A recent letter to the editor in The Quoddy Tides by a former Eastporter who had grown up on the island city spoke to the need for clarity on who owns the intertidal zones around the island, even where there is public access. Looking back at her childhood experiences, she wrote, "From childhood, I walked these beaches with my parents, never having issues to get to the beaches." However, since those days of easy access and unchallenged enjoyment she notes, "A lot of the houses aren't even occupied year round yet have signs, ropes and barricades and unfortunately, as I encountered, very rude and unkind people." She asked that the issue be looked into. "Our city offers so much and is so unique. Please don't allow it to be changed."
      The City of Eastport does have 11 public access points to Passamaquoddy and Cobscook bays, most of which include the intertidal zone. They are: the eastern end of Clark Street, Warren Street next to the former Wass factory, Custom Street with its gravel boat launch, the Eastport Port Authority owned breakwater and its concrete boat launch, Cony Park, Shackford Head State Park, a small parking and turnaround spot on Deep Cove Road at the site of the old MacNichol wharf, the Drummond Road Park, which is the former tenting area, the Welcome to Eastport turnout at Carrying Place Cove, the end of Toll Bridge Road, and a state turnout and picnic area just southwest of Carlow Island on Half Moon Cove.
      In addition, Matthews Island and Treat's Island offer public access either at low tide or by boat. Both properties are owned by Maine Coast Heritage Trust. Not all shoreland communities have as many public access points owned directly by the municipality as the City of Eastport, especially given its small land mass.
      The Clark Street access provides an example of how early colonial law shaped the use of the intertidal zone. The deed to the road, when accepted by the city in 1821, states that it begins "on the low-water mark on the beach near Clark's smokehouse to the county road." It's a picture into the past when much of the island's perimeter was built out in docks, wharves, warehouses and factories to support the industries of its earlier days. However, just because someone can clamber around the intertidal zone of Clark Street does not mean that they can wander onto adjoining intertidal properties owned by others.

Early colonial laws at root of property designation
      Because of colonial laws in Massachusetts based on English common law, which was in turn based on Roman law, Maine's intertidal zone, from the mean low tide to the mean high tide, is generally held in private ownership and not accessible to the public other than for the uses of "fishing, fowling and navigation." Maine is one of just six states where most coastal upland owners retain property rights out to the mean low tide line. Most other coastal states own the intertidal zone for the public under the public trust doctrine.
      David Slade, an attorney in Maine, wrote about the topic in a 2007 whitepaper for the Maine Seaweed Council. He explains that the "English Crown held title to all the navigable waters, and the lands beneath those waters, and all living resources within. The Crown, however, did not own these resources outright, but rather held them for the benefit of all English subjects. The English common law viewed shorelands as useless for cultivation or other improvements and considered their natural and primary uses - navigation, commerce and fishing - to be public in nature."
      However, over in the colonies a problem arose. Access to the water was necessary for much of the transportation of goods and services. Building docks, wharves and warehouses out into the water was subject to the Crown's approval, meaning the colonial government, which was in no position to be spending money on the building of transportation infrastructure. It was time for an ordinance change. Ownership of the intertidal zone was moved over to the private land owner, with the view that the private sector was in a better position to build infrastructure "to encourage commerce."

Interpretations of fishing, fowling and navigating
      The intertidal zone and the uses of fishing, fowling and navigating have gone through the Maine courts at different times in order for landowners and industries to gain clarity on what the three categories actually mean in modern times. A court case that originated in Eastport now considers scuba diving a type of navigation that allows for the use of the intertidal zone. However, seaweed in the intertidal zone is considered by the courts to belong to the upland owner and cannot be harvested without their permission, including by boat, because the harvest of rockweed is not considered by the courts to be an act of fishing.
      On its webpage devoted to coastal erosion and property concerns in Maine, the law firm Perkins Thompson notes, "In the 19th century, the public's easement rights to 'fish, fowl and navigate' over the intertidal zone under the 1640's colonial ordinance was interpreted by the Maine courts to include a right to travel on the shore by horse and to drive cattle. As roads were constructed and the public switched to motor vehicle travel, however, the courts reinterpreted the public's easement to exclude travel by horse (or motor vehicle). Likewise, the public's early right to drive cattle in the intertidal zone, when it was a necessity, was later reinterpreted to exclude such use."
      The future impact of climate change on coastal land, with the possibility of property lines of upland and intertidal zones shifting or eroding, may require the courts to look at the colonial law once again. Federal regulations placed on federal funding to restore beaches with sand require public parking and access, and to build new beaches on submerged lands with federal funds requires public access be maintained until or when the land is submerged again. Perkins Thompson's webpage considers the nature of easement language. "When unforeseen circumstances affect an easement area or its use, as with climate change sea rise, the property owner's and easement holder's correlative rights are to be reasonably balanced. In applying the reasonableness standard to changing external circumstances, the Maine courts may, in effect, modify the scope of an easement. The Maine courts will often reinterpret the scope of easements in light of changing external circumstances, both to broaden and to narrow the scope of use."
      The intertidal zone is considered taxable real estate. Sharon Huntley, director of communications, Department of Administrative and Financial Services of the Maine Revenue Service, notes that while Maine tax law does not specifically outline the intertidal zone as a taxable real estate, "It comes under the general rule ... that all real estate within the state is subject to property tax, unless some exemption applies." She adds, "When it comes to beaches, the land below the low water mark is owned by the state and is therefore exempt from tax."
      Eastport, with its over 200 years of rich commercial and industrial working waterfront, has been careful to document and hold on to its public access points as best it can. Former Code Enforcement Officer Carl Young says that the city and its residents need "to have the long view about access." While Eastport's working waterfront is mostly limited to the breakwater, the fish pier and the port terminal at Estes Head, he notes that maintaining the ability for the public to use the access points to launch recreational boats, to sit and enjoy the bay with a picnic and for future uses as yet unknown remains a priority. He mentions the difficulties that Deer Isle and Stonington have had with the issue. In 2020 Deer Isle had only two public access points and nearby Stonington had just three.
      The Maine Sea Grant College Program and others have created an online guide to the ins and outs of shoreland access, including how to reach beach use agreements. It states, "Where private owners of coastal property are opposed to, or wary of, public use, tensions may flare. But thoughtful discussions between private owners and public stakeholders may lead to constructive agreements that allow some public use while protecting the interests of the property owners."
      For more information visit www.accessingthemainecoast.com.