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January 8, 2016





Rockweed lawsuit escalates debate over intertidal ownership
by Lura Jackson


      Multiple alleged incidents of illegal rockweed harvesting have provided the catalyst for the filing of a civil lawsuit against Acadian Seaplants. The lawsuit, filed on December 11, seeks a declaratory judgment from the Maine Superior Court to definitively determine who has ownership of intertidal rockweed.
     "The lack of clarity causes tension in the various interests involved," says attorney Gordon Smith of Portland‑based Verrill Dana, who filed the complaint on behalf of the plaintiffs, Ken and Carl Ross and Roque Island Gardner Homestead Corporation. The Rosses own shorefront property in Pembroke.

Question of ownership

     Ownership of intertidal rockweed has not yet been firmly established by the court system, an ambiguity that has produced escalating ill will between landowners and harvesters. "It's been frustrating for a lot of people," Carl Ross elaborates. According to the complaint, the Rosses claim "exclusive ownership of rockweed growing on and affixed to their intertidal property" while Acadian Seaplants claims the right to harvest from intertidal properties.
     Though Acadian Seaplants declines to comment on the case, harvester Bob Morse of North American Kelp provides his understanding of why rockweed is a resource owned by the state that can therefore be extracted for the benefit of its residents. The sovereignty clause of the Maine Revised Statutes, statute 2A, establishes that the state "owns and shall control the harvesting of the living resources of the seas adjoining the coastline" to the continental shelf. While it does not specifically define "coastline," Morse interprets it as the extent of the head of tide, which would include all intertidal resources. He bases his interpretation on the way land lines have been drawn for coastal properties since at least the 1860s. "Land is all calculated by the high tide," Morse explains. He adds that residents "don't get taxed on the intertidal zone."
     However, in a paper written in 2009, Hannah King, JD, points out that in 1861 the Maine court held that the "title to the seaweed is in the owner of the flats" and that "seaweed belongs to the owner of the soil upon which it grows or is deposited." Furthermore, King notes the 1641/1647 Colonial Ordinance of Massachusetts, which was utilized as common law by Maine in the past. The ordinance grants property rights to the low-water mark except for the limited purposes of fishing, fowling and navigation. "Seaweed harvest... does not fall within the scope of the public trust right of fishing," King asserts.
     For its part, the Department of Marine Resources (DMR) regards the issue as unresolved. "The department's position is that rockweed is a commercial fishery and that the department is authorized to manage it as such. The department will continue to do so until the courts decide otherwise," Commissioner Patrick Keliher states.
With the harvest of intertidal seaweed steadily increasing over the past several years -- amassing just over 8,000 metric tons in 2014, of which 95% was rockweed -- landowners such as the Rosses feel that the issue is becoming more and more pressing. For the Rosses in particular, their concern mounted when their legally protected property was harvested, first in 2012 and then on multiple occasions in 2015.

Rockweed harvested from property with conservation easement
     The Ross brothers each own a piece of conjoined coastal property in Pembroke, passed on to them from their great grandparents. As the harvest of Maine's rockweed gradually increased, the Rosses filed a joint conservation easement with the state, which to their understanding meant that cutting on their property is prohibited.
      According to the state's website, a "conservation easement is a legally enforceable restriction on the future uses of property... designed to preserve and protect the land's conservation values over time." The site also states that "the holders of the easement have the right to enforce the restrictions on the land." Maine first authorized conservation easements in 2007.
     In the summer of 2012, however, a boat was seen taking seaweed from the seemingly protected property of Carl Ross, though it was not clearly identified. In June of 2015 a boat registered to Acadian Seaplants harvested from the property of Ken Ross over the course of a few days.
     The incident was reported to local law enforcement at the time; however, no summonses have been issued that the Rosses are aware of. When contacted regarding the incident, Marine Patrol Sergeant Colin MacDonald deferred all questions to the DMR.
     The DMR did not claim knowledge of the incident. Jeff Nichols, director of communications for the DMR, states, "The Marine Patrol and DMR have worked closely with industry and landowners to clarify designated harvest sectors and have successfully resolved any issues brought to our attention regarding harvesting outside of designated harvest sectors."
     For the Rosses, the next evident step was to file a civil case to determine the issue of rockweed ownership once and for all. "At least everybody would know where they stood," Carl Ross says.
     For Bob Morse, a resolution in favor of the plaintiffs could be a bigger issue than many realize. "It's not a takeover of rockweed. It's a takeover of the intertidal zone -- clams, mussels, all specimens. It happens gradually. This will not just be a seaweed case. It's an aquaculture case. It's a land case."

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