After a two-year wait, the Maine Supreme Judicial Court on March 28 upheld a lower court decision that rockweed harvesters must obtain permission from upland landowners before harvesting in the intertidal area. The impact of the decision on rockweed harvesting in the state is not yet clear, as the largest company, Acadian Seaplants, which was the defendant in the lawsuit, plans to seek permission, while smaller operators say that continued cutting may not be feasible. And those who have sought greater protection for the seaweed believe most landowners will not grant permission for harvesting. The decision also may lead the state to consider implementing additional rockweed cutting regulations that have been recommended but sitting on the shelf for the past five years.
    "This is an extremely unfortunate decision for an entire industry and for Maine's economy," says Acadian President Jean‑Paul Deveau. "The sustainable harvesting of rockweed has created jobs and grown businesses, all of which are creating sustainable and environmentally friendly products."
     Despite the decision, Acadian Seaplants intends to maintain its operations in Maine, where it has grown over the past 20 years to include five full-time employees, upwards of 30 seasonal hand harvesters and two year‑round mechanical harvesters. Most of Acadian Seaplants' operations are in Washington County.
     Moving forward, Acadian Seaplants will seek permission from landowners to harvest rockweed where required. "We have been part of Maine's working waterfront for many years," said Deveau. "We intend to continue to work in these communities, support local causes and invest in the local economy."
     According to Deveau, Acadian's attorneys are studying the decision to see if there could be grounds for appealing it. The company also will be meeting with the Maine Department of Marine Resources to see what regulations may be put in place because of the decision.
     As for the impact on rockweed harvesting, Deveau says the industry had been operating under the assumption that it had the right to harvest rockweed under the public trust. Since permission will now need to be obtained from every upland landowner, "it will require substantially more work" to harvest.
     An independent harvester, James Young of Eastport, who has been harvesting in Cobscook Bay on his own for the past eight years, says that he has tried to honor no-cut requests by landowners, but he notes that "property lines can be hard to find on the water." He will now have to go to municipal offices, obtain lists of landowners and addresses and phone numbers and contact each of them and obtain written permission from property owners. He may ask those who will allow harvesting to place some tape at low water so he can be sure of where the property lines are.
     Young says he will make an effort to harvest this year but will have to see if it's feasible. If few landowners give permission, he says, "There may not be enough biomass to continue harvesting." If that's the case, "I'll have to move on and do something else."
     While there were perhaps 15 harvesters in Cobscook Bay last year, Young notes that statewide the decision could affect hundreds of jobs.
     Gordon Smith, the attorney for Kenneth Ross and Carl Ross, both natives of Calais, and Roque Island Gardner Homestead Corporation, who had sued Acadian for harvesting rockweed from their property without their permission, notes that his clients were concerned about the negative ecological impacts of rockweed harvesting and had been working with the state to try to create more regulations for the harvest. While having to gain the permission of landowners is "another avenue to protect rockweed," he says that his clients hope that the state regulations for greater protection still go forward.
  As for the impact of the decision, Smith notes that one outcome might be that it will lead to "a more local and regional set of relationships" in which the harvesters may get to know the landowners. Local harvesters, then, may have an advantage in developing those types of relationships.
     Robin Hadlock Seeley of Pembroke, a Cornell University senior research scientist and a member of the Rockweed Coalition, which has advocated for greater restrictions on harvesting, states, "The Supreme Court's decision is a win for fisheries and for wildlife, both of which depend on intact rockweed beds serving their ecological function in near-shore ecosystems, because I believe most landowners will choose to protect their rockweed from commercial cutting." She notes that NOAA      Fisheries recently has designated intertidal seaweed beds as Essential Fish Habitat for cod, and the court decision will allow landowners to help protect juvenile cod.

Public access rights explored
     In its decision, the court found that "rockweed attached to and growing in the intertidal zone is the private property of the adjacent upland landowner. Harvesting rockweed from the intertidal land is therefore not within the collection of rights held in trust by the state, and members of the public are not entitled to engage in that activity as a matter of right." The court applied prior legal precedent in reaching its conclusion that the harvesting of rockweed does not fall within the public's rights to fishing, fowling or navigating, as outlined in a 164147 colonial ordinance.
     While all of the justices agreed with the decision, three issued a concurring opinion that differed on the rationale. The opinion of the three justices noted that, since the Moody Beach court decision, "a member of the public has been allowed to stroll along the wet sands of Maine's intertidal zone holding a gun or a fishing rod, but not holding the hand of a child." They argued that the law court's 1989 decision erroneously limited the public's use of the intertidal zone and that the public's reasonable and nonabusive use of the intertidal zone should include "the right to walk unfettered upon the wet sand of Maine beaches to peacefully enjoy one of the greatest gifts the State of Maine offers the world." The harvesting of rockweed, though, would not fall within that reasonable access.
     Of the court ruling, Deveau says, "It's a decision that will make it more difficult for the working waterfront and may open the door to other restrictions on access to products in the working waterfront. It's of grave concern to the economy, particularly in rural Maine." He adds, "There are people who don't want to see economic activity in the intertidal zone. Will they seek to have more restrictions? The question is: What's next?"
     However, Seeley notes that intertidal fisheries, including clam and worm digging, are not threatened by the court's decision. "The right to take shellfish in the intertidal zone is settled law under the 'fishing, fowling and navigating' clause of the 1641‑47 colonial ordinance. This court case clarified what is common sense -- that seaweeds are not fish."
     Attorney Smith also does not believe that the case will lead to more challenges to restrict public access along the coast, since he points out that three justices signaled that they would like to overturn the Moody Beach decision and explored a legal doctrine, not yet in effect, that would allow for greater access in the intertidal area.
     "This is not erosive of public access," says Smith, adding that he doesn't see the case as being part of a pattern to limit access to the intertidal zone. He notes that his clients, Ken and Carl Ross, "don't fit the picture of wealthy landowners trying to restrict public access." Their grandparents purchased the property in Pembroke in the 1900s, and they were born and raised in Calais. "They have no issue with public access," says Smith, explaining that they are conservationists.
     Smith also notes that the amicus briefs filed in support of the case included ones filed by fishermen's groups that are concerned about the importance of rockweed to the health of the fisheries. "They don't want to limit public access," Smith notes. He adds that the public in this case is a Canadian-based corporation engaged in the large-scale commercial extraction of a resource.
Regulations going forward
     Rockweed landings in Maine have increased steadily in recent years, with the value jumping nearly tenfold in 17 years, from $84,138 in 2001 to $820,846 in 2018. In response to the increased harvesting, the state has been considering additional regulations, based partly on the rockweed management plan for Cobscook Bay.
     In 2014 a Rockweed Fishery Management Plan had been presented to the Department of Marine Resources (DMR) by a DMR plan development team but was never implemented. That plan made a number of recommendations for rockweed harvesting, including coastwide sector management, as is conducted in Cobscook Bay, with a 17% maximum harvest of the assessed biomass; the designation of no-harvest areas; and harvester training. Then in 2015 a Rockweed Working Group prepared for the DMR a list of criteria for determining no-harvest areas, including impacts on sensitive species. Those recommendations were not acted on by the DMR, as the agency awaited the court decision. According to Jeff Nichols, spokesman for the DMR, the department will now look at the decision to see if it should try to enact any of the recommendations either through rule or statute.
     Seeley believes the 2014 proposed rockweed management plan needs to be rewritten in light of the court decision. "The plan intentionally avoided all mention of ownership other than to state that the ownership question was unsettled. Now that question has been settled. The plan quietly assumed seaweed was a public resource. Now we know it isn't." She also believes that the question about whether sectors can be assigned for three to six years needs to be reviewed by the Maine Attorney General's office. She adds, "There needs to be acknowledgement that conservation lands will likely be off limits as the groups that own these lands will likely deny permission for commercial seaweed harvests on their intertidal lands."