June 25 ,  2010 






No-cut list for rockweed may restrict harvest
 by Edward French


     A rapid increase in the number of landowners who do not want rockweed cut on their shorefront in Cobscook Bay appears to be limiting the harvest this season for those companies that are respecting the landowners' wishes.
     The number of parcels of land around Cobscook Bay that are on the voluntary no-cut registry that is maintained by the Downeast Coastal Conservancy has increased from 90 last December to 324 now. The increase, by three and a half times, has been the result of a mailing to every shorefront landowner around Cobscook Bay that was sent out in April by the Rockweed Coalition. The mailing, which was signed by Carl Ross, Robin Hadlock Seeley and Julie Keene, included a letter and brochure indicating their concerns about the impacts of the harvest on other species and the ecosystem and also copies of the form for signing up for the no-harvest registry.
     Alan Brooks, stewardship director for the conservancy, says those who signed up include both newer landowners and "very long-time families" from the area. The conservancy sends the list of landowners to the rockweed harvesting companies so they will be aware of which riparian owners do not want harvesting conducted on their shorefront parcels.
     In May, one of the rockweed companies, Acadian Seaplants Ltd., requested a meeting with the conservancy to express the company's concern with the large increase in the number of parcels on the registry. Acadian Seaplants has informed the Maine Department of Marine Resources (DMR) that the company will respect the no-harvest registry, but the three other companies that have approved harvest plans for Cobscook Bay have not indicated their position, according to DMR Deputy Commissioner David Etnier. Acadian has reportedly ended its harvest in Cobscook Bay for this season.
     The company did conduct some harvesting this year on the Passamaquoddy Bay side, which is not restricted by the maximum allowable amounts. Outside of Cobscook Bay, the state's requirements only include a minimum cutting height of 16" and a requirement to file harvesting reports.
     Last year, the total harvest was 1,200 short tons, or approximately 4% of the available rockweed biomass in the bay, after conservation areas are removed from the biomass estimates. Under state law, the maximum allowable amount that can be harvested in any management sector in Cobscook Bay is 17%. The total estimated biomass in the bay is 50,342 short tons, and 30,266 after conservation areas are removed. This year, harvesters proposed harvesting 3,626 short tons, which would be 12% of the available biomass. The four companies that have approved plans proposed harvesting the following amounts: Acadian Seaplants, 1,501 short tons; North      American Kelp of Waldoboro, 879 short tons; George "Butch" Harris of Eastport, 740 short tons; and Patrick Driscoll of Yarmouth, 506 short tons.
     Butch Harris has not yet begun harvesting this year, as he is having a new boat built for mechanical harvesting. He says the number of parcels on the no-harvest registry could affect whether he will be able to harvest the amount he proposed in his harvest plan. He's not sure whether he'll try harvesting on those parcels on the no-harvest registry, as it will depend on the amount of rockweed in parcels not on the registry for the sectors he's been assigned. Bob Morse of North American Kelp also has not begun harvesting yet in Cobscook Bay, although the company plans to harvest the tonnage amount in its harvest plan. Morse has no comment on the question of whether the company will respect the no-harvest registry. Patrick Driscoll could not be reached for comment.
     Brooks notes that the conservancy believes that all upland owners of intertidal land also own the associated rockweed and therefore harvesters should seek permission from owners who are not included in the no-cut registry before harvesting, rather than assume that properties not listed in the registry are available for harvest.
A map prepared by Maine Coast Heritage Trust in June shows both the federal and state conserved lands and the lands placed on the no-cut registry. The map indicates that perhaps over half of the shorefront in Cobscook Bay is now either in state or federal conserved lands or on the no-harvest registry.
     Although rockweed harvesters are not bound by state law to not harvest on lands that have been placed on the no-harvest registry, the law passed in 2009 that sets restrictions on harvesting in Cobscook Bay did require the commissioner of marine resources to report to the legislature's Marine Resources Committee about harvesters' compliance with both state regulations and the no-harvest registry. That report, made in January, included a letter from Brooks noting that during the 2009 season, unlike in 2008, there had been only one complaint about harvesting on registered lands. The letter, though, also alleged "a significant violation" of state law when workers for Acadian Seaplants harvested islands owned by the Maine Department of Inland Fisheries and Wildlife and by Maine Coast Heritage Trust, which, as public and private conservation areas, are off-limits to harvest. The alleged violation was on Parker Island. "The fact that clearly identified, statutorily protected islands were harvested near the end of the second season of full-scale harvest, by a crew whose leader had worked throughout both seasons and who could be expected to be fully familiar with the mapped conservation lands, is cause for real concern," Brooks wrote.

Ownership question not resolved

     The question of who owns the rockweed is one that still is not resolved in Maine. Etnier notes that "the question will have to be resolved by the courts." Although the legislature has been asked to consider bills that would settle the question of the right to harvest rockweed in the intertidal zone, no action has yet been taken.
A landowner's prohibition that harvesting not occur on his property may not necessarily apply to seaweed, since rockweed may be considered a public resource. Several years ago the Maine Seaweed Council, a coalition of seaweed industry representatives, seaweed farmers and researchers, hired a public trust attorney who analyzed court cases pertaining to property rights of seaweed in Maine and concluded that harvesters of any seaweed that is attached to rocks must comply with state laws but need not seek permission of any riparian landowners. However, the DMR did add language to its seaweed harvesting licenses stating that the license does not grant the right to harvest in certain places. Although the seaweed council argued that the language is not legal or necessary, the Maine Attorney General's office recommended that the statement remain on the licenses.
     Under present state law, the rights for public use of intertidal land include fishing, fowling, navigation, use as a footway between points along the shore and use for recreational purposes. Fishing, fowling and navigation are common law rights established from Colonial times, but the additional uses as a footway and for recreation were added more recently and were struck down by the Maine Supreme Judicial Court in the Moody Beach case. However, that remaining language is still in the law. According to the AG's office, the right to those additional uses would be unenforceable because of the court decision.

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