Sharing the Fish Toward a National Policy on Individual Fishing Quotas (1999) / Chapter Skim
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2 Fisheries Compared with Other Natural Resources
2 Fisheries Compared with Other Natural Resources
Pages 38-58
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From page 38... ...
For example, the formerly substantial fishery for Atlantic halibut has been so severely depleted that it cannot support a directed commercial fishery. This situation is exemplified by the open-access problem in fisheries, in which each person gains the incremental benefit of their action while sharing the costs of that action with all other users.
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From page 39... ...
The public trust doctrine is a significant component of this framework. It is a common law doctrine (i.e., judicially developed, rather than statutory)
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From page 40... ...
Supreme Court held in Illinois Central Railroad v. Illinois, one of the cornerstones of U.S.
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From page 41... ...
In 1983, the California Supreme Court emphasized the scope of the trust and explained the responsibility of government as trustee with respect to trust resources. Relying on the principles of Illinois Central, the court held that the state has the power and duty "to exercise a continuous supervision and control over the navigable waters of a state and the lands underlying those waters" and that no one can claim a vested right to divert waters "once it becomes clear that such diversions harm the interests protected by the public trust" (in this case the shrimp and brine flies of Mono Lake in California)
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From page 42... ...
These decisions are based on the concept that fish are public trust resources, subject to the same protections as other trust assets. Although the Court subsequently repudiated the concept that states "own" wild creatures in the conventional sense when state ownership of fish was claimed to shield state regulation from commerce clause constraints, the applicability of the public trust to ferae naturae was never questioned.
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From page 43... ...
The relevance of the public trust doctrine to issues surrounding fisheries in federal waters hinges on its applicability to the ownership of wild animals in federal waters, beyond state jurisdiction. Relatively few courts have considered whether the public trust applies to the federal government in the same way that it applies to the states.
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From page 44... ...
. In several decisions dealing with the Redwood National Park, a federal court held that the Secretary of the Interior has trust and statutory obligations to protect park resources from outside threats.
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From page 45... ...
The government has an affirmative duty to take the public trust into account in conferring IFQs. Such allocations cannot be irrevocable, but remain subject to the government's continuing supervisory responsibility over them, to hold and manage them on behalf of the people.
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From page 46... ...
In addition, whereas most holders of emission quotas are commercial and industrial firms, IFQ holders range from owners of large corporate factory trawlers to individual fishermen operating out of small boats. The Path to Quotas The initial approach to air pollution control relied on a rather traditional form of legal regulation in which the government took upon itself the responsibility for defining management goals, choosing the best approaches for meeting these goals, and monitoring and enforcing compliance with its mandates.
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From page 47... ...
does not raise money for the government; rather it returns auction proceeds to the quota holders who are required to place a small percentage of their quotas up for auction each year (Hausker, 1990, 1992~. · Under the acid rain program, the costs of continuous monitoring are borne by the quota holders, whereas in U.S.
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From page 48... ...
· Air quota programs share with some IFQ programs the characteristic that some of the rent created by the quota program is transferred to the larger community, but the sharing may occur in rather different ways. In the Alaskan IFQ programs, this sharing is accomplished by community development quotas.
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From page 49... ...
Then, in National Audubon Society v. Superior Court,30 the California court held that the state has a continuing supervisory authority over water rights under the public trust, a responsibility to consider adverse effects on trust uses by diversions, and an obligation to avoid such adverse effects whenever feasible.
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v. State Water Resources Control Board,33 the court states, "Wild fish have always been recognized as a species of property the general right and ownership of which is in the people of the state.
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Groundwater In many states, the hydrologic connections between surface water sources and groundwater basins are not recognized. Consequently, a distinct body of statutes and cases governs surface water and groundwater.
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States have taken additional steps to locate alternative sources of water and to create water conservation plans. A variety of mechanisms can be used to define groundwater rights and to manage groundwater basins to address the multiple dilemmas that groundwater pumpers face (Blomquist, 1992~.
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From page 53... ...
Groundwater overdraft and subsidence problems will be addressed over time through the retirement of groundwater rights, the gradual phasing-out of agriculture, the importation of surface water supplies through the Central Arizona Project, and increasingly strict water conservation requirements. Most states fall along the continuum defined by California and Arizona.
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From page 54... ...
For instance, in California's adjudicated basins, the state monitors pumping, but pumpers are authorized to take action against rule breakers. In Colorado, enforcement of water rights is left to individual water rights holders.
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The Bureau of Land Management awards oil and gas leases on public lands, and the proceeds from such leases are subject to state and federal taxes of various kinds.39 Where ownership of the land above oil and gas reservoirs is very fragmented, the landowners or those who have leased the mineral rights sometimes compete for the oil underneath, because the oil migrates toward the wells where the pressure is lower. This is a direct analogy with fisheries and has led to similar efficiency problems (excessive drilling of wells)
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From page 56... ...
Timber and land rights have evolved over time through government action to encourage settlement and development of both public and private ownership. Government actions in the form of land grants, homestead acts, and sale of public lands have encouraged private development throughout the United States, particularly during the nineteenth century.
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From page 57... ...
In contrast to fishing, timber has a defined market value by species that is reflected in the purchase price paid at auction for standing timber. This value is recognized as economic rent owed to the public (for that part of the value exceeding operational costs and anticipated profit of the successful bidder)
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From page 58... ...
Bureau of Land Management grazing leases, renewed automatically, set at controversially low levels, and treated as adjuncts to privately held ranches, have been subject to periodic scrutiny. Efforts to have them treated as property, protected by the takings and compensation provisions of the Fifth Amendment, have thus far proven unsuccessful.
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