Maine Supreme Court Decides Seaweed Is a Plant, Not a Fish
(April 1, 2019) – In a decision involving contrary views and arguments regarding the scope of public rights to access and use intertidal property, the Maine Supreme Judicial Court has unanimously held that rockweed, a type of seaweed that grows on rocks in the intertidal area all over the North Atlantic, is owned by the intertidal property owner, not the public. As such, commercial harvesting companies and others are now prohibited in Maine from harvesting rockweed growing on intertidal land without landowner permission.
Under Maine law and the laws of some other East Coast states, a coastal property owner holds title down to the low water line, including the intertidal area, which is the land between the high tide and the low tide marks. Under the public trust doctrine, the public holds certain rights to the intertidal area, including fishing, fowling and navigation. The Court determined that harvesting rockweed is unlike any of those, and therefore does not fall within the scope of the public trust doctrine. In a nod to an expanded theory on the scope of the public trust doctrine that to date has not been adopted by a majority of the Court, the justices also found that the harvesting of rockweed places an unreasonable "burden" on private property rights.
Gordon Smith, an attorney at Verrill Dana, LLP, and the attorney for the private landowners in the case, Ross v. Acadian Seaplants, noted, "this case is one in a series of coastal cases, going back to the 1980s, involving disputes between private property owners and the public regarding access to beach and ocean areas." "Again, the Court has found that private rights are important, and that absent compensation or permission, the public's rights to intertidal areas are not without limit."
This decision does not impact the public's right to fish or harvest other sea creatures such as mussels or clams. Instead, the Court's order means that plants, unlike fish, belong to the landowner.