WHO HAS THE RIGHT TO MANAGE RED SNAPPER?

Louisiana Congressman Garret Graves is the primary sponsor of H.R. 3094, legislation that would strip the National Marine Fisheries Service of its authority to manage red snapper in the Gulf of Mexico, and to turn that authority over to the five Gulf states.

Rep. Graves has provided a number of justifications in support of such bill, ranging from the alleged inaccuracy of federal fisheries data to a presumption that anglers would have better access to a state-managed resource. Recently, in a Facebook post, he came out and baldly said, “This is about state’s rights.”

And that is just wrong.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) clearly says that “the United States claims, and will exercise in the manner provided for in this Act, sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone…”

However, Magnuson-Stevens also says that “Except [for situations where state regulation will substantially and adversely affect a fishery management plan for a fishery predominantly prosecuted in the exclusive economic zone], nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.”

Such language, combined with provisions of the federal Submerged Lands Act, which grants coastal sovereignty over natural resources, including fish, located within three miles of their coastlines (and within three marine leagues of the coastlines of Texas and the west coast of Florida), may have led people to believe that the states have an inherent right to manage coastal fisheries, whether in state or, as Rep. Graves asserts, in federal waters.

A review of court decisions shows that such belief is unfounded. The federal government, and not the states, has primary jurisdiction over the fish that swim off our coast.

That was made clear in the Supreme Court decision United States v. California, where the Court noted that

“At the time this country won its independence from England there was no settled international custom or understanding between nations that each nation owned a three-mile water belt along its borders…when this nation was formed, the idea of a three-mile belt over which a littoral nation could exercise rights of ownership was but a nebulous suggestion. Neither the English charters granted to this nation’s settlers, nor the treaty of peace with England, nor any other document to which [the Court had] been referred, showed a purpose to set apart a three-mile ocean belt for colonial or state ownership…

“It did happen that shortly after we became a nation our statesmen became interested in establishing a national dominion over a definite marginal zone to protect our neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted throughout the world…That the political agencies of this nation both claim and exercise broad dominion and control over our three-mile marginal belt is now a settled fact.

“Not only has acquisition, as it were, of the three-mile belt been accomplished by the National Government, but protection and control of it has been and is a function of national external sovereignty. The belief that local interests are so predominant as constitutionally to require state dominion over lands under its land-locked navigational waters finds some argument for its support. But such can hardly be said in favor of state control over any part of the ocean…”

The decision completely undercuts Rep. Graves’ state’s rights assertion, saying

“Conceding that the state has been authorized to exercise local police power functions in the part of the marginal belt within its declared boundaries, these do not detract from the Federal Government’s paramount rights in and power over this area…national interests, responsibilities, and therefore national rights are paramount in waters lying to the seaward [of the low water mark] in the three mile belt.”

Although United States v. California dealt with mineral rights rather than fisheries regulation, the language of the decision, which speaks of “national dominion” and the nation’s “paramount rights…in waters lying…in the three mile belt” makes it clear that it applies to natural resources that reside within, and not merely beneath, such waters.

Another Supreme Court decision, Skiriotes v. Florida, makes it clear that a state’s authority to regulate fisheries in federal waters is limited to situations where the federal government has chosen not to regulate the fishery in question. Even then, a state may only regulate the actions of its own citizens, and not the citizens of any other state.

Thus, Rep. Graves’ state’s rights argument is shown to be completely false. It seems to spring from the same kind of false assumptions that have led some of his colleagues to call for “returning” ownership of vast tracts of federal land to a number of western states. Just as such land belonged to the federal government before the states ever existed, making the notion of “returning” it to the states nonsensical, so did the federal government have dominion over the three-mile coastal sea before the states ever tried to assume such control.

Another, even more basic, consideration militates against Rep. Graves’ state’s rights claim.

Article I, Section 8 of the Constitution of the United States gives Congress the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts have construed that so-called “Commerce Clause” very broadly, with one landmark Supreme Court decision holding that even a few bushels of wheat, grown by a farmer for his personal use, are subject to federal regulation.

If that is the case, then the Gulf of Mexico red snapper fishery, which generates commercial landings worth $11.5 million annually, that are subsequently shipped throughout the nation, and also supports a recreational fishery that contributes no less than $61.6 million to the gross domestic product while playing a significant role in the interstate tourism industry, certainly falls within the Commerce Clause’s ambit.

Thus, the Constitution, federal statutes and the common law make it clear that red snapper management is not a “state’s rights” issue at all, but rather an issue that is, first and foremost, a federal concern.

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This essay first appeared in "From the Waterfront," the blog of the Marine Fish Conservation Network, which may be found at http://www.conservefish.org/blog/