Landowners Win Rockweed Case in Washington County Court

By Lura Jackson

 

Over the past several years, conflict between landowners and rockweed harvesters has been escalating due to the state’s unclear stance on whether rockweed was a public resource or whether it belonged to the property owner in the same way that trees and terrestrial resources do. With no firm ruling in place, and despite the mounting warnings of ecologists on the dangers of over-harvesting rockweed, Canadian company Acadian Seaplants and smaller harvesters continued harvesting rockweed throughout the Cobscook Bay unabated. In December of 2015, a group of landowners decided to challenge the activity by filing a lawsuit against the harvesters. On March 17th, the Washington County Superior Court ruled in favor of the landowners — though with the ruling already appealed, no restrictions on rockweed harvesting are yet in place.

Rockweed is a fairly hardy, commonly-seen seaweed that lines the intertidal zone along the coasts of our shores, including part of the St. Croix River. As a seaweed, it is biologically neither plant nor animal, but has characteristics of both. Importantly, rockweed provides the nursery habitat for a large variety of marine life, including lobsters and fish, and it serves to maintain the nutrient balance in the bay. 

Rockweed is rich in nutrients and many local gardeners will tout its effectiveness as a fertilizer. In recent years, international interest in obtaining rockweed and manufacturing it into a variety of products ranging from pharmaceuticals to toothpaste has increased significantly, contributing to the nearly 16,000-pound harvest in Maine in 2015. Like most extractive industries, however, the profit of those products is not realized locally. Maine rockweed is often sold at less than four cents a pound to foreign interests.

In the lawsuit filed in December of 2015, Carl and Ken Ross of Red Beach and Pembroke and Roque Island Gardner Homestead Corporation alleged that Acadian Seaplants had harvested on their lands without their permission, violating their rights as landowners. For the Rosses, the harvesting also went against the no-cut registry for Cobscook Bay that their properties were a part of. Acadian Seaplants had previously said it would respect the no-cut registry.

In the ruling, Justice Harold Stewart II based his decision on the Hill v. Lord case of 1861. In that case, it was ruled that the right to take rockweed was a right to take profit from the soil, and therefore it belonged to the owner of the flats. Stewart declared in the ruling that: “Harvesting a terrestrial plant 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. Rockweed is a terrestrial plant... the harvesting of rockweed cannot be said to be a form of fishing, fowling, or navigating.”

The defense argued that in the case of Marshall v. Walker (1900) the court found that intertidal lands are subject to the right of the public to use it for the purposes of navigation and of fishery. In that ruling, it was added that others may fish the water over the intertidal zones during high tide, and “may take sea manure from them.” However, the ruling was ambiguous in that the list of disallowed activities was “largely but not entirely accurate,” and no mention was given during the Marshall case of the Hill v. Lord ruling, indicating it does not challenge or overrule it.

Acadian Seaplants immediately announced it would appeal the ruling to the Maine Supreme Court. The state court’s ruling will determine how rockweed will be handled in the future.

“We are pleased that the Superior Court agreed with our brief, but there is no guarantee that the Supreme Court will concur,” said plaintiff Ken Ross. He said that he expects a ruling will be passed in six months to a year.

 

Addressing the viewpoint that the Rosses’ case is an instance of rich landowners taking jobs away from coastal harvesters and fishers, Ross emphasizes that this is not the case. “We favor coastal jobs as long as they are legal and ecologically sustainable,” Ross said. He added that he and his brother, Carl, are Washington County natives and have always allowed clammers, wrinklers, and tippers on their property. Importantly, Ross clarified that the case does not stop rockweed cutting but simply requires harvesters to request permission from landowners.