ELLSWORTH — The Maine Supreme Judicial Court ruled last Thursday that seaweed growing between the low and high tide lines belongs to the owner of that intertidal land and may not be harvested without the landowner’s permission.
The ruling came as a blow to Acadian Seaplants Limited, the Canadian company that has harvested rockweed along the Downeast coast of Maine for more than a decade.
“This is an extremely unfortunate decision for an entire industry and for Maine’s economy,” Acadian President Jean-Paul Deveau said in a statement last Thursday afternoon. “The sustainable harvesting of rockweed has created jobs and grown businesses, all of which are creating sustainable and environmentally friendly products.”
Gordon Smith, the Portland attorney who represented the plaintiffs, said his clients were “very satisfied” with the ruling, which affirmed the principle that “private property is private property.”
While the case dealt only with the brown algae Ascophyllum nodosum (commonly known as kelp or rockweed), it could have wider implications.
Harvesting seaweed is big business in Maine, though seaweed is not a high-value item.
According to the Department of Marine Resources, some 22.4 million pounds of seaweed (not all of it rockweed) worth about $922,000 was landed in Maine last year. That includes rockweed harvested in Maine by Acadian, which it processes primarily in its facilities in Atlantic Canada.
Much of that rockweed is used in products such as toothpaste, soap, ice cream, cosmetics, plant food and animal feeds.
The Law Court’s ruling came in a case first filed in the Washington County Superior Court in 2015 by the owners of several parcels of Downeast shorefront property: brothers Kenneth and Carl Ross, whose family has long owned land on Cobscook Bay, and the Roque Island Gardener Homestead Corp.
Much of the Roque Island archipelago, which more or less divides Chandler and Englishman bays east of Moosabec Reach, has been in the Gardener family since the 1840s. They asked the court to stop Acadian from cutting rockweed growing in the intertidal zone bordering their land.
In 2017, the Superior Court judge ruled that the rockweed belonged to the owner of the shoreland and could not be harvested without their permission.
On Thursday, the Law Court justices affirmed that decision.
“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,” Justice Jeffry Hjelm wrote for the court.
The basis for the decision was the Colonial Ordinance of 1641, when Maine was still part of Massachusetts, which conferred title to the intertidal zone on the upland owner subject to the right of the public to use the area for “fishing, fowling and navigation.”
Three other justices joined his opinion while the remaining three, led by Chief Justice Leigh Saufley, agreed with the result but would have used the case as an opportunity to confirm “the rights of the public to engage in reasonable ocean-related activities that do not interfere with the upland owners’ peaceful enjoyment of their own property” or their right, protected since Colonial times, to “wharf out,” or build wharfs, from their shore.
The conflict between the Colonial Ordinance approach and the more recent “common usage” test suggested by the chief justice has resulted in volumes of expensive litigation and some bizarre results.
In a 2011 case, the court found that walking across the intertidal zone without permission to go scuba diving could be interpreted as an activity that fell within the definition of “navigation.”
Yet an earlier case, dealing with access to Moody Beach in the town of Wells, essentially holds that “a member of the public (is) allowed to stroll along the wet sands of Maine’s intertidal zone holding a gun or a fishing rod, but not holding the hand of a child.”
Under either approach, the right of the public to harvest shellfish and marine worms from the flats, subject to reasonable regulation by the state, continues unchanged. Such activities clearly constitute “fishing,” the court said. “Harvesting rockweed … a plant, is not a form of fishing.”
By the same token, the court said, “no matter how broadly ‘navigation’ is viewed, it does not encompass harvesting living rockweed from the intertidal zone.”
Members of the conservation community who have been fighting the harvest of rockweed along the Maine coast expressed satisfaction with the litigation’s outcome.
“The Supreme Court’s decision is a win for fisheries and for wildlife, both of which depend on intact rockweed beds serving their ecological function in nearshore ecosystems,” Robin Hadlock Seeley, Cornell Academic Coordinator for the Shoals Marine Laboratory in New Hampshire, said Monday. “I believe most landowners will choose to protect their rockweed from commercial cutting.”
Despite the court’s decision, Acadian has no plans to leave Maine, attorney Merritt T. Carey, a consultant to the company, said last week. Acadian has grown over the past 20 years to include five full-time employees and “upwards of 30 seasonal hand harvesters” in Maine.
“Moving forward, Acadian Seaplants will seek permission from landowners to harvest rockweed where required,” Carey said.
Correction: An earlier version of this post contained an error. According to the Department of Marine Resources, some 22.4 million pounds of seaweed (not all of it rockweed) worth about $922,000 was landed in Maine last year. That includes rockweed harvested in Maine by Acadian, which it processes primarily in its facilities in Atlantic Canada.