As Maine’s intertidal zone becomes more economically important to fishermen, with the value of baby eels and other species surging in recent years, a recent court decision that has made it harder to harvest seaweed between the high- and low-tide marks has renewed a long-running feud over shore access in the Legislature.
In March, the Maine Supreme Judicial Court ended months of suspense over whether seaweed harvesting could be included among the long-recognized public rights to fish, hunt birds or navigate in the intertidal zone of Maine’s convoluted, 3,500-mile shoreline. Shorefront property owners, some of whom have property deeds that extend all the way out to the low-tide line, control all access to their land above the high-tide line.
To the delight of many shorefront property owners, the court ruled that harvesters must have permission from the upland property owner to cut seaweed above the low-tide line. The decision has resulted in a flurry of legislative proposals now being floated at the State House aimed at boosting public access to the intertidal zone.
According to one lawmaker who believes the state should claim title to the intertidal zone, there is more at stake than just the $820,000 worth of wild rockweed that was harvested along Maine’s coast last year. The issue is about allowing recreational access to the shoreline and protecting commercial marine activities in Maine that generate tens of millions of dollars in annual revenue, he said.
“Anyone can go out in the intertidal zone and blast a shotgun at a bird, but a grandmother can’t go for a walk [on the beach] with her granddaughter,” said Rep. Jeffrey Evangelos, an independent from the lobstering community of Friendship. “It’s also a working waterfront issue.”
Some scientists have criticized the law court decision, saying it mischaracterizes seaweed as a plant, rather than as an algae that can be classified among the marine organisms that state law allows to be harvested in the intertidal zone. Such a legal misconception of how to classify seaweed could have implications for other commercial marine harvesting activities in the intertidal zone, fishing advocates say, either by discouraging development of new products and technologies or by emboldening landowners who want to shoo away harvesters in front of their homes.
Even prior to the seaweed case, people accustomed to digging in some mudflats around Mount Desert Island recently ran into interference from Acadia National Park rangers. This past February, after fielding complaints from harvesters and more than two years after Acadia rangers cracked down on such activities, Congress passed legislation that codifies traditional harvesting (i.e., hand-digging) as permissible on the park’s mudflats.
“Access to clam flats is an ongoing issue for us,” said Chad Coffin, president of the Maine Clammers Association. “For the most part, we access clam flats by land, which typically means crossing over private property. Some landowners understand how important our ability to access the flats is, but many don’t.”
The financial stakes for fishing in Maine’s intertidal zone are on the rise. More than $51 million worth of marine life was dug up, collected or caught between the low- and high-tide marks last year — the third highest annual total value for the state’s intertidal fisheries. Only 2012 and 2013, before Maine adopted yearly catch limits for its lucrative baby eel fishery, had higher intertidal fishery harvest values: roughly $68 million and $64 million respectively.
The increasing economic importance of the intertidal zone comes at a time when the annual landings value of several other species caught farther from shore — with the notable exception of Maine’s dominant $480 million lobster fishery — have declined sharply. Maine’s cod, haddock, shrimp, urchin and white hake fisheries have seen their annual harvest values each drop by millions of dollars since the 1980s and 1990s.
Though Maine’s softshell clam harvest value has fallen by $10 million since 2015, it still remains one of the state’s most valuable fisheries and provides a steady income to roughly 1,600 licensed diggers. The $12.8 million statewide value of last year’s softshell clam harvest remains on par with or better than yearly yields from the 1980s and 1990s, according to state statistics.
Joe Porada, a longtime clam harvester in Hancock County, said that there are places near Ellsworth where many local diggers have encountered growing resistance from shorefront property owners to allow access to nearby tidal flats. However, he doesn’t think access is more of a problem overall than it used to be.
A multi-town shellfish harvesting district established in 2010 around Ellsworth has helped foster better relationships between local clam diggers and some shorefront property owners, he said, by limiting access by clammers who live outside the district.
But as the value in the tidal flats increase, it can complicate those relationships. A good price for clams, sandworms or bloodworms — the latter of which has seen its yearly harvest value nearly quadruple since 2000 — will generate more interest and draw more diggers to the shore, he said. This, in turn, is more likely to generate concerns from nearby property owners.
“There are more people showing up when there’s more money,” Porada said. “That’s been an issue in a couple of places. If [a property owner] sees me driving by every day for five years, it’s different from ‘who the hell are these guys coming down here, and why am I all of a sudden seeing Bud Light cans laying around?’”
The issue of access to Maine’s intertidal zone has been controversial for a long time.
Multiple cases have sprung up over the years from people just wanting to get to and walk along local beaches for recreation, with differing results. In 1989, a group of shorefront property owners in Wells won a lawsuit against that town, which eliminated most public access to Moody Beach, but last year the town of Kennebunkport won a case in which it argued that the public should be allowed general access to Goose Rocks Beach.
The state legislation submitted in Augusta, LD 1316, would allow the state to claim title to the intertidal zone, fully making it public property and giving the state the authority to manage what activities are permitted between the high- and low-tide lines.
Shorefront property owners and their supporters have criticized the proposals, claiming that any attempt by the state to claim ownership of the intertidal zone — without just compensation — would amount to an unconstitutional taking of private property. And it could have a severe impact on shorefront property values, they said.
“Taxes being paid by property owners include the value of the intertidal zone,” Andy Cashman, a Portland attorney who represents the Maine Association of Realtors, told legislators on April 25. “If all that property is confiscated by these proposed laws then upland owners’ remaining property will need to be reassessed, with costs to municipalities and loss of tax revenues.”
If the Legislature does pass a bill that boosts public access rights to the intertidal zone, Evangelos said he thinks it won’t be long before another lawsuit is filed and makes it way back to Maine’s top court. If that happens, he said, it will give the court the chance to more broadly address the issue of public access below the high tide line and to negate what he says — as do three state supreme court justices — was a bad decision 30 years ago in the Moody Beach case.
“That is precisely my hope,” Evangelos said.