing,” “fowling,” and “navigation,” or reasonably incidental or related thereto. For example, the operator of a power boat for hire may pick up and land his passengers on the intertidal land, Andrews v. King,124 Me. 361 ,129 A. 298 (1925); and “navigation” also includes the right to travel over frozen waters, French v. Camp,18 Me. 433 (1841), to moor vessels and discharge and take on cargo on intertidal land, State v. Wilson, 42 Me. [9, 24 (1856) ]; and, after landing, “to pass freely to the lands and houses of others besides the owners of the flats,” Deering v. Proprietors of Long Wharf,25 Me. 51 , 65 (1845). Similarly, we have broadly construed “fishing” to include digging for worms, State v. Lemar,147 Me. 405 ,87 A.2d 886 (1952), clams, State v. Leavitt,105 Me. 76 ,72 A. 875 (1909), and shellfish, Moulton v. Libbey,37 Me. 472 (1854). We have never, however, decided a question of the scope of the intertidal public easement except by referring to the three specific public uses reserved in the Ordinance. The terms “fishing,” “fowling,” and “navigation,” liberally interpreted, delimit the public’s right to use this privately owned land.
[¶ 62] To “delimit” means “to fix or determine the limits of.” Webster’s Third New International Dictionary 597 (2002). It is true that we have historically applied what the concurrence alternately describes as an “expansive,” “liberal,” “broad,” and “sympathetically generous” approach to the public’s right to use intertidal lands. Saufley Concurring Opinion ¶¶ 37, 39, 40, 41, 57. With that approach, we have, over time, greatly expanded the scope of the “public” that benefits from the right to fish, fowl, and navigate, and we have construed those terms far beyond their traditional meanings. We have never understood fishing, fowling, and navigation to merely establish a context for some broader right or rights. By asserting that fishing, fowling, and navigation do not “wholly or exclusively define the public trust rights,” Saufley Concurring Opinion ¶ 56, the concurrence proposes a holding that would fundamentally alter, rather than merely expand, Maine’s existing common law.
B. Stare Decisis
[¶ 63] The doctrine of stare decisis “is the historic policy of our courts to stand by precedent and not to disturb a settled point of law.” Myrick v. James,
[¶ 64] Society’s interest in being able to rely on established precedent is at its apex with regard to judicial precedents that ex-posit property rights. See Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co.,
[¶ 65] In Bell v. Town of Wells (Bell I), we noted the importance of stare decisis and “the stability of the legal concepts of property in the State,” and in connection with our common law’s adherence to the principles of the Colonial Ordinance, we quoted the decision of the Massachusetts Supreme Judicial Court in Barker v. Bates,
[I]t would be extremely injurious to the stability of titles, and to the peace and interests of the community, to have [private ownership of intertidal land] seriously drawn in question. It is founded upon a usage and practice so ancient, immemorial and unvarying, that without tracing its precise origin, it must now be deemed a rule of common law proved by such usage.
Bell I,
[¶ 66] Because Maine’s roughly 3500 miles of ocean coastline
[¶ 67] The standard ultimately proposed by the concurrence — that the Court will henceforth “strike a reasonable balance between private ownership of the intertidal lands and the public’s use of those lands” — would be bounded only by what a majority of the Court determines to be reasonable at any given time. Saufley Concurring Opinion ¶ 57. With this new approach, the jurisprudential anchor provided by the terms fishing, fowling, and navigation would be lifted, and with it, the guidance and stability that those terms have brought to property rights would be lost. We should remain true to the doctrine of stare decisis and not effectively overrule our decision in Bell II.
C. The Common Law Approach
[¶ 68] In Bell II, we acknowledged, consistent with our long-standing approach
[¶ 69] A sympathetically generous and broad interpretation of the public’s rights is not, however, without limits. See McFadden v. Haynes & DeWitt Ice Co.,
[¶ 70] Since our earliest decisions concerning ownership and use of intertidal lands, we have adhered to our common law approach centered on the three enumerated public uses. See, e.g., Bell II,
The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise; and the law has expansive and adaptive force enough to respond to the demands thus made of it; not by subverting, but by forming new combinations and making new applications out of, its already established principles, — the result produced being only “the new corn that cometh out of the old fields.”
[¶ 71] In short, we should apply, as have the generations of Maine jurists that have preceded us, a sympathetically generous and broad interpretive approach when construing the uses arising from the public trust rights in Maine’s intertidal lands, but we should do so without deviating from the core requirement that the uses are delimited by the terms fishing, fowling, and navigation as these terms have and will continue to evolve.
D. Whether Scuba Diving is a Form of “Navigation”
[¶ 72] Framed in terms of Maine’s established common law, the question this case ultimately presents is whether, as the Superior Court determined, scuba diving is an activity within the ambit of the enumerated public right of navigation. McGarvey and Kleintop assert that navigation requires the use of a boat or vessel,' the traditionally identified instruments used to navigate through the water. They also argue that scuba diving involves underwater swimming, and because “bathing” was a facet of the general recreational activity that we considered and rejected in Bell II, our decision in Bell II should control. See Bell II,
[¶ 73] The majority in Bell II explicitly relied on Butler, a 1907 Massachusetts decision, to support the proposition that bathing, an aspect of the asserted right of general recreation, is not within the public’s right to use intertidal lands. See Bell II, 557 A.2d at 175 (citing Butler,
In the seashore the entire property, under the colonial ordinance, is in the individual, subject to the public rights. Among these is, of course, the right of navigation, with such incidental rights as pertain thereto. We think that there is a right to swim or float in or upon public waters as well as to . sail upon them. But we do not think that this includes a right to use for bathing purposes, as these words are commonly understood, [the intertidal areas] of the beach or shore ... whether covered with water or not. It is plain, we think, that under the law of Massachusetts there is no reservation or recognition of bathing on the beach as a separate right of property in individuals or the public under the colonial ordinance.
[¶ 74] Butler thus distinguished bathing from swimming. See also Bell II,
[¶ 75] By the functional definition relied on in Butler, scuba diving is not bathing because it primarily involves “passing freely over and through the water without any use of the land underneath.” See Butler,
[¶ 76] Modern scuba diving did not exist when Butler was decided in 1907, or when we last interpreted “navigation” in Andrews in 1925. Certainly, it did not exist at the time of the Colonial Ordinance. It is of little moment whether the colonists could have foreseen that there would come a day when it was possible for persons to “pass[] freely over and through the water without any use of the land underneath” without the use of a boat or vessel. See Butler,
E. Conclusion
[¶ 78] Because this case implicates long-established property rights, we should remain true to the common law and apply it so as to account for “the ever varying circumstances of new cases presented and ... the newly developed industries of the age [while not] setting aside its plain doctrines because they are not in accord with our own views of what it should be.” Barrows,
The entry is:
Judgment affirmed.
. See Nat'l Oceanic & Atmospheric Admin., Ocean and Coastal Management in Maine, http://coastalmanagement.noaa.gov/mystate/ me.html (last visited August 22, 2011).
. Bell II was decided in 1989, and it remains binding precedent that provides a clear and reasoned explanation of the public and private rights inherent in the intertidal zone under Maine's common law. In the ensuing years, we have not reexamined Bell II or questioned its vitality other than in a concurring opinion by one Justice in Eaton v. Town of Wells,
. The National Oceanic and Atmospheric Administration is a civil federal agency that employs many divers; although the NOAA Diving Manual is directed toward NOAA, it provides general guidance for a broad range of dive situations, including recreational diving. D. James Baker, Foreword to NOAA Diving Manual: Diving for Science and Technology vii (James T. Joiner, ed. 4th ed.2001). The website of the Professional Association of Diving Instructors provides a list of basic scuba equipment that is comparable to that of the NOAA Diving Manual. See Introduction to Scuba Equipment, padi.com, http://www.padi. com/scuba/scuba-gear/intro-to-scuba-dive-equipment/default.aspx (last visited August 22, 2011).
. Some divers have replaced watches, depth gauges, and decompression tables with dive computers. NOAA Diving Manual at 5-42. Dive computers are electronic devices that monitor a diver’s depth and time underwater to calculate decompression obligations. Id.