Catch shares preserve our fishing heritage

Like a driver's license lets you drive on American roads or a hunting license lets you hunt game in American forests, catch shares give you the privilege to access America's fishing resources, but they do not create a property right. The law on this is very clear.

Fish are a public resource that the government is required to manage responsibly on behalf of all U.S. citizens. Most fisheries already limit access through permits. Unfortunately, conventional management has not been enough to ensure healthy, abundant fish stocks. Catch shares, on the other hand, help rebuild stocks and increase value and profits for fishermen. And that is responsible management of a public resource, now and into the future.

Legal and judicial precedent preserve public fishing rights

The Magnuson-Stevens Fishery Conservation and Management Act (MSA)¹ explicitly states that fishing privileges do not create a private-property right, title, or interest in fish.

When Congress last amended the fishery law in 2006, they added a provision authorizing catch shares. The law clearly states that fishing privileges can be granted to eligible persons under certain programs. At the same time, Congress made sure to spell out that these privileges do not confer a property right. The fishery law provides that any fishing privileges granted:

• "may be revoked, limited or modified at any time" ^i.i
• "shall not confer any right of compensation to the holder" ^i.ii
• "shall not create, or be construed to create, any right, title, or interest in or to any fish" ^i.iii
• "shall be considered a grant of permission to the holder... to engage in [permitted] activities" ^i.iv

U.S. courts have consistently determined that fishing privileges do not give rise to a property interest subject to the Takings Clause of the Constitution (U.S. Const. amend.V.). Fishing privileges, like other types of permits or licenses, are created and granted by the government and can be cancelled by the government. The decisions on this are clear and consistent. For example:

In American Pelagic Fishing Co. v. U.S.²:

"Pursuant to the Magnuson Act, the "“conservation and management of the [Exclusive Economic Zone]" belongs to the sovereign, and this necessarily includes the right to fish in the zone. Moreover, there is no language in the statute to the effect that any fishing privileges that are granted pursuant to the Magnuson Act vest in their owners a property right protected by the Fifth Amendment."

In Conti v. U.S.³:

"Mr. Conti's swordfishing permit…falls short of conferring a congnizable property interest [protected by the Fifth Amendment]."

In Foss v. National Marine Fisheries Service⁴:

"[T]he language of the Magnuson Act does not confer any claim of entitlement or property rights."

In Parravano v. Babbit⁵.

"Thus, the Magnuson Act…does not confer on commercial fishermen any right or title in the fishery resources under the Department of Commerce’s authority."

Fish are not the only public resource that is managed by granting privileges to participants. Grazing on public land, use of the electromagnetic spectrum and forest logging on public land all use similar secure licensing approaches. And the courts have similarly ruled that these are privileges, not rights.⁶

Bottom line

The government manages fish on behalf of all U.S. citizens and is responsible for ensuring fisheries are managed well. Through allocating secure privileges, catch shares are the most effective way to ensure productive, profitable fisheries.