Maine’s bountiful seaweed. Who owns it?

A recent Maine case, Ross v. Acadian Seaplants, has made national news.  The subject of this legal battle?  Ownership of seaweed.

Acadian Seaplants, Ltd., a Nova Scotian company, has appealed from a decision of a justice of the Maine Superior Court, which ruled in favor of two property owners that own waterfront property in Washington County.  The court held that the owner of the waterfront owns the seaweed in the intertidal zone—the area between mean high and mean low tide—and removing seaweed from this area requires the owner’s permission. The decision was appealed and argued before the Maine Supreme Judicial Court in November and remains pending.

The seaweed at issue is Ascophyllym nodosum, commonly known as “rockweed” — one of the most plentiful seaweeds in New England.  You would recognize rockweed as the greenish brown growth with small egg-shaped bubbles that covers Maine’s rocky shoreline. Seaweed is a significant and growing part of Maine’s economy with wide-ranging applications, from food to makeup to fertilizer.  According to the Maine Department of Marine Resources, nearly 20 million pounds of seaweed were harvested in Maine in 2017.

This case highlights the tension between private ownership rights, recreational uses, and Maine’s maritime economy.  Pursuant to the Colonial Ordinance of 1641, amended in 1647, the State holds title in trust to the oceans and great ponds; owners of land on the waterfront own to the low tide water mark, subject to a public easement to fish, fowl (hunt), and navigate in the intertidal zone.  All members of the public may enter this otherwise privately owned area to exercise these rights.  Over time, Maine courts have expanded on the meaning of fishing, fowling, and navigating to include activities such as clamming, taking sea worms, and scuba diving.

The Ross v. Acadian Seaplants case considers whether to include the taking of seaweed within these public trust rights.

The Superior Court, in granting judgment to the property owners, reasoned that harvesting seaweed did not constitute “fishing,” analogizing to land: taking seaweed was no more fishing than harvesting timber would constitute hunting.  There are some Maine and Massachusetts precedents, however, that have held that the taking of “sea manure” (an old-fashioned term for seaweed) was within public trust rights.  Where the Maine Supreme Court will come down remains to be seen.

This story will be updated.

Keith P. Richard - Attorney

Keith P. Richard
Associate

Keith Richard is an associate attorney, representing clients in all areas of civil litigation. In 2009, Keith graduated summa cum laude from the University of Massachusetts, Amherst.  Keith received his law degree magna cum laude from New England Law | Boston.  During law school, Keith interned with Greater Boston Legal Services, the Massachusetts Land Court,… Read more »