Editor’s note: This is the first in a series of posts from students in the class Fisheries, Fishermen, and Fishing Communities, or as the students say, Fish, Fish, Fish. This class is co-taught be me and my colleague Natalie Springuel, a Maine Sea Grant marine extension associate based out of COA. One of the assignments was to do an outreach piece that could have a public side. In addition to blogposts, students are helping to contribute to the coastal conversations radio show on WERU and contribution to the downeast fisheries trail website – Chris Petersen
Picture it. You’re on the coast of Maine, walking along the shore. It’s foggy. The waves crash and fill the air with briny aroma. The rocks are slick and covered in long fronds of seaweed, deep green and knotted with air bubbles. Believe it or not, that seaweed–rockweed–has recently caused some pretty heated legal debates.
On March 28, Ross v. Acadian Seaplants received a ruling: the Maine Supreme Judicial Court decided that rockweed (Ascophyllum nodosum) was not a fish, but rather a plant. This seems clear enough. However, because rockweed is not a fish, the court ruled that it belonged to the upland land owner and therefore was not public trust. Why? The Colonial Ordinance of 1641-1647.
The Colonial Ordinance, a piece of legislature created when Maine was still part of Massachusetts, states that the intertidal belongs to the crown–or, is privately owned–with exception to “fishing, fowling, and navigation.” Since we’ve established that rockweed is a plant, and is not a fish, then harvesting rockweed is not considered “fishing,” and thus can not be performed in private property. The Ross v. Acadian Seaplants document itself states that Maine has previously had problems clearly defining the intertidal as public or private, and actually also states that the ruling does not regard all intertidal land, only the rockweed that grows within it, if it is indeed privately owned.
So what actually counts as “fishing” then? According to this ruling, the divide separates animals from plants. Anything that’s an animal can be freely harvested (within state regulation) within the intertidal, but anything that’s a plant cannot–this creates its own problems, as many protest this ruling because rockweed isn’t necessarily a plant, but rather an algae. In an older case, the Supreme Court used where something got its nutrition from as the divide: if it got most of its nutrients from the water in the intertidal, it was publicly owned, but if it got its nutrients from the land within the intertidal, it was privately owned. Confusing, right?
The Maine Supreme Court, however, doesn’t think so. Now, if I wanted to harvest rockweed from a specific patch of intertidal land, I would have to ask permission from the landowner. Some think that this ruling itself is unfair and unfounded. Based on the equal footing doctrine of the U.S Constitution, each state should be created equal to all others; thus, it shouldn’t have to act under the laws of a state it was once a part of. Or, in this case, Maine does not actually have to act under the Colonial Ordinance–of Massachusetts–if and only if the state legislature decides to reject it; alternatively, the equal footing doctrine could be interpreted to mean that Maine shouldn’t act under any Massachusetts law because, as a new state, they should create their own. So what does all this mean for the rockweed fishery? Nobody really knows.
If the ruling is set in stone, what next? Hypothetically, fisheries like marine worms or scallops are safe because the state defines fisheries broadly–regardless of species/method. So, fishing should be safe so long as the fisherman is harvesting an animal, not a plant.
Some within the industry fear a rockweed apocalypse; they think that with this ruling, the industry will collapse into itself and cease to exist, destroying many jobs and local economic stimulation. Some fear the decision will create an odd power dynamic between landowner and harvester, where landowners demand payment for harvest from what is now considered their land. Others praise the ruling, fearing unsustainable harvest of rockweed and misuse of resources. Others still think the ruling will have little, if any, impact on the industry, as fishermen and landowners have historically had good relationships.
So what actually will happen? Only time will tell. Until then, all we can do is watch and see. And value that beautiful, brown seaweed that covers Maine’s shore.
Ross v Acadian Seaplants Ltd., 2019 ME 45, Was-17-142, March 28th 2019.
Delogu, O., Maine’s Beaches/Intertidal Lands are Public Property: The 1986/1989 Bell Cases Got it Wrong [lecture]
“The Thorny Issue of Rockweed.” The Ellsworth American. 4 Apr. 2019.