The Privatization Of The American Fishery: Limitations, Recognitions, And The Public Trust (1997)

In Douglas v. Seacoast Products, Inc., the United States Supreme Court seemingly laid to rest any lingering contentions of vested ownership theory relating to fisheries resources, stating that "it is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to capture." This doctrine, that common resources such as fish are of an inherently wild nature, or ferae naturae, such that actual possession is required in order to establish individual ownership, has survived as an unwavering fixture of the common law, and..has guided courts in their treatment of fishermen's rights and interests in the living resource that they harvest. In near defiance of this doctrine, some courts have gone so far as to suggest that fishermen hold a "constructive property interest" in fisheries, but in spite of such developments, the doctrine of ferae naturae has maintained its vitality and persists as theoretical support to another common law doc- trine, that of res communes, under which fisheries resources are owned in common, and which supports a common right to fish. However, traditional definitions of "property" recognize that the essence of property lies in the sum of fights and powers incident to ownership, with particular emphasis on rights of use. This Comment utilizes a "sum of rights" approach to discuss the modem proprietary relationship between fishermen and the fisheries that they depend upon. By analyzing this relationship from the perspective of specific legal contexts, this Comment argues that U.S. fishermen have acquired a sufficient quorum of property interests to recognize that they may hold some legitimate form of private property interest in fisheries resources, and that this interest may be recognized under the framework of the public trust doctrine in the furtherance of fisheries management and conservation efforts. This Comment begins its analysis in Part II, by outlining the common law doctrines that have historically limited the ability of fishermen to acquire proprietary interests in fisheries resources. Part III will then analyze the proprietary interests that are held by fishermen in fisheries resources, through the discussion of several specific legal contexts, including the ability of fishermen to recover for economic losses in tort. Next, Part IV discusses the extent to which the Fifth Amendment has provided constitutional protection for the proprietary interests of fishermen. Part V continues by outlining the various private interests that fishermen have acquired through rights based fishery management systems. Finally, Part VI discusses how proprietary interests in fisheries may be recognized under the public trust doctrine in the furtherance of fisheries management and conservation efforts. The recognition and future utilization of proprietary interests in U.S. fisheries management is a matter of particular importance in view of the Sustainable Fisheries Act, enacted in October of 1996, which amended the Magnuson Fishery Conservation and Management Act and which also mandated a moratorium on the implementation and approval of any fishery management plan that creates a new individual fishing quota program. This legislation also calls for a comprehensive study and report on the use of individual fishing quota programs, to be completed by October 1, 1998. As the federal government pauses to reconsider and evaluate the future use of such rights-based fishery management programs, it is important to realize, as this Comment argues, that the recognition of these proprietary rights is consistent with how the law has traditionally recognized such private interests in a variety of contexts. Moreover, the framework of the public trust doctrine, by providing for the concurrent existence of public and private interests in common resources, should to a large extent dispel the condemnation of rights-based fishery management programs as an unqualified give-away of public resources, and that this framework provides a foundation for recognizing more stable, long-term proprietary interests in fisheries that may enhance the overall effectiveness and conservation value of rights-based fishery management strategies in the future.