July 18, 2017

By Sarah M. Reiter, Adjunct Faculty, Vermont Law School; Aaron Strong, Assistant Professor of Marine Policy, School of Marine Sciences, University of Maine, Orono

Along the rocky shores of Maine, in that dynamic place where land meets sea and the tides ebb and flow, no one knows who owns the seaweed. The legal status of rockweed—a growing industry in Maine—is important to the scientists that study its ecological benefits, the harvesters that collect it for commercial purposes, the state agency concerned with its sustainable management as a marine resource, and the coastal landowners that believe it is their private property. Algae have never been easy to classify—by law or by science​: they are not quite part of the animal kingdom, nor the plant kingdom, not completely on terra firma, nor completely submerged under water. However, earlier this spring, Maine’s Superior Court grappled with the legal side of this issue, ruling that rockweed growing in the intertidal zone is private property.

With an appeal to Maine’s Supreme Court on the docket, the issue of whether rockweed constitutes private property has significant ramifications. ​It would be the first of its kind—a marine organism—​to be declared private property. Clams, mussels, fish, and the activities associated with their harvest (e.g., fishing, digging) are already considered to be held in trust by the state of Maine for the people. If deemed private property, harvesters and scientists will look to coastal landowners to grant permission to access rockweed, not the state. Landowners would decide if and how the rockweed could be accessed based on their own individual interests (e.g., aesthet​ic, financial, ecological). The management of rockweed as a resource would shift from a resource management policy, established at the state level and informed by scientific information, to a system of rights and access or denial based on individual property owner incentives. It remains to be seen which path is decided by the court, but one thing is clear, this organism that exists at the space in between land and sea presents an intriguing legal question with controversial implications.