by John M. Simpson.
Animal rights enthusiasts have a knack for pushing the envelope in their various arguments that legal rights should be recognized for a wide variety of animal species. For example, it was reported recently that People for the Ethical Treatment of Animals (PETA) tweeted in connection with World Oceans Day that “Oysters and other bivalves are animals who deserve our consideration.” Against this backdrop, a recent decision of the Supreme Judicial Court of Maine raised an interesting issue. Ross v. Acadian Seaplants, Ltd., 206 A.3d 283 (Me. 2019), presented the question whether “rockweed,” a species of seaweed in Maine that grows in the intertidal zone, is owned by the adjoining upland property owner who owns the intertidal soil in fee simple or is held in trust by the state through the jus publicum for the public to harvest.
Rockweed is a type of seaweed that grows in the intertidal zone. It attaches itself to hard objects such as rocks and obtains its nutrients from the surrounding seawater and air. Rockweed is harvested for commercial products such as animal feed and fertilizer. In the Ross case, property owners sought declaratory relief against a company that had been harvesting rockweed in the intertidal zone of plaintiffs’ property without their consent.
Whether the rockweed was the property of the plaintiffs or was held in trust by the state for public use turned on a principal of Maine common law that was in turn derived from a colonial ordinance of the Massachusetts Bay Colony. That law vested both title and dominion to the intertidal zone in the crown but held subject to the public’s rights of “navigation,” “commerce” and “fishing.” This carried over into the Maine Constitution when Maine obtained statehood in 1820.
The interesting part of the case from the animal law standpoint came with the defendant’s effort to argue that its harvesting of rockweed was “fishing” and therefore protected by the public trust doctrine. Even though the parties had stipulated that rockweed is a plant, the defendant nonetheless argued that harvesting rockweed constituted “fishing.” The court did not agree:
Rockweed is biologically dissimilar from fish, lobster, clams, oysters, and bloodworms—it draws nutrients from the air and seawater using a photosynthetic process and, once attached to the intertidal substrate, does not move. See Moulton [v. Libbey, 37 Me. 472,] 489-90 [(1854)] (stating that “the general term ‘piscaria,’ or its equivalent, is used as including all fisheries, without any regard to their distinctive character, or to the method of taking the fish” and giving examples of regulated “fisheries” to include oyster, lobster, salmon, herring, and pilchard (second emphasis added) ). After arguing in its brief that “seaweed is a marine organism, not a terrestrial plant,” at oral argument Acadian acknowledged that there is no legal distinction between plants growing in the soil in the intertidal zone and those growing on the rocks in that same area. The fundamental dissimilarities between the harvesting of fish and of rockweed as a marine plant demonstrate that Acadian is not in the business of “fishing.”
206 A.3d at 291.
Rockweed, like oysters, affixes itself to a stationary object and does not move but, at least for now, there appears to be little judicial momentum in Maine for rockweed rights recognition.