KENNETH W. ROSS et al.
ACADIAN SEAPLANTS, LTD.
Argued: November 14, 2017
Benjamin M. Leoni, Esq. (orally), Curtis Thaxter LLC,
Portland, for appellant Acadian Seaplants Limited
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
W. Thomas, Esq., Stocking & Thomas, LLC, Lamoine, for
amicus curiae Downeast Coastal Conservancy
Marchetti-Ponte, Esq., Maine Coast Heritage Trust, Mount
Desert, for amicus curiae Maine Coast Heritage Trust
A. Churchill, Esq., Calais, for amicus curiae Cobscook Bay
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
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
Severin M. Beliveau, Esq., Jonathan G. Mermin, Esq., and
Matthew S. Warner, Esq., Preti Flaherty Beliveau &
Pachios, LLP, Portland, for amicus curiae Maine Seaweed
B. Rachin, Esq., and Benjamin T. McCall, Esq., Bergen &
Parkinson, LLC, Kennebunk, for amicus curiae Hale Miller
P. Conley., Jr. Esq., Cloutier, Conley & Duffett, P.A.,
Portland, for amicus curiae Downeast Lobstermen's
E. Olafsen, Esq., Olafsen & Butterfield, LLC, Portland,
for amicus curiae Maine Coast Fishermen's Association
D. Mitchell, Esq., Eaton Peabody, Brunswick, for amicus
curiae Pleasant River Wildlife Foundation
Mahoney, Esq., Conservation Law Foundation, Portland, for
amicus curiae Conservation Law Foundation
P. Dumais, Esq., Eaton Peabody, Brunswick, for amici curiae
Pacific Legal Foundation and Property and Environment
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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.
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. 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.
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,
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.
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). Acadian annually harvests the statutory
maximum 17 percent of eligible harvestable rockweed biomass
in Cobscook Bay. See id. § 6803-C(9).
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. 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, /.) 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).
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 ("Cross motions for
summary judgment neither alter the basic Rule 56 standard,
nor warrant the grant of summary judgment per se."
(quotation marks omitted)).
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