Fish and Fishing

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

Recreational fishing is regulated differently from commercial fishing, but both sets of laws attempt to ensure the continued survival of many species.
AP/WIDE WORLD PHOTOS

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.