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Abstract

At common law the public rights to navigation and fishing could not be alienated by the King. Dry land and the land beneath the sea could be alienated but only so long as the public rights to navigation and fishing were preserved. This common law doctrine was rejected in 1842 by the United States Supreme Court as binding precedent for limiting the alienation of the public domain by the legislatures of the various states. In Martin v. Wadell the Court reasoned that this common law principle was not applicable because the people of the United States through their act of revolution and reassemblage had abrogated the common law, and had delegated to the state legislatures full power to deal with the public domain. Subsequently, the courts of Maine and Massachusetts held in accord with Wadell, and further determined that the grant of exclusive fishing rights to private parties could be considered an exercise of the delegated power for the benefit of the public, and not necessarily a violation of the public trust. The courts of the several states have adhered to a presumption that the legislatures would grant exclusive rights only upon the grounds that the interest of the public would thereby be promoted. For all practical purposes, therefore, the legislatures of the several states have broad discretion when dealing with the public domain. On numerous occasions when the Maine Legislature has been faced with a public need, economic or otherwise, it has responded by exercising this broad power over the public domain. Faced with this history, the 103rd Legislature was presented with a proposal to permit the granting of exclusive lease rights for the harvesting of Irish moss in return for payment to the State of rents on the submerged lands and royalties on the harvests reaped therefrom. Public hearings were held and the proposal submitted was vigorously opposed. The problems associated with this legislative attempt to deal with the State's marine resources are twofold. First, the legislation is a shallow response to the demands of the Irish moss-using industry for the leasing of significant areas of the ocean floor to permit the economic development of the Irish moss element of the State's marine resources. Its shallowness is reflected by the Legislature's lack of consideration of the interests of both the State and the industrial moss harvesters concerning a very narrow aspect in the development of the total marine resource which the Legislature was asked to consider. Second, this approach represents an attempt to deal fragmentarily with the marine resources of the State. It is an inadequate answer to a general problem which at some time the Legislature must face. When the Legislature proceeds to enact legislation expressing a policy and affecting strong economic interests concerning a small aspect of a large problem without balancing the interests involved, and without formulating an overall policy, the fear must arise that adequate legislative attention to the total problem may never be given. This note suggests some areas which a legislature should consider in dealing with a single element of the total marine resource, specifically Irish moss, and further suggests some considerations which are worthy of legislative attention in the development of a comprehensive program dealing with Maine's total marine resource.

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