Kenneth W. Ross v. Acadian Seaplants, LTD.

MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:  2019 ME 45
Docket:    Was-17-142
Argued:    November 14, 2017
Decided:   March 28, 2019
Revised:   July 11, 2019

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority:    ALEXANDER, JABAR, HJELM, and HUMPHREY, JJ.
Concurrence: SAUFLEY, C.J., and MEAD and GORMAN, JJ.



                              KENNETH W. ROSS et al.

                                           v.

                            ACADIAN SEAPLANTS, LTD.


HJELM, J.

      [¶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.
                                                                                            2

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.

                                    I. BACKGROUND

       [¶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.




  1  On this appeal, amici briefs have been filed by the Cobscook Bay Fishermen’s Association;
Conservation Law Foundation; Downeast Coastal Conservancy; Downeast Lobstermen’s Association;
Hale Miller; Jonesport and Beals Commercial Fishermen and Lobstermen; Maine Clammers
Association, Independent Maine Marine Worm Harvesters Association, North American Kelp, and
Gulf of Maine, Inc.; Maine Coast Fishermen’s Association; Maine Coast Heritage Trust; Maine
Department of Marine Resources; Maine Seaweed Council; Pacific Legal Foundation and Property
and Environment Research Center; and Pleasant River Wildlife Foundation. See M.R. App. P. 9(e)
(Tower 2016).
                                                                                  3

      [¶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
                                                                                                       4

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


   2  The Department of Marine Resources, as amicus curiae, argues that 1 M.R.S. § 2(2-A) (2018),
which governs State regulation of harvesting of marine resources, establishes the public’s right to
harvest rockweed from the intertidal zone because the statute vests ownership of that seaweed with
the State and therefore not with the upland property owners. In a one-sentence footnote in its reply
brief, Acadian states that it adopts the Department’s arguments. This contention, however, was not
meaningfully developed in the trial court and is therefore not preserved for appellate consideration.
See Penkul v. Matarazzo, 2009 ME 113, ¶ 11, 983 A.2d 375 (stating that an issue “not presented to the
trial court . . . is not properly before this Court on appeal”); see also Jacobs v. Jacobs, 507 A.2d 596,
597 n.1 (Me. 1986) (stating that we will consider an argument raised in an amicus brief “only to the
extent[] that it addresses issues raised before the trial court and pursued here by the parties
themselves”).
                                                                                                       5

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

                                          II. DISCUSSION

        [¶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



   3 Acadian also filed a motion to dismiss Ross’s complaint for failure to join the State as a necessary

party. See M.R. Civ. P. 12(b)(7), 19. The court (Stokes, J.) denied the motion after concluding that the
State was not exposed to any current or future litigation as a result of the private claims asserted in
this action. No party challenges that determination on appeal.
   4Because this appeal was filed before September 1, 2017, the restyled Maine Rules of Appellate
Procedure do not apply. See M.R. App. P. 1 (restyled Rules).
                                                                                 6

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)).

      [¶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.

A.    Intertidal Property Rights

      [¶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
                                                                                7

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 (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 (1988); Shively, 152 U.S. at 14-15; 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. 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 rods—to the upland landowner subject to the public’s right to

use the wet sand for “navigation,” “fishing,” and “fowling”—the latter being an
                                                                                                         8

additional use allowed by the Ordinance that augmented the uses already

allowed by the English public trust doctrine. See Bell I, 510 A.2d at 512-15.

Thus, the upland owners obtained fee title to the wet sand to allow them to

“wharf out,” see Conservation Law Found. v. Dep’t of Envtl. Prot., 2003 ME 62,

¶ 36, 823 A.2d 551, and the public retained an easement interest in that

intertidal zone, see Norton v. Town of Long Island, 2005 ME 109, ¶ 32, 883 A.2d

889; Bell I, 510 A.2d at 516.

        [¶11] When Maine attained statehood in 1820, by force of the Maine

Constitution the arrangement of private ownership by the upland owners and

the right of the public—the jus publicum—was engrafted into Maine common

law. See Me. Const. art. X, §§ 3,5 5;6 see also Bell I, 510 A.2d at 513-14; State v.

Wilson, 42 Me. 9, 28 (1856) (acknowledging that “[s]o far as the public had

authority to use the shore under the common law of the State, as declared in

the proviso of the Colonial [O]rdinance of 1641 . . . [s]ubject to this public right,

[the property owner’s] title to the shore was as ample as to the upland”); Lapish



   5 Article X, section 3 of the Maine Constitution provides in full, “All laws now in force in this State,

and not repugnant to this Constitution, shall remain, and be in force, until altered or repealed by the
Legislature, or shall expire by their own limitation.”
   6  Article X, section 5 of the Maine Constitution provides and adopts the Massachusetts Act of
Separation. That provision is omitted from printed copies of the Constitution but remains in full
force. See Me. Const. art. X, § 7; 1 Laws of Maine 1821 at 45-50 (text of article X, section 5).
                                                                                    9

v. Bangor Bank, 8 Me. 85, 93 (1831) (stating that “[e]ver since [Storer v.

Freeman, 6 Mass. 435 (1810)], as well as long before, the law on this point has

been considered as perfectly at rest”).

      [¶12] The result is that, in Maine, there are three separate shoreland

areas subject to distinct public and private rights. See Britton v. Donnell

(Britton II), 2011 ME 16, ¶ 6, 12 A.3d 39. First, the land below the mean

low-water mark is owned by the State. See id. ¶ 7. Second, the dry sand, above

the mean high-water mark, belongs exclusively to the upland property owner.

See id. ¶¶ 6-7. Finally, there is the area that is the subject of the present dispute:

the intertidal zone—the land between the mean high-water mark and the mean

low-water mark up to 100 rods, 12 M.R.S. § 572 (2018) (defining “intertidal

land” as “all land of this State affected by the tides between the mean high

watermark and either 100 rods seaward from the high watermark or the mean

low watermark, whichever is closer to the mean high watermark”); see also

Britton II, 2011 ME 16, ¶ 6, 12 A.3d 39; Bell I, 510 A.2d at 515. The intertidal

zone belongs to the owner of the adjacent upland property, or some other

person to whom that part of the land has been transferred by the upland owner,

“subject to certain public rights.” Britton II, 2011 ME 16, ¶ 7, 12 A.3d 39.
                                                                               10

      [¶13] The nature and extent of the public’s interest in the intertidal zone

has been a subject of much debate, litigation, and judicial writing.          Our

jurisprudence has not clearly established, for all purposes, the delineation

between the public and private rights in and to the intertidal area. Differing

views within this Court regarding the nature and scope of the public’s right to

use the intertidal zone became evident in our 1989 decision in Bell II. Those

differences were most recently brought into sharp focus in McGarvey v.

Whittredge, 2011 ME 97, 28 A.3d 620. There, the question presented was

“whether, as a matter of Maine common law, the public has the right to walk

across intertidal lands to reach the ocean for purposes of scuba diving.” Id. ¶ 1.

All six justices who participated in that case agreed that that use was within the

scope of the public trust doctrine. Id. The Court was evenly divided, however,

on the rationale supporting that conclusion. Compare id. ¶¶ 48-58, with

¶¶ 59-78.

      [¶14] Despite these divergent views concerning the scope of the public’s

intertidal property rights, only one conclusion obtains in this case: the public

may not harvest living rockweed growing in and attached to the

privately-owned intertidal zone. We explain this outcome with reference to the

two analytical frameworks articulated in McGarvey.
                                                                                 11

B.    McGarvey v. Whittredge

      [¶15] In the first of the two doctrinal views discussed in McGarvey

regarding the nature of the public trust rights, Chief Justice Saufley wrote that

“[r]ather than stretching the definitions of these three terms [fishing, fowling,

and navigation] beyond their reasonable limits . . . , we return to the roots of the

common law.” Id. ¶ 53. Pursuant to that approach, the terms “‘fishing,’

‘fowling,’ and ‘navigation’” must be “broad[ly] underst[ood]” and, over time,

have been “adapted to reflect the realities of use in each era.” Id. ¶¶ 37, 39. This

approach is consistent with the analysis articulated in Justice Wathen’s

dissenting opinion in Bell II, 557 A.2d at 188, which “rejected a rigid application

of the terms of the Ordinance and resorted to contemporary notions of usage

and public acceptance in order to strike a rational and fair balance between

private ownership and public rights.”

      [¶16] This broad and adaptive approach reflects “judicial unease with a

rigid interpretation” of the terms “fishing,” “fowling,” and “navigation”—terms

that were referenced in the Colonial Ordinance and that may, pursuant to the

broader interpretations urged originally by Chief Justice Wathen and more

recently by Chief Justice Saufley, too narrowly describe the public trust

doctrine. McGarvey, 2011 ME 97, ¶ 56, 28 A.3d 620.
                                                                                 12

      [¶17] Therefore, even if an activity carried out by a member of the public

does not “fall readily” within the notions of “fishing,” “fowling,” or “navigation,”

the activity may nonetheless be protected by the public trust doctrine so long

as, pursuant to the common law, the activity constitutes “a reasonable balance

between private ownership of the intertidal lands and the public’s use of those

lands.”   Id. ¶¶ 49, 57.     On the particular facts presented in McGarvey,

Chief Justice Saufley’s opinion concluded that even though passing over the wet

sand in order to scuba dive could not “readily” be seen as a type of “navigation,”

the public was nonetheless entitled to engage in that activity as a matter of

general common law because it represents “a reasonable balance” between the

private and public rights to the intertidal zone. Id. ¶¶ 49-50, 56-58.

      [¶18] In a separate opinion, Justice Levy, writing for the other half of the

Court’s panel in the case, analyzed the question based on the limiting principle

that the enumerated rights of “fishing,” “fowling,” and “navigation” were “never

understood . . . to merely establish a context for some broader right or rights.”

Id. ¶ 62. Pursuant to this approach, while those terms delimit the public’s

rights, they must be interpreted in a way that is “sympathetically generous and

broad.” Id. ¶ 71; see also Bell II, 557 A.2d at 173 (summarizing prior case law

as allowing for “a sympathetically generous interpretation to what is
                                                                              13

encompassed within the terms ‘fishing,’ ‘fowling,’ and ‘navigation,’ or

reasonably incidental or related thereto”). Construing “navigation” in that

expansive way—but not looking beyond it—Justice Levy’s concurring opinion

concluded that scuba diving fell within the ambit of “navigation” because it is

an activity that involves equipment and methods that are similar to those used

in traditional forms of navigation. McGarvey, 2011 ME 97, ¶¶ 75-76, 28 A.3d

620.

C.     Application of the Two Doctrinal Views

       [¶19] We now turn to the narrow issue presented here: is harvesting

living rockweed, growing in and attached to the intertidal zone, an activity that

is authorized and protected by the public trust doctrine?

       [¶20] In addressing the harvesting activity, we first consider whether

harvesting living rockweed from the intertidal zone is a form of “fishing” or

“navigation” as those activities are understood in Justice Levy’s concurrence in

McGarvey. We conclude that, contrary to Acadian’s contention, harvesting

living rockweed secured to the intertidal bed cannot be seen as either “fishing”

or “navigation,” even when those terms are interpreted in a “sympathetically

broad and generous” way. Id. ¶ 71. Then we apply the more expansive

“common law” approach urged by the Chief Justices and the concurrence to this
                                                                                                 14

opinion and address whether the common law permits the public to harvest

rockweed as an activity that constitutes a “reasonable balance” between the

public’s rights within the intertidal zone and the private property interests held

by the upland property owner. Id. ¶¶ 49, 57. Ultimately, we also answer this

question in the negative.

       1.      Application of the Trilogy

       [¶21] We first address the two relevant constituents of the trilogy:

“navigation” and “fishing.”7

               a.      Navigation

       [¶22]        “Navigation” has been interpreted to involve some mode of

transportation, whether traveling over frozen intertidal water, see French v.

Camp, 18 Me. 433, 434-35 (1841), passing on intertidal land to get to and from

land or houses, see Deering v. Proprietors of Long Wharf, 25 Me. 51, 65 (1845),

or mooring vessels and loading or unloading cargo, see id.; Wilson, 42 Me. at 24.8

In each of these instances, the primary activity is crossing the intertidal water

or land itself. See, e.g., French, 18 Me. at 434 (stating that State-owned waters


   7 Acadian does not argue—nor could it—that harvesting rockweed is a type of “fowling,” which is
the third part of the trilogy.
   8 As is discussed above, some members of this Court also concluded that scuba diving is a type of
navigation. McGarvey v. Whittredge, 2011 ME 97, ¶¶ 75-77, 28 A.3d 620 (Levy, J., concurring). This
was not the majority view, however, because the Court was evenly divided on that question. Id. ¶ 1.
                                                                              15

are “of common right, a public highway, [available] for the use of all the

citizens”). Although there is a navigational component to harvesting rockweed,

it is secondary to what Acadian seeks to do. Rather, the harvesters operate the

skiffs in intertidal waters for the principal purpose of engaging in a different,

nonnavigation activity, namely, cutting and taking significant portions of

rockweed plants. The harvesting of rockweed, even by boat, involves the use of

the intertidal land itself because living rockweed is attached to the intertidal

substrate even if it does not draw nutrients from the land. Therefore, Acadian

uses the intertidal waters not for “navigation” in its own right, but merely to

gain access to the attached rockweed. See Gerrish v. Brown, 51 Me. 256, 262

(1863) (“The term navigation, as applied to waters which are used as highways,

imports something different; it denotes the transportation of ships or

materials[] from place to place . . . .”).

      [¶23] Therefore, no matter how broadly “navigation” is viewed, it does

not encompass harvesting living rockweed from the intertidal zone.

             b.     Fishing

      [¶24] Harvesting rockweed—which the parties stipulated is a plant—is

not a form of “fishing.” See Small v. Wallace, 124 Me. 365, 367, 129 A. 444

(1925) (stating that a landowner’s right to fish “arises not out of their
                                                                                 16

ownership of the soil but from [the landowner’s] right to share in the common

right of fishery reserved to the public”).      The two types of ventures are

qualitatively different from each other.

      [¶25] In cases involving the public’s rights within the intertidal zone, we

have viewed the concept of “fishing” broadly. We have not imposed limitations

based on the fishery or the method used for fishing, see Moulton v. Libbey,

37 Me. 472, 489-90 (1854), and we have recognized the public’s right to use the

intertidal zone to dig for shellfish, see Leavitt, 105 Me. at 79-81, 72 A. 875;

Moulton, 37 Me. at 493-94, and bloodworms, see State v. Lemar, 147 Me. 405,

409, 87 A.2d 886 (1952). See also State v. Norton, 335 A.2d 607, 610 (Me. 1975)

(recognizing the State’s authority to regulate the harvest of shellfish by the

public).

      [¶26]    Nonetheless, even a “sympathetically generous and broad

interpretation of the public’s rights”—something that “is not . . . without limits,”

McGarvey, 2011 ME 97, ¶ 69, 28 A.3d 620 (Levy, J., concurring)—cannot

transform the harvesting of a marine plant into “fishing.” Cf. Moore v. Griffin,

22 Me. 350, 356 (1843) (holding that the taking of mussel-bed manure does not
                                                                                                      17

fall within the public trust rights);9 Marshall v. Walker, 93 Me. 532, 537,

45 A. 497 (1900) (stating that the public “may not take shells or mussel manure

or deposit scrapings of snow upon the ice over [the intertidal land]”).

        [¶27] Rockweed is biologically dissimilar from fish, lobster, clams,

oysters, and bloodworms—it draws nutrients from the air and seawater using

a photosynthetic process and, once attached to the intertidal substrate, does

not move. See Moulton, 37 Me. at 489-90 (stating that “the general term

‘piscaria,’ or its equivalent, is used as including all fisheries, without any regard

to their distinctive character, or to the method of taking the fish” and giving

examples of regulated “fisheries” to include oyster, lobster, salmon, herring,

and pilchard (second emphasis added)). After arguing in its brief that “seaweed

is a marine organism, not a terrestrial plant,” at oral argument Acadian

acknowledged that there is no legal distinction between plants growing in the

soil in the intertidal zone and those growing on the rocks in that same area. The




   9 Mussel-bed manure comprises shells mixed with the soil. See Opinion of Justices, 313 N.E.2d 561,
567 (Mass. 1974) (stating that mussel mud consists of “living and dead shell fish . . . and the soil or
clay in which they were found” (alteration in original) (quoting Porter v. Shehan, 73 Mass. 435, 436
(1856)); E.H. Jenkins & John Phillips Street, Manure from the Sea, 194 Conn. Agric. Experiment Station
1, 11 (1917) (referring to “marine mud” as “mud taken from flats at low tide or cast up on the shore
of an inlet . . . [and i]n some places vast quantities of small shells, ground fine by the waves, are cast
up with the mud”).
                                                                                                        18

fundamental dissimilarities between the harvesting of fish and of rockweed as

a marine plant demonstrate that Acadian is not in the business of “fishing.”10



   10 The parties have addressed two of our opinions that make reference to intertidal seaweed. For
differing reasons, we find neither to be dispositive.

   The earlier of the two opinions, which was issued more than 150 years ago, states that “seaweed
belongs to the owner of the soil upon which it grows, or is deposited, unless some other person has
acquired the right to take it.” Hill v. Lord, 48 Me. 83, 99 (1861) (emphasis omitted). The analysis,
however, contains several statements about the nature of seaweed that do not fully square with the
stipulated record here. For example, Hill states that seaweed grows partially “on the beach.” Id. at
96. This was significant to the conclusion that seaweed is a profit “in the soil” and not subject to the
public’s easement rights to use the intertidal waters. Id. at 99-100. Here, in their joint statement of
material facts, the parties stipulated that rockweed is an intertidal seaweed—meaning that it “does
not grow on intertidal sandy beach except [attached to] hard . . . objects.”

   We do not entirely reject Hill, however. As Acadian acknowledged at oral argument, there is no
principled legal distinction between plants growing in the soil in the intertidal zone and those
growing on the rocks in that same area, which supports the application of the doctrine of profit a
prendre that underlies the analysis in Hill. Further, Hill has been invoked as authority in more recent
case law. See, e.g., Bell v. Town of Wells (Bell II), 557 A.2d 168, 187 (Me. 1989) (Wathen, J., dissenting).
To the extent that Hill has persuasive effect, the case favors Ross, but we do not place dispositive
weight on it. See Appeal of Robinson, 88 Me. 17, 23, 33 A. 652 (1895) (“The common law would ill
deserve its familiar panegyric as the ‘perfection of human reason,’ if it did not expand with the
progress of society and develop with new ideas of right and justice.”); Woodman v. Pitman,
79 Me. 456, 458, 10 A. 321 (1887) (“The inexhaustible and ever-changing complications in human
affairs are constantly presenting new questions and new conditions which the law must provide for
as they arise . . . .”); see also Mitchell W. Feeney, Comment, Regulating Seaweed Harvesting in Maine:
The Public and Private Interests in an Emerging Marine Resource Industry, 7 Ocean & Coastal L.J. 329,
343 (2002) (discussing the erroneous scientific principles upon which the Court in Hill v. Lord
appears to rely, and noting that it “is now known that seaweeds do not receive their nutrients from
the soil, but from the surrounding water column [and t]heir only reliance on the soil is for anchorage
purposes”).

    The second case is Marshall v. Walker, 93 Me. 532, 45 A. 497 (1900), which Acadian cites favorably.
That opinion states that the public is entitled to “take sea manure” (which includes seaweed and is
given that description because of its use as a fertilizer, see generally Jenkins & Street, supra; see also
1 F.H. Storer, Agriculture in Some of Its Relations with Chemistry 462 (4th ed. 1892)) from the
intertidal zone. Marshall, 93 Me. at 536-37, 45 A. 497. No authority, however, is offered for that
assertion. Further, Marshall was a quiet title action and did not determine the nature of the public’s
rights to the land or implicate questions of public ownership. Therefore, the opinion’s general
discussion of the nature of the public’s rights is dictum on which we do not place weight. See Legault
v. Levesque, 150 Me. 192, 195, 107 A.2d 493 (1954) (stating that obiter dictum is “an assertion of law
not necessary to the decision of the case” (quotation marks omitted)).
                                                                                19

      2.     Application of the Common Law and “Reasonable Balance”
             Approach

      [¶28] Having concluded that harvesting rockweed is neither “navigation”

nor “fishing” pursuant to the “sympathetically generous and broad” approach

described in Justice Levy’s McGarvey concurrence, see 2011 ME 97, ¶ 71,

28 A.3d 620, we further conclude that, likewise, the activity does not “fall

readily” within either category of “navigation” or “fishing,” as discussed in Chief

Justice Saufley’s concurring opinion in McGarvey, see id. ¶ 49. Thus, we turn to

the additional inquiry explained by both Chief Justice Saufley in McGarvey and

by the Bell II dissent, which calls for an assessment of whether the removal of

rockweed by members of the public from privately owned land is within the

common law principle that looks to achieve a “reasonable balance” between the

private landowner’s interests and the rights held by the State in trust for the

public’s use of that land. See id. ¶¶ 41, 49, 57.

      [¶29] In answering this question, we draw further guidance from Chief

Justice Wathen’s dissenting opinion in Bell II, 557 A.2d at 188-89, which

espouses the same broader view of the public trust rights described in Chief

Justice Saufley’s discussion of the extent of those rights in McGarvey, 2011 ME

97, ¶¶ 47, 49, 28 A.3d 620. We conclude that even pursuant to that school of
                                                                                                    20

thought, the harvesting of seaweed attached to the intertidal land falls outside

the scope of activities that can be carried out as a matter of public right.

        [¶30] The criterion used in the Bell II dissenting opinion calls for

consideration of “contemporary notions of usage and public acceptance in

order to strike a rational and fair balance between private ownership and

public rights.” 557 A.2d at 188. In finding the appropriate balance, “we must

avoid placing any additional burden upon the shoreowner”—a burden that can

result when something is taken from the intertidal lands. Id. at 188-89. In

formulating that standard, the dissent drew on a collection of our cases,

including Hill v. Lord, 48 Me. 83, 96 (1861), which prohibited the removal of

seaweed from intertidal lands belonging to another. Bell II, 557 A.2d at 185-89.

It is significant here that even a broad view of the public trust rights explained

in the Bell II dissent does not encompass the harvesting of seaweed.11




   11   We are careful not to push the limits of the dissenting analysis in Bell II too far. While the
dissent concluded that, in his view, the public’s rights included “such recreational activities as
bathing, sunbathing and walking,” he specifically did “not attempt to provide a comprehensive
definition of the recreational activities” that are within the scope of the public’s common law rights.
Bell II, 557 A.2d at 189. Setting aside the question of whether, for purposes of determining the scope
of intertidal rights, commercial activities can be equated with recreational activities, the core
principle urged by the dissent was drawn from the lessons of our case law, including Hill. Id. at
181-89. Thus, although—given the explicit limitation noted above—the dissent in Bell II cannot be
read to state directly that removing seaweed is outside the scope of the public’s right to use the
intertidal waters, the dissent’s use of Hill to derive the baseline principle of a “rational and fair
balance” of public and private rights, id. at 188, is significant here.
                                                                               21

      [¶31]   This is a reasonable and proper demarcation between the

competing interests at stake here. The “additional burden” imposed on the

owner of the intertidal zone, id. at 188, is not reasonable when the nature of the

interference consists of cutting and removing marine plants from the intertidal

zone, proximate to the dry sand on which the public has no independent rights,

with the use of specialized equipment and skiffs that have a multi-ton capacity.

Furthermore, Acadian’s activity is qualitatively similar to other uses of the

intertidal zone that we have held are outside of the public trust doctrine. See,

e.g., McFadden v. Haynes & DeWitt Ice Co., 86 Me. 319, 325, 29 A. 1068 (1894)

(holding that although a person may pass over intertidal land to fish, that

person may not enter that land for the purpose of cutting ice); King v. Young,

76 Me. 76, 80 (1884) (holding that the Colonial Ordinance does not permit

taking mussel-bed manure from another’s intertidal land); Moore, 22 Me. at 356

(same); see also Mitchell W. Feeney, Comment, Regulating Seaweed Harvesting

in Maine: The Public and Private Interests in an Emerging Marine Resource

Industry, 7 Ocean & Coastal L.J. 329, 340-41 (2002) (“[N]owhere in the body of

Maine case law has fishing been held to include the collection of vegetable

matter. Migratory resources (like fish, and presumably shellfish and worms)
                                                                               22

have traditionally been less protected by private property rights than

stationary resources such as attached seaweed.”).

      [¶32] Therefore, the harvesting of rockweed is not encompassed within

the rights held by the public even when those rights are viewed from the

broader of the perspectives explained in our case law.

                               III. CONCLUSION

      [¶33] For these reasons, we conclude that, pursuant to both of the

differing legal constructs our opinions have articulated to define the scope of

the public’s intertidal property rights, rockweed attached to and growing in the

intertidal zone is the private property of the adjacent upland landowner.

Harvesting rockweed from the intertidal land is therefore not within the

collection of rights held in trust by the State, and members of the public are not

entitled to engage in that activity as a matter of right. And because neither view

of the public’s right to use the intertidal zone accommodates the activity at

issue here, we determine—contrary to the position of the concurring justices—

that this case does not present us with the occasion to consider the vitality of

the holding in Bell II.

      The entry is:

                    Judgment affirmed.
                                                                              23




SAUFLEY, C.J., with whom MEAD and GORMAN, JJ., join, concurring in part.

      [¶34] In 1989, the Law Court, in a sharply divided opinion, made a

regrettable error, limiting public access to the intertidal zones on Maine’s

beaches in Bell v. Town of Wells (Bell II), 557 A.2d 168 (Me. 1989). Since that

time, a member of the public has been allowed to stroll along the wet sands of

Maine’s intertidal zone holding a gun or a fishing rod, but not holding the hand

of a child.

      [¶35] Recognizing, as the majority concludes, that the pronouncement of

that four-justice majority in Bell II is not ultimately dispositive in the matter

before us, we would, nonetheless, clarify the applicable law and set aside the

holding in Bell II. Accordingly, we concur in the result of the Court’s opinion,

but we do not join the analysis because we would take this opportunity to

explicitly overrule Bell II.

      [¶36] Bell II, which addressed the intertidal zone at Moody Beach in

Wells, was decided thirty years ago. Id. at 170. Prior to that decision, as a

matter of common law, the public had long enjoyed reasonable access to the

intertidal zone. Id. at 180, 184-85 (Wathen, J., dissenting). The extent of and
                                                                                                     24

limitations on that access had evolved over centuries to adapt to the differing

and reasonable uses of the public.12 See id. at 185-89.

        [¶37] As predicted in the Bell II dissent, id. at 192, and in another

separate opinion issued in its wake, Eaton v. Town of Wells, 2000 ME 176, ¶ 52,

760 A.2d 232 (Saufley, J., concurring), Bell II has generated significant and

expensive litigation resulting from the Court’s limitation of the public’s

allowable activities to those that can be forced into the definitions of “fishing,

fowling, and navigation,” Bell II, 557 A.2d at 169. The constrictive trilogy of that

holding has bedeviled the State of Maine since that opinion was issued, and we




   12   Permissible activities that had been held to fall within the public trust rights before the
imposition of the constrictive trilogy in Bell v. Town of Wells (Bell II), 557 A.2d 168, 173 (Me. 1989),
included the following: digging for worms, State v. Lemar, 147 Me. 405, 408-09, 87 A.2d 886 (1952);
landing on, receiving and discharging passengers from, and walking across intertidal land to access
a power boat for hire, Andrews v. King, 124 Me. 361, 362-64, 129 A. 298 (1925); clamming, State v.
Leavitt, 105 Me. 76, 77-80, 72 A. 875 (1909); transporting merchandise, rafting, driving logs, and
floating or propelling boats across intertidal land, whether for commercial or recreational purposes,
Smart v. Aroostook Lumber Co., 103 Me. 37, 47-48, 68 A. 527 (1907); sailing over, mooring a vessel
on, walking across, riding or skating on ice over, digging shellfish in, and taking sea manure from
intertidal land, Marshall v. Walker, 93 Me. 532, 536-37, 45 A. 497 (1900); mooring a vessel,
discharging passengers, and taking on cargo, State v. Wilson, 42 Me. 9, 24-25 (1856); fishing for
shellfish, Moulton v. Libbey, 37 Me. 472, 489-90 (1854); passing to other property after landing a boat,
Deering v. Proprietors of Long Wharf, 25 Me. 51, 64-65 (1845); and traveling over frozen waters,
French v. Camp, 18 Me. 433, 434-35 (1841).

      Activities of the public prohibited in the intertidal zone before Bell II included taking shells or
mussel manure, or depositing snow or ice, Marshall, 93 Me. at 536-37; cutting ice or depositing snow,
McFadden v. Haynes & DeWitt Ice Co., 86 Me. 319, 325, 29 A. 1068 (1894); harvesting seaweed, Hill v.
Lord, 48 Me. 83, 100 (1861); and removing mussel-bed manure, ballast, or sand, Moore v. Griffin,
22 Me. 350, 355-56 (1843). With the issuance of the Bell II decision, the prohibited activities have
thus far been expanded to include general recreation, such as walking along the wet sand, entry and
exit for swimming, sunbathing, frisbee-throwing, and picnicking. Bell II, 557 A.2d at 175-76.
                                                                                25

fear that the Court’s holding will become enshrined in increasingly

uncorrectable law.

      [¶38] As Justice Wathen wrote eloquently in his dissent to Bell II: “This

Court’s opinion does nothing to dispel the obvious conclusion that from this

moment on, at Moody Beach and every other private shore in Maine, the

public’s right even to stroll upon the intertidal lands hangs by the slender

thread of the shore owners’ consent. I will not hazard a guess whether that

consent will be forthcoming. In my judgment, the public rights should not be

so quickly and completely extinguished.” Id. at 192 (Wathen, J., dissenting).

      [¶39] Although judicial efforts to loosen the strings of Bell II have been

undertaken—for example, in the strained interpretation of “navigation” in

McGarvey v. Whittredge, 2011 ME 97, ¶¶ 72-77, 28 A.3d 620 (Levy, J.,

concurring)—these anemic efforts have failed to do what must be done.

Although three of the six sitting Justices sought to avoid further enshrining the

constrictive trilogy in Maine law, no majority holding to that effect occurred, id.

¶¶ 1, 53 (Saufley, C.J., concurring), thus leaving in place the jurisprudence that

led to the tortuous shoehorning of various activities into the constrictive trilogy

by declaring the simple walk of a scuba diver across the intertidal zone to the
                                                                                                    26

ocean as fitting into the definition of “navigation.” Id. ¶¶ 72-77 (Levy, J.,

concurring).

        [¶40] As time marches on, concepts of stare decisis may begin to take

root in this critical aspect of Maine law, and Maine landowners, understandably,

may begin to rely on the restrictions placed on the public’s access to the

intertidal zone.13 The Bell II decision was built in great part on a literal reading

of the Colonial Ordinance, 557 A.2d at 175 (“The Massachusetts court noted

that the Colonial Ordinance mentioned no public rights except for fishing,

fowling, and navigation.”), which was actually no longer extant at the time of



   13 The doctrine of stare decisis preserves the reliance interests of the public by counseling
adherence to the previously established rule of law created by precedent:

             Litigants have a right to transact business with reference to the law enunciated
        by the court. Most valuable property rights may be predicated upon the law, as thus
        declared. These rights should not be impaired nor sacrificed by a reversal or
        modification of the law except upon cogent and necessary reasons. Stability of the
        law should be the one great outstanding feature of jurisprudence upon which the
        profession as well as the people should have a right to rely. . . .

Jordan v. McKenzie, 113 Me. 57, 59, 92 A. 995 (1915); see Adams v. Buffalo Forge Co., 443 A.2d 932,
935 (Me. 1982) (“Courts properly seek to create a framework of continuity amidst a universe of
continuous change in order that those citizens and litigants who rely upon the legal doctrines and
principles they announce may conduct their day-to-day affairs without fear that their reasonable
expectations will be torn asunder by an unforeseen and radical departure from precedent.”).

     If we do not stem the tide of Bell II’s influence now, therefore, we fear that stare decisis will
impose rigid results “restrained by the bonds of the past” that perpetuate a “cultural lag of unfairness
and injustice”—exactly the consequence we must take care to avoid. Moulton v. Moulton, 309 A.2d
224, 228 (Me. 1973); see Adams, 443 A.2d at 935 (discussing that the court’s discretion in
determining whether to apply stare decisis in a given matter “must be exercised with a view to
whether adherence to past error or departure from precedent constitutes the greater evil to be
suffered”).
                                                                               27

Maine’s statehood, see McGarvey, 2011 ME 97, ¶¶ 29-30, 28 A.3d 620 (Saufley,

C.J., concurring). That decision—Bell II—has been questioned, see Eaton, 2000

ME 176, ¶¶ 50-55, 760 A.2d 232 (Saufley, J., concurring); pretzeled, see

McGarvey, 2011 ME 97, ¶¶ 72-77, 28 A.3d 620 (Levy, J., concurring); and

avoided, see id. ¶¶ 48-49 (Saufley, C.J., concurring). Accordingly, because of the

passage of time, which will eventually diminish the ability of the Court to

correct the wrong created by the Bell II decision, we would take this

opportunity to correct the judicial error that restricted the rights of the public

to engage in reasonable ocean-related activities that do not interfere with the

upland owners’ peaceful enjoyment of their own property or their right to

wharf out.

      [¶41] The 1989 decision in Bell II erroneously limited the public’s

reasonable and nonabusive use of the intertidal zone. That use should include

the right to walk unfettered upon the wet sand of Maine beaches to peacefully

enjoy one of the greatest gifts the State of Maine offers the world.

      [¶42] Simply put, we would overrule Bell II once and for all. We would

adopt the original Wathen analysis, Bell II, 557 A.2d at 180-92 (Wathen, J.,

dissenting), and allow the common law of public access and use of the intertidal
                                                                                                      28

zone to continue to develop as it has over the centuries. The public deserves

our correction.

        [¶43] We would then, as the Court has done today, conclude that, even

according to the public’s common law access rights to the intertidal zone, the

public does not have the right to take attached plant life from that property in

contradiction to the fee owner’s wishes—not because such activity falls outside

of the constrictive trilogy, but because the taking of attached flora from fee

owners was not within the reasonable access contemplated when the jus

publicum was established.14 See id. at 180-81, 189.



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




   14  Of note, the people of Rhode Island have amended their state constitution to allow the public
to take seaweed, even when attached to the land: “The people shall continue to enjoy and freely
exercise all of the rights of fishery, and the privileges of the shore, to which they have been heretofore
entitled under the charter and usages of this state, including but not limited to fishing from the shore,
the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore; and they
shall be secure in their rights to the use and enjoyment of the natural resources of the state with due
regard for the preservation of their values . . . .” R.I Const. art. I, § 17 (LEXIS through ch. 2 of the
Jan. 2019 Session).
                                                                                29

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
                                                            30

Washington County Superior Court docket number CV-2015-22
FOR CLERK REFERENCE ONLY