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As interest in the potential of shellfish aquaculture increases nationwide in the next several years, conflicts over access to and use of the intertidal zone undoubtedly will increase as well. In Massachusetts and Maine these conflicts are likely to be more pronounced because of an atypical division of public and private rights and responsibilities in that zone. In contrast to most other areas of the country, where the state owns title to land between the high and low water marks, Massachusetts and Maine riparian property owners hold title in fee down to the low water mark. That grant of title, however, originally conveyed under the Colonial Ordinance of 1641-47, is subject to public rights of fishing, fowling, and navigation. As a result, clam aquaculture, which must be conducted within the intertidal zone, will test the boundaries of public rights as they are currently understood in those states. In two recent cases, the Massachusetts Supreme Judicial Court addressed the issue of private and public rights in the intertidal zone as related to clam aquaculture. In Town of Wellfleet v. Glaze, the court held that the superior court lacked the authority to enjoin a defendant littoral property owner from mooring his boats on an aquaculture site. Although the majority did not address the issue of whether aquaculture should be construed as within the public right of fishing, a concurring justice wrote: “[The right to fish cannot reasonably be construed to include the right to plant, cultivate, and propagate fish on the defendant's tidal fiats.” This pronouncement was given the force of law eight years later in Pazolt v. Director of the Division of Marine Fisheries, when the court held that aquaculture could not be conducted on the plaintiff's intertidal property without her permission. These cases raise important questions about the decision-making authority of state legislatures in Massachusetts and Maine and the role that aquaculture can play in the conservation of the clamming industry in these states. This Comment will address three topics. It will begin with a discussion of the Pazolt decision in detail, examining three problems in the analysis the court employed. It will then review the respective roles the legislatures and judiciary have played in defining public rights in the intertidal zone in both states. Finally, it will consider the potential for conflict over tidal lands in Maine and suggest a means of mitigating that concern. In the process, this Comment will argue that the legal framework pertaining to aquaculture in Maine is distinguishable from that of Massachusetts, making the holding of Pazolt inapplicable in this state.



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