In the wake of the Maine Supreme Judicial Court's March 28 decision that rockweed in the intertidal zone is the property of the upland landowner and not a public resource, a legislative committee is seeking to craft a means through statute to allow for commercial rockweed harvesting -- and the building of sandcastles.
     During a May 7 work session on a bill that would expand the allowed public uses in intertidal lands, the legislature's Agriculture, Conservation and Forestry Committee -- instead of the Marine Resources Committee -- worked with the Maine Attorney General's Office on how to amend the legislation so that it would not be in violation of the Maine Constitution or contrary to accepted common law. LD 1323, sponsored by Senator Dana Dow of Waldoboro, would allow certain commercial uses on intertidal lands, including seaweed harvesting and aquaculture, along with the rental and sale of surfboards and kayaks and small boats; and specific recreational uses, including "sitting, walking, running, reading, sunbathing, picnicking, the throwing of balls and other toys, gathering shells and sea glass and the building of sandcastles."
     Assistant Attorney General Lauren Parker outlined that the AG's Office sees LD 1323 as a vehicle for the legislature to express its view that recreational activities in the intertidal zone are within the public trust rights. She noted that a concurring opinion by three of the supreme court justices in the recent rockweed harvesting lawsuit against Acadian Seaplants indicated that the court should overrule the 1989 Moody Beach court decision to allow some recreational uses in the intertidal area. In the rockweed lawsuit decision, the court had applied prior legal precedent that the harvesting of seaweed does not fall within the public's rights to fishing, fowling and navigation, as outlined in a 1641-47 colonial ordinance, and therefore permission is needed from the upland owner before harvesting can occur. The Moody Beach decision held that the public is entitled to only those three rights in the intertidal zone.
     The AG's Office suggested several amendments to the bill, including removing the allowance for commercial uses in the intertidal area, since the court had stated that seaweed harvesting is not within the scope of the public trust doctrine. Parker noted that the court might reach the same conclusion concerning aquaculture in the intertidal zone. However, clamming and worm digging would not be at risk, she noted, as they fall under the fishing definition.
     Committee members then discussed how they could allow for the harvesting of rockweed in the intertidal zone through an amendment to state law, although Parker warned that such a measure might be construed by the court as an illegal taking of private property. Members of the committee also noted that while the agreed upon facts in the Acadian Seaplants case included that rockweed is a plant, the brown algae actually is not considered a plant by scientists. Former Maine law professor Orlando Delogu, who argues that Maine's beaches are public property, proposed how the bill could be used to allow for commercial rockweed harvesting, telling the committee, "You would assert your legislative prerogative to overturn a court decision that is contrary to 100 years of practice."
The committee then voted to table the bill and will consider possible amendments at a later work session.

Many testify at hearing
     On April 25 the committee had held public hearings on both LD 1323 and LD 1316, sponsored by Rep. Jeffrey Evangelos of Friendship, which would grant to the state ownership to all intertidal land not already filled to facilitate marine commerce.  Many shorefront landowners, marine scientists, clammers and worm diggers testified at the hearings.
     Rep. Evangelos testified that he supports both bills because the state's intertidal zone "is an economic engine" for the state but access has been limited by court cases. His bill would expand public access "to assure that all reasonable uses of the intertidal area be protected for the interest of our people."
     Chad Coffin, president of the Maine Clammers Association, stated that the bill would help the clam industry, as the interpretation that "wealthy coastal landowners" own the intertidal zone prevents the placement of devices to protect clams. Brian Beal of Machiasport, a professor of marine ecology at the University of Maine at Machias, also supported the bill, arguing that individual ownership of the intertidal zone is outdated. He maintained that upland landowners do not pay property taxes on land in the intertidal area and stated, "It is time to dispense with the arcane law that gives upland landowners private property rights in the intertidal zone." However, some municipalities, including Eastport and Lubec, do include the intertidal zone in assessing the value of the upland owner's land.
     The Maine Municipal Association (MMA) opposed LD 1316, stating it would amount to "a legislative takings of property from both private individuals and municipalities." MMA also opposed LD 1323, stating in its testimony that "modern pressure to throw out old law should be thoroughly interrogated and weighed against how long it has protected the character and uniqueness of Maine's communities." The bill could remove local authority to manage municipal beaches, working waterfronts and activities, MMA noted.
     Robin Hadlock Seeley of Pembroke also opposed both bills, arguing that they appear "to open a legal Pandora's box, or they set the legislature against the Supreme Judicial Court of Maine, or they would result in a huge cost to all of us if the state decided to purchase the entire intertidal zone from one end of the coast to another."
     At the May 7 work session, the committee voted against recommending LD 1316, with the AG's office having pointed out that declaring the intertidal zone to be public lands would be an unconstitutional taking of private property without compensation.