In 1999 questions were raised regarding the ownership of Maine’s seaweed, particularly what’s harvested from the intertidal zone (between the high tide and low tide marks) of Maine’s shorelines. Also, there’s the question of whether Maine’s harvesters have the right to harvest seaweed in the intertidal zone.
Some believe that those issues were resolved in an 1861 court case, Lord v. Hill, which involved a Vaughan’s Island (York County) property owner who filed suit against an individual for hauling off seaweed. The court held that “a right to take seaweed was a right to take profit in the soil” and ruled in favor of the owner.
Robert Morse contends that the seaweed ruled upon in that case was saltmarsh hay (which is rooted in the soil) and also included seaweed that had broken off from the holdfasts and washed up onto the shore. Morse owns North American Kelp, a Waldo-based seaweed processing company.
“Salt marsh hay was rooted in mud,” said Morse. “Seaweed [the plant in question today] attaches itself to rocks with holdfasts in the intertidal zone. It derives its nutrients from the water not the soil.”
Morse is adamant that other answers to the ownership and harvesters’ rights questions can be found by looking at two definitions in state law, and by tracing back the history of the state’s rights to the shoreline.
Last fall the Maine Seaweed Council sent a letter to DMR commissioner George Lapointe regarding two definitions within Title 12, Section 6001 that they believe identify their right to harvest seaweed. In Section 6001, the verb “to fish” is defined as “to take or attempt to take any marine organism by any method or means.” The phrase “marine organism” is defined as “any animal, plant, or life that inhabits waters below head of tide.”
Lapointe responded that “…for the purposes of our laws, the Legislature has included `plant’ within the definition of `Marine organism’ and has included the taking of all marine organisms within our definition of the verb `fish.'”
“These definitions, combined with other parts of our statutes,” he wrote, “clearly establish the Department’s authority to regulate the taking of seaweed in Maine. However, even though the Legislature has provided for the regulation of seaweed in this manner, it has not and cannot define or alter ownership of this resource. The issue of ownership is a matter of common law and one must defer to the Judicial Branch for determination in this area…”
To bolster his counter-argument, Morse points to Maine’s Public Trust rights. In a 1997 article entitled “Public Trust Doctrine-A Gift From A Roman Emperor,” Attorney David Slade traces a state’s right to access the seashore dates back to 530 A.D., when the Roman Emperor Justinian included it in a list of rights common to all mankind.
When Rome fell and European countries rose to power, Slade explains, Rome’s civil law formed the basis for many European countries, including England, which recognized “the public nature of tidelands and water” and gave them “protection in the name of the King for the use of all English subjects.”
Tracing the thread through to Maine’s current Public Trust rights, Slade explains that while Maine was still part of Massachusetts, the government passed an ordinance stating that the owners of waterfront property owned not just to the high water mark but to the low water mark. The rights of the public for “fishing, fowling, and navigation” on those privately owned shores, however, were retained.
Morse claims that seaweed harvesters have the right to “fish” within the intertidal zone because of the Public trust rights to “fishing, fowling, and navigation” (handed down from colonial days) and because they fall within the state’s definition of “fishing.”
Maine seaweed harvesters landed 3.54 million pounds of seaweed in 2004, valued at about $202,482,000, according to the state Department of Marine Resources (DMR). Maine seaweed is shipped throughout the U.S. and also overseas.
David Slade has written a book entitled “Putting The Public Trust Doctrine to Work,” which can be purchased by calling the Coastal States Organization at (202) 508-3860.