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posed: Why did it take so long? How, exactly, did it come about? One reason exclusive harvest privileges were not implemented until recently in fisheries is the practical difficulty of erecting boundaries around fish. In common law, such "fugitive" creatures as fish and wild birds or game are not "owned" until they are captured. This rule of law poses an obstacle to privatization.
Yet privatization of aquatic animals is not impossible, nor is it absent from history. Sedentary shellfish can be fenced and points of access to marine resources can be treated as private property. Farmers, fishermen, lords of the manor, monasteries, enterprising fish traders, Native Americans in the Pacific Northwest and elsewhere, and others have often sought to secure their interests by claiming exclusive rights to shellfish beds, places to use fishing weirs and seines, and particular fishing grounds. During the Tokugawa period in Japan (from 1603 to 1868), fishing territories were owned by feudal rulers who extracted labor and taxes in exchange for giving rights to fish to communities and individuals (Kalland, 1988). There is also a historical record of exclusive rights of access to highly valued sports and recreational species for both inland and anadromous stocks, many of which continue (Netboy, 1968; Brubaker, 1996).
An even more significant obstacle to exclusive access to marine resources has been social resistance to it, based on very different conceptions of property rights, configurations of interest, and in some cases, world views, which to some extent continue today and influence the debate about IFQs. Fish weirs were outlawed on the rivers of England by the Magna Carta of 1215, which became the political and legal source of the liberties of British subjects. Over time, in many Western nations, legal principles were established that supported the inalienability of public as opposed to private rights of commerce, navigation, and fisheries. The public trust doctrine, as it came to be known in the United States, has persisted despite society's embrace of the market economy imperatives of privatization (Sax, 1970; Rose, 1986; McCay, 1998). This legal doctrine protected the interests and rights of the public to free access to marine and riparian places for fish and navigation by asserting state ownership of the beds of tidal and navigable waters, the waters themselves, and fish and shellfish, on behalf of the public. The public trust doctrine, discussed in Chapter 2, protects public rights in tide-washed lands, navigable rivers, lakes, and their resources. In some areas, it also has been interpreted as justifying the right of the state, or the Crown, to ignore or replace local customary and formal systems of allocating rights. Accordingly, the development of this argument can make it difficult for local communities to integrate the interests of all users of the resource, as opposed to the public at large.
In the Pacific islands, traditional cultures often treated fishing grounds, rights to take certain species, and even rights to use specific gear types as the exclusive property of individuals or family corporations. Thus, in the codification of customary law relating to land and sea resources in the Gilbert Islands in the early 1940s, British colonial officials encountered a conflict between British law, in