Two Court Decisions Later, Questions Still
Surround Rockweed

Continued from May 2019 Homepage

This means that, for the time being, rockweed harvesting without landowner permission is back on the table.

From here the lawsuit’s legal trajectory could change again quickly. The Court might rule on the motion almost immediately, denying the defendant’s request for reconsideration, or approving it and taking some aspect of the case up again. There is no set timeline for the Court to respond, placing all involved back into familiar territory — uncertainty.

“The bottom line is we need to take care of this resource, and right now we don’t know who is in charge,” said Domizi.

A long case

Rockweed, or Ascophyllum nodosum, grows affixed to rocks in the intertidal zone, the part of the beach between high and low tides. Historically, Maine’s intertidal zone has been owned by the upland property owner, with public use prohibited except for a protected “trilogy” of rights — fishing, fowling and navigation, rights which come to us by way of the Colonial Ordinance of 1641-47.

Ross v. Acadian Seaplants was first filed in Washington County Superior Court in 2015. The plaintiffs made the case that rockweed is a plant, like a tree, and therefore not held in the public trust, but governed by the same laws that govern terrestrial plants.

Acadian Seaplants, the defendant in the case, is a privately-owned Canadian company that produces marine plant products for livestock, agriculture and the food industry. Acadian and their supporters made the case that rockweed takes its nutrients from the sun and ocean, like a clam, and therefore should be a marine resource, held in the public trust.

Though the case primarily seeks to determine whether rockweed is a marine organism held in public trust, Ross v. Acadian Seaplants has raised side debates around the ecological impacts of rockweed harvesting and the general state of Maine’s intertidal public access laws. [See Justices Weigh in on Public Access Debate.]

It has also created concern in other intertidal industries that rely on working waterfront access, such as clamming and marine worming. Deveau said he believes those concerns are justified.

“This certainly is something that I think the people of the working waterfront really need to be concerned about, because the question really is, what [industry is] next?” said Acadian President Jean-Paul Deveau. “That is my concern for the people who attempt to earn a living on the shorelines of the state of Maine.”

“These are people that are earning their living,” said Deveau, “and all of a sudden now the Court has said, ‘Okay, now it will be much more difficult for you to earn your living.’”

All new questions

Should the seven-member Court reaffirm that rockweed is private property, harvesting will still continue, but how will Maine adapt to manage rockweed that is privately owned?

Maine Department of Marine Resources Communications Director Jeff Nichols said the DMR is still working to determine whether, should the Court’s decision stand, it will require a change in law or regulations. “What we are saying to industry is that it’s important for harvesters to work with landowners and seek permission,” said Nichols. “At this point that’s what we’re recommending.”

Harvesters will need to ask for landowner permission, but how will they know who to ask?

“[Harvester’s] boats are arriving and floating, and you can’t just pretend you know where the boundaries are,” said George Seaver, Vice President and General Manager of Ocean Organics, which manufactures natural fertilizers using rockweed. Rockweed is typically harvested by boat at high tide, but even if the land were visible, how can anyone know where one property line ends and another begins?

According to surveyor Andrew Mulholland, that is an extremely tricky question.

“There is a whole subset of laws dating back hundreds of years determining how boundary lines extend beyond the high water mark,” said Mulholland, who owns West Falls Surveying in Machias.

Although it’s mostly true that Maine’s upland landowners also own the adjoining intertidal zone, which way property lines extend once they leave shore is unpredictable, and in some cases, the shoreland was deeded away.

“Just because you bought up against the shore doesn’t mean you own anything below the high water mark,” said Mulholland. Something as simple as a 19th-century clerical error could mean the intertidal wasn’t transferred on a deed. “There may be entire segments of the coast where [the intertidal ownership] was not property conveyed.”

If it’s not the upland landowner, then who owns that part of the intertidal zone?

“In that case, in theory, it may rest with the heirs of the person who owned it when it was last included in the deed. But then it gets even more interesting. You literally need to start when they created the townships, what was deeded to the original proprietors, and how did they convey it out?” said Mulholland. “This is going to be a very expensive and very lengthy debate.”

Domizi said her company has already begun researching intertidal ownership by going to her town office. “We’ve talked with the assessor and none of the intertidal land is taxed,” said Domizi. “We don’t even know how we would begin to figure out what was there?”

Many debate whether municipalities should now tax intertidal land, since more of it has been deemed private property. “If it is actually real estate that you own, then you should be paying taxes on it,” said Seaver, “and if you’re paying taxes on it, its value is affected by how much seaweed is on it, because you could sell that seaweed.”

Carl Ross, one of the plaintiffs in the suit, said he thinks the state could look to other industries as a model for how to proceed with licensing and enforcement of rockweed harvesting.

“I’d like to see it happen kind of like fir tipping,” said Ross. “They’re supposed to have written permission, I believe. That would pretty much cover them and the landowner, too.”

For now, Ross said he’s pleased with the Court’s initial decision, but not quite overjoyed. He expected further legal action, and without state enforcement, he’s not sure that a Court decision alone will make rockweed safe from illegal harvesting.

“A lot of [coastal landowners] aren’t around most of the time, around their land, and rockweed disappeared before under questionable ownership,” said Ross. “I really can’t see where it will change much until enforcement takes control.”

“I don’t know where it’s all going. We’ll have to keep an open mind about it, I guess.”Deveau said he believes the ramifications of declaring rockweed to be privately owned could affect more than just the rockweed industry.

“There are people out there who do not want to see any activity on the shorelines of the state of Maine. That is their objective, and they will certainly be encouraged by the results of this particular court case,” said Deveau.

Read the Maine State Supreme Court decision from March 28, 2019, Kenneth W. Ross et al. vs. Acadian Seaplants, Ltd. here.