Maine's Beaches are Public Property
In nearly 35 years of research and writing on the ownership of, and public rights in/on, Maine’s intertidal lands, Delogu's focus has been on cases, laws and legal principles affecting Maine’s intertidal land law. The premise of this volume is that the Bell cases, insofar as they define ownership of and public rights on intertidal lands, were wrongly decided.
This volume, after exploring many of the errors in the Bell cases, urges Maine’s highest court (or the U.S. Supreme Court) to reexamine the rationale and holding of both Bell cases. Judicial errors, whether of short- or long-standing, can and should be corrected. Delogu firmly believes that a reexamination of the errors and the issues ignored by the Bell courts will lead a reexamining court to conclude that title to intertidal lands in Maine is held by the state in trust for the public, except for small areas addressed in an amendment to Maine’s Submerged Lands Act—areas actually filled at some time in the past pursuant to commercial “wharfing out” needs.
No one chapter ineluctably leads to the conclusion that Maine holds title to its intertidal lands, but taken together they make a compelling argument that this is in fact the case. Each chapter has an extensive set of endnotes (worth reading as one moves through the volume) that complement and support arguments made in the text—all with an eye to prompting Maine’s highest court (or the U.S. Supreme Court) to reexamine and ultimately overturn the Bell cases. This will reestablish in Maine widely shared principles of law—intertidal lands (with limited exceptions) are incapable of private ownership—title to these lands is held by the state in trust for the public, part of the jus publicum.
Published 2017. ISBN: 978-0-9989798-9-2
Orlando E. Delogu received a BS in Economics from the University of Utah as well as an MS degree in Economics and a JD degree from the University of Wisconsin. During these years he worked for the State of Wisconsin’s Department of Natural Resources; his primary interests were environmental law and urban land use problems.
He and his family came to Maine in 1966 where Orlando joined the University of Maine School of Law faculty. He has been associated with the School for 51 years, 40 as a full-time member of the faculty; 11 as Emeritus Professor of Law.
Beyond his academic responsibilities, Professor Delogu helped found the Maine Civil Liberties Union; served two years on the ACLU’s national board, and two years as MCLU’s 2nd President. He instrumental in hiring the first Executive Director and opening the first MCLU office.
He served on the State Board of Environmental Protection for five years; was elected to the Portland City Council; and served another five years on the Portland Planning Board.
Professor Delogu also has published more than 300 op-eds in the Maine Times, Casco Bay Weekly, Maine Lawyers Review, Press Herald, Forecaster, West End News offering suggestions and critical comment on environmental, land use, and governmental issues of the day.
Going back 35 years he has worked with others in the submission of four Law Court amicus briefs on intertidal land issues and has independently published five major articles addressing aspects of these issues. This background prompted the writing of this volume summarizing Professor Delogu’s confirmed view that Maine’s present intertidal land law is incorrectly decided. He plans to spend the next year speaking and urging that it be corrected.
Richard E. Barringer, Ph.D. (MIT); Emeritus Professor, Muskie School of Public Service, University of Southern Maine; former Commissioner, Maine Department of Conservation, and former Director, Maine State Planning Office
Here, a distinguished scholar of land use law and ceaseless advocate for the common good makes the case that Maine’s Law Court has failed utterly to protect the public’s right to full use of Maine’s thousands of miles of intertidal lands. Orlando Delogu makes a complete and compelling case, well and thoughtfully argued. It will interest anyone who travels, lives, or works along the coast; who wishes to see our courts better protect public rights; or who simply wishes to enjoy the splendid beauty of Maine.
Edgar A. Beem, BA (USM); MS (Simmons College); Journalist and Newspaper Columnist
For generations, the understanding and practice along the Maine Coast was that the intertidal zone was in the public domain, as it is in most states. Mainers were shocked, therefore, when the Maine Supreme Judicial Court ruled in 1989 that the only rights they had in the intertidal zone were for “fishing, fowling and navigation.” In “Maine’s Beaches are Public Property” Emeritus Professor of Law Orlando Delogu argues powerfully and persuasively that the Law Court got it wrong and that their decision needs to be reviewed in the public interest. I wholeheartedly concur.
Edwin A. Churchill, Ph.D. (University of Maine, Orono); Expert Witness, Specialist in the history of Maine’s early settlement
The Maine Law Court’s controversial decisions in the late 1980s to privatize Maine intertidal lands after 300 plus years of public use was instantly controversial. Subsequent legal and historical research has revealed much that the court overlooked, ignored, brushed aside or misconstrued in its ruling. Professor Delogu’s book systematically identifies and thoroughly examines the many shortcomings in the court’s deeply flawed decisions. In fact, he indisputably demonstrates that Maine’s beaches have always been open to a broad range of public uses. Well researched and carefully argued, this book is, by far, the single best legal treatise on the subject.
Martha Freeman, Esq., BA (Hampshire College); MS (USM); JD (University of Maine School of Law); former Director, Maine State Planning Office and former Director, Maine Legislature’s Office of Policy and Legal Analysis
In a lifetime of scholarship and public service, Professor Orlando Delogu has done nothing more important than present the case contained in “Maine’s Beaches are Public Property.” For litigants, lawyers, legislators, judges, and state and town officials concerned with questions of intertidal zone ownership in Maine, this book is vital reading. But its greatest gift is to all Maine people who love our coastline. No one should live in exile from the Maine shore. Professor Delogu argues masterfully and persuasively that the historical and legal records are on the public’s side.
Peggy L. McGehee, Esq., BA (Wellesley); MPA (Princeton); JD (Georgetown/ University of Maine School of Law); expertise in land use law with Perkins Thompson law firm since 1980; Co-Author, Maine Civil Remedies (4th ed.)
Professor Delogu’s book is a thorough and laser-clear legal history of the public’s right to use Maine’s beaches. It is also a playbook for both litigants and the Law Court in any future public rights beach case; it persuasively argues for the reversal of the Bell I and II decisions to restore the original pre-Bell rights in the public to use Maine’s intertidal lands for any and all purposes delineated by the Legislature.
Charles H. Norchi, BA (Harvard); J.S.D. (Yale); Professor of Law, University of Maine School of Law; Director, Center for Oceans & Coastal Law
I write in strong support of an important book authored by Professor Orlando Delogu, “Maine’s Beaches Are Public Property: The Bell Cases Must Be Reexamined.”As Center Director at the Law School I follow Maine and global coastal issues closely. Professor Delogu’s manuscript is a clarion call for a more equitable balance of public and private uses of Maine’s intertidal lands that only a reexamination of the Bell cases can achieve. This book, though focused on Maine, will earn a wide audience among coastal states in the United States and abroad where citizens seek to accommodate similarly competing demands.
Lee Schepps, Esq., B.S. (Union College, N.Y.); LLB (Southern Methodist University); former Staff Attorney, Maine A.G.’s Office; Co-counsel in Maine’s Public Lots Cases
Orlando Delogu has a long and distinguished career in environmental law and, especially, in matters relating to land use. This book touches directly on a subject of great importance to all those who value and enjoy the coast of Maine. Reconsideration of precedent is never an easy task. This carefully researched, well-argued book makes a compelling case to do so, and deserves wide readership.
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