The Maine Supreme court has upheld a ruling of the lower court granting rights to scuba divers to cross the intertidal zone even if it is privately owned. This decision is being hailed as one more swipe at the Moody Beach case of 1989 that strictly limited the public rights in the intertidal zones as originally set out in the Colonial Ordinance of 1647.
Many of Maine’s coastal property owners hold deeds that include the beaches to low water. The public’s right to cross these intertidal zones is limited by the 350-year-old ordinance to fishing, fowling or navigation. A number of cases before the courts since 1989 have tried to expand on that definition.
McGarvey v. Whittredge was argued November 10, 2010 and decided on August 25 this year. The six judges (one recused himself because he was a coastal land owner) agreed in the “right of the public to walk across intertidal lands to reach the ocean for the purposes of scuba diving” but were divided in their reasons. Three justices agreed that scuba diving was a form of navigation and three concluded “our common law has regularly accommodated the public’s right to cross the intertidal land to reach the ocean for ocean based activities.”
John Foster, attorney for the plaintiff, said, “it is very unusual for six to agree to an outcome but not agree to the reason.” He added, “Without a majority opinion you can not cite this as a precedent.”
Adam Steinman, who filed a friend-of-the-court brief in the case representing the Surfrider Foundation, said of the victory, “You can read a little more into it. The public right is being expanded.” He then offered that, “The bright-line test for navigation will be when we look at the “Peaks to Portland” swim and see it as navigation.”
Although Steve Whittredge and Willam McGarvey Jr are named in this case, the dispute was actually between Jonathan Bird and McGarvey’s late mother, Mary Jo Kleintop.
The Eastport property purchased by Bird (originally with Whittredge) in 1996 includes a small parcel across the street that leads down to the water’s edge at high tide. Bird is a professional scuba diver, underwater cinematographer and producer of Jonathan Bird’s Blue World, winner of several Emmy awards. In fact, one of the stars of his season two episode shot off Eastport is a monstrous wolf fish named Gene that lives in the waters right in front of his property. About six times a year, he dives from this beach.
Mary Jo Kleintop owned the property next door that includes the intertidal zone passing between Bird’s piece and the water. Although she made it clear from his first visits to the property that she owned the intertidal zone, Bird continued to use this patch of rocky shore to cross with his gear. On many occasions he had other divers with him.
“I think that I inherited a neighborly feud,” said Bird recently referring to the harsh words that were exchanged between him and Kleintop from the first meetings. “She made it clear that she did not like me, but what I did not realize was that for years and years my diving was making her angry.”
Kleintop’s family has owned the shore-front property of a former fish factory for decades, where she maintained an exceptional coastal garden that was enjoyed and photographed by many. She died last year, so her son William (Skip) McGarvey, who owned the property with her, spoke on her behalf, “my mother found Bird and his friends to be rowdy and rude and she did not want them to be on her land. They were disrespectful of her and even called in the police.”
Bird admits to being “young and obnoxious then” and said that they both had called the police in on each other. Bird mentioned that, at one point, the Eastport tax assessor Carl Young sent a letter to Kleintop expressing an opinion that Bird should have a right to cross the beach. “She was very stubborn.”
Once the suit against Bird was filed by Kleintop and McGarvey in 2008 for trespassing, the required mediation did not succeed. “All she wanted was an apology,” said McGarvey. “She wanted me to admit that I needed permission,” said Bird.
In early 2010 Superior Court Justice, Kevin Cuddy found scuba diving to be an acceptable form of navigation. According to Foster, Kleintop, before her death, requested that the decision be appealed. She did not live to see that decision upheld.
Bird does not see himself as “someone who is trying to free the beaches.” “I see both sides of the issue,” he says, referring to public and private property rights. He just hopes “that we can bury the hatchet and come to a truce.”
Coverage of Washington County is made possible by a grant from the Eaton Foundation.
Leslie Bowman is a freelance writer and photographer living in Trescott.