Kenneth Ross owns coastal property on Cobscook Bay, Maine, on which rockweed grows in the intertidal area. Acadian Seaplants is licensed by the state to collect rockweed in areas “where seaweed may legally be taken.” Ross and other coastal owners sued to stop Acadian from harvesting rockweed on their property and Arcadian argues that the intertidal zone is held by the public and does not implicate private property rights. The Maine Supreme Court will determine whether the intertidal zone is privately owned property or whether to expand the public trust doctrine to cover it. On behalf of itself and the Property and Environment Research Center, PLF filed an amicus brief supporting private property rights.
Acadian Seaplants is trying to expand Maine’s public trust doctrine to allow it to harvest rockweed (a species of seaweed) from private property without the owners’ permission—and over their explicit objections. In Maine, coastal property owners own the land between high and low tide, an area where valuable rockweed grows. Many property owners, concerned that current harvesting is unsustainable and harmful to the local ecosystem, forbid harvesting on their land. Although this land is subject to public trust rights, those have been limited to “fishing,” “fowling,” and “navigation” for hundreds of years. Expanding public trust rights beyond those limits to include rockweed harvesting would destabilize property rights, increase conflict, and undermine environmental protection.
In an amicus brief to the Maine Supreme Judicial Court, PLF argues that property rights encourage amicable resolution to conflicting demands on limited resources. In the rockweed case, it’s impossible to reconcile the company’s wish to harvest the rockweed with the property owner’s and environmentalists’ desire to conserve it. But property rights encourage property owners to rely on prices to decide whether harvesting or conserving rockweed is most valuable. If more harvesting is best, the harvester should be willing to pay for it. But if the property owner or an environmental group values conserving a particularly sensitive area more, the harvesters’ offer will be outbid. If the court does expand the public trust doctrine, the Takings Clause will require the state to pay property owners for the rights taken. Giving the public an easement to invade private property along Maine’s 3,500 miles of coastline would be a massive taking and the court should hesitate to impose such liability on the state.