Fish and Fishing
Fish and Fishing
State and federal governments share authority over the regulation and management of fish and fishing in the United States. Although states must defer to the U.S. government in areas preempted by federal regulators, state governments nonetheless play a primary role in the day-today management of fish and wildlife. The federal government oversees the actions taken by states in this area, funds state programs, and resolves disputes that might involve conflicting state interests, the rights and powers of Native American tribes, or International Law.
From earliest times, fish and fishing have played a crucial role in the life of the people of North America. Native Americans of all tribes depended heavily on fish to eat and to trade, and fishing also held an important place in native cultural practices and religious rites. Beginning in the sixteenth century, and possibly even earlier, European adventurers were drawn to the rich fishing grounds off the coast of New England, and the settlers who followed them eagerly harvested the tremendous stocks of fish they found in America's lakes, rivers, and coastal areas. Fish were considered to be an inexhaustible resource, a common property available to all.
As early as the late eighteenth century, however, it became clear that the rush to exploit fish and other species of wildlife was jeopardizing the continued survival of several species. Eventually, state governments passed laws regulating hunting and fishing practices, and established fish and game agencies to enforce those laws. Because these state laws met with very limited success, the federal government soon stepped in and passed legislation designed to strengthen them and make them more enforceable. Over time, the federal government's role in managing and protecting fish and wildlife grew, occasionally conflicting with state authority. The question of wildlife jurisdiction was ultimately resolved by the Supreme Court, which found the federal government to be the ultimate authority in the area of fish and wildlife management.
Though states must ultimately defer to federal authority, state governments continue to play the primary role in fish and wildlife management, determining details such as harvesting seasons, methods, and limits. The federal government plays a broader role in protecting and managing wildlife, including funding state wildlife programs, regulating the commercial harvesting of fish, managing national forests and wildlife refuges, and negotiating international treaties involving ocean fisheries. Finally, the federal government has played a principal role in adjudicating the fishing rights of Native American tribes, determining what rights are guaranteed by the treaties signed between the tribes and the federal government, and working to ensure that those rights are protected.
The Evolution of U.S. Wildlife Law
The evolution of U.S. laws governing the management of fish and fishing is complex. The different types of fishing practiced in the United States—commercial and recreational, for example—have required different types of laws and regulations. In addition, many of the general provisions of wildlife law, such as those addressing the question of state versus federal authority, apply not only to fish but also to birds and furbearing animals, whereas other provisions, such as those regulating ocean fisheries, apply only to fish and fishing. In general, the objective of wildlife law has been to regulate the taking of fish and other wildlife species in order to ensure their continued survival. Early attempts by the states to regulate fish and wildlife were based on the state ownership doctrine. This doctrine declared that the authority over wildlife rested with each state, which held the resource as a public trust.
Despite states' efforts, state wildlife laws often provided too little protection too late. Over the last part of the nineteenth century, it became clear that the states were unable to enforce effectively the laws they had passed, and migrations and movements of fish and animals across state lines made it difficult for states to regulate harvests in any rational way. Wildlife populations dwindled, and recreational fishers and hunters began to pressure the federal government to take action. George Grinnell, a prominent sportsman and editor of Forest and Stream magazine, led the way, establishing interest groups to lobby Congress on behalf of wildlife. In 1886, Grinnell founded the National Audubon Society, and in 1888, he founded the Boone and Crockett Club, both of which were instrumental in securing passage of the Lacey Act of 1900 (ch. 553, 31 Stat. 187 [current, amended version at 16 U.S.C.A. §§ 701, 3371–3378, and 18 U.S.C.A. § 42 (1985)]), which was the first federal wildlife statute.
The Lacey Act prohibited the interstate shipment of wildlife taken in violation of state law. This provision did not ban the taking of wildlife, but used Congress's power to regulate interstate commerce as a way to enforce state game laws. It effectively put market hunters—hunters who took great numbers of game for commercial purposes—out of business. In addition, the act gave real authority to the U.S. Biological Survey, which was a predecessor to the U.S. Fish and Wildlife Service (FWS). The original purpose of the survey, established in 1885, was to carry out a national biological survey as well as various bird studies. The Lacey Act gave greater powers to the agency, charging it with administering and implementing the act's provisions, thus marking the beginning of an active role for the federal government in protecting and managing wildlife resources.
As passed, the Lacey Act referred to "wild animals and birds," categories which were construed to include only fur-bearing animals and game birds. In the 1920s, Congress became concerned about the nation's fish—particularly the smallmouth and largemouth bass, whose numbers had dwindled after years of overfishing throughout the country. State bag limits had failed to prevent excessive catches, and commercial restrictions were ineffective in preventing the illegal interstate transport of mismarked or concealed fish. To prevent the extinction of these species, Congress passed the Black Bass Act of 1926 (16 U.S.C.A. §§ 851–856). This act was fashioned after the Lacey Act in that it sought to enforce state wildlife laws by prohibiting certain interstate shipments of bass. The Black Bass Act was amended several times in the following years: in 1947, to apply to all game fish, as each state defined them; in 1952, to apply to all fish; and in 1969, to apply to fish taken in violation of the law of a foreign country. The Black Bass Act was repealed in 1981, and its provisions were consolidated into the Lacey Act amendments of that year (Pub. L. No. 97-79, 95 Stat. 1073). In general, these amendments significantly broadened and strengthened the Lacey Act and the provisions of the former Black Bass Act.
Throughout the twentieth century, federal authority over fish and wildlife expanded, while state authority became much more limited. The doctrine of state ownership was progressively invalidated as the federal government established provisions to protect various fish and wildlife species, asserting that such species were the property of the federal government, and not the states.
Though the states no longer retain ultimate legal authority over wildlife, they continue to play the primary role in managing and regulating local wildlife populations, even on federal lands. The states set hunting seasons and bag limits, specify harvest methods, and regulate the size and gender of game that can be taken. The states also have important wildlife management programs designed to ensure that sufficient numbers of animals, birds, and fish are available for recreational and subsistence hunting and fishing. Though state laws are ultimately subject to constitutional limits, the federal government has exercised its Preemption authority very sparingly. The assumption is that state law is in force until preempted by federal law.
The Federal Government's Role in the Conservation of Fish and Wildlife
The federal government has played an extensive role in working to conserve the habitats of fish and wildlife. Conservation became an important theme in the late nineteenth century, when people began to believe that wildlife and wild places should be protected not only for utilitarian reasons but because they had their own intrinsic value and were important national resources. Influenced by the writings of Henry David Thoreau and following the lead of wildlife advocates such as John Muir, the federal government began to establish national parks, forests, and wildlife refuges. One of the first wildlife refuges was created by President Benjamin Harrison in 1892 when he reserved Afognak Island, in Alaska, for the protection and preservation of "salmon and other fish and sea animals and other animals and birds" (Proclamation No. 39, 27 Stat. 1052). Though most of the refuges established were specifically designed for waterfowl and fur-bearing species, the need to protect fish habitats was recognized in 1972 when Congress passed the Marine Protection, Research, and Sanctuaries Act (16U.S.C.A. §§ 1431–1445). This act authorizes the secretary of commerce, with the approval of the president, to designate as marine sanctuaries areas of the Great Lakes and the oceans, extending out to the edge of the continental shelf, when the secretary determines that that action is necessary for the purpose of preserving or restoring such areas for their conservation, recreational, ecological, or esthetic values. Fish and wildlife refuges are administered by the Fish and Wildlife Service, which is housed in the Department of Interior.
In addition to establishing wildlife refuges and sanctuaries, the federal government provides states with financial assistance to fund projects pertaining to fish. This funding was created by the Federal Aid in Fish Restoration Act (16 U.S.C.A. § 777-777k), more commonly known as the Dingell-Johnson Act, which was passed in 1950. This act directs that funds derived from the federal excise tax on fishing rods, creels, reels, and artificial lures, baits, and flies be annually apportioned among the states, 40 percent on the basis of geographic area and 60 percent on the basis of the number of persons holding paid fishing licenses. These funds can be used by the states for "fish restoration and management projects" or, since 1970, for "comprehensive fish and wildlife resource management plans." The Dingell-Johnson Act specifies that its provisions are to apply only to "fish which have material value in connection with sport or recreation in the marine and/or fresh waters of the United States." With the Fish and Wildlife Conservation Act of 1980 (16 U.S.C.A. §§ 2901–2911), commonly referred to as the Nongame Act, a similar funding program was provided for the protection of nongame fish and wildlife. The FWS is responsible for maintaining and administering these trust funds.
The most extensive federal efforts to protect endangered fish and wildlife species have been generated through the Endangered Species Act of 1973 (16 U.S.C.A. §§ 1531–1543). The Endangered Species Act provides much broader coverage than did previous wildlife legislation, defining the fish or wildlife to be protected as including "any member of the animal kingdom," and expressing the goal of preserving plant life as well. The Endangered Species Act also differs from previous wildlife laws in that it is founded not on a primarily utilitarian view of wildlife but on the philosophy that wildlife has intrinsic value for the nation and its citizens. The act declares, for example, that endangered wildlife "are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."
Ocean Fisheries Law
With over one hundred thousand miles of linear coastline bordering some of the richest marine fisheries in the world, the United States has always been heavily involved in the ocean fishing industry. Marine fishing is an important contributor to the U.S. economy. In 1990, for example, commercial fisheries contributed $16.6 billion to the U.S. gross national product. Ocean fisheries in the United States are officially managed by the secretary of commerce, though actual fisheries management responsibilities have been delegated first to the administrator of the National Oceanic and Atmospheric Administration (NOAA), and within NOAA to the National Marine Fisheries Service (NMFS), which is primarily responsible for federal fisheries management. The NMFS, which is made up largely of biologists and fishery managers, has a staff of about 2,200, which is divided among its headquarters in Washington, D.C., and its five major regional offices.
Traditionally, marine fishers operated independently and fishing businesses were small, family owned, and locally operated. The great range of fish species and harvesting practices in the United States encouraged this independence and small scale, as diverse practices, conditions, and locales kept fishers from organizing themselves or combining their efforts.
These traditions dominated the U.S. industry until well into the 1970s. In many areas, fishing businesses continue to operate as they always have. However, some aspects of the U.S. marine fishing industry have changed tremendously since the 1970s, primarily owing to the activities of foreign fishing fleets off U.S. coasts and to international treaties and agreements the United States has entered into regarding ocean fishing.
Historically, the right of all nations to fish on the high seas has been recognized as a fundamental principle of international law. Even so, disputes have frequently arisen over whether specific areas are part of the high seas or part of a particular nation's territorial sea. Until relatively recently, such disputes were generally handled by the parties involved.
Within the United States, the years prior to World War II were marked by a predominance of state controls over ocean fisheries. Though the federal government had broad management authority to regulate these resources, its involvement was very limited, and individual states exercised much of the responsibility for fisheries management, particularly within the territorial sea. On the high seas, state authority was recognized when the state had a legitimate enforcement or conservation interest, and when the state had a sufficient basis for asserting Personal Jurisdiction over the fisher, based on the landing of fish at a state port, the state citizenship of the fisher, or a minimum level of contact between the state and the fisher. State controls were limited to the extent that they could not unduly burden interstate commerce, discriminate against noncitizens in favor of citizens, or override federal laws to the contrary.
After the end of World War II, the traditional freedom to fish anywhere on the high seas began to be limited by international agreements. The first development in this area was what came to be known as the Truman Proclamation of 1945 (Proclamation No. 2667, 10 Fed. Reg. 12,303, reprinted in 59 Stat. 84). In this proclamation, President harry truman declared that the United States would move
to establish conservation zones in those areas of the high seas contiguous to the coast of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale … and all fishing activities in such zones shall be subject to regulations and control.
This statement did not establish a conservation zone, but instead announced that the United States would seek to negotiate agreements with foreign countries fishing in nearby waters. Even so, many countries interpreted this proclamation to mean that the United States recognized the right of a coastal nation to establish unilaterally a special "conservation zone "between its Territorial Waters and the high seas, in which it would regulate all fishing activities. Chile was one such country, immediately responding to Truman's proclamation by declaring its own two-hundred-mile conservation zone.
At the 1958 Convention on Fishing and Conservation of the Living Resources of the High Sea, the Truman Proclamation was ratified internationally, with delegates declaring that "[a] coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea" (art. 6, § 1 [17 U.S.T. 138, T.I.A.S. No. 5969]). The convention encouraged nations to negotiate agreements concerning the use of their adjacent waters, adding that countries could take unilateral conservation measures if such negotiations were unsuccessful. The convention did not specify the size of the area in which such unilateral measures could be taken, nor did it define the limits of the territorial sea.
Following the convention, the United States entered into a series of agreements with other nations concerning the fishery resources off its coasts, including agreements over tuna, New England groundfish, halibut, herring, and salmon. In addition, in 1964, Congress passed the Bartlett Act (Pub. L. No. 88-308, 78 Stat. 194), which excluded foreign vessels from fishing within the United States' territorial sea, defined as all ocean waters within three miles from the coast. Two years later, Congress passed the Contiguous Fisheries Zone Act (Pub. L. No. 89-658, 80 Stat. 908), which created a nine-mile contiguous zone extending out from the three-mile limit, from which foreign fishing vessels would be excluded.
These acts and treaties failed to protect U.S. fisheries in ways they were intended to. The Bartlett Act provided no authority for federal management measures, limiting the federal government's role to data collection and law enforcement against foreign fishers. Other nations also found their fisheries to be suffering, as most treaties provided no means of enforcement against nations who had not chosen to enter into an agreement. As a result, several countries moved to extend the area of their marine jurisdiction. By 1975, of the parties involved in ongoing law-of-the-sea negotiations, 60 nations including the United States, favored a 12-mile territorial sea and a 200-mile resource conservation zone.
In the United States, government officials and fishing industry representatives had been considering just such an extension in marine jurisdiction. From 1950 on, foreign fishing near U.S. waters had expanded dramatically, as integrated harvesting and processing vessels, called factory trawlers, came from areas such as the Soviet Union, Eastern Europe, and Japan to take advantage of the rich groundfish fisheries off the New England and Alaska coasts. Because these vessels had stayed outside the United States' territorial sea, they had been beyond the reach of U.S. authority.
Alarmed by the effect of these foreign fishing fleets on the U.S. fishing industry, Congress in 1976 passed the Fishery Conservation and Management Act (U.S.C.A. §§ 1801–1882), otherwise known as the Magnuson Act for its author, Senator Warren Magnuson (D.) of Washington. This act declared a new, two-hundred-mile U.S. fishery conservation zone (FCZ), thereby terminating the freedom of foreign fishing fleets to operate off U.S. shores. Within the FCZ, the act asserts for the United States exclusive management authority over not only fish but also "all other forms of marine animal and plant life other than marine mammals, birds, and highly migratory species." Soon after the Magnuson Act became effective on March 1, 1977, the great foreign factory trawler fleets largely disappeared from the fishing grounds off New England. In other areas, it took longer for foreign vessels to vacate U.S. waters. However, as the U.S. factory trawler fleet grew, it displaced its foreign competitors, and the last foreign trawlers left U.S. fishing areas in 1991.
The Magnuson Act requires that the various fish and other marine species within the FCZ be managed in accordance with comprehensive plans drawn up by regional fishery management councils, composed of both state and federal officials. Whereas general responsibility for implementing the Magnuson Act is vested in the secretary of commerce, acting through NOAA and the NMFS, planning decisions are entrusted to these regional councils. Eight such councils were created, each having authority over the fisheries seaward of the states represented on the council. The voting members of each council include the principal official with marine fishery management responsibility from each state in the region, the regional director of the NMFS for the area, and four to 12 persons appointed by the secretary of commerce from lists of qualified people submitted to him or her by the state governors in the region.
Each council is responsible for creating a management plan for each fishery within its jurisdiction. In preparing their plans, the councils are required to hold public hearings. When complete, the plans are submitted to the secretary of commerce, who must approve them or return them to the councils for modification. The plans are expected to meet seven national conservation and management measures, the most important being that they prevent overfishing and ensure an optimum yield from each fishery. The act defines optimum yield very broadly, describing it as the amount of fish that "will provide the greatest overall benefit to the Nation" and that is based on the "maximum sustainable yield" from each fishery.
The Magnuson Act generally applies only beyond waters under state jurisdiction, which in most places extends to three miles from the coast. The act specifically preserves the rights of states to regulate all fishing within their boundaries, and even specifies that management plans created for fisheries within the FCZ may incorporate "the relevant fishery conservation and management measures of the coastal States nearest to the fishery." In only rare instances may the secretary of commerce preempt a state's authority to regulate fishing in its waters.
In general, the Magnuson Act marked a new era in U.S. fisheries. A principal goal of Magnuson was Americanization, which means the development and promotion of the U.S. fishing industry. A second goal was full domestic utilization, which means the elimination of foreign fishing operations within U.S. jurisdiction. Since the act was passed in 1976, it has been amended several times to try to increase the levels of Americanization and full domestic utilization. The federal government and the ocean fishing industry have increasingly recognized, however, that laws encouraging these priorities alone are not enough to secure productive fisheries. Rather, effective conservation requires international cooperation, as many important species are highly migratory or are found in fisheries that straddle national boundaries.
Native American Fishing Rights
Just as the United States has entered into treaties with foreign countries specifying certain fishing rights and privileges, so also has it entered into treaty agreements with many Native American tribes concerning fishing and hunting rights. In theory, U.S. treaties with foreign countries and with sovereign Indian nations are the same, as both represent negotiated agreements with independent nations that the parties are bound to honor. In reality, however, treaties involving Native American fishing and hunting rights are much more controversial and complicated, as their provisions often conflict with state and federal wildlife efforts as well as with the interests of non-Indian fishers and hunters. Though many legal developments in the area of Native American fishing rights have broad application, treaty rights pertaining to fishing often vary from tribe to tribe and depend on the language and historical context of the treaties involved.
Historically, fishing has always been an important activity for Native American tribes. Fish constituted a major portion of most Indians' diets, and dried fish were traded in large quantities. Religious rites were performed to ensure the return of local fish species each year, and tribes planned their own movements around the annual migrations of fish populations.
When Indian tribes signed treaties with the U.S. government to relinquish their lands—as nearly all did at some point—they often received assurance, either in the treaties or in statutes, that they could continue to hunt, fish, and gather food on their reservation and often in traditional locations off the reservation as well. In the mid-nineteenth century, when most of these treaties were signed, government officials willingly included such provisions because few non-Indians lived in frontier lands and because fish were thought to be an inexhaustible resource. Since then, the demand for fish has come to outstrip the supply, leading to battles over how to interpret and enforce treaty provisions guaranteeing Native Americans certain fishing rights.
Many of the treaties by which Indian tribes relinquished land to the United States expressly guaranteed the tribes' fishing and hunting rights. Even when treaties did not specifically mention fishing and hunting, those rights were considered to be retained. As the Supreme Court explained in the 1905 case United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089, a treaty is not a grant of rights to the Indians but a taking of rights from them, and any right not specifically removed by a treaty is assumed to remain with the tribe. Though Congress has the power to extinguish Indian hunting and fishing rights, it must do so clearly and explicitly; rights cannot be considered extinguished based on ambiguous language or assumptions. Even when a tribe is officially "terminated" by Congress, its rights are retained unless Congress explicitly declares that it is terminating them. In Menominee Tribe v. United States, 391 U.S. 404, 88 S. Ct. 1705, 20 L. Ed. 2d 697 (1968), for example, Congress had terminated the Menominee tribe, but the Supreme Court ruled that the tribe's hunting and fishing rights were not affected because the termination statute did not explicitly mention those rights.
In many cases, Indian tribes have also retained the right to fish at locations off the reservation. In the Pacific Northwest, for example, many Indian tribes signed treaties guaranteeing them the right to take fish at their traditional fishing locations, whether those locations were on or off the newly created reservations. This right was upheld by the Supreme Court in Winans, in which the Court ruled that tribal members were entitled to "tak[e] fish at all usual and accustomed places," even though those places might be on privately owned land.
Though the fishing rights cases from the Pacific Northwest apply to specific parties and situations, they have had a broad effect on Indian fishing rights cases in other parts of the country.
The U.S. government's efforts to protect the environment and regulate its resources have given rise to tensions between the government and Native American tribes that claim exceptions to federal regulations based on legal, historical, and cultural rights to certain resources. Occasionally, disputes arise between Native Americans and foreign governments or intergovernmental organizations. One such case concerns an agreement between the U.S. government and the Makah Tribe of Washington's Olympic Peninsula regarding rights to hunt whales. In this case, the U.S. government was assertively promoting the rights of Native Americans to hunt whales, even in the face of strong national and international criticism.
On March 22, 1996, the National Oceanic and Atmospheric Administration (NOAA) entered into a formal written agreement with the Makah Tribe providing that NOAA, through the U.S. commissioner to the International Whaling Commission (IWC), would make a formal proposal to the IWC for a quota of gray whales for subsistence and ceremonial use by the Makah Tribe. The agreement provided for cooperation between NOAA and the Makah Tribal Council in managing the harvest of gray whales. NOAA agreed: (1) to monitor the hunt; (2) to assist the Council to collect data on the whales, including body length and sex of the landed whales; length and sex of any fetus in a landed whale; whether a whale that was struck, but not landed, suffered a potentially fatal wound from a harpoon or bomb emplacement); and (3) to collect tissue samples from landed whales. Finally, the agreement provided that within 30 days of IWC approval of a quota, "NOAA will revise its regulations to address subsistence whaling by the Makah Tribe, and the Council will adopt a management plan and regulations to govern the harvest…." The agreement was signed by the chairman of the Makah Tribal Council, Hubert Markishtum, and the under secretary for Oceans and Atmosphere, D. James Baker.
Pursuant to the agreement, the United States presented the IWC with a proposal to the IWC for a quota of gray whales for the Makah Tribe. Several member nations supported the Makah whaling proposal, while others expressed concerns and indicated that they would vote against it. The proposal quickly became controversial. Concurrent to the IWC's meeting, the U.S. House of Representatives Committee on Resources unanimously passed a resolution, introduced by Representatives Jack Metcalf (R-Washington) and George Miller (D-California), opposing the proposal. The U.S. delegation to the IWC subsequently realized that it did not have the three-quarters majority required to approve the Makah hunting quota, and the proposal was withdrawn.
On October 13, 1997, NOAA and the Makah entered into a new written agreement, which was nearly identical to the agreement signed in 1996. Unlike the earlier agreement, however, the 1997 agreement included a provision intended to underscore the intention to hunt only migratory whales. Although considerable controversy attended this second proposal, the Makah eventually were permitted to resume limited whaling for cultural and subsistence purposes.
Today, case law in states such as Wisconsin, Minnesota, and Michigan are consistent with these cases in terms of Indian off-reservation fishing rights, the allocation of fish between Indians and non-Indians, and the relationship between tribal and state regulatory schemes. Rather than rely on the court system to resolve disputes, tribes and states now frequently attempt to reach negotiated settlements.
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