Who Owns the Seaweeds of Maine?

According to the State of Maine, the citizens of Maine do:
(Excerpts from Maine Revised Statutes.)

The State of Maine declares that it owns and shall control the harvesting of the living resources of the seas . . .
(Title 1, Chapter 1, SOVEREIGNTY AND JURISDICTION, §2, 2-a)

Marine resources means all renewable marine organisms . . .
(Title 12 CONSERVATION, Part 9, Subpart 1, Chapter 601, §6001 Definitions: 27)

Marine organism means any animal, plant or other life that inhabits
water below head of tide.
(Title 12 CONSERVATION, Part 9, Subpart 1, Chapter 601, §6001 Definitions: 26)

The Public Trust rights in intertidal land include . . .the right to use intertidal land for fishing, fowling and navigation;
(Title 12 CONSERVATION, Part 2, Chapter 202-A, §573. 1. A)

Is seaweed harvesting a fishery?

According to the State of Maine it is:

Fish [verb] means to take or attempt to take any marine organism
by any method or means.
(Title 12 CONSERVATION, Part 9, Subpart 1, Chapter 601, §6001 Definitions: 17)

Marine organism means any animal, plant or other life that inhabits
water below head of tide
(Title 12 CONSERVATION, Part 9, Subpart 1, Chapter 601, §6001 Definitions: 26)

According to the United States Code of Federal Regulations it is:

(7A) The term “commercial fishing operation” means—
(A) the catching or harvesting of fish, shrimp, lobsters, urchins,
seaweed, shellfish, or other aquatic species or products of
such species;
(Title 11, Chapter 1)

Therefore, based on Maine’s legal statutes, it is the position of the Maine Seaweed Council that subtidal and intertidal seaweeds in Maine’s waters belong to the state and the harvesting of seaweeds is a fishery to be managed by the state just as other fisheries such as clams, lobsters, and herring.

But don’t landowners own the intertidal?

For centuries it has been recognized that what lives in the waters along the coast should be available to the people near that coast.  This truth is universal.  People have gathered this bounty since ancient times anywhere they could find a naturally renewing resource- since forever- at low tide and high tide.  Anything that grew there or swam there has always been considered a public resource- a public marine resource.

What is the link that connects all these “marine resources”, and makes them “ours”? Their existence is exclusively reliant on the ocean for habitat and nutrition, and with no relationship to the adjacent shore or activity of the landowners.

The Colonial Ordinance, written in the 1640’s, recognized the importance of individuals being able to build docks. In order to allow and encourage this level of private investment in the coastal properties, the land owners needed to “own” the shore where their docks would be built.  

The problem was that traditional land ownership rights, if applied to the area between high and low tide, would be in conflict with the tradition of public harvest of the marine resources.  Fortunately, our very practical ancestors came up with a solution to this problem.  They could “own” their coastal land to build a dock, but they couldn’t interfere with their neighbor’s right to “fish, fowl, and navigate” along the shore.

The Colonial Ordinance, in effect, granted an easement to the public to gather marine resources as they always had while at the same time giving coastal land owners the right to build docks along their shore.

In short, shoreland property owners in Maine have never owned the living marine resources in the intertidal zone. It has always been the citizens of the State of Maine who own the clams and seaweeds and mussels and whose harvest has been regulated by what is now called the Maine Department of Marine Resources.

–George Seaver is the Vice President and General Manager of Ocean Organics in Waldoboro.  He has been working with seaweed in Maine since 1977.

Interested in learning more?

For a more detailed legal analysis of the ownership of Maine seaweeds you can download a white paper prepared by attorney David C. Slade.

David C. Slade received his Masters Degree in Marine Ecology from the University of Puget Sound, Tacoma, Washington, in 1978. He earned his Law Degree in 1981 from Lewis & Clark School of Law, Portland, Oregon, majoring in Environmental Law and received a Certificate of Excellence in Environmental Law. In 1999 he received the Distinguished Environmental Lawyer award.

During law school he externed with the U.S. Department of Commerce drafting decisions on commercial fisheries regulation, marine mammal and endangered species protection and international trade, and with the Office of the Special Assistant of NOAA for the Law of the Sea Conference.

In 1983 Mr. Slade became chief counsel of the National Advisory Committee on Oceans and Atmosphere in Washington, D.C.

A member of the United States Supreme Court bar since 1986, Mr. Slade has been involved with several constitutional law cases before the Supreme Court, including the landmark Public Trust Doctrine decision of Phillips Petroleum v. Mississippi.

Mr. Slade was the Counsel of Record for the Thirteen Original States in support of Mississippi. The Court, citing the 13 States brief, affirmed the original states’ claim that all lands washed by the ebb and flow of the tide – regardless of navigability – were held by the State in trust for the benefit of the public, substantiating Mississippi’s claim to her tidelands. The Phillips Petroleum v. Mississippi decision also affirmed that each state that joined the union also received her trust lands under the Equal Footing Doctrine.

In 1986, he became General Counsel of the Coastal States Organization in Washington, D.C., and then Director of the CSO in 1991. The CSO represents the views of the 35 governors of the coastal States, Territories and Commonwealths of the United States and addresses numerous issues including fisheries, marine mammals, ports and harbors, marine sanctuaries, wetlands, public trust lands and waters, oil spill liability and response, offshore oil and gas development, and international treaties.

During his tenure with the Coastal States Organization, Mr. Slade led the team of lawyers for the National Public Trust Study. This culminated in the first edition of the widely used reference text “Putting the Public Trust Doctrine to Work”, published by the CSO in 1990. In 1997, CSO hired Mr. Slade to produce the second edition of “Putting the Public Trust Doctrine to Work”.

His most recent book, “The Public Trust Doctrine In Motion” builds upon these previous editions, covering the Public Trust Doctrine cases from 1997 up to the current time. He has testified before the United States Senate and House of Representatives on topics ranging from fisheries, environmental law, Public Trust Doctrine, constitutional law and international affairs.