Ascophyllum nodosum (Photo:  Dozens at en.wikipedia)
Ascophyllum nodosum (Photo: Dozens at en.wikipedia)
Editor’s Note: In our June 6 issue, Deep State gave the background to the increasingly heated debate over public use of the Maine shore. That was prior to the legislative votes discussed here.

“A big day for Daddy Warbucks today!”

That was Rep. Jeffrey Evangelos’s exclamation after the surprising and overwhelming defeat in the Maine Senate of a bill he had worked hard for. It would have legally allowed public access between high and low tide to the state’s 5,000-plus miles of beaches and rocky shores.

By “Daddy Warbucks,” Evangelos, an Independent from Friendship, meant the rich people — many of them summer residents — who own much of the fabled Maine coast. Published estimates of how much coastal property is privately owned average over 90 percent.

A key factor in the Senate vote, Evangelos said bitterly in an email, was that “many so-called ‘liberal’ Dems live along the coast and threw in with their wealthy supporters” who wanted to preserve their private-property rights. The Democrats have large majorities in both legislative houses.

But there was another factor: last-minute opposition from environmental groups — particularly, the state’s largest one, the Natural Resources Council of Maine (NRCM). It claimed that rockweed (Ascophyllum nodosum or knotted wrack), which makes up 90 to 95 percent of intertidal seaweed, was being too heavily harvested. Several Democratic legislators whom I interviewed repeated NRCM’s talking points.

The bill, LD 1323, had an unusual career. It emerged from the Agriculture, Forestry and Conservation Committee with substantial bipartisan support, 11-1 in favor. Yet the Senate on June 7 easily killed it, 25-7. It passed the House, but by the thinnest of margins, 72-70.

The votes in both houses didn’t reflect party affiliation. Two midcoast senators, David Miramant (D-Camden) and Erin Herbig (D-Belfast), voted against opening up intertidal access, and Dana Dow (R-Waldoboro) voted for it. Dow, the Republican minority leader, was the bill’s prime sponsor.

Rep. Vicki Doudera (D-Camden) voted against access in the key House vote. In the floor debate, she said she was “putting on my real-estate hat.” She’s a real-estate agent.

This fight may not be the last on this issue. Evangelos said the bill’s opponents “may have won the battle, but they won’t win the war.”

Maine and Massachusetts are among four states (Delaware and Virginia are the others) of 31 coastal states, including those on the Great Lakes, where the public doesn’t have the right to roam the intertidal area.

In the case of Massachusetts and Maine, “fishing, fowling, and navigation” are permitted. That language’s archaic ring suggests the origin of the law establishing private ownership. The Massachusetts Bay Colony passed it in the 1640s, almost 200 years before Maine split from the Bay State in 1820, taking along many of its laws.

Although many Mainers and visitors flout the law or — more likely — are unaware of it, during the past 30 years the Maine Supreme Judicial Court (or “Law Court”) has increasingly strengthened shorefront owners’ rights.

This March, the Law Court ruled that the budding number of intertidal rockweed harvesters were breaking the law unless they had the shorefront owners’ permission. The harvesters gather rockweed to make such products as organic fertilizer, animal feed, and health-food supplements.

The recent court decision upset the seaweed industry and injected energy into this year’s attempt to change the law. LD 1323 would have specifically allowed seaweed harvesting below the high-tide mark, along with many recreational activities. (See sidebar, “Another Legal Battle Brewing?”)

Sustainability or sacredness?

Which was most important to legislators? The sustainability of the rockweed harvest or the sacredness of private-property rights?

“Most people thought” the bill amounted to the “taking” by the state of people’s property, said Dow — meaning most opponents — although he said the rockweed issue was also important. The United States Constitution states: “Nor shall private property be taken for public use, without just compensation.” This has been interpreted to mean all or some property rights.

Herbig said she voted against public access because it was “an issue of local control.” She had heard from a number of constituents, she said, and the rockweed issue wasn’t involved in her decision.

“You mean you don’t think people should be able to walk freely on the beaches?” I asked her.

“Again, it’s an issue of local control. Thank you,” she said curtly, walking away.

Miramant was more forthcoming: Keeping things as they are would mean “we’ll get a better environment all around,” referring to the rockweed-harvesting issue.

But what if the bill only provided recreational access, I asked?

“I’m unsure,” he replied. “I’ll have to think about that.”

He did. After a short while, he came up to me in the State House rotunda to say, “Right now people bought their land on existing law.” If public access were allowed, it would “result in a ‘taking.’”

Another coastal senator, Louis Luchini (D-Ellsworth), who also voted against the bill, said he had constituents — “tons of people” — reach out to him, including landowners.

On the other hand, Sen. Ben Chipman, a Portland Democrat who grew up in the seaside town of Harpswell, voted for the bill, supporting it “from the perspective of public access.”

Another liberal member of the Senate, Shenna Bellows (D-Manchester) — who grew up in coastal Hancock — said she had “no problem with public access,” but she was “very concerned” about what the rockweed-harvesting business was doing to the shore. “The entire coastal ecosystem” is being put at risk, she said — NRCM’s argument. She gave a strong floor speech against the bill.

Like several other senators, she said the problem with LD 1323 was that it encompassed “two things in one.”

“It was too big a bill to answer a very specific question, which is seaweed harvesting,” said Sen. Geoffrey Gratwick (D-Bangor), who also voted against the bill. I asked him, too, what if the bill contained only the public-access question? “That’s the part I think I’m going to have to revisit.”

Whichever was more controversial, the two kinds of access the bill would have allowed — recreational and commercial — were a fatal combination.

NRCM lobbied against the bill “because the state doesn’t do a good job of regulating rockweed harvesting,” according to Nick Bennett, the group’s staff scientist. The rockweed issue was, he said, the “only reason” NRCM opposed the bill.

Evangelos said that NRCM’s opposition was a case of “collaborating with their wealthy donors. Shame on them.”

NRCM is less elitist, however, than some other environmental groups. (See “In the North Woods Power-Line Fight, Who Will Triumph? Insiders or Outsiders?” Free Press, April 25, 2019.)

Seaweed industry in a tight place

Interviewed in the lobby outside the Senate chamber, Robert Morse, managing director of North American Kelp, in Waldoboro, the largest Maine-owned seaweed harvester, scoffed at the charge that his industry doesn’t harvest sustainably.

“Present us with the studies” to support the overharvesting charge, he demanded. (See sidebar, “Overharvesting or Sustainable?”)

The rockweed Morse’s company gathers is used, in part, for organic fertilizer and health-food supplements, a fact he found ironic given environmentalist opposition: “We’re certified organic by MOFGA” on all the company’s products. MOFGA is the Maine Organic Farmers and Gardeners Association.

Morse also felt that regular Maine people were not being considered in the debate over the harvesting. “Where’s Bubba represented here?” he wanted to know after the Senate decision. He used the slang for the working-class men who can be seen in their beamy skiffs using long rakes to snag the tangles of brown rockweed, which is also harvested mechanically from boats.

The state Department of Marine Resources (DMR) says there were 104 registered seaweed harvesters as of May. The department put the harvest’s value in 2018 at $922,000. Given that they hauled in 22.4 million pounds, they were getting only about 4 cents a pound.

What will be the next phase in the struggle over whether the public has the legal right to walk on the beaches or harvest seaweed from the rocks? If necessary, “We’ll be in court,” said Orlando Delogu, a retired law professor who has written a book, “Maine’s Beaches Are Public Property.” In a State House interview, he mentioned the possibility of taking a class-action suit all the way to the United States Supreme Court.

On the other hand, if a bill were introduced in the next session of the Legislature with just intertidal recreational rights permitted, it might pass, since Democratic legislators, with their substantial majorities, may be more accepting of this use. But the result would still face Maine’s skeptical Law Court, which in the 1980s struck down just such a law.

Although the attorney general’s office supported LD 1323, it told the Agriculture Committee that intertidal commercial uses may not be “public trust” rights. These are rights held by the government in trust for all the people, such as to use the sea, rivers, and the air. A bill permitting just seaweed harvesting might have a harder time both in the Legislature and the courts.