Extraterritorial Application of State Fishery Management Regulations under the Magnuson-Stevens Fishery Conservation and Management Act: Have the Courts Missed the Boat

Abstract

I. INTRODUCTION II. PREEMPTION: A PRIMER III. THE MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT IV. JUDICIAL HISTORY OF NON-PREEMPTION OF STATE FISHERY REGULATIONS UNDER THE MAGNUSON-STEVENS ACT V. A VERY BRIEF LOOK AT THE HISTORY OF SECTION 1856 VI. HAVE THE COURTS MISSED THE BOAT? VII. CONCLUSION I. INTRODUCTION Over the past thirty years individual states have routinely attempted to enforce their fisheries regulations beyond their territorial waters. Such extraterritorial application of state regulations falls under the purview of the Magnuson-Stevens Fishery Conservation and Management Act (1) (Magnuson-Stevens Act), which is the United States' primary means of governing commercial and recreational fishing activities within federal waters. Under the Magnuson-Stevens Act the United States exerts control over all fishing activities and the fishery resources found within its waters. (2) With such a pervasive federal regulatory scheme in place to govern the United States' fishery resources, the question of whether individual states' attempts to extraterritorially regulate such resources have been preempted by the federal government has been a point of contention and the subject of litigation on numerous occasions in the past. State and federal courts alike have examined the preemption issue as it relates to a state's ability to extraterritorially regulate fishery resources and fishing activities within federal waters. With little variation since the passage of the Magnuson-Stevens Act in 1976, the courts that have addressed this issue have concluded that states are not preempted from such extraterritorial regulation. Unfortunately, it seems that many of these courts have continually relied upon stare decisis, even in the wake of amendments to the Act in 1983 that have substantially muddied the extraterritorial jurisdiction waters. This paper examines whether the courts have come to the wrong conclusion. In addressing this topic, Part II of this paper will present a brief primer on the subject of legislative preemption under the Supremacy Clause of the United States Constitution. An introduction to the Magnuson-Stevens Act and its provisions relating to state jurisdiction in federal waters is taken up in Part III. Part IV will then examine the case law that addresses the issue of extraterritorial regulation of fishery resources under the Act. A brief look at the history of Section 1856 of the Magnuson-Stevens Act, which contains the state jurisdictional provisions, will follow in Part V. Finally, Part VI will argue that courts have come to the wrong conclusion about this issue and present an alternative argument leading to the conclusion that following the 1983 amendments to the Magnuson-Stevens Act, individual states are preempted from extraterritorially enforcing state fishery resource regulations in federal waters. II. PREEMPTION: A PRIMER The Supremacy Clause of the United States Constitution, Article VI, Clause 2 reads as follows: (3) This Constitution, and the Laws of the United States which be made in Pursuance thereof; and all Treaties made, or which be made, under the Authority of the United States, be the supreme Law of the Land; and the Judges in every State be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Supremacy Clause addresses the interplay among state and federal laws and clearly indicates that the Constitution and the federal laws promulgated thereunder shall be the supreme Law of the Land. (4) State laws be of secondary authority, and not supersede such federal laws. Furthermore, not only do the Constitution and federal laws supersede state law, but federal regulations duly promulgated by a federal agency have also been interpreted as having greater weight and authority than state laws. …