206 A.3d 283
Me.2019Background
- Ross owns upland property and the adjacent intertidal zone on Cobscook Bay; Acadian Seaplants harvested rockweed attached to Ross’s intertidal land without permission.
- Rockweed (Ascophyllum nodosum and related species) is a photosynthetic marine plant that anchors to rock/ledges by a holdfast that penetrates substrate only millimeters; detached plants cannot reattach.
- Acadian conducts commercial mid-tide harvesting by skiff and cutting rakes from the water without walking on intertidal land; the Department of Marine Resources regulates rockweed harvest in Cobscook Bay.
- Ross sued for declaratory and injunctive relief asserting rockweed attached to intertidal land is private property of the upland owner; Acadian counterclaimed that harvesting is a public right under the Colonial Ordinance ("fishing/navigation").
- Superior Court granted summary judgment for Ross on ownership; the Maine Supreme Judicial Court affirmed, holding attached rockweed is private property of the upland owner and not subject to public harvesting rights.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (Acadian) | Held |
|---|---|---|---|
| Whether living rockweed attached to intertidal land is private property of the adjoining upland owner or a public resource held in trust by the State | Rockweed attached to intertidal substrate is part of the upland owner’s property and thus private | Harvesting rockweed is protected by the public trust (as a form of "fishing" or "navigation") under the Colonial Ordinance and common law | Held: Rockweed attached to intertidal land is private property of the upland owner; public does not have a right to harvest it |
| Whether harvesting attached rockweed qualifies as "navigation" under the public trust | N/A (Ross argues no public right) | Harvesting from boats is a navigational use and thus protected | Held: While navigation may include use of intertidal waters, rockweed harvesting uses navigation only incidentally to a non‑navigational act (cutting/taking attached flora) and is not "navigation" for public trust purposes |
| Whether harvesting attached rockweed qualifies as "fishing" under the Colonial Ordinance/public trust | N/A | Taking marine resources from intertidal zone qualifies as fishing, including plant species | Held: "Fishing" does not encompass taking attached marine plants like rockweed; rockweed is biologically and legally distinct from fish/shellfish |
| If not within the trilogy, whether a broader common-law/public-trust balancing approach permits public harvesting | Ross: Public trust balancing does not authorize taking attached flora; doing so imposes an unreasonable burden on upland owners | Acadian: Under an adaptive/common-law balancing approach (McGarvey-style), contemporary public uses could include harvesting | Held: Even under the broader common-law "reasonable balance" test, removing attached rockweed imposes an unreasonable burden on shoreowners and is not a public right |
Key Cases Cited
- Shively v. Bowlby, 152 U.S. 1 (U.S. 1894) (explaining historic division of title/dominion in tidal lands between sovereign/public rights and private title)
- McGarvey v. Whittredge, 28 A.3d 620 (Me. 2011) (articulated two approaches to public trust rights: trilogy-expansive and broader common-law balancing)
- Bell v. Town of Wells (Bell II), 557 A.2d 168 (Me. 1989) (constrictive trilogy interpretation of public rights: fishing, fowling, navigation)
- Hill v. Lord, 48 Me. 83 (Me. 1861) (older precedent holding seaweed belongs to owner of soil where it grows)
- Storer v. Freeman, 6 Mass. 435 (Mass. 1810) (upheld Colonial Ordinance grant of intertidal fee to upland owners subject to public rights)
- Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (U.S. 1988) (states’ ownership of intertidal lands after independence may be subject to modification by state law)