Rockweed: Fish or Habitat and Whose?

Suit Seeks Court Ruling

by Mike Crowe

The unknown outcomes from commercially harvesting rockweed is the premise for plaintiff concerns in a suit filed against Acadia Sea Plants, a Canadian company engaged in an effort to expand rockweed harvests along the entire Maine coastline. See https://vimeo.com/73421783

A lawsuit has been filed against Acadian Seaplants regarding the commercial harvesting of rockweed in coastal Maine. The legal question is around property rights in the intertidal zone regarding the harvest of rockweed. In Maine the upland coastal landowner rights extend into the intertidal zone, the zone exposed between high and low tides.

The suit is being brought by three plaintiffs – Carl and Ken Ross, owners of property on Cobscook Bay that has been in their family since 1900, and the Roque Island Gardiner Homestead Corporation. The defendant is Acadian Seaplants Ltd. of Nova Scotia, Canada. North American Kelp (kelp is a type of rockweed) Company, of Waldoboro, owner Bob Morse cited generally what he called legal precedents for the rockweed industry to claim ownership of the seaweed in the intertidal zone. He said his company would seek support in this lawsuit from the VitaminSea company, which makes fertilizer from seaweed.

The courts have never decided formally if these rights are the landowners or a part of the Public Trust Doctrine, which is an easement to rights in the intertidal zone. The Maine Attorney General maintains that it is an unsettled area of the law.

There is a long history of dispute over rights in the intertidal zone, with the oldest American references going back to Massachusetts law written in 1646. That law refers to the public’s rights to “fishing, fowling and navigation” in the intertidal zone. “The many old cases regarding the intertidal zone have left a lot of ambiguity,” said Gordon Smith, an attorney with the Portland law firm Verrill Dana, representing the plaintiffs in the suit.

The position of the Maine Department of Marine Resources, which regulates seaweed harvesting, and the Maine Attorney General’s Office, is that it is the court’s place to decide. Rockweed harvests have only recently become an issue as the value of rockweed and the scale of the harvests have increased. Rockweed is harvested for fertilizers and animal feed supplements. Whenever a local resident went to the intertidal zone a few days a year to harvest rockweed no one took note. However, the commercial harvests take more rockweed over a longer period and the results are more visible.

The Canadian harvester boats first came to Cobscook Bay in 2000. But in 2008 a large number of them came, which caused fishermen to ask how Canadians could get the right to take their rockweed. The fishermen organized a petition stating the reasons for their opposition to the rockweed harvests. Robin Hadlock Seeley, a marine biologist, 8th generation Mainer and Washington County resident, said, “This should not be about jobs versus the environment. The rockweed forests are the foundation of the fisheries in Maine. They are critical habitat for 150 species, from periwinkles to lobster to cod, including 21 commercially fished species. NOAA has written a letter of concern regarding this critical habitat. In 2009, fishermen, towns, the Passamaquoddys, landowners and scientists all supported a petition opposing the rockweed harvests.”

The Maine Department of Marine Resources assembled a Plan Development Team in 2013 to write a management plan. The conservation management part of the plan was left out. Within the nuts and bolts of this plan are elements critical to the outcome. In 2014 two bills were before the legislature, one regarding the establishment of rockweed conservation areas. In the second, companies would get access to rockweed through a sector management plan where the entire Maine coast would be divided into harvest and conservation sectors. Commercial harvesting companies would have 7-year access agreements in these sectors.

Since no-cut zones are important to habitat management, they might be designated major substantive, rather than minor technical, the difference being that changes to major substantive areas must be reviewed by the legislature, whereas minor technical areas can be decided by the DMR rule-making process, with less oversight. These rule designations would have a significant impact on oversight. But the legislature decided that only the sector management part of the management plan would be deemed major substantive, not the no-cut areas. Both designations allow the public to voice their opinions, but one involves the legislature while the other only involves a public hearing in front of the DMR. *(To adopt a major substantive rule, the agency must follow the same process as for a routine technical rule, except that instead of finally adopting the rule at the end of the process, the agency provisionally adopts the rule. It must then submit the rule to the Legislature for review before finally adopting the rule except to the extent the rule is required by federal law or required to qualify for federal funds. – Office of Policy and Legal Analysis, Maine State Legislature.)

Larch Hanson has harvested seaweed in Gouldsboro Bay for 40 years. His methods are commercial, but lower volume and low impact. Hanson has said he has attempted to present to the Maine seaweed council evidence that less aggressive harvesting methods are needed for sustainability. His efforts, he said, were rejected by the council.

However, the lawsuit, filed in late December 2015, seeks a decision on whether or not rockweed is one of the three—fish, fowl or navigation—allowed in the oldest law on the subject. In recent years, as coastal property has changed hands from old families, some having held title from pre-Revolutionary days, to second homeowners, intertidal rights have become strained in some cases.

Some critics of the opponents to commercial harvesting methods have characterized them as only being interested in preserving their view or privacy.

Attorney Gordon Smith said the parties initiating the suit have varied motivations. “Those motivations are not in seeing commercial harvesting, but in the unknown ecological consequences of commercial rockweed harvesting in the intertidal zone,” he said.