MACHIAS — If you want to harvest rockweed along the coast of Maine, you have to get permission from owners of the tidal flats on which the seaweed grows – at least in Washington County.
In a case brought by three shorefront landowners against a Canadian seaweed harvester, Acadian Seaplants Ltd., Maine Superior Court Judge Harold Stewart II ruled last week that rockweed growing in the intertidal zone between the low water and high water marks belongs to the owner of the flats on which it grows.
Unlike clams, worms and similar animal life harvested from the flats, rockweed “is private property and is not owned by the state in trust for the public.”
The case was filed in late 2015 by Kenneth W. Ross and Carl E. Ross – owners of two parcels of land in Pembroke on Cobscook Bay. The other plaintiff in the case was the Roque Island Gardner Homestead Corp., owner of Roque Island and its surrounding archipelago located between Chandler and Englishman bays in the town of Jonesport.
None of those landowners is new to Maine.
The Ross brothers are Calais natives and each owns shorefront land off Garnet Head Road in Pembroke. According to their attorney, Gordon R. Smith of Portland, their family has owned the land for about 100 years.
The corporation has held Roque Island and its neighbors for the benefit of members of the Gardner family, which first acquired an interest in the island in 1806, since 1940.
When the case was filed in 2015, Smith said “the plaintiffs are motivated to have the question answered – who owns the rockweed?”
Until the judge spoke last week, no one really knew the answer to that question. Now, subject to any appeal to the Supreme Judicial Court, the question is settled.
“Rockweed is the exclusive property of the intertidal landowners,” Smith said Friday.
His clients, he added, are “very happy with the outcome. They’re also happy the Superior Court issued a very thoughtful opinion.”
Patrick Keliher, commissioner of the Department of Marine Resources, doesn’t share that view.
“I’m very disappointed in this decision,” Keliher said Friday. “I plan to continue to manage it as a fishery and will be engaged in the appeal process. I am working closely with my attorneys to determine what that involvement will be.”
To some extent, how involved the DMR will be in any appeal, and whether there will even be an appeal, is up to Acadian Seaplants and its president, Jean-Paul Deveau.
“We were disappointed, with the decision,” Deveau said Monday. “We believed we had a very strong case. We’re studying the judge’s decision and fully intend to appeal.”
According to Deveau, an appeal could take six months to three years. Smith put the outside limit at about a year.
Based in Dartmouth, Nova Scotia, privately owned Acadian describes itself as “a globally recognized industry leader in the processing of seaweed-based products for food, biochemical, agricultural and agri-chemical markets worldwide and in the cultivation and processing of unique seaweeds for … global food markets.”
The company operates four processing facilities in Canada and has operations in Ireland as well. The company claims credit for “advanced methods used to harvest seaweeds as a sustainable, renewable resource.”
According to the Canadian government’s Innovation, Science and Economic Development Canada website, Acadian is “the largest independent manufacturer of marine plant products of its type in the world.” It “processes thousands of tons of marine plants annually providing quality products to global food and food chain (agricultural) industries. Its value-added products are sold into health, beauty, brewery, nutriceutical and pharmaceutical markets, agricultural markets involving animal feeds and specialty fertilizer products such as nutritional products, plant growth regulators and crop biostimulants.”
Harvesting rockweed is a high-volume, low-value business in Maine.
Last year, according to the DMR, harvesters gathered just under 14 million pounds of seaweed – about 90 percent of that rockweed – from Maine waters. The total value of the harvest was $468,105. The harvest peaked at 19.4 million pounds worth $771,765 in 2014.
Deveau would not say how much rockweed Acadian harvests in Maine, but he said the company does employ “more than 50 people earning a living harvesting seaweed” in the state. In addition, he said, the company’s operation has a substantial indirect economic impact from activities connected with transportation of the harvest, repair of boats and equipment and the like.
If the court’s decision is upheld, it could have a significant impact on owners of already heavily taxed shorefront property.
According to Jonesport Selectman Billy Milliken, the court’s ruling is “going to add value” to shorefront property and municipal assessors would have to take that into account in determining a property’s fair market value.
The term “rockweed” applies to several types of marine macroalgae that lack true roots. They grow attached to hard substrates, such as intertidal rocks, by a “holdfast.” The most common of the rockweeds in Maine is Ascophyllum nodosum, which scientists say can live as long as 16 years and regenerates slowly if damaged. Commonly, rockweed can grow to a height of 2 to 4 feet, but can reach heights of more than 6 feet.
In his decision, Stewart explored the history of ownership of Maine’s intertidal flats from colonial times down through recent Supreme Judicial Court decisions. With rare exception, the flats belong to the owner of the upland shore.
In 1861, that court decided that the right to harvest seaweed is “a right to take a profit from the soil” similar to the right to harvest trees or dig sand or gravel, or quarry granite.
The “public trust” doctrine applies, the court said, if activities “fall readily” within the aquatic rights of fishing, fowling or navigation, traditionally allowed on Maine’s intertidal flats.
Rockweed, the parties to the case agreed, is a “terrestrial plant.” For the court, harvesting rockweed “is no more a fishing activity such as worming, digging for mussels, trapping lobsters or dropping a line for fish clearly are, than is harvesting a tree the same as hunting or trapping wildlife.”
Those distinctions are critical to the DMR.
“It is important to note that in making this decision, the court made clear that it does not apply to other fishing activities that take place in the intertidal zone, such as worming, clamming, digging mussels or lobstering,” Keliher said. “Those activities remain protected under Maine law, which establishes that public trust rights in intertidal land include the right to use intertidal land for fishing, fowling and navigation.”
Deveau, though, said he is “very concerned” about the impacts of the decision.
“This is the first marine organism a court has declared to be private property,” he said. “We’re very, very concerned not only on the impact on the marine plant industry.”
For the time being, determination that rockweed belongs to the owner of the tidal flats applies only in Washington County and may have little practical effect. According to Deveau, the decision will be stayed – and Acadian will continue to harvest rockweed – while the case is appealed.
“When we go to the Law Court, we believe we will prevail,” Deveau said. “There is no question of the right of the public to fish in the intertidal zone. We consider this – harvesting from boats – fishing.”