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Seaweed cast so far up on the beach that it is no longer affected by the tides and currents, but accumulates on the beach, it becomes alluvial or a thing of the land and becomes the private property of the upland owner. While of the sea, it remains available to be harvested by the public. Non-alluvial seaweed was never intended to be conveyed into exclusive private ownership under the Ordinance of 1641/1647. — from Attorney David Slade’s research for the Maine Seaweed Council on Public Trust Rights. Maine Coast Sea Vegetables photo
BRUNSWICK – The Maine Seaweed Council is seeking to establish the public’s right to harvest non-alluvial seaweed, in a legal and policy position paper written earlier this year.

The Maine Seaweed Council is seeking to establish the public's right to harvest non-alluvial sea weed, in a legal and policy paper written earlier this year. That document was prepared by attorney David Slade, a specialist in public trust rights. The paper traces backto colonial times the legal precedents involved in the ownership of public and private land seaward of the high-water mark. In addition, it describes the history of seaweed harvesting and its intersections with Maine and Massachusetts law.

According to the paper, English Common Law in the early 1600s established the ownership by waterfront property owners of land down to the “medium high tide line between the springs and the neaps,” known today as the “ordinary high water mark.” Below the high water mark, the English Crown held title to the navigable waters, lands beneath, and the living resources within, for the benefit of English subjects.

The dominant public uses of these areas were considered to be navigation, commerce and fishing. At the time, much transportation and commerce was by water, making docks and wharves necessary. Because waterfront owners only owned out to the high-water mark, they had to request permission to extend these structures into the Crown’s territory.“But because an upland owner owned only to the high water mark, permission was needed to build a structure out over and in the Crown’s lands and waters; the early colonists needed colonial governmental permission to do so,” the document says.

A new ordinance established the right of waterfront owners to build the structures to the low-water mark. However, the intertidal area wasn’t granted outright to waterfront owners. The ordinance retained specific rights for public use, including navigation, fishing and fowling.

Three centuries later, the Maine Supreme Court, in revisiting the public’s rights in the privately owned strip of land and water between the high and low tide lines, noted that, over the years the court had given a “sympathetically generous interpretation” to what is encompassed within the terms “fishing, fowling, and navigation” or “reasonably incidental or related thereto.”

For example, the court determined it had broadly construed “navigation” to allow a powerboat for hire to pick up and land passengers on intertidal land; and “fishing” to include digging for worms and shellfish. Although, the court has never decided on the scope ofintertidal public use except by referring to the three specific public uses in the ordinances—navigation, fishing and fowling—its interpretations, the council’s document says, have been liberal.

The document says the harvest of seaweed, under certain conditions, should also be considered a public right in the intertidal zone.
Maine’s common law treats seaweed that is cast up from the sea onto the beach differently from seaweed still afloat, or still growing at sea attached by its holdfast.

In 1900, the Maine Supreme Court determined that, among the public uses allowed, the public could take “sea manure” from the intertidal zone. At the time, seaweed was commonly known as sea manure due to its use as a fertilizer.

“Nonetheless,” says the document, “the courts in Maine and Massachusetts have created a geographic limitation in the public’s right to harvest seaweed on the privately owned flats, based on whether it is still growing at sea, or detached but flowing with the tides and currents, or cast so far up upon the beach as to no longer be subject to the tides and currents.”

The paper cites a Massachusetts Supreme Court decision in 1861:

“By a liberal construction of the jus alluvionis, it is held that sea-weed, kelp and other marine plants, 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 that they rest there and may be justly said to be attached to the soil. So long as they are afloat and driven or moved from place to place by the rising tide, it is wholly uncertain where they may find a resting-place; and no one can claim ownership in them as appertaining to the particular part of the shore or beach which belongs to him. And this is true, whether they are wholly afloat so that they do not come in contact with the bottom, or only partially so, or to such an extent that they occasionally, by the motion of the waves, or the rise of the tide, touch or rest on the beach.”

Therefore, the court said, the public had the right to harvest seaweed still growing at sea, either attached by its holdfast or freely floating and drifting with the tides and currents.

“Given today’s understanding of marine ecology,” the paper says, “it is beyond dispute that seaweed is a primary producer within the tidewaters, providing food as well as habitat and shelter for innumerable species, many of them of commercial interest, such that the stewardship of seaweed is reasonably related and incidental to the stewardship of fisheries.”