O P I N I O N
Conservation Key to Rockweed Conflict
by Regan A. Sweeney, Maine Lawyer’s Review
Property rights in Maine’s intertidal lands have been the subject of a few landmark Law Court cases, most notably the Moody beach cases of the 1980s, and were again the subject of the Law Court’s analysis over the past year with the recently-decided Ross v. Acadian Seaplants case, decided on March 28, 2019. In that decision, the majority ultimately held that rockweed in intertidal lands is the property of the intertidal property owner, not a public resource available for harvesting without the landowner’s permission.
Property rights cases are a regular occurrence at the Law Court, and coastal properties seem to generate more conflict than the inland ones. In those respects, this case is no different. But where others have dealt with competing interests like wealthy land owners and commercial fishing, these are not those plaintiffs, and this is not that type of case.
The family of plaintiffs Ken and Carl Ross has owned the modest Cobscook property at issue here for almost 120 years, and have, for generations, welcomed winklers and clammers. But when it came to the commercial harvesting of rockweed, that was an entirely different story.
Rockweed is a type of seaweed that grows in intertidal areas ranging from New Jersey to Greenland by attaching itself to rocks, and growing to an average of 20 to 30 inches, up to six feet in length. It is harvested for a number of commercial uses, including as packing material for lobsters, and more traditionally, as fertilizer for farms.
In researching the case, plaintiff’s counsel, Gordon Smith of Portland’s Verrill Dana, found that, historically, coastal property transfers and leases often contained provisions addressing the rights to the rockweed in the intertidal property since it was integral to the farming or other uses of the property. Since the Ross brothers have long allowed clamming on their property, and harvesting rockweed has been a longstanding practice, why the objection and case by plaintiffs here?
For the Ross brothers and many of the 13 amici that submitted briefs, it is a matter of conservation and stewardship. While rockweed does have its out-of-water utility, it is underwater where it does the greatest good. Rockweed is at the base of Maine’s intertidal food chain, and serves both as food and a sheltering habitat for a broad range of sea creatures ranging from cod to lobsters and many in between.
In addition, as a photosynthesizer, it pulls carbon dioxide from the water and produces oxygen, helping to maintain water quality along the coast. To the Ross brothers and others, unchecked rockweed harvesting poses a risk to the coastal marine environment, much as clear-cutting a forest would on land. And while there are ways to try and mitigate that, just as a replanted forest isn’t the same as the original, rockweed that is repeatedly over-harvested will prevent other marine creatures from using it, and can turn the area into a virtual rockweed farm, devoid of other marine life.
Because the traditionally permitted public uses of intertidal lands have oft been enunciated as for “fishing, fowling, and navigation,” the legal analysis in this, and other cases, has been: “Is the thing at issue fishing, fowling, or navigation?” – not whether the intertidal land is owned by the upland owner or the public, via the state or town.
Plaintiff’s counsel, Gordon Smith, found the case law history on that issue clear, “Prior cases never indicated public ownership of private lands; things were litigated piece by piece, species by species.” Although there has been much ado made about this case being about intertidal property ownership, the real issue, and the one the court addressed, was whether rockweed harvesting was permitted under the three enumerated activities.
Here, the Law Court held that rockweed harvesting was neither fishing nor navigation, with fowling being literally for the birds. “None of the Court’s prior cases held that the public had the right to harvest plants growing on private intertidal property,” said Smith, “In the only case to address the harvest of seaweed, the Court in 1861 said that the public did not holdsuch a right.” The Law Court focused its analysis on that point, and ultimately rendered its decision finding that rockweed harvesting is not included in the public easement.
Acadian Seaplants filed a Motion for Reconsideration on April 11, 2019, seeking a decision from the court on the issue of ownership of the intertidal rockweed, as opposed to the decision the Law Court actually rendered on whether rockweed harvesting fits within the defined public easement on intertidal lands. See Ross, et al. v. Acadian Seaplants, Ltd., MLR #160-19, summarized in Vol. 27, No. 7 (Apr. 11, 2019), at page 4-5.
Plaintiffs Kenneth and Carl Ross and the Roque Island Gardner Homestead Corp. were represented by Gordon Smith of Verrill Dana’s Portland office. Acadian Seaplants Ltd. was represented by Benjamin M. Leoni of Curtis Thaxter LLC’s Portland office.
– Regan A. Sweeney,
regans@mainelawyersreview.com
This article originally appeared in the Maine Lawyer’s Review.