Rockweed Gets Another Airing
in Augusta

by Mike Crowe

Rockweed, the intertidal zone, private property, public access and the Public Trust doctrine have again been popular topics at the state capital in Augusta. Debates began again a month after the Maine Supreme Court was said to have settled the rockweed question.

The Maine legislature voted down LD1323, An Act To Revise The Laws Regarding the Public Trust in Intertidal Lands on June 12. LD1323 was submitted in April following the settlement of a lawsuit, Ross v Acadian Seaplants Ltd Canada, in the Maine State Supreme Court in March. That settlement for the plaintiff declared rockweed in the intertidal zone to be the property of the upland landowner and therefore not in the public trust.

The intertidal zone lies between the mean high water mark and the mean low water mark. An upland landowner’s property line extends to the mean low water mark in Maine. Were rockweed in the public trust, anyone with a permit from the State of Maine could harvest rockweed anywhere in the intertidal zone. The only difference now is that harvesters will need the permission of the landowners to harvest rockweed – just as a logger would need the permission of the landowner to harvest trees on their property.

But it is not quite that simple for some with interests in rockweed, be they corporations that harvest and market it internationally or marine scientists who study rockweed as essential marine habitat. Then there is the long, convoluted and often disputed history of public trust law – ca. 375 years – in Massachusetts and subsequently in Maine when it became a state in 1820.

John Grotton, resource and production manager at Atlantic Laboratories, the parent company of North American Kelp in Waldoboro, said the Ross decision “has put a lot of uncertainty” into the harvest of rockweed. He said his “company harvests rockweed year-round and will continue to do so. As of now, nothing has changed. It’s business as usual.” Grotten said, “If they (the landowners) have a deed then we are not going to cut.”

Rockweed, like kelp, creates an underwater forest that is home in various ways to a wide range of marine life, according to marine scientist, coastal resident and waterfront land owner Robin Hadlock Seely. Seely said her interest in rockweed began in childhood at her family’s home in Freeport, Maine.

Seely said, “The difference after the Ross decision is that permission to cut a landowner’s rockweed will now be required of harvesters. That will enable landowners to have an option and for conservation areas to keep their rockweed habitat. That has not been the case until now.” Seely followed the Ross case closely over the four years it was in the courts and was an expert witness in the case.

Over the decades and centuries not much thought was given to rockweed as a marketable resource, let alone and, more importantly, as essential habitat that supports high-value commercially important species and the food chain that they depend on. Rockweed torn from the rocks in storms has been raked off the beach for millennia by farmers who fertilized their cropland with it. Today rockweed sells for about 4 cents a wet pound. It is harvested in large volumes and the rate of growth in the demand for it is increasing internationally. It is exported to 80 countries for use as fertilizer and some consumer products.

The legislative debate and comments on LD1323 illustrate a lack of understanding of the issues on the part of some legislators regarding rockweed and the Ross decision.

“Ross did not outlaw the rockweed harvest, but it did change access to ‘by landowner permission,’” said Seely.

“The Ross decision created the possibility of limiting the negative effects of harvesting rockweed on the structure and function of the rockweed resource,” said Seely. The resource is a keystone in the larger marine resources of Maine that include a wide range of species that are nourished and sheltered by the habitat that rockweed creates.

Grotten said of the amount of bycatch in the harvesting of rockweed is “not at all.”

Fisherman and legislator Robert Alley of Beals, said in a floor speech on LD1323, “Dr. Brian Beal, of Downeast Institute, and I have counted over 60 different species of marine life in one sample of rockweed, so you can’t tell me rockweed harvesting doesn’t have an impact on our coastal way of life.”

“There is still no limit on the volume of or where the rockweed can be harvested”, said Seely. “Owners now have the ability to negotiate harvest standards. Conservation area owners now have a legal right to not allow a rockweed harvest or to set limits on how their intertidal zone will be harvested”, she said.

“I would submit that the fundamental question for all of you is whether or not you have the authority to make this decision. Of course, you can pass a bill out, you can enact a law, and the governor can sign it. That’s not really in question. The question is whether the law you are going to pass is constitutional.” – Derek Langhauser, Chief Legal Counsel to the Governor of Maine testifying against LD 1316 and LD 1323 at a Public Hearing, April 25, 2019.

By “this decision,” Langhauser meant the addition of commercial activities, such as rockweed harvesting, to the activities already in the public trust like clamming and worming, despite the law court’s decision (Ross v Acadian Seaplants Ltd Canada) that rockweed is not in the public trust.

Legal debates about the intertidal zone can be traced back to 1641 Massachusetts law. That law went with Maine when it was granted statehood in 1820. The probability is that issues related to the intertidal zone will be visited again.

There is more available in our information age on this subject than could reasonably be printed in a newspaper. The importance and understanding of integrated marine resource management is emerging at a time of environmental change. The back story about how both sides of a marine resource issue present a case and how it can play out in court and the legislature can be revealing.

More information about how the Ross case and LD1323 were presented, debated and decided may be valuable to readers who want a better understanding of this case in particular and the process in general. A selection of documents including letters, opinions, audio and video legislature links, Ross lawsuit commentary and decisions, as well as comments in support and in opposition to related bills, including LD1323, from the Maine legislature have been made available on the Fishermen’s Voice website here.