Rockweed and the Public Trust in Court

by Sarah Craighead Dedmon

Kenneth Ross inherited his land and his sense of environmental stewardship from his family. “I was brought up in coastal Maine right on the saltwater, and over the years I’ve watched the wildlife disappear, the fish disappear, everything but the lobsters, practically,” said Ross, whose sense of stewardship led to his filing a lawsuit, “There is very good reason to believe that if you don’t carefully limit the amount of the rockweed that people can take, then there’ll be fewer ducks and fewer fish and other creatures we’d like to have,” said Ross, who was raised in Calais.

Often described as the seaweed ‘with bubbles,’ Ascophyllum nodosum drapes over the intertidal rocks of coastal Maine and sits at the center of a private legal battle that will determine whether rockweed is the private property of shorefront owners or a resource held in public trust for the citizens of Maine.

Who owns Maine’s rockweed is the only legal question the Court will answer in ruling on Ross v. Acadian Seaplants. But the case has raised many more questions, such as who can best conserve rockweed, and whether privatization of rockweed could erode the public’s right to access the intertidal zone.

The plaintiffs in the suit, Carl Ross, Kenneth Ross and the Roque Island Gardner Homestead Corporation, all own waterfront property in Washington County. They say that the rockweed in front of their land belongs to them, and accuse Acadian Seaplants of illegally harvesting rockweed on their property in Cobscook Bay in Pembroke.

Their supporters say that rockweed is a critical habitat which is over-harvested, and that a finding for the defense could damage Maine’s marine ecosystem, including the health of its lobster fishery.

The defendant in the suit, 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. Maine Department of Marine Resources licensing regulations permit foreign companies to hold seaweed harvesting licenses, with the disclaimer that the matter of rockweed ownership is a legally unsettled question.

Acadian Seaplants maintains that rockweed is part of the marine ecosystem and should be treated as a fishery. Rockweed, like clams, may not be a fish but, like clams, it should be a protected resource in the intertidal zone.

“So, it was clear that someone had to take this thing to court. Somebody has to settle this question,“ said Ross, a retired political science professor and veteran who winters in Michigan, “Even the people who disagree with us would probably like it settled.”

A Question of Ownership

Maine is one of only five states that does not own its intertidal zone, a legal legacy of over 150 years spent as part of Massachusetts. In most coastal states, private land ownership ends at the high water mark. But, the Massachusetts Bay Colony’s Colonial Ordinance of 1641-47, incorporated into Maine’s common law in 1820, 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 right to “fishing, fowl and navigation.”

In a 17th-century forested landscape devoid of roads, waterways provided the only routes for transportation. The colonial ordinance transferred intertidal ownership from the king, who owned the intertidal zone in England, to the colonial landholders to stimulate the construction of wharves critical to maritime travel.

Although rockweed has been harvested in Maine for centuries by Native Americans and Europeans alike, Ross v. Acadian Seaplants is the first case in more than 100 years that seeks to determine who owns rockweed. In Marshall v. Walker, a 1900 case concerning upland property and adjoining flats, the courts suggest that the right to harvest seaweed could be in the public trust. “Others may fish in the water over [intertidal lands]...dig shell fish in them...and take sea manure from them,” said the Court documents.

However, language used in the courts of 1900 can be vague by today’s legal standards.

“Sea manure is a term that has historically been used in a variety of ways,“ said Gordon Smith, attorney for the plaintiffs. “It has been used to mean anything washed up in the flats, marine detritus and the waste of marine organisms, and it has been used to refer to various forms of seaweed. Sea manure is a legally ambiguous term.”

A request for summary judgment was filed by the plaintiffs in December 2016, and both sides are awaiting the court’s decision on whether or not to hold oral arguments on the motion.

“I would expect the court would schedule oral argument, and that can happen in a few weeks, or a few months,” said Smith. Oral arguments would be heard in Washington County Superior Court in Machias and would be open to the public.

“Everyone expects the Superior Court finding to get appealed to the Supreme Court,” said Smith. “No one has identified a modern case from any jurisdiction in a legal regime that is similar to what we’re talking about here, where the questions of intertidal rockweed are addressed.”

A Question of Conservation

If the supreme court finds for the plaintiffs and rockweed is privatized, harvesters wonder who will conserve the rockweed habitat then?

“Until this last year the only problem we had with shorefront property owners in 45 years of harvesting was a fellow from New York who had moved to Maine and wanted us to ‘clear all of that stuff off of his rocks’ and we refused,” said Susan Domizi, founder and owner of Source, a company which makes animal and human supplements made from Maine seaweeds, including rockweed.

“He was incensed,” said Domizi, “We spent a while trying to teach him how important that [rockweed] was.”

“I’m grounded in caring about this extraordinary resource,” said Domizi, “The more I know it, the more I love it and worry about it, and I want it there for my children’s great great grandchildren.”

Domizi said she doesn’t believe that putting rockweed in the hands of private landowners will work to protect it.

“The idea that something is privately owned does not have any bearing on the state’s right to regulate it. Whether it’s privately or publicly owned, the state can regulate it,” said Smith, who added he has no reason to believe the DMR would not continue to regulate rockweed should the plaintiffs win the lawsuit.

A Question of Regulation

In fact, the state reserves the right to regulate resources that are privately owned, publicly owned, and whose ownership status is legally unsettled.

In 2009, the DMR created regulations specific to Cobscook Bay, called the Cobscook Bay Rockweed Management Area (CBRMA). Cobscook is an ecologically unique bay located in the easternmost tip of Maine, bordered on one side by Canada.

The CBRMA built on existing regulations stipulating the length of rockweed left on the root structure, called a holdfast, and added harvest limits at 17 percent of available rockweed biomass annually. The CBRMA also divided the bay into 36 sectors. Individual harvesters or companies may apply to the DMR for exclusive rights to harvest one or more sectors on an annual basis.

Then in 2013 the Maine legislature passed LD585, “An Act to Require the Development of a Statewide Approach to Seaweed Management,” directing DMR Commissioner Patrick Keliher to create the first seaweed fishery management plan by Jan. 31, 2014. The plan’s focus was the ultimately limited to rockweed, because DMR data shows that rockweed comprises more than 90 percent of all seaweed harvested in Maine.

Keliher brought together a Rockweed Plan Development Team of 11 industry members, scientists, DMR and conservancy representatives. Debate over the composition of the team continues, most notably that a Canadian employee of Acadian Seaplants, Dr. Raul Ugarte, was given a seat as a scientist, and not as an industry member.

Over the course of 2013 they created the first Fishery Management Plan for Rockweed, a 51-page document which incorporates some of the management practices already in place in Cobscook Bay, including a 17-percent annual harvest rate and a sector management plan, and made additional recommendations for the statewide fishery.

One such recommendation is the designation of “no-harvest areas” on the Maine coast. To explore the possibility of this and other conservation measures, the DMR formed the Rockweed Working Group (RWG). The RWG consists of five scientists tasked with providing recommendations about areas that should be designated as no-harvest areas to protect sensitive wildlife.

But the work of the RWG concluded in August 2015 because the team was unable to reach a consensus, and the rockweed FMP never progressed to legislative rulemaking. According to a written statement from Jeff Nichols, director of communications for the DMR, the FMP process was halted when Ross v. Acadian entered the courts in 2015.

“While the lawsuit is pending, the commissioner does not intend to proceed with developing or adopting any further regulations regarding the harvest of rockweed....due to the staff resources that would be involved, and potentially wasted if such a system may not legally be adopted (depending on the outcome of the lawsuit)” said Nichols.

Today the DMR regulations on cutting height still apply along the entire Maine coast and regulation of the CBRMA is in effect. But the FMP stands only as a set of recommendations, and no other regulations will be applied until the conclusion of the Ross v. Acadian Seaplants suit, which is expected to take at least another one to two years.

A Question of Sustainability

Ross v. Acadian Seaplants has pitted self-described tree huggers and conservationists against each other in new and unfamiliar roles. On the plaintiff’s side, environmentalists now uncharacteristically aligned with resource privatization. On the side of the defense, lifelong conservationists cast in the role of resource-depleting bad guys.

“We are the good guys. We don’t know how to be on the defensive because we’re so used to standing in the light of virtue,” said George Seaver, who served as an industry member of the FMP development team.

“The fact is that in 40 years, all of the research that has been done says this is a category of products that is going to give us more food with less pesticide every year,” said Seaver, whose business, Ocean Organics, produces organic soil conditioners and organic fertilizers made from rockweed in Waldoboro.

Dr. Brian Beal, who served on both the plan development team and rockweed working group, said research shows that more than 17 percent of rockweed is removed each year through natural forces such as wave action and ice.

“That breakage is a natural process,” says Rich Bard, executive director of the Downeast Coastal Conservancy, “That rockweed could be coming from unsuitable spots and marginal patches,” said Bard, who does not believe the rockweed FMP goes far enough to protect the rockweed habitat.

“The FMP for rockweed measures what is sustainable only from a harvesting perspective,” said Bard, “Until they can show us what an ecologically sustainable level is, they should be a lot more conservative.”

Bard said the DCC sent multiple letters to Acadian Seaplants before 2014 asking them not to harvest on conservation land in Addison, located outside the protection of the CBRMA.

“We documented them harvesting multiple times per year on the same land,” said Bard, “As far as we can tell, the letters had no influence at all. They were a request for cooperation but didn’t have any teeth.” The DCC takes the position that rockweed is property of the upland landowner.

Dr. Robin Hadlock-Seeley, senior research associate at Cornell and expert witness for the plaintiffs, also believes the FMP does not go far enough to protect the rockweed habitat.

“For years the industry has been saying this is sustainably harvested, but we’ve been saying, ‘You’re using the wrong metric.’ Right now all of the harvested areas in Cobscook Bay are modified habitat. And nobody really knows what the impact of modified habitat is on the 150 organisms that depend on rockweed.”

“A lot of the people in Washington County who are having a hard time finding jobs think the environmentalists are their enemies,” said Ross, “I think, with all due respect, that environmentalists are some of their best friends, because they care and have the knowledge to help create a future that we can all be happy with instead of just letting everything go downhill.”

A Question of Access

Members of industries that also rely on access to the intertidal zone are watching the progress of Ross v. Acadian Seaplants with a mix of interest and anxiety, many fearing that a decision for the plaintiffs could erode other rights in the intertidal zone.

Micah Woodcock, a sea vegetable harvester in Frenchmen’s Bay, said he is watching the case and concerned about the implications of a finding for the plaintiffs.

“The privatization of any marine resource in the intertidal zone sets a dangerous precedent for other fisheries,” said Woodcock.

A letter dated Jan. 27, 2017 was written to Attorney General Janet Mills and signed by members of the Maine Seaweed Council, Independent Maine Marine Worm Harvesters Association and the Maine Clammers Association.

The letter expresses the fear of many intertidal stakeholders.

“While we understand the case currently before the court concerns only rockweed, we are keenly aware of the increasing downward pressure on Maine’s intertidal zone. Access to the intertidal zone for clammers, wormers, elver fishermen and rockweed harvesters is being chipped away,” says the letter. “We believe … a finding for the plaintiffs in this lawsuit sets Maine on a course towards diminished access to the intertidal zone and reduced economic activity along our coast.

A letter written by their attorney and circulated by the plaintiffs, seeks to allay legal concerns about diminished access.

“A holding that rockweed is a private or a public resource would have no effect on the well-settled existing rights that are included within the public’s right to fish, fowl and navigate,” said Smith.

But a letter dated Feb. 1 and shared by the attorney general’s office indicates that Mills is unlikely to intervene in the lawsuit.

“Supporters of both parties approached this office last year to ask us to become involved in this private lawsuit. We deferred because of the uncertain state of the law and of the science,” said Mills. “We remain very interested in this litigation and we plan to follow it closely.”

Domizi, who has put plans for her company’s physical expansion in Brunswick on hold pending the conclusion of Ross v. Acadian Seaplants said that waiting to find out who owns the rockweed is difficult.

“Everything is up in the air. It’s very hard to think about the future.”

Irish coast residents fought the sale of their rockweed rights to Acadian Seaplants Corp. in 2014. To listen to Irish opponent, scan this QR code with a cell phone or find the live audio link at fishermensvoice.com. “Arcady” refers to Acadian SeaPlants.

Also in this issue: Maine Seaweeds Defined

Audio link to Irish coast resident's comments on Acadia SeaPlants Nova Scotia buying the rights to rockweed harvest rights in Ireland:
http://www.rte.ie/radio/utils/radioplayer/rteradioweb.html#!rii=b9%5F20622707%5F53%5F24%2D07%2D2014%5F