206 A.3d 283
Me.2019Background
- Ross (upland owner) sued Acadian Seaplants after Acadian harvested rockweed attached to Ross’s intertidal property without permission; parties submitted a stipulated statement of facts and cross-motions for summary judgment.
- Rockweed (Ascophyllum nodosum and related species) is a photosynthetic marine plant that anchors to intertidal rock via a holdfast; it cannot reattach once detached.
- Acadian commercially harvests rockweed from Cobscook Bay using skiffs and cutting rakes, operating from water and not walking on intertidal land; harvests are regulated by the Department of Marine Resources.
- The Superior Court granted Ross declaratory relief that rockweed attached to intertidal land is the private property of the adjacent upland owner; Acadian appealed.
- The core legal question: whether living rockweed attached to intertidal substrate is private property of the upland owner (subject to public easements) or a public resource held in trust by the State (i.e., within the public’s jus publicum).
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (Acadian) | Held |
|---|---|---|---|
| Whether living rockweed attached to intertidal land is private property of the adjacent upland owner | Rockweed attached to intertidal substrate is part of the intertidal land owned in fee by upland owner and thus private property | Rockweed is a marine resource; harvesting it is a public right under the public trust (analogous to fishing/navigation) | Held for Ross: attached rockweed is private property of the upland owner and not a public trust resource |
| Whether rockweed-harvesting constitutes "navigation" under the Colonial Ordinance/public trust | N/A (focuses on property ownership) | Harvesting by boat is a form of navigation or uses navigable waters as public right | Court: navigational component is incidental; cutting attached plants is not navigation |
| Whether rockweed-harvesting qualifies as "fishing" under the public rights trilogy | N/A | Harvesting seaweed is analogous to fishing and should be within public trust | Court: rockweed is a plant, biologically distinct from animals taken by "fishing"; not within "fishing" |
| Whether broader common-law "reasonable balance" public-trust test allows public harvesting of attached rockweed | N/A | Even if terms narrow, public-trust doctrine should adapt to modern uses to permit such harvest | Court: even under the broader common-law balancing approach, removing attached flora imposes unreasonable burden on upland owners; public may not harvest attached rockweed |
Key Cases Cited
- Shively v. Bowlby, 152 U.S. 1 (U.S. 1894) (describing crown ownership of intertidal zone subject to public trust rights)
- Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (U.S. 1988) (states succeeded to title to intertidal lands at independence)
- McGarvey v. Whittredge, 28 A.3d 620 (Me. 2011) (discussing two interpretive approaches to public trust rights: trilogy-focused and broader common-law balancing)
- Bell v. Town of Wells (Bell II), 557 A.2d 168 (Me. 1989) (divided decision limiting public intertidal rights to fishing, fowling, navigation framework)
- Hill v. Lord, 48 Me. 83 (Me. 1861) (historic authority holding seaweed belongs to owner of soil on which it grows)
- Moulton v. Libbey, 37 Me. 472 (Me. 1854) (broad treatment of public fishing rights in intertidal zone)
- Storer v. Freeman, 6 Mass. 435 (Mass. 1810) (upholding Colonial Ordinance transfer of intertidal fee to upland owners subject to public uses)