Science ignored in rockweed case

As reported by Stephen Rappaport on March 28 and editorialized on April 4, back-to-back decisions by the Maine Supreme Judicial Court (2019 ME 45) and the  Superior Court of Machias decided who owns the rockweed (Ascophyllum nodosum) growing in Maine’s intertidal zone. It is unclear, however, if these decisions open a path to correcting prior errors by the courts, or if the matter is closed.

On the surface, these rulings support the plaintiff’s claim that rockweed is the property of upland property owners because “it is a plant” similar to “tomatoes in your garden,” which the law protects from public harvesting. Ominously, the courts’ decision was consistent with legal opinions dating back to the Massachusetts Bay Colony’s Colonial Ordinance of 1641-47.

Both courts reaffirmed the public’s right to harvest shellfish and worms in the intertidal zone, but, they reasoned, “Harvesting rockweed … is not a form of ‘fishing.’” Although the defendant, Acadian Seaplants, argued in its pre-trial brief that “seaweed is a marine organism, not a terrestrial plant,” in the trial itself attorneys on both sides had to “acknowledge that there is no legal distinction between plants growing in the soil in the intertidal zone and those growing on the rocks in that same area.” And herein lies the problem!

In their deliberations, the justices failed to recognize current marine science that has established, through study of evolution, that rockweed is not a plant. Rather, Ascophyllum nodosum (rockweed) is an algae. It reproduces in the ocean, moving between the intertidal zone and the subtidal zone, before it grabs something solid with its “holdfast” to feed upon passing nutrients. In this migratory behavior, rockweed is more fish than plant, more clam than tomato. In its decision, the court should have considered advances in science and determined that algae is neither plant nor fish, but would be best managed by the Maine Department of Marine Resources as a fishery.

In their decision, justices acknowledged that “the inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise … .” Perhaps this passage intentionally invites a strong appeal by the defendant, or other interested parties, to update the scientific grounds for a more considered legal standard. We hope so.

Should a science-based appeal not be forthcoming, two consequences are foreseen: (1) Maine maritime families that have historically harvested rockweed, or who seek new and sustainable ways to make a living, will be hurt. And (2), coastal landowners who have appropriated this resource should expect a very significant property tax hike.

Steven A, Moore, Professor Emeritus, Great Diamond Island

Celeste Roberge, Professor Emerita, South Portland

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