Eddie Page found his first summer in his new waterfront home in Cundy’s Harbor noisy. The peace and tranquility he was seeking was interrupted in July by the fishermen in front of his house cutting rockweed. The sound of the mechanical harvester was so loud that Page felt compelled to download an app on his smartphone to measure it. “At times we had two machines on our property, and I got 75 decibels each,” Page said.

The retired accountant is a self-professed geek, so he also did some filming of the rockweed harvest. Being new to the area, Page did not understand that this is roughly the equivalent of putting your hand on the hilt of a sword. Things got heated and Page gave Brunswick-based Source Inc., the company that had hired the harvesters, a piece of his mind.

“I told them, you do not have permission to come on our property,” Page said.

This is where the matter of rockweed in the intertidal zone – a legal issue now making its way through Maine’s judicial system – gets very, very sticky. Does Page have the right to tell harvesters, not just “Get off my (seaweed) lawn,” but “Stop cutting it?”

Page believes that rockweed to be his. Like every waterfront property owner in Maine, he does own all the way to his low tide line. Those ledges are his. Based on a rule established in Colonial times – the Massachusetts Bay Colony’s Colonial Ordinance of 1641-1647 to be precise – that gives him the right to say, build a dock in that low tide zone. But he must also give way to the public when it is engaged in the acts of fishing, fowling and navigation. The fish, fowl and navigate law is unique to Maine and Massachusetts, and it’s all business in a way; other states typically also allow the public to recreate below the high tide line.

People have been harvesting seaweed for a long time, but the scale is changing. Rockweed landings in Maine have doubled in the last 10 years, to 15 million pounds in 2015.

People have been harvesting seaweed for a long time, but the scale is changing. Rockweed landings in Maine have doubled in the last 10 years, to 15 million pounds in 2015. Gregory Rec/Staff Photographer

It is highly unlikely that in protein-hungry Colonial times, thought was given to the matter of something as futuristic as rockweed nutritional supplements for both human beings and animals (Source Inc.’s major product) or seafood extracts from cooked down or dehydrated ground-up versions being used as organic fertilizer (some of the other products made by Maine’s small but thriving group of rockweed processors).

But it’s 2016. Climate change is changing how, where and what Mainers fish. Corresponding concern over sustainability is also changing how and what we eat and grow. And rockweed, that humble plant known in Latin as Ascophyllum nodosum and by nervous swimmers as the creepy stuff where the ocean boogie man hides, represents the clash of issues like nothing else. It’s always been a handy soil enricher.

“People have been dragging seaweed up off the beach as long as there has been people and beaches,” says George Seaver, vice president and general manager of Ocean Organics, a seaweed processor in Waldoboro.

But rockweed landings in Maine have doubled in the last 10 years, to 15 million pounds in 2015. It’s not a high cash crop – the price per pound averages to 4 cents – but as a value-added product it has become an industry with real potential, including uses that could reduce the amount of chemical fertilizers on agricultural crops. That’s good, right?

Generally speaking, yes. But as the fishery has grown, so have tensions over it, including whether or not it should even be a fishery.

MURKY WATERS

Last December, Ken and Gary Ross, Pembroke brothers whose family has owned land on Cobscook Bay since the 1900s joined with an association of homeowners on Roque Island archipelago near Jonesport, in a suit against a Canadian harvester called Acadian Seaplants, the biggest rockweed harvester in the state. Their claim is that they own rockweed “affixed to and growing in the intertidal area.” The plantiffs aren’t looking for a cut of the cash; they are worried about the ecological impact of removing the rockweed, according to their attorney, Gordon Smith of Verrill Dana.

They’re not exactly outliers either. The Rockweed Coalition, which Gary Ross was at one time a director of, signed on 568 properties in 12 towns to a “no-cut registry” (it now goes by the name Save Our Seaweed).

The Ross family has worked closely with Robin Hadlock Seeley, a Shoals Marine Laboratory scientist who co-authored a 2012 overview of the sustainability of the rockweed resource in the Annals of the New York Academy of Sciences. Her report concludes that commercial-scale rockweed cutting presents a risk to both the coastal ecosystems and the human communities that depend on them. Meaning the fisheries.

But the lawsuit isn’t about the ecology per se. It’s about ownership, and that is a murky question, one that a former Maine attorney general, Steven Rowe, concluded lacks a definitive answer. The state’s courts have been “sympathetically generous” in interpreting what fishing is, Rowe wrote to Department of Marine Resources in 2008, but on the question as to whether seaweed falls within the public trust, it has been “inconsistent.”

PILGRIM’S PROGRESS

Here’s how the seaweed story has unfolded since the Colonial Ordinance: When Maine became a state in 1820, the Massachusetts law came with it. Fish, fowl and navigate. Simple. But seaweed’s place in the fish, fowl and navigation pantheon has been questioned before. In 1843, a lawsuit over trespassing to take “sea manure” found in the favor of the landowner. So did an 1861 ruling, which said seaweed “does not come within the principles applied to aquatic rights.” Forty years later, in the case of Marshall V. Walker, the court seemed to reverse itself, saying of the flats that people “may dig shell fish in them, may take sea manure from them…”

Rhyan Blazek harvests rockweed in the mouth of the New Meadows River in Cundy's Harbor on Tuesday for Source Inc., a Brunswick company that makes seaweed-based nutritional supplements. Harvesters for Source Inc. rotate through their harvest areas every three years to allow the rockweed to regenerate.

Rhyan Blazek harvests rockweed in the mouth of the New Meadows River in Cundy’s Harbor on Tuesday for Source Inc., a Brunswick company that makes seaweed-based nutritional supplements. Harvesters for Source Inc. rotate through their harvest areas every three years to allow the rockweed to regenerate. Photos by Gregory Rec/Staff Photographer

The back and forth has created a complicated legal picture, the kind that causes people anxiety about bigger ramifications. Like Greg Tobey, general manager for Source Inc.. He believes that if the suit is successful, everything in the intertidal zone would be off limits, including clamming.

“If the riparian land owners gain control of that, there is not many of them going to say ‘Yeah, get what you want,’ ” he added.

That lament is common, but unfounded, said Gordon Smith. Clamming, musseling, worming or winkling (periwinkles) clearly constitute fishing, the attorney said.

“Taking any of those resources from the intertidal zone is within the scope of the public trust doctrine,” Smith said.

But not, he said, rockweed.

RULES AND REGULATIONS

To George Seaver, there’s no question. Rockweed might not be a fish per se, but he can come up with (a semi-tortured) walks-like-a-duck analogy to argue that it should be treated as one.

“These plants, growing on the rocks, they’re basically mussels with less personality,” he said. “It’s stuck in place by its holdfast. It gets all its nutrition from the sea.”

Maine statute defines fish as both a noun and a verb. Lobster, for instance, are not fish under the definition of the noun. But the verb “fish” is described as “to take or attempt to take any marine organism by any method or means.”

“So through the definitions, the taking of plants is included in the activity of fishing,” Jeff Nichols, the Department of Marine Resource’s director of communications, wrote in an email. Additionally, there is a statute that authorizes the commissioner to regulate the harvest of seaweed. (Of the 12 species of seaweeds harvested in Maine, rockweed constitutes about 90 percent of the annual landings.)

From Gordon Smith’s perspective, the statute doesn’t end the issue. “All that means is that the Legislature has, for the purposes of DMR regulation, said it considers fishing to include harvesting sea plants.”

That regulation is still in its infancy. A proposed management plan for rockweed, which divides the coast into sectors, was introduced in early 2014, and all things being equal, should be moving toward finalization. It includes input from other state agencies, including the Maine Department of Inland Fisheries and Wildlife (which protects wildlife habitat for shorebirds) and the Department of Environmental Protection (rockweed sits in a coastal wetland). The National Oceanic and Atmospheric Administration weighed in as well, citing the poor recovery of the cod fishery and the importance of the rockweed to the fish in its juvenile stage.

But the proposed plan is on hold for two reasons – the staff member who would have taken it through the public hearing and review process left the Department of Marine Resources and hasn’t been replaced and Commissioner Patrick Keliher has said publicly that until the lawsuit is resolved, he plans no further action. “From his perspective, it would not make a lot of sense to invest a lot of additional department time and resources in more complicated management measures at this time,” Nichols wrote in an email, “since we expect that greater clarity on the issue of ownership will be forthcoming.” The department began imposing regulations in 2000 as the interest in harvesting rockweed commercially was growing. Permits are required, but the rules are incredibly simple. The holdfast, or base of the plant, is not to be disturbed. The haircut, as it were, must leave a minimum of 16 inches above the holdfast.

In 2014 the Department of Marine Resources estimated somewhere between 44 and 61 people were or had been harvesting rockweed in Maine, more than half of them by hand.

Rhyan Blazek lets go of a net bag of rockweed as Greg Tobey uses a gaffer hook to pull it to his boat in the mouth of the New Meadows River in Cundy's Harbor on Tuesday. The two work for Source Inc, a Brunswick company that makes seaweed-based nutritional supplements.

Rhyan Blazek lets go of a net bag of rockweed as Greg Tobey uses a gaffer hook to pull it to his boat in the mouth of the New Meadows River in Cundy’s Harbor on Tuesday. The two work for Source Inc, a Brunswick company that makes seaweed-based nutritional supplements. Photos by Gregory Rec/Staff Photographer

Harvesters, except those in Cobscook Bay, where limits are imposed, could land more rockweed and in more locations than they do now. George Seaver points out that the harvest taken annually is only about 1.5 percent of the state’s rockweed biomass. “It is nowhere near what Mother Nature tears off with every ice scouring or storm every year.”

Seaver’s harvesters needn’t travel very far. They use a machete, rather than a mechanical harvester, and wait three years before returning to a harvested area. That’s not onerous because extraction process Ocean Organics uses doesn’t require bulk. “The last thing you are going to do is damage the resource within driving distance of your facility,” Seaver said. “Anybody who is a responsible business person is going to be utterly respectful of the health of the resource.”

The beauty of this fishery, he said, is that it’s always “right where you left it last year.”

It grows back, Seaver said, And thicker. Research in the Department of Marine Resources proposed management plan confirms this, as do other harvesters. Tobey recalls doing some serious rockweed trimming for his father, who was finding it tough to get his boat into his landing on Little Yarmouth Island because the weed was so thick. “Two months afterward, it doesn’t even look like we touched it. It comes back insanely.”

Which is why he and Seaver are frustrated by the accusation that they could be doing ecological damage. Source Inc. does not harvest during spring sporing season, for instance, and Tobey said he understands the rockweed’s significance.

“If you’re removing too much of the canopy, yeah,” Tobey said. “Crabs, fish, shellfish, they all definitely use the rockweed as habitat.”

But consider what happens when you mow your lawn, Tobey suggests. “You cut it down to four inches and the crickets, ants and bugs, they all scatter. But you come back an hour later and you’re going to find the same crickets, ants and bugs. They are all going to be there.”

A PERIWINKLE IN TIME

Seaver jokes that Robin Hadlock Seeley is “our staunch-not-supporter.” She probably wouldn’t argue with this. But she would argue with some of the arguments put forward by harvesters. Like the thing about Mother Nature taking more of the resource annually than the fishery does.

“All of that is feeding the system,” Seeley said. “It’s not like it’s wasted so humans might as well go get it.”

She’s an eighth-generation Mainer who grew up in Freeport and spent much of her childhood on the water. In college she studied marine biology, focusing on an organism nearly as humble as rockweed, the periwinkle. While traveling the state looking for a kind of periwinkle she’d found fossiled in mortar on Appledore Island, she visited Eastport in the early 1980s.

“I hopped out of the car and there was the living form” of that fossil.

But as the invasive green crab traveled up the coast, the populations of periwinkles she’d been so excited about started to disappear. “It was like little lights going out around Cobscook Bay.”

Then, she said, she’d see seaweed harvesters come in and start to “hack away” at the rockweed, taking periwinkles, and other by-catch with them.

“Number one, it makes no sense, with everything that is going on in the marine environment, to start hacking away at the habitat,” Seeley said.

Number two, her research subjects were already in trouble. “I am studying the last few of these species and now they are disappearing into the bottom of the boats.”

Tobey said his mechanical harvester hardly brings in any by-catch at all. “Maybe an inch in the bottom of a fish tote.”

Seeley’s effort began with the periwinkle but she’s been tenacious about protecting the rockweed resource, rallying allies from a host of environmental and conservation organizations, among them Downeast Coastal Conservancy, Friends of Blue Hill Bay, and Schoodic Institute. Among the groups citing the importance of restricting the harvest on seabird nesting islands was the Audubon Seabird Restoration Program, which cited rockweed’s significance to Atlantic puffins and Arctic terns.

She’s also the main contact for the cause. Eddie Page, who started out annoyed by noise, poked around on the Internet and found Seeley. Now he thinks less about noise and more about nature.

“It’s a bit like me coming onto your property and sawing a limb off your tree and saying, ‘Oh, it will grow back,’ ” he said.

He’ll be rooting for that lawsuit to make its way to the Maine Supreme Court and prove, once and for all (or until the next appeal) who the weed belongs to. In the meantime, next time the harvesters come by, he can try asking them to move on.

“We’ll go around the corner,” Greg Tobey said. “In order not to be an idiot, or to be rude, we’ll say, ‘I’m sorry, I will do what I can to be quieter.'”

But even as he’s being polite, Tobey will be pondering one of those big-picture questions about Maine and its spectacular coast.

“You cannot deny the fact that waterfront homes are not owned by minimum wage earners,” he said. “By and large, most of the waterfront homes are not owned by Maine natives.”

And that, he says, creates a gap in understanding that goes beyond mere communication. If the view is the priority, waterfront owners aren’t going to be sympathetic to those who make their living in and around their ocean. And drive the state’s economy.

Seeley poses – and answers – a big-picture question of her own. “Why is seaweed being taken now? It is because of the decline of the fisheries higher up on the tropic level.”

To her, that seems short-sighted.

“The risk of doing the wrong thing is so great,” she said.