High Court to Debate Rockweed

By Sarah Craighead 



Ross v. Acadian Seaplants had its day in the Maine Supreme Judicial Court on Tuesday, Nov. 14, when oral arguments were heard in Portland. 

The outcome of the case will determine whether rockweed — Ascophyllum nodosum — is the private property of coastal landowners, or a marine resource held in the public trust. The case is the first in more than 100 years that seeks to settle the question of who owns the rockweed that grows in Maine’s intertidal zone.

The plaintiffs are Carl Ross, Kenneth Ross and the Roque Island Gardner Homestead Corporation. Ross et al assert that the rockweed on their land is private property, and accuse Acadian Seaplants of illegally harvesting rockweed on their land in Cobscook Bay in Pembroke, and on Roque Island. 

The defendant, Acadian Seaplants Ltd. of Nova Scotia, Canada, says rockweed is a resource held in Maine’s public trust, and they are legally entitled to harvest it. 

In March, the Washington County Superior Court Justice Harold Stewart II found for the plaintiffs, Ross et al, declaring rockweed to be privately held. Acadian Seaplants  appealed to the supreme court.

Tuesday’s proceedings lasted roughly 45 minutes. Gordon Smith, attorney for Ross et al, said it’s not possible to predict how long it will take the court to arrive at a decision. “They can take as long as they want,” he said. “The typical range might be two to four months, but it’s not unusual for it to take longer than that.”

Intertidal ambiguity

In Canada and in most of the United States, private land ownership ends at the high water mark, but Maine is one of five states that does not own its intertidal zone. The Massachusetts Bay Colony’s Colonial Ordinance of 1641-47, brought into Maine’s common law in 1820, says that private property extends to the mean low tide, incorporating all of the intertidal zone. However, the ordinance preserved three public rights to the intertidal zone: the rights to “fishing, fowl and navigation.” 

Chief Justice Leigh Saufley summarized the crux of the suit when she asked, “Is the rockweed an oak tree or a clam?” If oak tree, the rockweed is private property, and harvesting without the owner’s permission would be illegal; if clam, rockweed is public property, available for harvesting by any licensed commercial harvester.

Ben Leoni, attorney for Acadian Seaplants, argued first. He said that rockweed is a living marine organism, like a clam. Therefore, a “broad and sympathetically generous interpretation of the verbs ‘fishing and navigation’” would put rockweed squarely in the public trust.

Smith, arguing for Ross et al, disagreed, saying said that rockweed is not a fish, but a plant, and thus should be regulated as private property. “We’re asking the court to confirm that fee simple ownership of real estate includes ownership of the plants that are attached to and growing on that real estate,” he said. “It applies equally to the intertidal area as it does to the upland.”

Acadian Seaplants CEO J.P. Deveau attended last week’s oral arguments. He said the case is important not just for his company, but for all Maine seaweed harvesting companies operating in the intertidal zone. “Every single one of those will be affected dramatically with this decision. Some of those only harvest marine plants in the state of Maine,” said Deveau. Acadian Seaplants has operations in New Brunswick, Canada, the U.S. and Ireland. Almost all of its U.S. harvesting is done here in Washington County. 

Thirteen organizations filed amicus briefs, their support almost evenly divided between the plaintiffs and the defense. “In most cases there are no amicus briefs,” said Smith. “It reflects the extent to which various stakeholders have an interest in how this case turns out.”

Supporting Acadian Seaplants were the Maine Clammers Association, the Maine Seaweed Council, the Maine Coast Fishermen’s Association, the Department of Marine Resources (DMR), and the Downeast Lobstermen’s Association. 

The Jonesport and Beals Commercial Fishermen and Lobstermen Foundation, the Cobscook Bay Fishermen’s Association, the Pleasant River Wildlife Foundation, the Maine Coast Heritage Trust, the Downeast Coastal Conservancy, the Conservation Law Foundation, and the Pacific Legal Foundation all filed briefs in support of Ross et al.

Questions from the seven justices addressed matters of conservation, property rights, and the relevance of certain legal precedents referenced by the attorneys. 

Justice Ellen Gorman asked Leoni about the perspectives of amici supporting Ross et al who criticized the DMR’s ability to manage the rockweed resource sustainably for the public trust.

“It has been argued to us that the Tragedy of the Commons should play some role in our decision making here,” she said, citing a theory that resources which should be shared by all can be exploited for the gain of the few.

Leoni said he believes the DMR is doing a good job regulating commercial seaweed harvesting, but whether they are or not is irrelevant. “We don’t draw distinctions in property ownership based on concerns about whether a particular agency has been adequately regulating a particular activity.”

Justice Thomas Humphrey questioned Smith. “Don’t all these arguments circle back to ‘what is rockweed?’”. Humphrey asked if there could be a category in between a plant and an animal, because though rockweed attaches to rocks by a structure called the holdfast, it can also stay alive floating in the ocean if it is pulled from its rock. “It still gets its nutrients from its source, the sea,” Humphrey said.

“I think that’s a distinction without necessarily having significance,” said Smith. “Because, for example, there are instances of upland plants that do not extract nutrients from roots embedded in the soil. They attach themselves to a hard substrate,” yet they are still considered plants. The justices offered examples of other such plants, including hydroponic tomatoes.

Until the court returns its decision, there is nothing for both sides to do but wait. “I’m looking forward to the end of the uncertainty of this particular period,” said Deveau. “It makes it challenging, because we don’t know which direction this is going to go.”