by John M. Simpson.<\/p>\n
Animal rights enthusiasts have a knack for pushing the envelope in their various arguments that legal rights should be recognized for a wide variety of animal species.\u00a0 For example, it was reported recently<\/a> that People for the Ethical Treatment of Animals (PETA)\u00a0tweeted in connection with World Oceans Day that “Oysters and other bivalves are animals who deserve our consideration.”\u00a0 Against this backdrop, a recent decision of the Supreme Judicial Court of Maine raised\u00a0an interesting issue.\u00a0\u00a0Ross v. Acadian Seaplants, Ltd<\/em>., 206 A.3d 283 (Me. 2019),<\/a> presented the question whether “rockweed,” a species of seaweed in Maine that grows in the intertidal zone, is owned by the adjoining upland property owner who owns the intertidal soil in fee simple or is held in trust by the state through the jus publicum<\/em> for the public to harvest.<\/p>\n Rockweed is a type of seaweed that grows in the intertidal zone.\u00a0 It attaches itself to hard objects such as rocks and obtains its nutrients from the surrounding seawater and air.\u00a0 Rockweed is harvested for commercial products such as animal feed and fertilizer.\u00a0 In the Ross<\/em>\u00a0case, property owners sought\u00a0declaratory relief against a company that had been harvesting rockweed in the intertidal zone of plaintiffs’ property without their consent.<\/p>\n Whether the rockweed was the property of the plaintiffs or was held in trust by the state for public use turned on a principal of Maine common law that was in turn derived from a colonial ordinance of the Massachusetts Bay Colony.\u00a0 That law vested both title and dominion to the intertidal zone in the crown but held subject to the public’s rights of “navigation,” “commerce” and “fishing.”\u00a0 This carried over into the Maine Constitution when\u00a0Maine obtained statehood in 1820.<\/p>\n The interesting part of the case from the animal law standpoint came with the defendant’s effort to argue that its harvesting of rockweed was “fishing” and therefore protected by the public trust doctrine.\u00a0 Even though the parties had stipulated that rockweed is a plant, the defendant nonetheless argued that harvesting rockweed constituted “fishing.”\u00a0 The court did not agree:<\/p>\n Rockweed is biologically dissimilar from fish, lobster, clams, oysters, and bloodworms\u2014it draws nutrients from the air and seawater using a photosynthetic process and, once attached to the intertidal substrate, does not move.\u00a0 See Moulton<\/em> [v. Libbey<\/em>, 37 Me. 472,] 489-90 [(1854)] (stating that “the general term ‘piscaria<\/em>,’ or its equivalent, is used as including all fisheries, without any regard to their distinctive character, or to the method of taking the fish<\/em><\/strong>” and giving examples of regulated “fisheries” to include oyster, lobster, salmon, herring, and pilchard (second emphasis added) ). \u00a0After arguing in its brief that \u201cseaweed is a marine organism, not a terrestrial plant,\u201d 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.\u00a0 The fundamental dissimilarities between the harvesting of fish and of rockweed as a marine plant demonstrate that Acadian is not in the business of \u201cfishing.\u201d<\/p>\n<\/blockquote>\n 206 A.3d at 291.<\/p>\n Rockweed, like oysters, affixes itself to a stationary object and does not move but, at least for now, there appears to be little judicial momentum in Maine for rockweed rights recognition.<\/p>\n","protected":false},"excerpt":{"rendered":" by John M. Simpson. Animal rights enthusiasts have a knack for pushing the envelope in their various arguments that legal rights should be recognized for a wide variety of animal species.\u00a0 For example, it was reported recently that People for the Ethical Treatment of Animals (PETA)\u00a0tweeted in connection with World Oceans Day that “Oysters and … <\/p>\n Continue reading “Maine’s Top Court Rules Harvesting Seaweed Is Not “Fishing””<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[49,21,382,5,381,101,45,383,380],"ppma_author":[697],"class_list":["post-214","post","type-post","status-publish","format-standard","hentry","category-general","tag-animal-law","tag-animal-rights","tag-intertidal-zone","tag-john-simpson","tag-jus-publicum","tag-people-for-the-ethical-treatment-of-animals","tag-peta","tag-public-trust","tag-rockweed"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","author_category":"","last_name":"Simpson","first_name":"John M.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/johnmsimpson.html","description":"Read John's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/214","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=214"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/214\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=214"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=214"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=214"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=214"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n