Extraterritorial application of state fishery management regulations under the Magnuson-Stevens Fishery Conservation and Management Act: have the courts missed the boat?

• Author: Mastry, Mike

1. 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.

2. 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 shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall 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 shall be of secondary authority, and shall 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. (5) No state law, rule, regulation, or otherwise may stand in contradiction to the Constitution, federal laws, or duly promulgated agency regulations (collectively referred to hereinafter as "federal law").

   "When considering preemption, courts 'start with the assumption that the historic police powers of the state were not to be superseded by the Federal Act unless that was the clear and manifest purpose of the Congress.'" (6) "There are several ways in which Congress can preempt state regulation in a given area." (7) The Supreme Court has stated that "preemption may be either express or implied." (8) Under the Court's interpretation of the Supremacy Clause, federal law can expressly or impliedly preempt state law in three ways: 1) through an express declaration by Congress that state law shall be preempted; (9) 2) via a clear demonstration by Congress that it intends to completely and entirely occupy a field; (10) or 3) by way of an actual conflict arising among state and federal law where "compliance with both federal and state regulations is a physical impossibility." (11)

   In the case of an express declaration by Congress that the states shall have no regulatory authority over a field, preemption will be apparent and easily determined because the express language of the federal law will clearly indicate that Congress intends to preempt state law. In other words, the Supremacy Clause and its doctrine of preemption are applicable in situations where Congress or an administrative agency has specifically included in a law or regulation wording to indicate that state laws shall not apply, or shall be preempted, and the federal government will have complete control and authority over the subject matter. Express preemption is a relatively simple matter; however, in the other two situations where preemption applies it is not always as clear whether the Supremacy Clause is relevant and state regulation therefore preempted.

   In determining whether Congress has demonstrated an intent to completely occupy a field (as opposed to expressly stating its intent to do so) courts must consider whether "[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." (12) "Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." (13) If a court determines that the federal law is so "pervasive" or the federal interest is so "dominant" that there is a clear intent to completely occupy a field, then the Supremacy Clause will apply and any state law or rule purporting to regulate the same field or subject matter will be held in violation of the Supremacy Clause and therefore unconstitutional. An example of such a situation is the federal government's pervasive regulation of the workplace under the Occupational Safety and Health Act. (14)

   In the third preemptive situation, where an actual conflict among state and federal laws or regulations makes simultaneous compliance with both a physical impossibility, the state law or regulation would again take a backseat to the federal law. The following hypothetical illustration is helpful for understanding this third type of preemption:

   Due to the continued and persistent over-harvesting of the Ezox fish, (15) which lives in a single river system within the state of Verhampshire, its population has dwindled to near extinction. To prevent the demise of the species the federal government has passed a law completely banning the take of Ezox, not allowing even a single fish to be culled. The state of Verhampshire, however, believing that the Ezox is responsible for the disappearance of several other more desirable species of fish within the river system, would like nothing more than to see the Ezox completely eradicated so other more sought-after and economically beneficial fish would again inhabit the river. To accomplish this goal the state passes a regulation requiring that, as a condition to maintaining a state commercial fishing license, the total monthly catch of each Verhampshire commercial fisherman must be comprised of at least 25% Ezox. In this example it is clear that a commercial fisherman in Verhampshire could not simultaneously comply with the state regulation and the federal law concerning the take of Ezox. If a fisherman were to abide by the state regulation requiring that Ezox make up at least 25% of the total monthly commercial catch, he would clearly be violating the fishery plan set forth by the federal government, which mandates an all-out ban on the take of Ezox. The federal law and the state regulation are in conflict with each other in a way that makes it impossible for Verhampshire state-licensed commercial fishermen to abide by the state regulation and the federal law simultaneously. In such a situation the state regulation is preempted by the federal law on the basis of the Supremacy Clause because it "stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress." (16)

   So there we have it. The federal government preempts state law through the Supremacy Clause of the U.S. Constitution in three different ways. State law is preempted 1) when the federal law or regulation contains explicit language to that effect; 2) when Congress or a federal agency leaves no room for a state law by demonstrating an intent to completely occupy a field or; 3) when "Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law." (17) If none of these three situations are present, then states are free to regulate in the same area or field as the federal government is simultaneously regulating.

   With this primer on preemption in our back pocket, let us now look briefly at a few of the provisions within the Magnuson-Stevens Act that may relate to any of the three preemptive situations.

3. THE MAGNUSON-STEVENS FISHERY CONSERVATION...