Drawing Lines In The Disappearing Sand: A Re-Evaluation Of Shoreline Rights And Regimes A Quarter Century After Bell v. Town Of Wells

Humankind has long tried in vain to exert its will over natural phenomena that remain beyond its control. There are countless forces of nature that persistently and consistently foil these attempts, but few are as bedeviling as those of the sea. While it is now virtually undisputed that the collective conduct of humankind in recent decades has had a significant impact on the oceans, only a fool would be so bold as to claim any sort of dominion over them. And yet, at the seashore, society’s affinity for drawing lines, building fences, conveying titles, and generally imposing legal regimes continues to run up against the prevailing powers of the sea. As a result, countless legal riddles arise at the water’s edge, where over 50 percent of the American population now lives, where many make their living and derive their sustenance, and where still more flock for days of frolic. The attempted solutions to these riddles are as various and numerous as the issues and, more often than not, courts, legislatures, agencies, and municipalities at multiple levels throw a combination of doctrines, statutes, regulations, and ordinances at any given dispute. But the seas, storms, and sands have yet to yield to even these weighty efforts to impose order. Over twenty years ago, the Maine Supreme Judicial Court (locally known as the Law Court) disregarded the realities recognized in the overwhelming majority of states and reasserted one of the more antiquated legal rationales on the books to circumscribe a starkly limited public trust in the foreshore. In so holding, the Law Court also struck down the state legislature’s declaration of a more expansive public trust and granted preeminence to the claims of private beachfront landowners. In the years following what are now commonly known as the Moody Beach Cases, commentators upset by both the outcome and the reasoning, which was largely grounded in a colonial ordinance over 300 years old, have flooded the pages of this journal and others with critique. Just over ten years ago, in Eaton v. Town of Wells, a case that bore both geographical and legal resemblance to the questions presented in the Moody Beach Cases, Justice Saufley, now the Chief Justice of the Law Court, called for their overturn. Thus far, however, none of these arguments has crested the judicial seawall, and the legislature has not returned directly to such turbulent waters since. Meanwhile, those two decades have also brought substantial changes in both the seascape and the legal landscape that call for yet another reassessment of how best to confront those issues that arise along with tides, wind, waves, and storm surge. Part I of this Comment will explore the history and development of both civil and common law frameworks of rights and privileges at the coastline. In Part II, this Comment will outline the situation that gave rise to the controversial decision of the Law Court, the arguments of the majority of the court, the ensuing dissent and critique, and an independent analysis. With this foundation laid, the third and fourth parts of this Comment will examine recent trends and developments that call for a more effective approach to the shoreline realities unacknowledged by the majority of the Law Court in 1989. In Part III, this Comment will explore four recent case studies in which these legal frameworks were applied very differently in other American jurisdictions than in Maine. Part IV will document the increasing challenges of climate change and the futility of coastal engineering. Finally, this Comment will synthesize the implications of these factors and propose that these previously unknown or overlooked scientific, theoretical, and legal grounds call more loudly than ever for a more sustainable legal approach at the sea’s dynamic edge.

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