The opinion
ST/\TE OF M/\INE SUPERIOR COURT
CIVIL ACTION
WASHINGTON, ss DOCKET NO.SC-CV-15-022
KENNETH W. ROSS, CARL E. ROSS )
and ROQUE ISLAND GARDNER ) ORDER on
HOMESTEAD CORPORATION ) CROSS-MOTIONS
Plaintiffs ) for
\IS. ) SUMMARY JUDGMENT
)
)
ACADIAN SEAPLANTS, LTD )
Defendant )
Kenneth W. Ross, Carl E. Ross and Roque Island Gardner Homestead Corporation
(colleclively Plaintiffs) and Acadian Scaplants, LTD (Defendant or Acadian Seaplanls)
have filed Cross-Motions for Sununary Judgment. The parties submit!ed lheir motions on
a Joint Statement of Material Facts. At issue is whether rock weed, a form of seaweed,
growing on private intertidal property is private prope11y or a marine product owned by
the State in trust for the public.
FACTS
Plaintiffs own coastal property, including intertidal property, on Cobscook Bay and
Chandler Day in Washington County. JSMF ~~1-3. Rockwccd growing in the tidal waters
attached to the intertidal properties of the Plaintiffs has been harvested and carried off by
Defendant, without Plaintiffs' consent, within the past six years. JSMF ri,l8- I0. Defendant
harvested the rockweed from watercraft floating in the waters above Plaintiffs' intertidal
land where rockweed grows without actually walking or travelling upon Plaintiffs' land.
JSMF ~1~16-7. Harvesting was typically done during mid-tide when the rnckweed was
Ooating vertically. Id. Harvested rockweed is used in fo11ilizer and animal feed products.
JSMF ~ 5. Rockweed used as a form of fertilizer is ofien refened to as "sea manure."
JSMF, Ex. I, p. 462.
Roekweed is the common name for a species of brown intertidal seaweed, known as
Ascophy/111111 nodosum and is found on the rocks and ledges of the coast. JSMF 1 11.
Rockweed docs not grow on intertidal sandy beaches but rather on hard objects such as
rocky substrates, including rocks, stones and logs. The rockweed attaches lo rocky
substrates by a "holdfast" which penetrates the bedrock by up to four millimeters. JSMF
~, 12-14. Once attached hy the holdfost, rockweed docs not move, but if broken m·
detached, the rockweed will either float on the ocean or be cast upon the shore. JSMF~
15. The holdfast's sole purpose is to keep the rockweed in place and is not a means to
extract nutrients from the ground. JSMF ~ 16. Instead, rockwccd receives nutrients from
the sea, and absorbs CO2 from the air and seawater. JSMF ~ 18. Under normal conditions
rockweed generally grows between two and four feet tall when standing vertical in high
tide, but can grow to over six feet tall. JSMF ~ 13.
Rock weed beds arc ecologically impo11ant. They provide cover and a habitat for multiple
organisms, help lo moderate temperature in the sea, and are a source of nutrients to the
marine ecosystem. JSMF ,1,119, 23-24. Each year, rockwecd will release a portion of its
biomass due to natural effects of the environment. But the hold fast, if not severely
damaged, can remain intact and attached for decades, allowing the plant to generate new
growth. JSMF ~ 23 .
And rockwced plants reproduce. Male rockweed plants release free-floating sperm and
female rockweed plants release eggs. Once an egg is fertilized, the embryo will attempt to
attach to rocky substrate. Once it docs, the rockweed remains a stationary, perennial
species for the remainder of its life. In undisturbed locations, it can survive for decades.
JSMF ~ 20.
Harvesting of rockwccd is regulated by the State, including harvesting locations or
sectors, amounts and heights. JSMF ~~26-27. A license is required to commercially
harvest rockwecd in the State of Maine. JSMF ,J 28.
DISCUSSION
I .ls the right to take seaweed a profit or an easement?
Analysis of this case must begin with a discussion of Hill v. Lord, 48 Me. 83(1861). That
case was a trespass case in which the defendant took seaweed from the shore of land
established to be the property of plain tin: including the flats which belong to the owner
of the upland, as appmtenant to il. From the evidence discussed, large quantities of
seaweed, a part or it growing on the beach, nnd a part t1oatecl hy the tides from other
localities, accumulated upon the flats. kl al 96. The Court held " .. the title to the seaweed
is in the owner of the flats; and both together, unless there has been a severance, belong
to the riparian owner. Id., citing Emans v. Tumbull, 2Johns.313.
The decision in l-li/1 v. Lord turned on the question whether the right to take seaweed was
a right to take a profit in the soil or an easement. Upon considering other precedent, the
Com1 noted:
So far as any general mle can be deduced.fi'Olu these cases, /hey lend lo //,e
conclusion thal lhe righl lo lake seaweed is a right lo take a projil in lhe soil. 11 does
nol come within the princip(l/s applied to aquatic righls. The su~iecl ,~/'ii is; in part, a
product of lhe soil where ii is found And, in regard lo Ihat portion which is washed
ashore by the tides, though 1101 permanent~y remaining, lhe righl which the owner ol
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the.flats has to if is much more analogous lo the }us a/luvionis <lriparian
. I
propnetors, ...
The Hill v. lord Comt mlcd the right to take seaweed is not an easement, but is a right to
take a profit from the soil, which in that case belonged to the owner of the flats. This
distinction is important.
As Defendant acknowledges, the right to products of the soil is an alienable right
described as a "profit a prendre", which is the right to take from another's land a part of
the soil or of the products of the soil. Maine Practice Series, Maine Real Estate law and
Practice, 211d Hdition, §8:2; See also Beckwith v. Rossi, 175 A.2d 732 (A4e. 1961).
Examples include the right to cut and take away trees, to remove sand, gravel or soil or
quarry granite. id
2. The Public Trust Doctrine
Switching to the Public Trust Doctrine and casements, by common law, reserved out of
the fee title of the upland owner is a public easement for fishing, fowling, and navigation.
Bell v. Wells, 557 A.2d 168, /73(Me. 1989). The terms fishing, fowling and navigation
have been allowed "sympathetically generous interpretations''. Id. But the Court has
never decided a question of the scope of the intc1tidal public easement without referring
to the three specific public uses of fishing, fowling or navigation. Id. 2 However a review
and application of the doctrine from McGarvey v. Whillredge, 2011 ME 97 is necessary.
McGar11ey does indeed clarify, and shift away from a strict approach that the public's
rights of use in the intertidal zone be a form of fishing, fowling or navigation. McGarvey
at ~~53-57. Those tlu·ee terms provide context, but it should not be understood that they
exclusively define the scope of public rights. Id, ~~ 56-57. Instead, the better approach is
to ask two questions. Id at ,149.
First, docs the activity fall readily within the aquatic rights of "fishing, fowling or
navigation?" Id If so, no further questions arc required. Id. This court does not find
harvesting a plant such as rockwecd to be a form of any of the three identified activities.
Harvesting a terrestrial plant is no more a fishing activity, such as worming, digging for
mussels, trapping lobsters or dropping a line for fish clearly are, than is harvesting a tree
the same as hunting or trapping wildlife. Rockwccd is a terrestrial plant. .ISMF
§§ 11, 12, 15, 16,20. The harvesting of rock weed cannot be said to be a form of fishing,
fowling or navigating.
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Regarding "that portion which is washed ashore .. ", the Court's interpretation is this
washed ashore seaweed was in addition to other seaweed on the property, based on the
reference in the evidence at page 96 of lmge qmrnlitics of seaweed, a part of it growing
on the beach, and a part of it floated by the tides.
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Interestingly, in Bell v. Well.\·, in his dissent arguing for greater public recreational
l'ights, Justice Wathen noted " .. we have prohibited the taking of seaweed from the flats of
another. "The title of the seaweed is in the owner ofthe nats ... "Hill v. Lord, 48 Me.
83,86(1861).
J
So we proceed to the next question suggested by McGarvey- whether the common law or
)us publicum should be understood to include the activity, here the harvesting of
rockwccd from the ocean bed in the intertidal zone. Id.
McGarvey suggests lhat in answering the second question a reasonable balance be struck
between private ownership of the intertidal lands and the public's use of those lands. By
way of example, common law has included in the public easement the right to shellfish
and dig for worms, but does not include the right to take mussel bed manure or cutting or
ice. 1vlcGarvey at ~~ 39-40.However, in addressing such a question, it is noted that all of
the case lnw describes the private owner's title to the intertidal zone as infee. See Bell at
p. 173; lt4cGarvey at ,r16, 32. It remains that for the public to have a right it still must
derive from some form of easement right orjus p11blic11m. Id. ll is the court's view that
the answer to this second question takes us back to Hill v. Lord.
Aquatic rights, of whatever kind, when held by those not owning the soil, are considered
casements. Hill at p.99. As previously discussed, the Court in Hill ruled the right to take
seaweed is a right to take a profit in the soil; it is not an casement. Id Applying the test
from McGarvey, the cm.111 does not find that common law should be understood to
include the activity of harvesling rockweed .
In Maine, unless previously severed, the owner of coastal property also holds fee title to
the land that is exposed between high tide and low tide, but not beyond a distance of 100
rods. !Jell at 172. Defendant does not challenge Plaintiffi;' ownership in this intertidal
zone. JSMF §§ 1-J, 8-10. Based on Hill v. Lord the rockweed growing on Plaintiffs'
intertidal property is a profit that belongs to Plaintiffs, and not subject to a public
easement.
3. Title 12 definition of fishing.
The Defendant has also referenced the definition of "fishing" found in Title 12.
Notwithstanding that harvesting rockwccd could come within the definition of "fishing"
utilized by the Department of Marine Resources (DMR), 12 M.R.S. § 600 I, ct. seq., those
statutes arc in place to regulate and conserve marine resources. Sec §6021. The statutory
framework by which DMR regulates marine resources has no place in determining
property rights, including public easements, which are typically determined by common
law.
4. Hill v. lord has not been overruled.
In opposition to /-/ill v. Lord, Defendant relies significantly on Marshall v. Walker. 93
Me. 532 ( 1900), asserting it overrnled Hill v. Lord and is controlling of this case.
Marshall v. Walker was a quiet title case. Consistent with legal precedent previously
discussed, the Court in Marshall noted that the proprietor of the main holds the shore to
low water not exceeding one hundred rods; he holds it in fee, Hke other lands, subject,
however to the jus public 11111, the right of the public to use it for purposes of navigation
and of fishery. Id at 536. Regarding the j11s p11hlic11111 rights, the Court also slated "Others
may sail over them, may moor their craft upon them ... may fish in the water over them,
may dig shell fish in them, may take sea manure from them, but may not take shells or
mussel manure or deposit scrapings of snow upon the ice over them . Id It is not clear
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what the Comt was referencing when it listed "sea manure". Selling aside momentarily
consideration of "sea manure", the list of allowed and disallowed activities as ajus
publicwn right is largely but not entirely accurate. There is no djspute that by jus
alluvionis, seaweed or sea manure washed upon the shore of a fee owner belongs to the
foe owner, just as shells and mussel manure belong to the fee owner, notwithstanding the
Marshall's Court failure to include it in its list of disallowed activities. See Moore v.
Gr((f,n, 22 Me. 350 (1843). So what regard to give to the 1\,/arsltall Court's inclusion of
taking sea manure as ajus public11111 right is difficult to reconcile. But it seems a stretch to
suggest Marshall v. Walker overrnled Hill v. Lord.
As Plaintiffs have pointed out, the decision in Marshall docs not even reference Hill v.
Loni. let alone overrule it. The doctrine of sl(ll'e decisis is the historic policy of our courts
to stand by precedent and not disturb a settled point of law. McGarvey v. Whillredge,
2011 ME 97, ~I 63. Even with a certain "unease" with the analysis of a prior decision, the
Courts will not overrule the decision without a compelling and sound justification. Id.
This is particularly at its apex with regard to judicial precedents that exposit properly
rights. Id. at ~ 64. The Courts proceed with great care before overruling a prior decision,
and do so only after careful analysis and based on a compelling reason. Alexandre v.
State, 2007 ME I06, 13 5. Without even mentioning the Hill v. Lord decision or
identifying any compelling reasons, it is improbable that the Comt in iHarshall was
overruling Hill v. Lord. The decision in Hill v. Lord turned on the issue whether the right
lo lake a seaweed was a right to take a profit in the soil or an easement. Marshall never
addressed those issues.
5. Anthony v. G{f/ord Distinguished
Lastly, regarding the concept ofjus al/uvionis and its argument that the foe owners
interest in sea weed applies only to seaweed once washed upon the shore, Defendant cites
Anthony v. G({ford, 84 Mass. 549, ( 186 I). But the impact of that decision must he
restricted to what it states. In Anthony v. Giflorcl, the Massachusetts Court held that by jus
alluvionis:
"..sea weed, kelp and other marine phmls, when detached from the bottom of the
sea and thrown on the shore or beach, become vested in the owner of the soil. But
these marine products do not become the property of the riparian proprietor until
they are cast on the land or shore .... So long as they are afloat and driven or
moved from place to place by the rising tide, it is wholly uncc11ain where they
may find a resting place; and no one can claim ownership in them.." Id.
The Massachusetts Court provided no precedent regarding seaweed still affixed to the
rocks on the intertidal bed. Its holding is of precedent only for seaweed washed upon the
shore or still adrift, and does not have persuading impact on Hill v. Lord.
ln conclusion, the court finds that rockweed/senweed growing in the intertidal zone is
private properly owned exclusively by the tee owner, und is not owned by the Stale in
trust for the public. Plaintiffs' Motion for Sununary Judgment is granted; Defendant's
Motion for Summary Judgment is denied.
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The clerk shall incorporate this Order in the docket by reference pursuant to M.R.Civ. P.
79(a).
Justice, Superior Court
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