Rockweed Law

(a) The 2019 Maine Supreme Court decision: 7-0 unanimous agreement that rockweed is privately owned and owned by the private owner of the intertidal zone.

The question was whether rockweed growing in the intertidal zone is the property of the upland landowner or is the property of the public. In Maine, unlike in most states, 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, and the plaintiffs argued, 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 believed 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.

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.

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 to conserve intertidal habitats knowing that the law is clear on who owns the rockweed.

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.

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

No.