Document Type

Article

Publication Date

2007

Abstract

Seventy percent of the world's fish populations are in serious decline; some have been fished to near extinction. While domestic and international efforts are underway to curb the rate at which the remaining fish are being depleted, the demand for fish appears to be outstripping these initiatives--before they can take hold, the fish may be gone. In response to this increasingly dire situation, many countries, including the United States, have turned to fish farming in hope of taking pressure off of certain wild stocks of fish while still meeting consumer demands for them. More recently, non-U.S. fish farmers have moved the locus of their activities from land and coastal waters to the open oceans. In this country, ocean fish ranching is still at the experimental stage, but hopes are high that it could become commercially profitable in the United States' Exclusive Economic Zone ("EEZ"). One problem hindering the development of a robust ocean fish ranching industry in the United States is the absence of a comprehensive regulatory program. Increasing pressure to develop the ocean fish ranching industry and the current structure of the industry, however, may mean that for the foreseeable future ocean fish ranching will happen in a regulatory vacuum.

While much has been written about the adverse environmental and economic impacts of fish farming, including concerns about moving these activities offshore, little has been written about the property law implications of ocean fish ranching. Viewing ocean fish ranching through a property lens invites consideration of common law property concepts like the public trust doctrine. The public trust doctrine offers a set of useful principles that could be applied to ocean fish ranching until the government develops a suitable regulatory framework. Because the public trust doctrine traditionally applies only to coastal waters, though, extending it to the EEZ requires a new legal basis. This article proposes two such theoretical bases: one founded on the public domain status of EEZ, the other in the extension of state common law to the EEZ.

Before expanding on the reasons why the public trust doctrine could and should apply to ocean fish ranching, the article provides background information on the status of the world's fisheries, the growth of the fish farming industry and its movement offshore, environmental and economic concerns, and the existing regulatory picture. The second part of the article explains the concept of common pool resources and how open access has contributed to the decline in wild fish stocks and prompted the creation of property-based responses like individual fishing quotas ("IFQs"). The third section describes the public trust doctrine and develops two bases for the doctrine's application to activities occurring within the EEZ: (1) the public domain nature of the EEZ to which federal common law might apply; and (2) the potential extension of state common law beyond state waters. The first basis requires an argument that there is a federal common law public trust doctrine that attaches to public lands, and the second presumes that the federal laws governing the EEZ include a role for state common law's continuing regulatory presence.

Professor William Buzbee's work on the "regulatory commons," described in the fourth part of the article, underscores the need to make these doctrinal leaps. He explains why regulatory commons are counter-productive yet self-perpetuating. In turn, this article shows how ocean fish ranching is an example of such a commons and argues that the cure for it is not privatizing the resource. The article concludes by explaining how the application of the public trust doctrine will end the ocean fish ranching regulatory commons and why applying the doctrine, until effective regulation eliminates the potential adverse environmental and economic effects of these activities, makes good policy sense, and is preferable to market-based solutions.

Publication Citation

26 Stan. Envtl. L.J. 3-76 (2007)