| JULIEN C. GIRARD MEMBER OF THE MAINE SEAWEED COUNCIL 0PEN LETTER TO MAINE SEAWEED COUNCIL March 21, 2000 The Maine Seaweed Council has taken on an honorable and important task as an adviser to the Maine Legislature to assist in the formation of rules and regulations by which this great State will regulate the key to all marine life and therefore the survival of the entire fishing industry. As much as I personally may not agree with all the State laws pertaining to the coast of Maine, it is my responsibility as a member of the Maine Seaweed Council to bring to the Council's attention what I believe are areas that must be addressed, which, if ignored, may cause serious public unrest and possibly lengthy legal entanglements. In my opinion the Maine Seaweed Council must address two questions of legal importance to the harvesting of seaweeds along the coast of Maine. First : Who has the sovereignty or ownership of the seaweed growing in the intertidal area called the "shore", or in that area between the mean high water mark and the mean low water mark in accordance to Maine State Statutes? Second : Is the seaweed industry in Maine synonymous to the fishing industry, and if so, is it given equal status and exception rights under the Massachusetts Colonial Ordinance of 1641 to 1647, whereby "fishing" is a public easement over the intertidal area called the shore? The following Maine Case Laws appear to address the two questions posed above. However, this is a legal matter that should be deferred to the State Attorney General. 1. Me. 1989 The Supreme Judicial Court, McKusick, C.J., held that: (1) owners held title in fee to the intertidal land subject to easement forbidding public use only for fishing, fowling and navigation; (2) public easement for fishing, fowling, and navigation did not include public recreational use; and (3) Public Trust in Intertidal Land Act was unconstitutional. Similarly, we have prohibited the taking of seaweed from the flats of another. "[T]he title to the seaweed is in the owner of the flats�." Hill v. Lord, 48 Me. 83, 86 (1861). Bell v. Town of Wells, Cite as 557A.2d 168 2. Me. 1923. Under Colonial Ordinance 1641-47, the owner of upland adjoining tidewater prima facie owns to low-water mark, not exceeding 100 rods, and subject to public rights of passage of boat. Sinford v. Wattts, 122 A. 573, 123 Me. 230. 3. Me. 1907. The owner of the flats has in them an estate in fee, subject only to the public right of fishing, fowling, and passing over them by boats. Chase v. Cochran, 67 A. 320, 102 Me. 431 4. Me. 1905 By force of the Colonial Ordinance of Massachusetts 1641-47, the owner of the upland adjoining tide water prima facie owns to low-water mark. Whitmore v. Brown, 61 A. 985, 100 Me. 410 5. Me. 1903 Under the colonial ordinance of 1641-47, the owner of the upland adjoining the water prima facie owns to low-water mark, and does so in fact unless the presumption is rebutted by proof to the contrary. Dunton v. Parker, 54 A. 1115, 97 Me. 461 6. Me. 1902. By virtue of the colonial ordinance of Massachusetts of 1641-47, declaring that in all creeks and other places upon the salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have property to the low-water mark, where the sea does not ebb above 100 rods, the owner of upland adjoining tide water owns to low-water mark, not exceeding 100 rods from high-water mark. Proctor v. Maine Cent. R. Co., 52 A. 933, 96 Me. 458. 7. Me. 1891. The owner of the upland adjoining tide water prima facie owns to low-water mark, and does so in fact, unless the presumption is rebutted by proof to the contrary. Snow v. Mt. Desert Island Real Estate Co., 24 A. 429, 84 Me. 14, 30 Am.St. Rep. 331, 17 L.R.A. 280. 8. Me. 1853. The owner of the upland bounded by the sea will hold the flats for 100 rods from high-water mark, provided they extend so far, but not beyond that distance. Partridge v. Luce, 36 Me. 16. 9. Me. 1852. Though the provision of the ordinance of 1641, providing that the proprietor of the land adjoining the sea or salt water shall hold to low-water mark, where the tide does not ebb more than 100 rods, was vacated by the abrogation of the colonial charter, it has by long usage become the law of Maine. Winslow v. Patten, 34 Me. 25. 10. Me. 1847. Under the colonial ordinance of 1641, declaring that the proprietors of land shall have property to the low-water mark, the title of the proprietors of the flats extends only to the ordinary low-water mark, and not to the line of the ebb of the lowest tide. Gerrish v. Proprietors of Union Wharf, 26 Me. (13 Shep.) 384, 46 Am.Dec. 568. 11. Me. 1831. The colonial ordinance of 1641 extending the title of riparian proprietors to low-water mark, though originally limited to the Plymouth colony, is part of the common law, and is applicable wherever the tide ebbs and flows, though it be fresh water thrown back by the influx of the sea. Lapish v. President, etc., of Bangor Bank, 8 Me. (8Greenl.) 85 NOTE: Julien C. Girard resigned from the Maine Seaweed Council during a public meeting with the Maine Department of Marine Resources on August 21, 2000, citing irreconcilable differences. Julien Girard Steuben, ME |