Regulating Seaweed Harvesting In Maine: The Public And Private Interests In An Emerging Marine Resource Industry

Seaweed has been collected in northern New England for agricultural purposes since the first settlers arrived over three hundred years ago. Today seaweed is still gathered along the coast, but the techniques used and technologies employed, have drastically altered the industry. While people once gathered seaweed by hand from open boats, today vacuum powered mechanical harvesters are frequently utilized and the seaweed gathered is taken to specialized processing plants. It is here that the dried material is transformed into a variety of products, such as liquid fertilizer and animal feed. One person operating a mechanical harvester is capable of harvesting twenty-two thousand pounds of seaweed in one day, for which harvesters are generally paid $20-$30 per wet ton. Rockweed, the dominant intertidal seaweed on the Northern Atlantic coast, takes two and a half to three years to recover to preharvest density, depending on the intensity of the harvest and productivity of the site. The super-efficient harvesting methods that are now commonplace in Maine can be ecologically damaging when practiced irresponsibly. Members of the scientific community have voiced their concerns about the effect of harvesting of seaweed on the many juvenile fish species that rely on seaweed as a source of food and habitat. When it is overharvested, as it has been in sections of New Brunswick and Nova Scotia, the marine ecosystem as a whole suffers. Interest in harvesting Maine's rockweed resource on a large-scale commercial basis has increased in recent years, particularly from Canadian processors. Local concern over the impacts of unregulated harvests has grown along with the increase in demand for seaweed. Very little is known about how harvesting impacts the long-term health of large beds of seaweeds and the marine creatures and plants associated with them. As Christopher Lobban has noted, "[sleaweeds do not merely influence the habitat-to a large extent they are the habitat." Anyone who has observed a healthy submerged rockweed community will attest to its forest like appearance. These vast underwater forests provide shelter and habitat to many species of juvenile fish and crustaceans, including many commercially valuable species. A recent Maine Department of Environmental Protection (DEP) report identifies rockweed growing low in the intertidal zone as a nursery for young lobsters. Seaweed provides not only shelter, but also food to a variety of fish, birds, and crustaceans. Seaweed is a valuable primary producer, and its place at the bottom of the food chain makes it a vital component of a healthy marine ecosystem. The recent friction in Maine among commercial seaweed harvesters, private shorefront landowners, and commercial fishermen boiled over in the summer of 2000, when Acadian Seaplants of Darmouth, Nova Scotia began advertising for seaweed harvesters to work in Maine, particularly in the Cobscook Bay area of Washington County. More than six hundred Washington County residents launched an unsuccessful petition effort to convince the Maine Department of Marine Resources (DMR) Commissioner George LaPointe to ban commercial harvesting in Cobscook Bay until research could determine what a large commercial harvest would do to the ecosystem of the bay. The majority of coastal property owners live in quiet acceptance of the fact that fishermen may legally use their shorefront property, but many resent the harvesting of seaweed growing on their land. These property owners feel that the loss of the vegetation detracts from their aesthetic enjoyment of the property and is an abrogation of their inherent right to exclude others from their land. Those of this persuasion argue that seaweed harvesters have no more right to remove seaweed from their intertidal zone than they would to harvest timber growing on their upland property. Harvesters, however, feel that they are entitled to profit from the resource since it grows in the sea, which is held in trust by the state as a resource common to all. Some argue that the gathering of seaweed falls within the definition of "fishing" for public trust doctrine purposes, and that the public is therefore allowed to traverse the intertidal zone in pursuit of seaplants. Harvesters can point to historical records showing that it has been gathered for centuries in Maine and elsewhere, and argue that they are, at the very least, entitled to an easement by prescription in certain localities. The pressures on Maine's seaweed resource are likely to increase. In addition to the local entrepreneurs that are gaining interest in the seaweed industry, commercial harvesting companies located in maritime Canada are looking to Maine as a plentiful source of seaweed. Acadian Seaplants has already begun hiring independent contractors to gather seaweed for export to processing plants in Canada. If the State of Maine deems it necessary to expand its cursory regulation of this resource, the time to do so is now. The competing interests in seaweed all stem from the question of ownership and the right to exclude. This article will analyze the property rights scheme in Maine to determine whether the resource is privately owned or open to public use, and whether, and how, the State of Maine could regulate its exploitation in order to ensure a sustainable harvest. These issues will be examined in light of Maine's existing legal framework including the public trust doctrine, the profit a prendre concept, pertinent case law, current agency regulatory regimes, and scholarly articles. To a significant degree, the legal arguments revolve around the characterization of seaweed as a certain type of property. The property characterization debate in turn is influenced by the physiology of the resource and the means by which it grows. Section II will familiarize the reader with the physiology and habitat of seaweeds, specifically those indigenous to the Maine coast. Section MI discusses the uses of seaweed both historically and in modern times. Section IV presents an overview of the public trust doctrine in Maine as a framework for the analysis in Section V of who exactly owns seaweeds off shore, on land, and in the intertidal zone. Section VI contemplates seaweed as a resource governed by the concept of profit a prendre. Maine's statutory regulation of the seaweed harvest is the subject of Section VII. Finally, this comment concludes that the property interests in seaweed vary with its location, but that live seaweeds growing in the intertidal zone should be considered the property of the upland owner.

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