Rockweed Goes to State Supreme Court

by Sarah Craighead Dedmon

Rockweed in the intertidal zone, Deer Isle, Maine. Rockweed is harvested from small boats at high tide. Changes to fisheries activity in Maine’s intertidal zone could have far reaching economic and social impacts.

A landmark lawsuit had its day in the Maine Supreme Court on Tuesday, Nov. 14, when oral arguments were heard in the case of Ross v. Acadian Seaplants. The case is the first in more than 100 years to address the issue of who owns Ascophyllum nodosum, or rockweed, which grows within Maine’s intertidal zone. The proceedings were held in Portland and lasted 45 minutes.

The plaintiffs are Carl Ross, Kenneth Ross and the Roque Island Gardner Homestead Corporation. Ross et al. assert that rockweed is private property and accuses Acadian Seaplants of illegally harvesting it from their land in Cobscook Bay and on Roque Island in Jonesport.

The defendant, Acadian Seaplants Ltd. of Nova Scotia, Canada, says rockweed is a resource held in Maine’s public trust, and they are legally entitled to harvest it.

The case was originally filed Dec. 11, 2015, in Machias. In March, Washington County Superior Court Justice Harold Stewart II found for the plaintiffs, Ross et al, declaring rockweed to be privately held. Acadian Seaplants appealed to the supreme court.

In most of the United States, private land ownership ends at the high water mark, but Maine is one of five states that does not own its intertidal zone. The Massachusetts Bay Colony’s Colonial Ordinance of 1641-47 says that private property extends to the mean low tide, incorporating all of the intertidal zone. However, the ordinance preserved three public rights to the intertidal zone: the rights to “fishing, fowl and navigation.”

Acadian Seaplants’ attorney Ben Leoni argued first. Leoni asked the court to declare that the public has the right to harvest rockweed from the intertidal zone “and to deny the plaintiffs unprecedented request to privatize a living marine organism found in intertidal waters.”

At the heart of his case, Leoni argued that the court should make a distinction between the laws that regulate products of the land, such as hay or trees, and products of the oceans which, he said, are “undeniably public property.” Leoni said that unlike hay or trees, which have roots, rockweed takes its nutrients from the ocean, air and sunlight.

Chief Justice Saufley questioned Leoni first. “In this case, are we looking at the distinction between plants and animals? Or the distinction between permanent versus occasionally-moving-upon-the-waters?” she said. “What is, in your mind, the line that is drawn that puts this kind of seaweed on the public side of the line?”

Leoni said that the line is drawn between living marine organisms and those washed onto the shore. “Where marine resources die or are cast upon the land so that they can contribute to an alluvial addition to land….it becomes private,” he said.

As attorney for Ross et al., Gordon Smith argued that rockweed is a plant, and as such belongs to the landowner, as would a tree, or hay.

“At the most basic level we’re asking the court to confirm that fee simple ownership of real estate includes ownership of the plants that are attached to and growing on that real estate,” said Smith. “It applies equally to the intertidal area as it does to the upland.”

Saufley asked Smith to summarize what the court would hold if Ross et al. won their case.

Smith said that the public trust doctrine is an access easement, and it does not allocate property rights. “The law that the court should look at are the background principles of property law, which for hundreds, if not thousands, of years has held that plants attached to and growing on the soil are the property of the landowner.”

Though the Maine Department of Marine Resources (DMR) is not a party to the lawsuit, the agency asked to participate in oral arguments. The court partially granted the unusual request by allowing the DMR five minutes to make their case. They balanced this concession by giving an additional five minutes to the plaintiffs’ attorney.

The DMR’s attorney, Catherine Connors, focused her arguments on a state revised statute, 1 M.R.S. § 2(2-A) which, she said, provides that “living marine resources of the sea” are the property of the state. “So if a statute applies, and it says the state owns the living resources of the sea, then the state owns those resources and it governs who can harvest them,” she said.

Thirteen organizations filed amicus briefs, almost evenly divided between the plaintiffs and the defense. “In most cases there are no amicus briefs,” said Smith. “It reflects the extent to which various stakeholders have an interest in how this case turns out.”

Supporting Acadian Seaplants were the Maine Clammers Association, the Maine Seaweed Council, the Maine Coast Fishermen’s Association, the Department of Marine Resources (DMR), and the Downeast Lobstermen’s Association.

The Jonesport and Beals Commercial Fishermen and Lobstermen Foundation, the Cobscook Bay Fishermen’s Association, the Pleasant River Wildlife Foundation, the Maine Coast Heritage Trust, the Downeast Coastal Conservancy, the Conservation Law Foundation, and the Pacific Legal Foundation all filed briefs in support of Ross et al.

Because Ross v. Acadian Seaplants directly addresses the often strained relationship between coastal landowners and members of the working waterfront, it has been closely watched as a potential bellwether of the court’s evolving perspective on intertidal usage.

Leoni said that he thinks Acadian’s argument balances private property law with the public’s right to extract living organisms from the sea. “It’s a balance that our entire working waterfront and coastal economy depend on,” he said.

George Seaver was in the audience during the oral arguments. His business, Ocean Organics, produces organic soil conditioners and organic fertilizers made from rockweed and is therefore reliant on access to it as a public resource.

Seaver said he wished the court had gone deeper into the distinction between plants which are dependent on humans and plants which are not. Unlike salt hay, he said, which grows in the intertidal zone and has sometimes been managed by coastal farmers, rockweed does not rely on cultivation to thrive. “The good news is that [the arguments] got to be quite technical with respect to the nuance between what is a marine resource and what is a public asset,” he said.

In Washington County, a group of Ross supporters gathered to listen to the oral arguments on a live stream. Plaintiff Kenneth Ross attended that meeting at the Pembroke Library. “I was quite satisfied with the way our lawyer presented things,” said Ross. “We do not have any sense that we failed in any way. We just can’t predict the outcome since we don’t know what’s in the mind of the judges.”

Supreme court decisions can come back in two months or drag on for more than a year. For now, there is nothing for both sides to do but wait.

“It wasn’t clear to me from the oral argument which way the court’s going to go,” said Leoni. “It’s a tough subject, and the court has been split on this topic before.”