The EEZ solution to striper management: why the federal government should ban the commercial harvest of striped bass once and for all.

• Author: Rapone, Thomas
• Position: Exclusive Economic Zone - The Massachusetts Constitution of 1780

"The price in its numbers the adult striper has paid for its migratory compulsion is a price beyond counting.... Who can ever measure the numbers that were taken by the ... fleets that made landfall in the New World only to find the harbors writhing with the silver-sided splashings of stripers ... ? And will there ever be any counting of the stripers stop netted in tidal coves, their gleaming carcasses ... left ... by the thousands for colonial farmers to hoist to handbarrows for their trip to the corn fields and their burial there? And, as the nation grew, who ... ever conceived of a system that would tabulate the depredations of two centuries of recreational, sport, and meat fishing ...? No, there is no way the fare charged the striper for its annual trips can ever be computed." (1)

1. INTRODUCTION

   The striped bass has long been a symbol of America's coastal bounty. (2) During his maiden voyage into the Chesapeake Bay in (1608), Captain John Smith observed of the striped bass, "I myself at the turning of the tyde have seen such multitudes that it seemed to me that one mighte go over their backs drisho'd." (3) Despite historical accounts of a seemingly limitless resource, even the earliest colonists had the foresight to limit their harvest of striped bass. (4) Most notably, in (1639), the striped bass became the impetus for America's first fisheries law when the General Court of the Massachusetts Bay Colony banned the practice of fertilizing cornfields with the discarded frames of the fish. (5)

   More recently, states along the Atlantic seaboard have taken a decidedly less cautionary approach to striped bass management than their colonial predecessors. (6) During the latter half of the twentieth century, the combined effects of rampant overfishing and the loss of viable spawning habitat took a disastrous toll on the striped bass population. (7) By the 1980s, the droves of striped bass that once astounded the early colonists had all but vanished from the Atlantic coastline. (8)

   Even when the reasons for the decline had become evident, attempts to curtail the coast-wide overharvest of striped bass were hindered by traditional fisheries management practices, which afforded individual states complete discretion in managing coastal fish stocks. (9) Under this disjointed approach, a patchwork of local regulations emerged that collectively offered little protection for migrating striped bass. (10) In effect, rather than viewing the striped bass population as a collective resource in need of sustainable management, the Atlantic states simply vied amongst each other for the largest commercial take as the fish traveled up and down the coast. (11)

   In the years leading up to the striped bass collapse, a multistate fisheries advisory commission known as the Atlantic States Marine Fisheries Commission (ASMFC) attempted to cure the prevailing jurisdictional disconnect by formulating a model set of uniform striped bass regulations for coast-wide implementation. (12) In its finished form, the ASMFC's striped bass plan recommended that the Atlantic states adopt a series of strict conservation measures aimed at restoring and maintaining a sustainable fishery along the eastern seaboard. (13) By the time the striped bass population began showing pronounced signs of collapse in the 1970s, however, the ASMFC's attempts at implementing the plan failed due to its lack of direct regulatory authority over the individual Atlantic states. (14)

   Recognizing the futility of managing a migratory resource with a collection of distinct and often conflicting state regulations, Congress intervened at the peak of the population collapse by enacting the Atlantic Striped Bass Conservation Act of 1984 (Striped Bass Act). (15) The Striped Bass Act empowered the ASMFC to implement and enforce its proposed regulations and threatened any noncompliant state with a complete federal moratorium on its striped bass fishery. (16) The remarkable resurgence of striped bass that ensued distinguished the ASMFC's interstate collaboration as a model for successful coastal fisheries management. (17) From a constitutional perspective, however, the Striped Bass Act represented an unprecedented intrusion by Congress into the state-controlled realm of coastal fisheries. (18)

   Having rescued the striped bass from extinction with the aid of Congress, the ASMFC gradually relaxed its restrictions on the rebounding striped bass fishery to the extent that today, the Atlantic states once again exercise significant regulatory discretion within state waters. (19) Consequently, a series of conflicting striped bass regulations has reemerged, including, most notably, state laws that allow the large-scale commercial harvest of striped bass in the waters of seven ASMFC-member states. (20) Meanwhile, in adjacent offshore waters, federal regulations flatly prohibit the commercial harvest of striped bass. (21) In the face of this conflicting regulatory scheme, anglers along the Atlantic Coast have begun to decry a lack of striped bass that is ominously reminiscent of the 1980s population crash. (22) Now, with another crash looming, and in light of the ASMFC's sluggish response to what appears to be a population freefall, this Note argues that the fate of the striped bass may once again depend on federal intervention. (23)

   Part II.A of this Note traces the development of coastal fisheries law, both from state and federal perspectives, and explains how migratory fish have historically been subject to conflicting management schemes upon crossing the arbitrary demarcation between state and federal waters. (24) Part II.B details current striped bass legislation and offers insight into the fish's lifecycle in order to illustrate the unique challenges of managing a species that knows no jurisdictional boundaries. (25) Part II.C describes the federal government's renewed interest in conserving the striped bass population, exhibited most recently in a 2007 executive order that reiterated the ban on harvesting striped bass in federal waters. (26) Part II.D examines the standards that govern preemption of state law under the Supremacy Clause, with a focus on cases that address the hierarchy of state and federal fisheries regulations. (27) Finally, Part III explains how and why the federal government should preempt state laws that allow the commercial harvest of striped bass in order to prevent another population crash. (28)

2. HISTORY

   1. The Development of Modern Fisheries Law: State Versus Federal Jurisdiction

      As early as 1891, in Manchester v. Massachusetts, (29) the United States Supreme Court declared that the several states retained the right to regulate fisheries within their respective coastal waters in the absence of conflicting federal legislation. (30) The foundation for this right was the notion that a state, in a proper exercise of police power, should have the authority to preserve a natural resource for the common good. (31) While the Manchester holding technically remains valid today, the breadth of this police power is geographically constrained by the modern demarcation between state and federal waters. (32) With few exceptions, the states' seaward boundaries are uniformly fixed at a distance of three geographical miles offshore. (33) Beyond this three-mile band of "territorial sea," state police power abruptly gives way to a comprehensive scheme of federal fisheries legislation. (34)

      The centerpiece of this federal legislation is the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (Magnuson Act). (35) The Magnuson Act was Congress's response to the modern threat of large-scale fisheries depletion. (36) Prior to the enactment of the Magnuson Act, increased fishing pressure from foreign fleets placed an enormous strain on domestic fish stocks. (37) Regulations on the high seas, where they existed at all, were rarely enforced due to both jurisdictional confusion and Congress's failure to implement an effective policy for combating unsustainable fishing practices. (38) With many coastal fisheries on the verge of collapse in the 1970s, Congress set out to affect fundamental changes in fisheries management with the Magnuson Act. (39)

      Congress drafted the Magnuson Act with two overarching goals in mind: to curb the overexploitation of the nation's fish stocks by foreign fleets, and to reconcile conflicting domestic fisheries regulations among the states. (40) To accomplish these goals, Congress sought to clarify the jurisdictional confusion that had long plagued effective fisheries management in United States waters. (41) Accordingly, the immediate effect of the Magnuson Act was to define an extended zone of federally regulated water known as the Exclusive Economic Zone of the United States (EEZ). (42) Beginning at the three-mile boundary of each state's territorial sea, the EEZ extends offshore to 200 nautical miles. (43) Within the EEZ, the Magnuson Act vests the federal government with the exclusive authority to impose fisheries regulations--including seasonal closures, gear restrictions, and commercial harvest quotas--on a species-by-species basis. (44)

      In order to facilitate the complex task of regulating numerous species over a large expanse of ocean, the Magnuson Act further divided the EEZ into a series of eight fishery management regions, each represented by separate fishery management councils. (45) These councils formulate specialized fishery management plans for target species within their respective regions. (46) Procedurally, the Magnuson Act requires that the Secretary of Commerce approve and implement any proposed management plan or subsequent amendments. (47) Approved management plans become controlling law within the EEZ and preempt any conflicting state laws that would otherwise apply to a particular fishery. (48)

   2. Along Came a Striper

      1. The Striped Bass: Jurisdictional Wanderer

         The Atlantic striped bass is a perennial wanderer, and its...