Rockweed in the PBWA

Maine Courts Confirm Private Ownership of Rockweed

Rockweed is a seaweed that grows exclusively in the intertidal zone, the area of coastal wetlands between the high and low water lines.

Since the 1640s when Maine was part of the Massachusetts Bay Colony our intertidal zone (out for 1650’) has been recognized as the property of the adjacent land owner subject only to an easement guaranteeing the public’s rights of “fishing, fowling and navigation” in the intertidal zone. This status, private ownership plus a limited public easement, continued when America broke away from England and became part of our law when Maine separated from Massachusetts and achieved statehood. Thus virtually all Rockweed in Maine grows on private land.

Maine’s DMR has the unquestioned authority to regulate the take of marine organisms including Rockweed. But a basic premise of property law is that no State agency has the authority to give permission to cut and take vegetation growing on private land. DMR argued in court in an amicus brief that Rockweed is a public resource, available for commercial harvest. Further, in the years leading up to the Maine Supreme Court case, the Department showed little interest in working cooperatively with the owners of the intertidal land, or with land trusts, on appropriate conservation measures.

In the circumstances the only conservation and property rights option available was a landowner initiated lawsuit. The objective would be to ask the court to confirm that the Rockweed was the private property of the landowner and that industry could not keep taking it without permission.

A system of cutting “by permission only” through stumpage contracts has worked well for generations in Maine’s forests and would apply equally to Rockweed. Landowners would have the right either to refuse permission to cut or to negotiate acceptable compensation for cutting. Private ownership would provide incentives for good stewardship and add an essential layer of habitat protection to any that DMR might offer through regulation.

Many landowners and land trusts care deeply about their own front yards and will refuse to allow cutting. If landowners do allow cutting their incentive is to protect future income by avoiding over-harvest. Landowners could insist on “best practices”, higher standards than DMR’s industry-friendly regulations. If the harvester abused the terms of his contract, it could be rescinded.

From a conservation perspective court confirmation of private ownership of Rockweed would also protect other intertidal plants from short sighted exploitation. Salt marsh grasses and eel grass are also intertidal plants of ecosystem importance that are potentially vulnerable to exploitation.

Without solid evidence of cutting on our own lands PRWF couldn’t sue. However, Ken and Carl Ross, whose family have been Cobscook Bay shorefront owners for over 100 years, agreed to lead the suit and cover much of the cost burden; they were joined by the Gardner family, the owners of Roque Island since the 1840s. The Ross’s and the Roque Island owners had documented repeated violations of their property rights by employees of Acadian Seaplants Ltd and were alarmed by the heedless exploitation of an ecologically vital resource.

The complaint, ably prepared and presented by Gordon Smith of Verrill Dana, was filed in late 2015 in Washington County Superior Court. Acadian admitted to what they were doing but argued that taking rockweed was a form of fishing, hence already permitted, because “Ecologically, rockweed is far more analogous to oysters, mussels, and clams than it is to terrestrial plants like trees”. DMR and other industry advocates supported Acadian’s position.

Decision of Washington County Superior Court

Acadian’s Appeal and the PRWF Amicus Brief

In March of 2017, the Superior Court ruled that rockweed belongs to the owners of the shoreland and could not be taken without their permission. Acadian immediately appealed to Maine’s highest court. PRWF submitted an amicus curiae brief defending the landowners’ property rights. MCHT, DCC and the Conservation Law Foundation all submitted supporting briefs.

PRWF’s argument was essentially biology. “ PRWF asserts that the meaning of ‘fishing’ is clear as it relates to public rights on intertidal lands: fishing refers to taking aquatic animals, not to cutting sea plants.” We asserted that the basic differences between animals and plants are:

  • Motility: animals have motility; plants like Rockweed are not motile
  • Photosynthesis: plants are photosynthetic producers of foods, animals are consumers
  • Habitat function: plants often serve as habitats for multiple species; animals do not.

We concluded: “It may be a reasonable stretch to consider picking up or digging up animals like shellfish or worms to be ‘fishing.’ It exceeds the elastic limit of usage to find that the term ‘fishing’ includes the removal of intertidal vegetation, like Rockweed, that is rooted or attached to the earth. Both the core biology and the ecosystem functions of plants and animals are clearly distinct.”

Decision of the Maine Supreme Judicial Court

In late March 2019 Maine’s highest court, the Law Court, issued a 7-0 decision in our favor. Justice Hjelm was joined by three other justices in writing for the Court with Chief Justice Saufley and two other justices concurring. Hjelm wrote: “We agree that rockweed in the intertidal zone belongs to the upland property owner and therefore is not public property, is not held in trust by the State for public use, and cannot be harvested by members of the public as a matter of right.” … “When Maine attained statehood in 1820, by force of the Maine Constitution the arrangement of private ownership (of intertidal land) by the upland owners…was engrafted into Maine common law”.

He now turned to biology, first confirming that the public holds an easement permitting fishing, fowling and navigation on intertidal lands including the right to harvest clams, shellfish and marine worms. Such activities constitute “fishing” he wrote.

But with respect to rockweed: “Harvesting rockweed … a plant, is not a form of fishing.”…“Rockweed is biologically dissimilar from fish, lobster, clams, oysters, and bloodworms — it draws nutrients from the air and seawater using a photosynthetic process and, once attached to the intertidal substrate, does not move.”… “The fundamental dissimilarities between the harvesting of fish and of rockweed as a marine plant demonstrate that Acadian is not in the business of ‘fishing.’”

The Court continued: “even under the most generous interpretation the harvest of living rockweed can’t be considered either fishing or navigation no matter how broadly those terms might be interpreted. The public — in this case a commercial seaweed harvesting company from Canada — has no more right to come onto someone’s property and cut rockweed than it would to harvest tomatoes from that person’s garden.”

Result of the Court’s Decision

Though it was hoped that DMR would acknowledge the rulings of the court and would enforce the ruling, this has not been the case. DMR has acknowledged the ruling of the court as current law, but has not enforced the decision. Leaders of the Rockweed Coalition, a Cobscook Bay based conservation organization, have documented multiple instances of continued illegal cutting throughout 2019 with photos and video. Illegal harvest can be expected to continue in 2020 if the law is not enforced. If Rockweed goes the way of the Cod and the Sea Urchin we will all be losers.