Rockweed cutting by rake

We fully support your effort to protect and monitor
the fragile ecosystem in Cobscook Bay.
— Town of Lubec, Maine, selectboard letter to the plaintiffs; October 2015

Town of Lubec letters: 2013, 2015

LEGAL ACTION FAQ:

1. What legal action is being taken?

The ownership status of intertidal rockweed is an unsettled legal question. Three coastal landowners who have had rockweed harvested from their property without their consent have requested that Washington County Superior Court issue a declaratory judgment to determine who owns the rockweed. 

Update: As of 16 March 2017, Washington County Superior Court has issued a decision that the rockweed in the intertidal zone is not in the public trust, but belongs to the upland landowner. 

See our NEWS page for an update on this important issue. 


2. What is the question to be resolved by a court of law?

The question is whether rockweed growing in the intertidal zone is the property of the upland landowner or is the property of the public. In Maine, the land between the high tide line and the low tide line (the intertidal zone) belongs to the upland landowner, subject to the public’s rights to “fishing, fowling and navigation.” These public rights are referred to as the “public trust doctrine.” We believe that the rockweed growing on that intertidal land belongs to the upland landowner in the same way as the trees and shrubs growing on dry land. The commercial seaweed industry believes that harvesting rockweed constitutes “fishing” and therefore should be within the scope of the public trust doctrine in the same way as fishing, shellfishing and worming. 


3. Why do the plaintiffs in this case believe that the landowner owns the rockweed on his/her intertidal land?

Courts have never held that the right to “fishing” under the public trust doctrine includes the right to harvest plants. Rockweed is a long-lived, tree-like plant that grows affixed to the ground. Cutting rockweed on private land is like logging or tipping (cutting off branches from fir trees to make wreaths) on private land. A logger or a tipper cannot remove trees or boughs from private land without obtaining the landowner’s permission. The activities that are within the scope of the public trust doctrine (fishing, shellfishing, worming, fowling, etc.) all allow the removal of wild animals that are transient on the land, not the harvest of rooted vegetation. For hundreds of years, Maine property law has held that landowners do not own the deer, fowl and other wild animals moving across their property, but they do own the trees, crops and other plants growing on it. Accordingly, the harvest of rockweed should not be considered “fishing” under the public trust doctrine. 


4. Who will benefit if this case is decided for the landowners?

Fishermen will benefit, because rockweed serves as a nursery for young cod and 34 other fish species, protects clams on the flats, serves as habitat for lobster (at night) and periwinkles (wrinkles).

Conservation groups whose mission is to protect coastal wetlands for fisheries and wildlife will benefit, because they will be able to conduct their mission.

All industries that benefit from healthy wildlife populations will benefit, because of all the wildlife species that depend on rockweed: marine mammals, seabirds, shorebirds, ducks, eagles. 


5. If the court decides that rockweed belongs to the landowner, will that decision affect the public's right to take shellfish (clams, periwinkles, etc.), worms and fish in the intertidal zone?

No. Courts have already decided that taking fish, shellfish and worms in the intertidal zone is within the scope of the public trust doctrine. The rockweed ownership case will not affect these long-settled public rights to take intertidal fish, shellfish and worms. 


6. If the court decides that rockweed belongs to the landowner, will that decision affect the right to grow seaweed and other marine species via aquaculture?

No. A decision that rockweed belongs to the landowner will not affect marine aquaculture projects.