7 ELR 20442 | Environmental Law Reporter | copyright © 1977 | All rights reserved

Douglas v. Seacoast Products, Inc.

No. 75-1255 (431 U.S. 265) (U.S. May 23, 1977)

ELR Digest

The Supreme Court invalidates, under the Supremacy Clause, two Virginia statutes that limit the right of nonresidents and aliens to catch fish commercially in the state's territorial waters. Persons wishing to fish commercially in Virginia must obtain licenses. Va. Code § 28.1-81.1. Only citizens or American-majority-owned corporations may obtain licenses. Va. Code § 28.1-60 prohibits nonresidents from catching menhaden in the Chesapeake Bay. Appellee, now a foreign-controlled corporation, owns fishing vessels licensed and enrolled as United States flag ships pursuant to 46 U.S.C. §§ 251, 252, 263, and was denied a Virginia license by appellant to fish for menhaden.

Principles of preemption are well established. Jones v. Rath Packing Co., 45 U.S.L.W. 4331 (U.S. Mar. 29, 1977); De Canas v. Bica, 424 U.S. 351 (1976). This case deals with federal legislation arguably superseding state law in a field traditionally occupied by the states; thus, preemption will be found only through a clear and manifest congressional purpose. Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947). Registered, enrolled, and licensed vessels are regulated by federal statutes in order to engage in, respectively, foreign, coastwise, and fishing trades and must meet federal specifications and be owned by citizens or by alien corporations chartered in the United States. The pertinent federal statute, the Enrollment and Licensing Act of February 18, 1793, 46 U.S.C. ch. 12, as interpreted in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), does not oust all state regulatory power over federally licensed vessels although it does supersede conflicting state-created license rights. States may impose upon federal licensees reasonable, nondiscriminatory conservation and environmental protection measures otherwise within their police powers. Smith v. Maryland, 59 U.S. (18 How.) 71 (1855) (oyster fishing implements law); Manchester v. Massachusetts, 139 U.S. 240 (1891) (fishing tackle law); Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960) (smoke abatement ordinance). Congress has reenacted in substantially the same form the Enrollment and Licensing Act, thus ratifying Gibbons, supra. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).

Contrary to appellant's theory, Gibbons rejects the argument that a federal license merely establishes the nationality of a vessel, a function which is performed by enrollment. A license grants authority to carry on the licensed activity, in this case, the mackerel fishery. Appellees have been granted the right to fish in Virginia waters in the same terms as Virginia residents. 46 U.S.C. § 251. Gibbons expressly holds that the vessel license transfers to the licensee all the right which Congress had power to convey. Congress has the power to regulate fishing in state waters where there is some effect on interstate commerce. Perez v. United States, 402 U.S. 146 (1971).

The challenged statutes deny appellees their federally-granted right to fish on the same terms as Virginia residents. They violate the principle that no state may totally exclude federally-licensed commerce. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963). The Submerged Lands Act, 43 U.S.C. §§ 1301-1315, ELR 41433, which granted title to the states of lands beneath the oceans and natural resources in the waters within state territorial jurisdiction, does not aid appellants. The Act reserved, inter alia, federal commerce power over the granted property.United States v. Louisiana, 363 U.S. 1 (1960). Since fishing licenses are granted pursuant to the commerce power, the Act did not alter their preemptive effect. Neither can appellee assert regulation by ownership of fish, since title to wildlife does not vest before capture. Toomer v. Witsell, 334 U.S. 385 (1948); see also Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420-21 (1948).

Sound policy considerations of federalism also dictate the result in this case. Discriminatory state fishing laws might eventually reduce the fishing industry to each state's territorial waters, which is exactly the sort of Balkanization of interstate commercial activity the Constitution is designed to prevent. See e.g., H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 532-39 (1949).

Although the challenged statutes must fall under the Supremacy Clause, reasonable and evenhanded conservation measures stand unaffected. The judgment of the district court is affirmed.

Justice Rehnquist, concurring and dissenting in part, argues that the Court inadequately treats states' proprietary interest in fish and game within their boundaries. Numerous decisions have upheld a variety of regulations designed to conserve state natural resources. Huron Portland Cement, supra; Patsone v. Pennsylvania, 232 U.S. 138 (1914); Geer v. Connecticut, 161 U.S. 519 (1896). Only direct conflict with federal law, such as exists here, will bar state regulatory action. Jones v. Rath Packing Co., supra. Also, the Court decides more than necessary in its reading of the Submerged Lands Act, because the Act may be only a quitclaim of federal interest in submerged land resources, rather than a transfer subject to previously-enacted regulatory measures. Section 1311(a) of the Act pertains to land and resources apart from free-swimming fish that are incapable of ownership, and thus it lacks the indicia of intent justifying an implied repeal of federal legislation regulating the fishing trade, quite apart from the reservation of powers clause construed by the Court.

The full text of this opinion is available from ELR (25 pp. $3.25, ELR Order No. C-1120).

Counsel for Appellant
Andrew P. Miller, Attorney General; Anthony F. Troy, James E. Kulp, Deputy Attorneys General; James E. Moore, Ass't Attorney General
1101 E. Broad St., Richmond VA 23219
(804) 786-2071

Counsel for Appellees
John J. Loflin, Jr., Franklin G. Hunt, David P. Ballard, George F. Hardy II
Lord, Day & Lord
25 Broadway, New York NY 10004
(212) 344-8480

Marshall, J., joined by Burger, C.J.; Brennan, White, Stewart, Blackmun & Stevens, JJ.; Rehnquist, J., joined by Powell, J., concurs and dissents in part.


7 ELR 20442 | Environmental Law Reporter | copyright © 1977 | All rights reserved