Ross lawsuit overturn opinion: Eric T. Freyfogle

Opinion from Eric T. Freyfogle.

Eric is a research professor at the University of Illinois College of Law and Swanlund Chair Emeritus at the University of Illinois at Urbana-Champaign.[1] He is a well- known writer and lecturer on nature and culture, on environmental and natural resource challenges, and on private property considered as a dynamic, socially constructed institution. (wikipedia)

 I’ve just now taken time to read Ross.  It strikes me as a reasonable ruling in that it is consistent with the fundamentals of real property law and the public trust doctrine as usually applied.  Maine, like Massachusetts, is unusual (as you know) in vesting title to the foreshore in upland landowners; the rule pretty much everywhere else is that such land is owned by the state. (I’m not real familiar with all the wrinkles in the law of a few Atlantic coast states; in any event, the Rhode Island ruling (note 14 in the Ross opinion) is not really on point since property lines in RI (I believe) are at the high-tide mark.)
                The general rule of real property, of course, is that landowners own the plants growing on their lands (and all other things affixed to the land).  I don’t think rockweed is meaningfully different (ice isn’t, as I note below).  As for public rights under the public trust doctrine, they don’t, to my knowledge, in any state include the right to take a physical thing that is owned by the landowner.  Wildlife of all types (fish and worms included) are owned by the people collectively, not by the landowner, so cases allowing fishing and hunting on public trust lands do not authorize the taking of something that the landowner possesses.  (If I were writing the Ross ruling I would have made this point.)
                In my mind, the Maine legislature, if it wanted, could easily overturn this ruling and decide that the ownership of land in Maine does not include any exclusive rights to rockweed growing on the foreshore.  Such a statute would merely tinker with the elements of landownership—something legislatures and courts have done for centuries.   The rights that an owner possesses are the product of law and they change as that law changes.  Such a ruling would not amount to any sort of taking requiring compensation given that it only affects part of the private land and leaves unaffected all other economic uses of the land.  (I suppose a stronger takings argument could be made if an owner’s land only included the foreshore.)
                I gather that there is a bill pending in the legislature to overturn the Bell II ruling (as 3 justices were inclined to do).  That ruling strikes me as legally questionable, aside from the bad policy that it reflects.  I would think that Maine took title to the foreshore from the crown subject to the public’s rights to use them.  Those public rights were not—and could not reasonably have been—diminished by any colonial or royal charter.  The charters would have, at most, given to proprietors rights equal to those that the crown had in the foreshore (a type of navigable water).  Crown rights would not have included any ability to keep people from walking on the foreshore for any reason. In any case, I certainly agree with the reasoning of Sandra Guay that the expansion of public rights to engage in recreational uses of the foreshore would not amount to a taking requiring compensation.  This is, again, merely a redefinition of property rights of the kind that has taken place for generations—and many of the modifications over the centuries have had to do with public rights of access.  This case does NOT fit within the categorical taking ruling applicable to government actions that amount to a “permanent physical occupation” of private land.  That categorical takings rule only applies when an outsider is authorized to enter the land and use it while the landowner is barred from using it.  (Hence the “total” part of the test.)  Here the landowner is not being barred from using any part of his or her land, so that legal change would be assessed under the quite deferential multi-factor “Penn Central” takings test.
                I have no real sense whether, on policy grounds, it is best for private landowners to control the harvesting of rockweed on the foreshore.  I can imagine policy arguments that clash.  I’m uncertain mostly because I know nothing about the effects of such harvesting. I gather that the rockweed helps protect fish spawning and fry; hence, they benefit fish populations.  I’m reminded here of the few cases (late 19th century) involving ice harvesting on rivers.  The rulings there, like the one here, tended to favor landowners; only they could harvest the ice since it was attached to the land.  By implication, free-floating ice on rivers could presumably be taken by anyone with access to the navigable waterway.  (For various reasons landowners wouldn’t want to claim ownership of ice that had broken free and was heading downstream—perhaps to cause harm.)
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