ELLSWORTH — The Maine Supreme Judicial Court was scheduled to hear oral arguments this month on an appeal from a Washington County Superior Court decision that could severely limit rockweed harvesting in Maine waters.
In 2015, the owners of several parcels of Downeast shorefront property, including much of Roque Island, sued to stop a Canadian company, Acadian Seaplants Ltd., from cutting rockweed growing in the intertidal zone — between the high and low waterlines — bordering their land.
Acadian, described on its website as a processor of seaweed-based products for food, biochemical, agricultural and agrichemical markets worldwide and for Asian and global food markets, is one of several companies that harvest rockweed in Maine waters. According to preliminary data compiled by the Department of Marine Resources, last year, Acadian and other harvesters landed nearly 17.4 million pounds of rockweed worth some $557,490. Most of that came from Cobscook Bay and off the shores of Washington County.
In their suit, the landowners claimed that rockweed, like trees and other terrestrial plants growing on their property, belonged to them. Acadian countered that rockweed, a marine organism, belongs to the state, as do clams, mussels, worms and periwinkles (wrinkles), and like them, it could be harvested from intertidal waters without permission.
Late in March, Washington County Superior Court Justice Harold Stewart II ruled that the rockweed belonged to the owner of the upland shorefront and could not be harvested without the landowners’ permission.
This month, the state’s seven top judges were scheduled to hear oral arguments from attorneys for landowners and Acadian. The Attorney General’s Office sent an attorney to argue for the Department of Marine Resources, which filed a motion to be heard on Acadian’s behalf.
When the Supreme Judicial Court might rule on Acadian’s appeal is anybody’s guess.
“Sometime within a month,” said Gordon Smith, the Portland attorney representing the landowners, brothers Kenneth and Carl Ross and the Roque Island Gardner Homestead Corp. “That would be very fast. It could take six months or more.”
In a statement, Acadian President Jean-Paul Deveau said, “We have every confidence that we will have a successful outcome in this lawsuit.”
According to Smith, the issue confronting the court is a fairly straightforward matter of property law controlled by a Maine Supreme Court case decided in 1861, Hill v. Lord.
“It’s exactly on point and supports our position,” Smith said. Still, the current court “won’t blindly follow” that case. “They’ll engage in their own analysis of property rights law.”
One issue the justices may have to consider is the extent of the “public trust doctrine” that gives the general public the right to pass through the intertidal zone to fish and navigate. Just how important this case is, with its potential impact on what kinds of activities are permitted in the intertidal zone, is reflected in the fact that, according to Acadian, 13 “friend of the court” briefs were filed with the Supreme Judicial Court, seven supporting the landowners and six supporting the company.
In addition to the DMR, supporting Acadian were the Downeast Lobstermen’s Association, the Maine Coast Fishermen’s Association, the Maine Clammers Association, the Independent Maine Marine Wormers Association, an individual fisherman and a corporation that harvests Maine rockweed. Supporting the landowners were, among others, six Jonesport-Beals Island fishermen, the Cobscook Bay Fishermen’s Association and several local and national conservation organizations, including the Maine Coast Heritage Trust, the Downeast Coastal Conservancy, the Pleasant River Wildlife Foundation and the Conservation Law Foundation.
According to Smith, the public trust argument doesn’t help Acadian and should have no impact on fishing and shellfish harvesting.
“Public trust rights never included cutting or removal of plants,” he said. “It applies to wild animals” of the kind traditionally harvested in the intertidal zone.