Ross v. Acadian Seaplants, Ltd., Docket: Was-17-142
| Decision Date | 28 March 2019 |
| Docket Number | Docket: Was-17-142 |
| Parties | Kenneth W. ROSS et al. v. ACADIAN SEAPLANTS, LTD. |
| Court | Maine Supreme Court |
Benjamin M. Leoni, Esq. (orally), Curtis Thaxter LLC, Portland, for appellant Acadian Seaplants Limited
Gordon R. Smith, Esq. (orally), Verrill Dana, LLP, Portland, for appellees Kenneth W. Ross, Carl E. Ross, and Roque Island Gardner Homestead Corporation
Catherine R. Connors, Esq. (orally), Pierce Atwood LLP, Portland, for amicus curiae Maine Department of Marine Resources
Brian W. Thomas, Esq., Stocking & Thomas, LLC, Lamoine, for amicus curiae Downeast Coastal Conservancy
Karin Marchetti-Ponte, Esq., Maine Coast Heritage Trust, Mount Desert, for amicus curiae Maine Coast Heritage Trust
John A. Churchill, Esq., Calais, for amicus curiae Cobscook Bay Fishermen's Association
Mary A. Denison, Esq., Lake and Denison, Winthrop, for amici curiae Maine Clammers Association, Independent Maine Marine Worm Harvesters Association, North American Kelp, and Gulf of Maine, Inc.
Robert Miller, Dean W. Alley, Wendell Alley, Shawn L. Alley, Nathan Fagonde, and Ordman Alley Jr., amici curiae, jointly as "Jonesport and Beals Commercial Fishermen and Lobstermen"
Severin M. Beliveau, Esq., Jonathan G. Mermin, Esq., and Matthew S. Warner, Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, for amicus curiae Maine Seaweed Council
Leah B. Rachin, Esq., and Benjamin T. McCall, Esq., Bergen & Parkinson, LLC, Kennebunk, for amicus curiae Hale Miller
Gerard P. Conley, Jr. Esq., Cloutier, Conley & Duffett, P.A., Portland, for amicus curiae Downeast Lobstermen's Association
Kurt E. Olafsen, Esq., Olafsen & Butterfield, LLC, Portland, for amicus curiae Maine Coast Fishermen's Association
Mariah D. Mitchell, Esq., Eaton Peabody, Brunswick, for amicus curiae Pleasant River Wildlife Foundation
Sean Mahoney, Esq., Conservation Law Foundation, Portland, for amicus curiae Conservation Law Foundation
Ryan P. Dumais, Esq., Eaton Peabody, Brunswick, for amici curiae Pacific Legal Foundation and Property and Environment Research Center
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶1] This case draws us again into the confluence of public and private property rights within the intertidal zone—this time, to address the ownership of rockweed, a species of seaweed that grows in Maine's intertidal zone and is often found on the rocky ledges that accent the State's coastline. Specifically, we are asked to determine whether rockweed is private property that belongs to the adjoining upland landowner who owns the intertidal soil in fee simple, or property that is held in trust by the State through the jus publicum for the public to harvest.
[¶2] Acadian Seaplants, Ltd., appeals from a summary judgment entered by the Superior Court (Washington County, Stewart, J. ) in favor of Kenneth W. Ross, Carl E. Ross, and Roque Island Gardner Homestead Corporation (collectively, Ross), who are owners of upland property where—without the landowners' permission—Acadian has harvested rockweed that is attached to the intertidal land.1 In its judgment, the court declared that rockweed growing in the intertidal zone is the private property of the upland property owners. We agree that rockweed in the intertidal zone belongs to the upland property owner and therefore is not public property, is not held in trust by the State for public use, and cannot be harvested by members of the public as a matter of right. Accordingly, we affirm the judgment.
[¶3] The following facts are taken from the parties' stipulated joint statement of material facts, submitted to the court on cross-motions for summary judgment. See BCN Telecom, Inc. v. State Tax Assessor , 2016 ME 165, ¶ 3, 151 A.3d 497.
[¶4] Rockweed is the common name for several species of brown seaweed, or macroalga. The most abundant of the species is known by the scientific name Ascophyllum nodosum and is often found on rocks and ledges in the intertidal portions of Maine's seacoast. Rockweed is a plant. It does not grow in intertidal sand but obtains its nutrients from the surrounding seawater and air. Rockweed attaches to hard, stable objects such as ledges and rocks using a disc-like structure called a holdfast. The sole function of the holdfast is to secure the rockweed in place by penetrating the surface of substrate by up to four millimeters. A rockweed's holdfast typically remains intact and attached to a substrate for decades, allowing rockweed to generate new growth. If the rockweed becomes detached from a substrate, it cannot reattach its holdfast to a different substrate and will float freely in the water or be cast onto the land. Rockweed, which is typically two to four feet in length but can grow to be more than six feet, is important to Maine's coastline ecology because it moderates temperatures and provides a habitat for marine organisms.
[¶5] Acadian is a commercial entity that operates in Maine and Nova Scotia and harvests rockweed from the Maine intertidal zone for use in various commercial products, such as fertilizer and animal feed. Acadian harvests rockweed during mid-tide, using three-to-four-ton-capacity skiffs and specially designed cutting rakes. During the harvesting operation, Acadian operates the watercraft in intertidal waters without walking or traveling on the intertidal land itself. The Department of Marine Resources regulates the harvest of rockweed in Cobscook Bay. See 12 M.R.S. § 6803-C (2018) ; see also id. § 6001(7), (13).2 Acadian annually harvests the statutory maximum 17 percent of eligible harvestable rockweed biomass in Cobscook Bay. See id. § 6803-C(9).
[¶6] Ross owns coastal intertidal property on Cobscook Bay, and Acadian has harvested rockweed from Ross's intertidal property without his consent. In December of 2015, Ross commenced this action by filing a two-count complaint against Acadian, seeking, in Count 1, a declaratory judgment that he exclusively owns the rockweed growing on and affixed to his intertidal property, and, in Count 2, injunctive relief that would prohibit Acadian from harvesting rockweed from his intertidal land without his permission. Acadian's answer to the complaint included a counterclaim for a judgment declaring that harvesting rockweed from the intertidal water is a form of "fishing" and "navigation" within the meaning of the Colonial Ordinance and is therefore a public right.3 The parties filed cross-motions for summary judgment predicated on a joint statement of material facts. See M.R. Civ. P. 56. In March of 2017, after holding a hearing, the court (Stewart, J. ) granted Ross's motion in part by entering summary judgment for Ross on his request for declaratory judgment in Count 1 of his complaint.
The court also entered judgment for Ross on Acadian's counterclaim and denied Acadian's motion. Ross then moved to dismiss Count 2 of the complaint, and the court granted the motion without objection from Acadian, resulting in the entry of a final judgment. Acadian filed a timely notice of appeal. See 14 M.R.S. § 1851 (2018) ; M.R. App. P. 2(b)(3) (Tower 2016).4
[¶7] Because the facts presented are not in dispute, we review the summary judgment de novo for errors of law in the court's interpretation of the relevant legal concepts. See Beane v. Me. Ins. Guar. Ass'n , 2007 ME 40, ¶ 9, 916 A.2d 204 ; see also Remmes v. Mark Travel Corp. , 2015 ME 63, ¶ 19, 116 A.3d 466 ().
[¶8] The limited issue before us is whether living rockweed, growing on and attached to intertidal land, is—as Ross asserts—the private property of the adjoining upland landowner who owns the intertidal zone in fee, or—as Acadian counters—a public resource held in trust by the State.
[¶9] Our consideration of this dispute takes us back to the analytical foundations of the law governing rights to the intertidal zone: the interrelated common law public trust doctrine and the rights embodied in the Massachusetts Bay Colony's Colonial Ordinance of 1641-47. In past opinions, we have described the legal principles emanating from these laws. See, e.g. , McGarvey v. Whittredge , 2011 ME 97, ¶¶ 8-41, 28 A.3d 620 ; Bell v. Town of Wells (Bell II) , 557 A.2d 168, 170-79, 180-89 (Me. 1989) ; Bell v. Town of Wells (Bell I) , 510 A.2d 509, 511-17 (Me. 1986). Given the extensive discussion in those opinions, we need not describe the historical origins and developments in detail here.
[¶10] In short, the English common law tradition vested both "title" to and "dominion" over the intertidal zone in the crown. Shively v. Bowlby , 152 U.S. 1, 11, 14 S.Ct. 548, 38 L.Ed. 331 (1894). Title—the jus privatum —belonged to the crown "as the sovereign" but was held subject to the public's rights of "navigation," "commerce," and "fishing"—the jus publicum —which the crown held in trust for the public. Id. After the American colonies gained independence, the ownership of intertidal land devolved to the particular state where the intertidal area was located. Phillips Petroleum Co. v. Mississippi , 484 U.S. 469, 476, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988) ; Shively , 152 U.S. at 14-15, 14 S.Ct. 548 ; State v. Leavitt , 105 Me. 76, 78-79, 72 A. 875 (1909). Each state nonetheless remained free to modify its laws governing ownership of the intertidal zone. Shively , 152 U.S. at 18, 14 S.Ct. 548. In a decision issued in 1810, the Massachusetts Supreme Judicial Court ratified the vitality of the Colonial Ordinance. Storer v. Freeman , 6 Mass. 435, 438 (1810). The Colonial Ordinance had conveyed fee title to the intertidal zone—described as the area from the mean high-water mark to the mean low-water mark but not more than 100...
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