Fish and Fishing

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.