Seaweed Flap Refloated

by Steve Cartwright

Despite the 1640s Colonial law’s continuing presence, landowners often erect no trespassing signs and fences and in other ways block access to the shore in the intertidal zone. Steve Cartwright Photo

Mainers have been gathering seaweed to use for fertilizer and food for centuries. But some say modern industrial harvesting threatens intertidal life, and others are at odds over who owns the seaweed and the property under it.

It’s a subject that seems as slippery as grabbing a handful of the stuff. The taking of rockweed—common along shore—has pitted harvesters against some landowners and environmentalists.

Rockweed can be gathered by hand with a knife and a bucket, or mechanically harvested from a boat.

On one hand, harvesters and processors such as George Seaver of Waldoboro, vice president of Ocean Organics, say cutting seaweed from the shoreline is like haying a field. It grows back. He said his company would go out of business if seaweed were not a renewable resource. His company has been turning seaweed into fertilizer for golf courses, lawns and gardens for 20 years.

On the other hand, marine biologist Robin Seeley and the Rockweed Coalition of Dennysville argues that industrial harvesters could be ruining the resource by taking too much, too fast. The group claims there are now 20 miles of Cobscook Bay shoreline off-limits to seaweed harvesting, including lands owned by the Passamaquoddy Tribe, private landowners and Devil’s Head in the city of Calais.

At the recent Fishermen’s Forum in Rockport, Seaver stood beside an exhibit on the uses of seaweed, including seaweed chips to munch on, at the recent Fishermen’s Forum in Rockport. He talked about seaweed having huge potential for agriculture as a crop and soil enhancer.

For Seaver, seaweed is simply a renewable resource that grows in the public domain, the intertidal zone that is lawfully open to “fishing, fowling and navigation,” a legal phrase dating to the Colonial era that has been reaffirmed from time to time.

That interpretation is wrong, says the Rockweed Coalition, which says its mission is “to promote conservation of intertidal marine habitat, and to end commercial cutting and removal of rockweed until studies can demonstrate that cutting rockweed does not harm the ecosystem.”

Seaver said harvesting is clearly sustainable or he would be out of business. He claims he harvests a small percentage of total seaweed, and thus the marine ecosystem is not disrupted. For the past decade, state law has required commercial harvesters be licensed, and that rockweed be cut above the holdfast, the part that attaches to rock.

Even harvesting “at the most aggressive level,” Seaver said, the amount of seaweed cut is well below what naturally breaks loose from ice and storms each year, and is replaced by new growth.

Seeley is not so sure harvesting is sustainable. She said the word has one meaning for harvesters and another for biologists: “The seaweed harvester’s definition of sustainability is return of biomass (it grows back). When we talk about sustainability, we’re talking about sustainability of the ecosystem.”

Studies show cut seaweed does not grow back the way it was before harvesting, Seeley said, just as a tree or shrub that is pruned will then grow in different ways. There are “old growth forests” of seaweed, up to 400 years old, she said. More studies and data are needed, she believes, to assess the impact of removing seaweed from a food chain that includes eider ducks and pollock.

Seeley, who is assistant director of Shoals Marine Lab on Appledore Island, has spent a decade studying the impact of seaweed harvesting, and helped develop a registry of landowners who don’t want any seaweed harvesting on their property. She is a Cornell University professor affiliated with the University of New Hampshire, and co-founder of the Rockweed Coalition.

“It (rockweed harvest) hasn’t ever hurt anything,” said Seaver, who considers himself an environmentalist. He is vice president of the Maine Seaweed Council, an industry group that says the “public trust rights in intertidal lands include the right to use intertidal land for fishing, fowling and navigation; and the right to harvest non-alluvial (attached to rock) seaweed within the intertidal zone is not held by the proprietor, but rather remains in the public’s jus publicum (land held in trust by the government) rights.”

But does seaweed that is found there belong to them? And what about seaweed that is floating versus seaweed that is attached to rock? It’s a murky area, Seeley believes. “Whether the public has a right to cut is in doubt,” she said, while acknowledging that the public clearly has the right to harvest mussels and clams in the intertidal zone.

The question dates back more than 300 years.

The 1640s Colonial ordinance that is often cited in disputes over public use of the intertidal zone was renewed in 1814, and remained law when Maine achieved statehood in 1820.

Despite the law’s continuing presence, landowners often erect no-trespassing signs and fences and in other ways block access to the shore in the intertidal zone.

The whole business is, in some respects, as clear as mud. Or at least it’s ambiguous. As Environ- mental lawyer David Slade wrote in a paper on the subject: “In the final analysis, there are numerous court cases in both Massachusetts and Maine, as well as the U.S. Supreme Court, pertaining to the property rights in alluvial and non-alluvial seaweed that, together, form a large constellation of cases. No individual case can be singled out as being the “law” on the subject. Rather, the constellation must be taken as a whole, and to the greatest extent possible, reconciled. The ancient doctrine of the jus publicum—the Public Trust Doctrine—must be implemented with the best of modern scientific understanding. Rules of interpretation of State grants of tidelands must be adhered to. Proprietary property rights must be respected and accorded, but for centuries under the English and American law of tidewaters and tidelands, such proprietary rights have yielded to the paramount powers of the State to control and manage fisheries, and navigation.

Slade concludes that floating seaweed was never intended to be under private ownership, but that seaweed out of reach of tides and current, belongs to the landowner.


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