Fish and Fishing

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Ed. Donna Batten - Gale Encyclopaedia of American Law

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On March 5, 2017
Last modified:March 5, 2017


Fish and Fishing in America State and federal governments.

Fish and Fishing

State and federal governments share power over the regulation and management of fish and fishing in America. Although states must defer to the U.S. government in regions preempted by federal regulators, state governments still play a primary role in the day to day management of fish and wildlife.

Fish and Fishing Regulation-and-Management-of-Fish-and-Fishing-in-America

Regulation and Management of Fish and Fishing in America

Recreational fishing is controlled differently from the commercial fishery, but both sets of laws try to make certain the ongoing survival of several species.

The federal government manages the activities taken by states in this region, funds state systems, and concludes disputes which may affect conflicting state interests, the rights and powers of Native American tribes, or International Law.

From earliest times, fish and fishing have played a vital part in the life of individuals of North America. Native Americans of all tribes depended greatly on fish to eat and to trade, and fishing also held an important position in indigenous cultural practices and religious rites. Starting in the sixteenth century, and perhaps even before, European adventurers were attracted to the rich fishing grounds off the coast of New England, as well as the settlers who followed them eagerly picked the vast stocks of fish they have seen in America’s lakes, rivers, and coastal regions. Fish were considered to become an inexhaustible resource, a common property accessible to all.

Fish were considered to become an inexhaustible resource, a common property accessible to all.
As early as the late eighteenth century, however, it became apparent the rush to use fish, and other species of wildlife was endangering the ongoing survival of several species. Finally, state governments passed laws regulating hunting and fishing practices and recognized fish and game agencies to apply those rules. Because these state laws encountered with quite limited success, the federal government shortly stepped in and passed legislation designed to reinforce them and make them much more enforceable.

Over time, the federal government’s part in managing and protecting fish and wildlife grew, sometimes conflicting with state authority. The issue of wildlife legal power was finally resolved by the Supreme Court, which found the federal government to be the supreme power in the region of fish and wildlife management.

Over time, the federal government’s part in managing and protecting fish and wildlife grew, sometimes conflicting with state authority. The issue of wildlife Page 462 legal power was finally resolved by the Supreme Court, which found the federal government to be the supreme power in the region of fish and wildlife management.
Though states must ultimately defer to national authority, state governments continue to play the primary function in fish and wildlife management, establishing details like harvest seasons, procedures, and limitations.

The federal government plays a more extensive role in protecting and managing wildlife, including capital state wildlife systems, controlling the commercial harvest of fish, handling national forests and wildlife refuges, and negotiating international treaties involving ocean fisheries. Eventually, the federal government has played a primary role in adjudicating the fishing rights of Native American tribes, deciding what rights are ensured by the treaties signed between the tribes and also the federal government, and working to ensure that those rights are protected.

The Development of U.S. Wildlife Law

The development of U.S. laws regulating the management of fish and fishing is complicated. The various kinds of fishing practiced in America commercial and recreational, for example, have needed different sorts of laws and regulations. Additionally, a lot of the overall provisions of wildlife law, like those addressing the question of state versus national authority, use not only to fish but in addition to birds and fur-bearing creatures, whereas other provisions, including those controlling ocean fisheries, apply solely to fish and fishing.

Generally speaking, the aim of wildlife law has been to control the taking of fish and other wildlife species to be able to make sure their continuing survival. Early efforts by the states to monitor fish and wildlife were based on the state ownership doctrine. This doctrine declared the power over wildlife rested with each state, which held the resource as a public trust.

Despite states’ attempts, state wildlife laws provided too little protection too late. Over the final element of the nineteenth century, it became clear that the states were not able to apply effectively the laws they’d passed, and migrations and movements of fish and animals across state lines made it hard for states to control harvests in virtually any reasonable manner. Wildlife populations dwindled, and recreational fishers and hunters started to force the federal government to take actions.

George Grinnell, a leading sportsman, and editor of Forest and Stream magazine led the way, creating 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. Each of which was instrumental in ensuring passage of the Lacey Act of 1900 (ch. 553, 31 Stat. 187 [present, amended variation at 16 U.S.C.A. §§ 701, 3371– 3378, and 18 U.S.C.A. § 42 (1985)]), which was the first national wildlife legislative act.

The Lacey Act prohibited the interstate shipment of wildlife taken in violation of state law. This provision didn’t prevent the taking of wildlife but used Congress’s power to control interstate trade as a method to apply state game laws. It efficiently set marketplace hunters who got great amounts of the game for financial goals out of business. Moreover, the act gave real authority to the U.S. Biological Survey, which was a forerunner to the U.S. Fish and Wildlife Service (FWS).

The initial intent of the survey, created in 1885, was to perform a national biological survey together with various fowl studies. The Lacey Act gave greater powers to the agency, charging it with administering and enforcing the act’s provisions, thereby indicating the start of an effective role for the federal government in protecting and managing wildlife resources.

As passed, the Lacey Act referred to “wild creatures and fowl,” groups that were construed to contain only fur-bearing animals and game birds. In the 1920s Congress became concerned in regards to the state’s fish especially the smallmouth and largemouth bass, whose numbers had dwindled after years of overfishing through the country. State bag limits had neglected to prevent excessive catches, and commercial limitations were unsuccessful in preventing the illegal interstate transportation of mismarked or hidden fish. To stop 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 apply state wildlife laws by forbidding certain interstate shipping of freshwater bass.

The Black Bass Act was amended repeatedly in the subsequent years: in 1947, to apply to all game fish, as each state defined them; in 1952, to Page 463 apply to all fish; and in 1969, to apply to fish taken in breach of the law of a foreign nation. The Black Bass Act was repealed in 1981, and its particular provisions were combined in the Lacey Act changes of that year (Pub. L. No. 97-79, 95 Stat. 1073). These changes significantly expanded and reinforced the Lacey Act and the provisions of the former Black Bass Act.

Throughout the twentieth century, national power over fish and wildlife enlarged, while state authority became a lot more limited. The doctrine of state ownership was increasingly invalidated as the federal government created provisions to shield various fish and wildlife species, claiming that such species were the property of the national government and not the states.

Although the states no longer keep supreme legal authority over wildlife, they continue to play the primary role in managing and controlling local wildlife inhabitants, even on federal lands. The states establish hunting seasons and bag limits, set harvesting techniques, and monitoring the size as well as the sex of game which can be taken.
The states also have significant wildlife management plans designed to make certain that adequate amounts of creatures, fowl, and fish are accessible for recreational and subsistence hunting and fishing. Though state laws are finally subject to constitutional limitations, the federal government has exercised its preemption power quite sparingly. The premise is the fact that state law is in force until preempted by the federal legislation.

The Federal Government’s Job in the Conservation of Fish and Wildlife

The federal government has played an extensive function in working to preserve the habitats of fish and wildlife. Conservation became an important topic in the late nineteenth century when people started to consider that wildlife and wild areas ought to be protected not only for possible motives but because they had their particular inherent worth and were significant national resources. Affected by the writings of Henry David Thoreau and following the lead of wildlife supporters including John Muir, the federal government started to create national parks, woods, and wildlife refuges.

Among the very first wildlife refuges was made by President Benjamin Harrison in 1892 when he allowed Afognak Island, in Alaska, for the protection and preservation of “salmon and other fish and sea animals and other creatures and fowl” (Proclamation No. 39, 27 Stat. 1052). Though the majority of the safeties created were specially made for waterfowl and fur-bearing species, the necessity to guard fish habitats was acknowledged in 1972 when Congress passed the Marine Protection, Research, and Sanctuaries Act (16 U.S.C.A. §§ 1431–1445).

This act authorizes the secretary of business, with the approval of the President, to designate as marine sanctuaries areas of the Great Lakes as well as the oceans, extending out to the border of the continental shelf. When the Secretary determines that that activity is needed for the intent of maintaining or restoring such areas for their conservation, recreational, ecological, or aesthetic worth. Fish and wildlife refuges are managed by the Fish and Wildlife Service, which is placed in the Department of Interior.

Along with creating wildlife refuges and sanctuaries, the federal government provides states with financial assistance to finance endeavors about fish. This financing was made by the Federal Aid in Fish Restoration Act (16 U.S.C.A. § 777-777k), more often called the Dingell-Johnson Act, which was passed in 1950. This act directs that funds derived from the national excise tax on fishing rods, creels, reels, and manufactured lures, baits, and flies be annually apportioned among the states, 40 percent on the premise of geographic area and 60 percent on the idea of the variety of individuals holding paid fishing licenses. These

Fishermen consider a catch of redfish. Federal fisheries management is a duty of the National Marine Fisheries Service. – Allen M. Shimada, NMFS

Funds could be utilized by the states for “fish restoration and administration jobs” or, since 1970, for “all-inclusive fish and wildlife resource management strategies.” The Dingell-Johnson Act stipulates that its provisions are to apply just to “fish which have material worth in connection with sport or recreation in the marine and fresh waters of the United States.” With the Fish and Wildlife Conservation Act of 1980 (16 U.S.C.A. §§ 2901–2911), usually called the Nongame Act, a similar financing system was provided for the protection of nongame fish and wildlife. The FWS is responsible for keeping and managing these trust funds.

The most wide-ranging national attempts to protect endangered fish and wildlife species have is through the Endangered Species Act of 1973 (16 U.S.C.A. §§ 1531–1543). The Endangered Species Act provides considerably more comprehensive coverage than did previous wildlife laws, defining the fish or wildlife to be shielded as including “any member of the animal kingdom,” and expressing the aim of protecting plant life too.

The Endangered Species Act also differs from preceding wildlife laws in that it’s founded not on a mostly functional perspective of wildlife but on the doctrine that wildlife has inherent worth for the state and its citizens. The act declares, by way of example, that endangered wildlife “is of aesthetic, environmental, educational, historical, recreational, and scientific value to the Country and its particular people.”

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Fish and Fishing in America

Ocean Fisheries Law

With more than 100,000 miles of long shoreline bordering some of the richest marine fisheries in the world, the United States has always been substantially involved in the ocean fishing sector. Marine fishing is a significant contributor to the U.S. economy. In 1990, for example, commercial fisheries were given $16.6 billion to the U.S. gross national product. Ocean fishing in the United States is formally handled 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 chiefly in charge of federal fisheries management. The NMFS, which is made up mainly 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 managed alone, and fishing businesses were small-scale, family owned, and locally managed. The vast range of fish species and harvesting practices in the United States supported this freedom and small scale, as various practices, states, and locales kept fishers from arranging themselves or combining their efforts.

These conventions dominated the U.S. business until well into the 1970s. In many areas, fishing companies continue to operate as they always have. Nevertheless, some facets of the U.S. marine fishing business have changed enormously since the 1970s, mostly owing to the activities of foreign fishing fleets off U.S. shores and to international treaties and agreements the United States has entered into involving ocean fishing.

Historically, the right of all relying on fishing on the high seas has been recognized as a fundamental principle of international law. Even so, disputes have frequently arisen over whether special places are a part of the high seas or part of an independent country’s territorial sea. Until relatively recently, such disputes were usually handled by the parties involved.

Within the U.S., the years before World War II were marked by a predominance of state controls over ocean fisheries. Although the federal government had full direction ability to regulate these resources, its engagement was very limited, and individual states exercised a lot of the responsibility for fisheries management, particularly within the territorial sea.

On the high seas, state authority was recognized when the state had a strong enforcement or conservation interest. When the state had a sufficient basis for claiming personal jurisdiction over the Fisher, based on the landing of fish at a state port, the state citizenship of the fisher, or a minimum degree of contact between the state and the Fisher. State controls were restricted to the extent they could not unduly burden interstate commerce, discriminate against noncitizens in favour of citizens, or override federal laws to the contrary.

Following the ending of World War II, the standard liberty to fish everywhere on the high seas started to be restricted by international agreements. The very first development in this region 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 announcement, President Harry Truman declared that the United States would move

to establish conservation zones in those areas of the high seas contiguous to the shore of the United States wherein fishing activities have been or in the future may be developed and kept on a considerable 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 USA would seek to negotiate arrangements with foreign countries fishing in nearby waters. Even so, many nations interpreted this proclamation to mean the United States acknowledged the right of a coastal nation to establish unilaterally a unique “conservation zone” between its territorial waters and also the high seas, in which it’d regulate all fishing activities. Chile was one such nation, instantaneously reacting to Truman’s proclamation by declaring its the United States200-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 “ coastal State has a particular interest in the maintenance of the productivity of the living resources in almost any region of the high seas adjacent to its territorial sea.”

The convention supported states to negotiate arrangements regarding the usage of their adjacent waters, adding that countries could take unilateral conservation measures if such discussions were unsuccessful. The agreement did not specify the size of the area in which such unilateral actions may be taken, nor did it define the limits of the territorial sea.

Following the convention, the USA entered into a succession of agreements with other countries concerning the fishery resources off its coasts, including arrangements over tuna, New England groundfish, halibut, herring, and salmon. Additionally, in 1964 Congress passed the Bartlett Act (Pub. L. No. 88-308, 78 Stat. 194), which excluded foreign boats from fishing within the United States’ territorial sea, defined as all ocean waters within three miles from the shore.

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 didn’t shield U.S. fisheries in ways they were meant to. The Bartlett Act provided no authority for federal management measures, restricting the federal government’s function to data collection and law enforcement against foreign fishers. Other states also found their fisheries to be enduring, as most treaties provided no method of implementation against states who had not chosen to enter into an arrangement. Consequently, several states moved to expand the area of their marine authority. By 1975, of the parties involved in continuing law-of-the-sea dialogues, 60 nations including America favoured a 12-mile territorial sea along with a 200-mile resource conservation zone.

In the United States, government officials and fishing industry representatives were considering only such an extension in marine authority. From 1950 on, foreign fishing near U.S. waters had expanded dramatically, as incorporated picking and processing vessels, called factory trawlers, came from places such as the Soviet Union, Eastern Europe, and Japan to Page 466 take advantage of the abundant earth fish fisheries off the New England and Alaska coasts. Because these boats had remained outside the United States’ territorial sea, they’d been beyond the reach of U.S. authority.

Dismay by the result of these foreign fishing fleets in 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 stated a new, two-hundred-mile U.S. fishery conservation zone (FCZ), therefore terminating the liberty of foreign fishing fleets to run off U.S. coastlines.

Within the FCZ, the act claims for the United States exclusive management authority over not only fish but also “all other forms of marine animal and plant life besides marine mammals, fowl, and highly migratory species.” Soon after the Magnuson Act took effect on March 1, 1977, the vast different factory trawler fleets largely disappeared from the fishing grounds off New England. In other places, it made more for foreign vessels to VACATE U.S. waters. However, as the U.S. factory trawler fleet grew, it displaced its foreign rivals, and the last foreign trawlers left U.S. fishing regions in 1991.

The Magnuson Act requires the various fish and other marine species within the FCZ be managed in accordance with comprehensive strategies drawn up by regional fishery management councils, composed of both state and national officials. Whereas general duty for executing the Magnuson Act is vested in the secretary of business, acting through NOAA and the NMFS, planning decisions are entrusted to these regional councils. Eight such boards were created, each having authority over the fisheries seaward of the states represented on the Council.

The voting members of every council comprise the first official with marine fishery management duty from every state in the region. The regional manager of the NMFS for the place and four to 12 men named by the secretary of business from lists of competent people submitted to him or her by the state governors in the region.
Each council is responsible for creating a management strategy for each fishery within its jurisdiction. In preparing three-quarters strategies, the boards are required to hold public hearings.

When complete, the plans are submitted to the secretary of business, who must approve them or return them to the councils for adjustment. The plans are expected to satisfy seven national conservation and management measures, the most crucial being that they prevent overfishing and ensure an optimum yield from each fishery. The act defines optimum yield very broadly, describing it as the quantity of fish that “will provide the greatest overall benefit to the Nation” and that’s based on the “maximum sustainable yield” from each fishery.

The Magnuson Act generally applies only beyond waters under state jurisdiction, which in many areas extends to three miles from the coast. The act specifically maintains the rights of states to regulate all fishing in their boundaries, and even specifies that management strategies created for fisheries within the FCZ may comprise “the important fishery conservation and control measures of the coastal States nearest to the fishery.” In only rare instances may the secretary of business pre-empt a state’s authority to regulate fishing in its waters.

The Magnuson Act marked a new age in U.S. fisheries. A primary aim of Magnuson was Americanization, which means the development and promotion of the U.S. fishing sector. 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 grow the degrees of Americanization and total national usage.

The federal government and the ocean fishing industry have increasingly understood, nevertheless, that laws supporting this precedence alone are not enough to procure productive fisheries. Rather, effective conservation requires international cooperation, as many important species are highly migratory or are seen in fisheries that straddle national borders.

Native American Fishing Rights

Just as the USA has entered into treaties with foreign countries specifying individual fishing rights and prerogatives, so also has it reached settlement 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 arrangements with independent nations that the parties are bound to honour.

In fact, however, treaties including Native American fishing and hunting rights are Page 467 much more contentious and complicated, as their provisions often struggle with state and national wildlife efforts in addition to with the interests of non-Indian fishers and hunters. Though many legal developments in your community 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 agreements involved.

Historically, fishing has ever been an important task for Native American tribes. Fish represented a significant part of the majority of Indians’ diets, and dried fish were traded in big amounts. Religious rites were performed to ensure the return of local fish species annually, and tribes planned their motions around the annual migrations of fish populations.

When Indian tribes signed treaties with the U.S. government to relinquish their lands as almost all did at some point, they frequently received a pledge, either in the treaties or legislative acts. That they could continue to hunt, fish, and gather food on their reservation and frequently in current locations of the reservation as well. In the mid-nineteenth century, when many of these treaties were signed, government officials willingly included such provisions because few non-Indians lived in frontier lands and because fish were believed to become an inexhaustible resource. Since that time, the demand for fish has come to outstrip the supply, leading to battles over how to interpret and apply treaty provisions ensuring Native Americans special fishing rights.

Many of the treaties by which Indian tribes relinquished land to the USA expressly guaranteed the tribes’ fishing and hunting rights. Even when agreements did not specifically mention fishing and hunting, those rights were considered to be kept. 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 isn’t a grant of rights to the Indians, but a taking of rights from them, and any right not expressly removed by an agreement is presumed to stay with the tribe.

Though Congress has the power to extinguish Indian hunting and fishing rights, it must do so clearly and explicitly; rights can’t be considered destroyed based on equivocal language or premises. Even when a tribe is formally “terminated” by Congress, its rights are kept unless Congress explicitly declares that it’s terminating them. In Menominee Tribe v., the 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 weren’t changed because the termination statute did not expressly mention those rights.

Most of the time, Indian tribes also have kept the right to fish at places off the booking. In the Pacific Northwest, for instance, many Indian tribes signed treaties ensuring them the right to take fish at their traditional fishing sites, whether those places were on or off the recently created bookings. This right was upheld by the Supreme Court in Winans, where the Court ruled that tribal members were entitled to “take[e] fish at all usual and accustomed areas,” even though those areas may be on a privately owned property.

Although the fishing rights cases from the Pacific Northwest apply to particular parties and scenarios, they’ve had a wide-ranging effect on Indian fishing rights cases in other areas of the state.

The U.S. government’s attempts to protect the ecosystem and control its resources have given rise to tensions between the authorities and Native American tribes that maintain exceptions to national regulations based on legal, historical, and ethnic rights to specific resources. Sometimes, disputes arise between Native Americans and foreign governments or intergovernmental organizations. One such case concerns an arrangement between the U.S. government and the Makah Tribe of Washington’s Olympic Peninsula viewing rights to hunt whales. In this instance, the U.S. government was assertively promoting the rights of Native Americans to hunt whales, even in the face of powerful national and international criticism.

On March 22, 1996, the National Oceanic and Atmospheric Administration (NOAA) entered into a formal written agreement with all the Makah Tribe supplying 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 grey whales for subsistence and ceremonial use by the Makah Tribe.

The deal provided for co-operation between NOAA and the Makah Tribal Council in handling the crop of grey whales. NOAA agreed: to track the hunt; (2) to help the Council to gather data on the whales, including body length and sex of the, landed whales; span and gender of any fetus in a landed whale. Whether a whale which was hit, but not landed, endured a potentially deadly wound from a harpoon or bomb emplacement); and (to gather tissue samples from landed whales.

Eventually, the deal provided that within 30 days of IWC acceptance of a quote, “NOAA will revise its regulations to deal with subsistence whaling by the Makah Tribe, as well as the Council will adopt a management strategy and rules to regulate the crop.” The agreement was signed by the chairman of the Makah Tribal Council, Hubert Markishtum, as well as the undersecretary for Oceans and Atmosphere, D. James Baker.

According to the arrangement, the United States presented the IWC with a suggestion to the IWC for a quota of grey whales for the Makah Tribe. Several participant states supported the Makah whaling proposal, while others expressed concerns and suggested that they’d vote against it. The suggestion immediately became contentious. Concurrent to the IWC’s Assembly, 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 proposition.

The U.S. delegation to the IWC later recognized that it didn’t have the three-quarters majority required to approve the Makah hunting quota, and the suggestion was withdrawn.

On October 13, 1997, NOAA along with the Makah entered into a brand new written agreement, which was almost identical to the deal signed in 1996. Unlike the earlier arrangement, nevertheless, the 1997 agreement contained a provision meant to underscore the intent to hunt just migratory whales. Although substantial controversy attended this second proposition, the Makah eventually were allowed to restart limited whaling for ethnic and subsistence functions.

In the early twenty-first century, case law in states such as Wisconsin, Minnesota, and Michigan are consistent with these facts when it comes to Indian off-reservation fishing rights, the allotment of fish between Indians and non-Indians, and the relationship between tribal and state regulatory schemes. Instead of relying on the court system to resolve disputes, tribes and states now often try to achieve negotiated settlements.