Maine’s wild seaweed harvesters say their industry has been upended by a court ruling that put swaths of productive seaweed beds out of their reach.

The Maine Law Court this spring ruled that rockweed, which is processed for food, supplements and pharmaceuticals, is the property of shoreland owners, and harvesters need permission to collect it.

Harvesters and scientists argue the ruling is based on flawed science and contradicts decades of precedent that rockweed was a public resource, like other fisheries.

The court decision was “basically a death sentence for a lot of companies,” said Bonnie Tobey, operations manager at Source Inc., a Brunswick seaweed company. “We are struggling – it doesn’t take a genius to figure out this is impacting us all financially.”

But landowners and conservationists say laws about rockweed were always unsettled and private ownership is the best way to protect tidal ecosystems from overharvesting.

“Industry has been disproportionately in control over resources and policy,” said Kenneth Ross, a Washington County landowner and lead plaintiff of a lawsuit against Acadian Seaplants, the largest rockweed harvesting company in Maine.

“You have to take that into account if you want to protect something or if you want to keep it undamaged over a period of time.”

Four of seven justices ruled rockweed is a plant, private property and does not fit in with other marine resources managed by the state as a public trust in the area between high- and low-tide marks – the intertidal zone. Three justices agreed with the ruling, but argued for a broader legal interpretation to clarify public intertidal rights.

The decision affirmed a lower court ruling and overturned decades of precedent harvesters relied on to cut rockweed and fuel a growing industry.

Industry disruption was immediate and dramatic, Tobey said.

“A lot of people are exercising their right to say no just because they can, and that is a harsh reality,” she said.

Without landowner permission, Source lost access to half the area it used to harvest around Harpswell, Tobey said. The company’s two harvesters are working half their normal hours, and its processing plant, where it makes nutrition supplements for horses, dogs and humans, is down to one shift.

AN INDUSTRY IN FLUX

Maine’s rockweed harvest quintupled between 2001 and 2018, to 22.3 million pounds last year, according to state records. Last year’s harvest was valued about $820,850; the processed value was estimated at $20 million in 2013.

There are 154 licensed seaweed harvesters in Maine, according to state records.

The intake of a seaweed harvester nears rockweed in Quahog Bay off Harpswell. The seaweed was being harvested by Mike Bishop, an employee of Source Inc., a company in Brunswick that makes micronutrient supplements using the seaweed. Gregory Rec/Staff Photographer

But without the open access to shoreline it enjoyed for decades, some fear the rockweed industry will be caught in limbo, or decline.

George Seaver, vice president of Ocean Organics, a Waldoboro fertilizer company, said his business hasn’t suffered yet but worries it will make it harder to get a bank loan or sell the company he’s nurtured for 40 years.

“We’ve invested heavily in this growing market,” Seaver said. “Then all of a sudden we have this crazy court ruling that pulls the rug right out from underneath the whole thing.”

Seaver and others have more concerns: that the ruling will set off a land grab for owner permission by out-of-state companies; murky property records will make it impossible to figure out ownership; and private ownership will compromise a statewide rockweed management plan for the long-term sustainability of the resource.

“There is no logical basis to think that private ownership will protect the resource in any kind of general way,” he said.

Rockweed harvesting is regulated by the Department of Marine Resources, and there are extra rules for Cobscook Bay, in Washington County, one of the heaviest-harvested areas.

But a state management plan proposed in a 2014 report stalled because the department wanted to see how the lawsuit played out before making regulatory changes recommended in the plan. An open position within the DMR was also in flux.. Spokesman Jeff Nichols said the Marine Resources commissioner still has regulatory power over rockweed, despite the court ruling.

Some marine scientists, on the other hand, take exception to the entire basis of the court’s ruling. At the genetic level, rockweed, a type of brown alga, isn’t a plant at all, said Jessica Muhlin, an intertidal ecologist at Maine Maritime Academy in Castine.

“They may functionally fill a role as a plant in an ecosystem, but they are not plants,” Muhlin said. “To call a rockweed a plant would be worse than calling a human a mushroom or an amoeba.”

Rockweed should be designated as a marine organism, like fish, shellfish and marine worms and managed as a public resource by the state, Muhlin added. The court decision has made that effort more difficult.

Ross, the plaintiff, admits the scientific distinction, but the parties agreed to refer to rockweed as a plant for the purpose of the case.

Despite the ruling, unpermitted harvesting is still going on Cobscook Bay, Ross said. He and others worry that cutting too much will damage fragile marine ecosystems that shelter fish and crustaceans important to Maine’s fisheries.

“We think that by protecting the rockweed, we have protected more fishing jobs,” he said.

VIOLATIONS AND CONVERSATIONS

Robin Seeley, a researcher and co-founder of the Rockweed Coalition, expected harvesters would comply with the ruling and get permission from landowners.

Instead, her group received more than a dozen complaints of illegal harvesting from across the state.

“I never imagined there would be this wide-scale ignoring of this decision,” Seeley said.

Maine Marine Patrol responded to eight landowner complaints, said Nichols, the department spokesman. Patrolmen have to review deeds and see if cuts were in a property before charging a harvester with theft.

So far, all incidents were settled following discussion with harvesters and landowners and no one has been charged, Nichols said.

Acadian Seaplants insists its harvesters do not cut without permission. The company employs five full-time workers and 30 contract harvesters in Maine.

The company’s Maine business is down 50 percent because it was not authorized to harvest or could not contact landowners, said President J.P. Deveau.

When it does contact people, they are typically enthusiastic about the rockweed industry, Deveau added.

“In excess of 95 percent are in favor of the working waterfront,” he said. “They do not want to see a small group of rich landowners dictating what is happening on the waterfront.”

While the ruling appears to have inflamed tensions between harvesters and landowners, Hannah Webber, marine ecology director at the Schoodic Institute, sees a silver lining.

Webber was in the middle of a coastwide study on impacts of rockweed harvesting on seabirds when the court ruling came down and threw a wrench in their plans. Suddenly, they needed landowner permission to harvest in study areas, and that led to some uncomfortable interactions.

“A lot of people were like, ‘There is no way in hell you are touching any frond of my rockweed,’ ” Webber said.

The project was delayed, but the ruling wound up helping because researchers were able to talk to lots of landowners and explain their work.

“Frankly, it has been really awesome to talk to a lot of landowners and get perspective and listen to what their concerns are,” she added. “We have a far bigger audience for our results now than we ever could have before.”

This story was updated at 11 a.m. on Oct. 28 to clarify the Law Court justices’ ruling.

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