FISH AND FISHING State and federal governments share authority over the regulation and management of fish and fishing in the United States.. jurisdiction was ultimately resolved by the S
Trang 1establishment clause of the First Amendment.
The U.S District Court for the Eastern District
of California dismissed the complaint (Newdow
v Congress of U.S., 2000 WL 35505916 [2000])
But the U.S Court of Appeals for the Ninth
Circuit reversed (Newdow v U.S Congress, 328
F.3d 466[2003])
In finding an establishment clause violation,
the Ninth Circuit wrote that a declaration that
the United States is a nation “under God”
amounts to“a profession of a religious belief,
namely, a belief in monotheism.” The person
reciting the Pledge is not merely declaring a
general belief in a deity, the court said Nor does
the Pledge simply describe “the undeniable
historical significance of religion in the
found-ing of the Republic.” Rather, the court said that
the purpose of the Pledge is to“swear allegiance
to the values for which the flag stands: unity,
indivisibility, liberty, justice, and
monothe-ism.” In this regard, the court stressed that a
“profession that we are a nation ‘under God’ is
identical to a profession that we are a
nation‘under Jesus,’ a nation ‘under Vishnu,’ a
nation‘under Zeus,’ or a nation ‘under no god,’
because none of these professions can be neutral
with respect to religion.” The school district’s
practice of requiring students to recite the
Pledge, then, aims to inculcate in students a
respect for the ideals set forth in the Pledge,
including the religious values it incorporates,
something that Newdow, an atheist, would find
offensive, the court indicated Thus, the court
concluded that the school district violated the
establishment clause by requiring its students to
recite the Pledge
The Supreme Court disagreed, overturning
the Ninth Circuit’s decision The legal
commu-nity and much of the nation was riveted by
Newdow and anxiously awaited the Court’s
decision In 1943, the Supreme Court had ruled
that a school district could not compel a student
to recite the Pledge when that student objected
on religious grounds (West Virginia Bd of Ed v
Barnette, 319 U.S 624, 63 S Ct 1178, 87 L Ed
1628[1943]) Instead, any student objecting to
the Pledge on religious grounds had to be
exempted from the exercise While the Elk
Grove Unified School District also gave
New-dow’s daughter the opportunity to refrain from
citing the Pledge, he argued that because every
other student was reciting the Pledge, the school
was exerting a “coercive” pressure on his
daughter to recite the Pledge notwithstanding
her personal beliefs Additionally, observers noted that Barnett was decided before the words
“under God” were added to the Pledge, and the
PLAINTIFF in Barnett was a member of the Jehovah’s Witnesses and not an atheist Thus, many observers expected the Court to take the opportunity to revisit and clarify its holding in Barnett
But the Court disappointed most observers when it decided the case on what many perceived as a legal technicality In a 5–3 decision (JusticeANTONIN SCALIArecused himself after publicly criticizing the Ninth Circuit’s decision in Newdow), written by Justice JOHN PAUL STEVENS, the Court found that Newdow lacked standing to attack the Pledge of Alle-giance under the Establishment Clause because
a California FAMILY LAW court had given New-dow’s former wife sole legal custody of their daughter and primary responsibility for making decisions relating to the health, education, and
WELFARE of their daughter Equally important was the fact that his former wife did not object
to their daughter taking part in the Pledge of Allegiance exercise, the Court noted The Court also hinted that Newdow’s real remedy lies with the representative branches of government
Newdow’s claim, the Court observed, was of a generalized nature, and courts play the role of deciding specific cases If he wanted to remove the phrase “under God” from the Pledge, he should take up the issue with the U.S Congress
or the California state legislature
Free Exercise Clause The establishment clause and the free exercise clause represent flip sides
of the same issue Whereas the establishment clause focuses on government action that would create, support, or endorse an official national religion, the free exercise clause focuses on the pernicious effects that government action may have on an individual’s religious beliefs or practices Like the establishment clause, the free exercise clause was drafted in response to the Framers’ desire to protect members of religious minorities from persecution
The Framers’ understanding of the free exercise clause is illustrated by the NEW YORK CONSTITUTION OF 1777, which stated,
[T]he free exercise and enjoyment of reli-gious worship, without discrimination
or preference, shall forever be allowed to all mankind: Provided, that the liberty
of conscience, hereby granted, shall not be so construed as to excuse acts ofLICENTIOUSNESS,
FIRST AMENDMENT 459
Trang 2or justify practices inconsistent with the peace or safety of this State (N.Y Const
Art 1 § 3)
The New Hampshire Constitution of 1784 similarly provided that“[every individual has
a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall
be hurt in his person, liberty or estate for worshipping God” in a manner “most agreeable” to those dictates, “provided he doth not disturb the public peace” (N.H
Const Pt 1, Art 5)
These state constitutional provisions not only provide insight into the Founding Fathers’
original understanding of the First Amendment, but they also embody the fundamental tenets of modern free exercise jurisprudence The Su-preme Court has identified three principles underlying the free exercise clause: (1) no individual may be compelled by law to accept any particular religion or form of worship;
(2) all individuals are constitutionally permitted
to choose a religion freely in accordance with their conscience and spirituality, and the govern-ment may not inhibit their religious practices;
and (3) the government may enforce its criminal norms against persons whose religious practices would thwart a compelling societal interest
Rarely is a law that infringes upon some-one’s religious beliefs or practices supported by
a compellingSTATE INTEREST The Supreme Court has held that no compelling societal interest would be served by actions that conflict with deeply held religious beliefs, such as coercing members of the Jehovah’s Witnesses to salute the U.S flag in public schools (West Virginia State Board of Education v Barnette, 319 U.S
624, 63 S Ct 1178, 87 L Ed 1628 [1943]);
denying unemployment benefits to Seventh-Day Adventists who refuse to work on Saturdays (Sherbert v Verner, 374 U.S 398, 83 S Ct 1790,
10 L Ed 2d 965 [1963]); or requiring Amish families to keep their children in state schools until the age of 16 (Wisconsin v Yoder, 406 U.S
205, 92 S Ct 1526, 32 L Ed 2d 15 [1972])
However, a compelling government interest is served by the federal revenue system, so no member of any religious sect can claim exemp-tion from taxaexemp-tion (United States v Lee, 455 U.S
252, 102 S Ct 1051, 71 L Ed 2d 127[1982])
A different question is presented when the government disputes whether a particular belief
or practice is religious in nature This consider-ation typically occurs when conscientious
objectors resist the federal government’s at-tempt to conscript them during wartime Some draft resisters object to war on moral or ethical grounds that are unrelated to orthodox or doctrinal religions If a CONSCIENTIOUS OBJECTOR
admits to being atheistic or agnostic, the government considers how that objector can avoid conscription by relying on the First Amendment, which protects the free exercise
of religion
In an effort to answer this question, the U.S Supreme Court explained that the government cannot“aid all religions against non-believers,” any more than it can aid one religion over another (Torasco v Watkins, 367 U.S 488, 81 S
Ct 1680, 6 L Ed 2d 982[1961]) Thus, as long
as a person“deeply and sincerely holds beliefs which are purely ethical or moral in source and content but that nevertheless impose upon him
a duty of conscience to refrain from participat-ing in any war at any time, those beliefs” are protected by the First Amendment (Welsh v United States, 398 U.S 333, 90 S Ct 1792, 26
L Ed 2d 308[1970]) A belief—religious, moral,
or ethical—that manifests itself in a person’s selective opposition to only certain wars or military conflicts is not protected by the free exercise clause
FURTHER READINGS Amar, Vikram David, ed 2009 The First Amendment, Freedom of Speech: Its Constitutional History and the Contemporary Debate Amherst, N.Y.: Prometheus Books.
Bailyn, Bernard 1992 The Ideological Origins of the American Revolution Cambridge, MA: Harvard Univ Press.
Corwin, Edwin S 1978 The Constitution and What It Means Today Princeton, N.J.: Princeton Univ Press Hickok, Eugene W., Jr., ed 1991 The Bill of Rights: Original Meaning and Current Understanding Charlottesville: Univ Press of Virginia.
Levy, Leonard W 1988 Original Intent and the Framers Constitution New York: Macmillan.
Meyers, Marvin, ed 1981 The Mind of the Founder: Sources
of Political Thought of James Madison Rev ed Hanover, NH: Univ Press of New England.
Stephens, Otis H., Jr., and John M Scheb III 1993 American Constitutional Law St Paul, MN: West Vile, John R., David L Hudson, Jr., and David Schultz 2009 Encyclopedia of the First Amendment Washington, D.C.:
CQ Press.
CROSS REFERENCES Abington School District v Schempp; Censorship; Engel v Vitale; Freedom of the Press; Freedom of Speech; Pornogra-phy; Prior Restraint; School Prayer; Symbolic Speech.
Trang 3FIRST IMPRESSION
The initial presentation to, or examination by, a
court of a particular question of law
A case is labeled of the first impression when
it sets forth a completely original issue of law for
decision by the court Such a case cannot be
decided by reliance on any existing precedent,
law formulated in a prior case decided on a
comparableQUESTION OF LAW, or similar facts
FIRST INSTANCE
The initial trial court where an action is brought
A court of first instance is distinguishable
from an appellate court, which is a court of last
instance In the federal court system, a federal
district court is a court of first instance, whereas
the Supreme Court is the court of last instance
FISCAL
Relating to finance or financial matters, such as
money, taxes, or public or private revenues
A fiscal agent is a bank engaged in the
business of collecting and disbursing money
Such a bank also serves as a place for the deposit
of private and public funds on behalf of others
A fiscal year is a period of twelve months
that does not necessarily correspond with the
traditional calendar year During this time
period, appropriations are made and
expendi-tures are authorized At the end of the year,
accounts are composed and the books are
balanced It is an accounting year frequently
used by a state or large business, the first day of
which is usually April, July, or October 1
Fiscal officers are those individuals whose role
it is to collect and distribute public money, such
as state revenues or the revenues of a county or
MUNICIPAL CORPORATION The title is also used to
describe officers in a private corporation who
have the duty to oversee financial transactions
Fiscal officers of a corporation include a treasurer
and a comptroller
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
govern-ments nonetheless play a primary role in the
day-to-day 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 jeopardiz-ing 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 govern-ment’s role in managing and protecting fish and wildlife grew, occasionally conflicting with state authority The question of wildlife
Recreational fishing is regulated differently from commercial fishing, but both sets
of laws attempt to ensure the continued survival of many species.
AP IMAGES
FISH AND FISHING 461
Trang 4jurisdiction 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 har-vesting 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, deter-mining 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 fur-bearing 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 contin-ued 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 implement-ing the act’s provisions, thus marking the beginning of an active role for the federal govern-ment 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 com-mercial restrictions were ineffective in prevent-ing 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 prohi-biting 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
Trang 5apply 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
estab-lished 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
regulat-ing 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
impor-tant 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 ofHENRY
DAVID THOREAUand 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 (16 U.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 pro-vides 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
Freshwater Fishing Participants, by Age, in 2006
65 years and over 7.5% years old7–11
12.2%
12–17 years old 11.1%
18–24 years old 12.4%
25–34 years old 18.7%
35–44 years old 16.8%
45–54 years old 13.5%
55–64 years old 7.8%
Total participants: 36,637,000 SOURCE: National Sporting Goods Association, Sports Participation in 2006
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
FISH AND FISHING 463
Trang 6funds 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 Conserva-tion 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 admin-istering these trust funds
The most extensive federal efforts to protect endangered fish and wildlife species have been generated through theENDANGERED SPECIES ACTof
1973 (16 U.S.C.A §§ 1531–1543) The Endan-gered 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 king-dom,” 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 more than 100,000 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 inde-pendently 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 them-selves 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
Fishermen weigh a
catch of redfish.
Federal fisheries
management is a
responsibility of the
National Marine
Fisheries Service.
ALLEN M SHIMADA,
NMFS
Trang 7Within the United States, the years prior to
WORLD WAR IIwere marked by a predominance of
state controls over ocean fisheries Though the
federal government had broad management
authority to regulate these resources, its
in-volvement 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
com-merce, 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
conserva-tion zone, but instead announced that the
United States would seek to negotiate
agree-ments 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,
immedi-ately responding to Truman’s proclamation by
declaring its own 200-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 unsuccess-ful 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 enforce-ment 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 negotia-tions, 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
FISH AND FISHING 465
Trang 8take 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 mam-mals, 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 toVACATEU.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 repre-sented 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 over-fishing 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 jurisdic-tion 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 interna-tional 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
Trang 9much 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
in-cluded 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
guaran-teeing 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 Su-preme 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 res-ervation 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 pla-ces 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 excep-tions to federal regulaexcep-tions 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 Washing-ton’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) en-tered 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
FISH AND FISHING 467
Trang 10whales, 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 emplace-ment); 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 sup-ported 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
In the early twenty-first century,CASE LAWin 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 negoti-ated settlements
FURTHER READINGS Bean, Michael J., and Melanie J Rowland 1997 The Evolution of National Wildlife Law Santa Barbara, CA: Praeger.
Campbell-Mohn, Cynthia, Barry Breen, and J William Futrell, eds 1993 Sustainable Environmental Law: Integrating Natural Resource and Pollution Abatement Law from Resources to Recovery Eagan, MN: West Cohen, Fay G 1986 Treaties on Trial Seattle: Univ of Washington Press.
Greenberg, Eldon V.C., and Michael E Shapiro 1981.
“Federalism in the Fishery Conservation Zone.” Southern California Law Review 55.
Kraut, Jayson, et al, eds 1983 American Jurisprudence Rochester, NY: Lawyers Cooperative.
McManus, Robert J 1995 “America’s Saltwater Fisheries: So Few Fish, So Many Fishermen ” Natural Resources and Environment 9 (spring).
Pevar, Stephen L 2002 The Rights of Indians and Tribes Carbondale, IL: Southern Illinois Univ.
Wilkinson, Charles F 1991 “To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa ” Wisconsin Law Review.
CROSS REFERENCES Environmental Law; Interior Department; Native American Rights.
FISHING EXPEDITION Also known as a “fishing trip.” Using the courts to find out information beyond the fair scope of the lawsuit The loose, vague, unfocused questioning
of a witness or the overly broad use of the discovery process Discovery sought on general, loose, and vague allegations, or on suspicion, surmise, or vague guesses The scope of discovery may be restricted by protective orders as provided for by the Federal Rules of Civil Procedure
FISHING VESSELS Customary INTERNATIONAL LAW provides that coastal fishing boats and small boats engaged
in trade, as distinguished from seagoing fishing boats and large traders, are immune from attack and SEIZURE during war This immunity
is lost if fishing vessels take part in the hostilities To prevent such involvement many nations have agreed not to take advantage of the peaceful character of such vessels in their war effort
FIXED ASSET Property, such as machinery or buildings, utilized
in a business that will not be used or liquidated during the current fiscal period