PROPERTY RIGHTS IN FISHERIES

摘要

Fishery managers are increasingly touting the usefulness of market-based management systems like Individual Fishing Quotas (IFQs) and fishery cooperatives, but market-based systems rely on transferability of a share in the fish resource and accordingly imply some form of ownership by the quota holder. Other government policies, such as fishery buy-outs and natural-resource damages after oil spills, also imply some form of ownership of the fish resource by fishermen, but a conflicting perception exists that fish are subject to the Public Trust doctrine, according to which ownership of the fish themselves would be inalienably vested in the government to manage on behalf of the people. The legal basis for this extension of the Public Trust doctrine is tenuous, and case law suggests that one of the necessary characteristics—government ownership—is not possible under current law. Nevertheless, such an extension of the Public Trust doctrine would be desirable because it would permit the government to retract any rights to the resource that it granted—even incidents of ownership—in the event that the public interest called for it. Congress should, by legislation, clarify that the scope of the Public Trust doctrine is intended to cover fishery resources.