Illegal cutting of rockweed in Cobscook Bay alleged

Allegations of illegal rockweed cutting in Cobscook Bay -- with harvesters not obtaining the permission of the upland property owners -- have again brought the issue to the fore and raised questions about whether rockweed companies are following the Maine Supreme Judicial Court decision last spring that permission is required. However, Acadian Seaplants, the main rockweed harvester in Washington County, says any harvesters selling to them are following the law, with only one instance the company is aware of in which permission was not obtained, for which the harvester was disciplined.
Robin Hadlock Seeley of Pembroke, a Cornell University senior research scientist and a member of the Rockweed Coalition, says that after the court decision was issued in March "the big question was whether companies would comply," especially considering the legislative conflict involving several bills that sought to reverse the decision. "It was clear that the companies didn't believe the decision was correct or would supersede Maine law."
She says that members of the Rockweed Coalition had heard about harvesters cutting rockweed without landowner permission in the midcoast and Addison areas this summer and decided to conduct a more organized study of whether harvesters were cutting with upland landowner permission or not. From the last weekend of August to the first week of October, members of the coalition witnessed 26 incidents of cutting in Cobscook Bay, and of those there were 17 incidents, involving 10 landowners, where the cutting was without landowner permission, according to Seeley. For the other nine incidents the landowners could not be reached by members of the coalition.
Among the properties where harvesters were cutting illegally was land in Pembroke belonging to Kenneth Ross that was "the very same ledge where the whole story started four years ago," says Seeley, referencing the lawsuit that was decided by the court.
"It just stuns me that this company would have such blatant disregard for a Maine Supreme Court decision," says Seeley. "I'm surprised by the amount of illegal cutting I'm continuing to hear about." She adds that the activity is not just by a couple of rogue cutters, since it is so widespread.
Kenneth Ross of Robbinston, who with his brother Carl and the Roque Island Gardner Homestead Corporation had brought the lawsuit against Acadian Seaplants, agrees with Seeley, noting that he has observed six boats that harvest for Acadian in Cobscook Bay go out to cut. "It's not just a couple of rogue boats. It's difficult to imagine how Acadian wouldn't know about it." While Acadian officials had stated their policies would be to seek landowner permission, Ross says, "They don't seem to be faithful to them at all."
Seeley points out that not only was the cutting without landowner permission, but also at least four of the areas that were harvested are conserved lands where cutting is not allowed under the Cobscook Bay rockweed management area law. Seeley hopes that the Maine Marine Patrol would be enforcing the law and would adopt "a consistent way of enforcing it."

DMR outlines position
Marine Patrol Sergeant Russell Wright of Lubec says wardens have received a few complaints this summer about illegal harvesting but have not summonsed anyone yet. He says either the wardens spoke with the harvesters and they then moved on, or no one was harvesting when they got to the location. If the harvesters didn't leave, he's not sure if the Marine Patrol would summons them or not, since he says the issue "is still up in the air," particularly with the question of ownership to the low-water mark. Ross notes that his deed states that he does own to the low-water line.
Jeff Nichols, spokesman for the DMR, says that, following the court decision, no additional regulations or laws are needed to establish ownership in the intertidal zone and that permission is needed from landowners in order to harvest. "However, in the event of a complaint of unauthorized harvest, Marine Patrol will request a copy of the landowner's deed to confirm boundaries of the landowner's property," he states. "Patrol will also need to document where the harvest occurred to determine whether the harvester was within the property boundaries of the landowner. If there is sufficient reason to believe a violation has occurred, Patrol may write a summons for theft."

Acadian's response
Jean-Paul Deveau, president of Acadian Seaplants, says that the company is aware of only one instance this summer when a harvester who was selling rockweed to Acadian cut in an intertidal area where upland landowner permission had not been obtained. That property was in Cobscook Bay. Under the company's disciplinary process, the harvester was disciplined with a one-week suspension. If more infractions are made by a harvester, the suspension period escalates.
Deveau says that all of the harvesters who sell to Acadian are told that they can only harvest where landowner permission has been obtained and that they are given the geographic boundaries for those areas.
Following the court decision, Acadian stated that it would follow "the law of the land," even though the company didn't agree with the decision, Deveau says. "After the court decision, we saw the people of the working waterfront in Maine, and they asked us, 'What are you going to do?' We felt we had an obligation to the people on the working waterfront to make the effort to identify the landowners and ask their permission."
The company has been working diligently to obtain permission from landowners, with Deveau noting that it is challenging to reach them, as first the company has to identify who the landowners are and then locate and speak with them. Of those landowners who have been contacted, he says Acadian has received "a very favorable response. They want to see the working waterfront continue, and they've been most cooperative." In the areas where Acadian harvests in Maine, over 90% of the landowners who have been contacted have given permission, according to Deveau. “We’re very pleased to see the vast majority of people are very supportive of the working waterfront, and they’ve been very good to give permission for us to continue to operate here.”

Changes in law eyed
Deveau says it is up to legislators to make any changes in state laws. "We did look at the possibilities of whether there could be an appeal of the court decision, but we didn't see a way."
Last spring, following the court's decision, the legislature did consider three bills that would have overturned the decision and one that would have granted to the state ownership of all intertidal land. All of the bills ended up being defeated.
Gordon Smith, the attorney for the Rosses in the lawsuit against Acadian, notes that the DMR is submitting a bill for the upcoming legislative session to repeal the Cobscook Bay management statute. He understands that the DMR believes the court ruling is inconsistent with the law, since the court found rockweed to be privately owned, while under the Cobscook Bay law the DMR gives harvesters exclusive rights to cut in different sectors. If a landowner wanted to sell the rockweed to a harvester who was not given the right to cut there, the Cobscook Bay law could be viewed as a restraint on trade or property rights.
Smith, though, believes that the law does not need to be repealed but can be amended, perhaps by having harvesters, when they submit their sector plans for approval to the DMR, include the permission agreements from landowners. The property owners could also be given the option to sell to their harvester of choice. Smith believes that the Cobscook Bay law should be extended along the entire coast, as it provides a benefit to the ecosystem.

Another lawsuit considered
Kenneth Ross says he and his brother are now considering bringing another lawsuit, depending on whether the DMR takes action on any illegal harvesting. "We're not going to just let it go."
"I think that the taking of rockweed is a very bad idea," he says, noting that the seaweed provides the nursery at the base of the food chain that "underlies all of our fisheries." While some claim that the members of the Rockweed Coalition are "taking away jobs," Ross replies, "We say that they're taking away jobs" from those who clam or fish for lobsters, herring or groundfish.
Ross notes that adequate studies have not yet been done of the impact of rockweed harvesting on the ecosystem. He says the rockweed issue is "a subset of the battles over the future of the ocean and how we deal with climate change threatening our fisheries and coastal jobs."