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Maritime Monopoly: Using Catch Shares and Property Rights to Combat Illegal, Unreported, and Unregulated Fishing

Maritime Monopoly: Using Catch Shares and Property Rights to Combat Illegal, Unreported, and Unregulated Fishing

Paige Beyer

“I’m a pirate…it’s your job to catch me.” These infamous words spoken by Carlos Rafael, seafood kingpin caught for his fraudulent and criminal fishing operation in New Bedford, Massachusetts, encompass the mindset of cons and criminals alike.[1] Dubbed “The Codfather,” Rafael’s exploitative fishing business represents the larger problem of illegal fishing.[2]

The seafood industry is a global market involving billions of dollars and hundreds of pounds of fish.[3] While consumers may expect a quality product, issues of seafood fraud and illegal, unreported, and unregulated (IUU) fishing exist on a global scale.[4] IUU fishing is a means of evading conservation and management regulations and participating in fraudulent fishing practices.[5] These practices work to undermine sustainability efforts for U.S. and global fish stocks as well as impact economic markets.[6] Specifically, illegal fishing refers to practices that evade current laws and regulations at a regional, national, and international level.[7] Because of the inherent nature of IUU fishing, it is difficult to quantify the effects of such practices[8] that pose a tangible threat to food security and socio-economic development, particularly in developing countries.[9]

Currently, the main legislative authority that governs marine conservation and management practices in the United States is the Magnuson-Stevens Act (MSA).[10] The MSA’s main focus, however, is conservation of fisheries rather than prosecution of illegal activity. Instead, the Lacey Act focuses on illegal or criminal activity by imposing sanctions against individuals or companies that illegally traffic “fish or wildlife.”[11] The current civil[12] and criminal[13] penalties under the Lacey Act, however, are insufficient to address illegal fishing as monetary penalties are too low or because criminal statutes fail to address the illegal harvest or trade of fish.[14]

The current legal framework to combat IUU fishing is inadequate as enforcement is limited to weak civil and criminal penalties that fail to disincentivize fraudulent practices.[15] Agency enforcement lacks consistency and leaves gaps that are easily exploited.[16] Along this vein, prosecution of illegal fishing involves a cross-over of agencies and the United States Coast Guard. Often times, there is little communication between enforcement parties, which makes prosecution more difficult.[17]

Catch shares present an alternative, and more concrete, method of prosecuting IUU fishing through a property law framework. Catch shares are a fishery management strategy that allocate shares of the catch to individual fishermen, communities, or cooperatives.[18] These are “secure shares,” which mean they are exclusive to the named beneficiary or holder.[19] A share, or percentage, of each catch has a designated beneficiary (fishermen, community, or cooperative). Once a shareholder reaches their limit, they must stop fishing.[20] Often these shares are bought and sold amongst fishermen to account for the season or shifts in the market.[21] IUU fishing disrupts these allotments and infringes on a fisherman’s “property.”

Intersecting with property law, catch shares also present an opportunity to effectively prosecute illegal fishing. This Note poses catch shares, and the property law framework, to combat illegal fishing instead of the existing and ineffective legal avenues. Section I will focus on explaining IUU fishing and outline the current legal framework to combat such issues through discussing the legislation that governs both marine conservation and the illegal trafficking of wildlife. This section will also briefly outline the catch share program. Section II will explain the inadequacies of the current legal framework. This section will introduce catch shares an alternative method of prosecuting IUU fishing through analyzing modern case comparisons of the defining property case Pierson v. Post. Finally, Section III will focus on applying this catch share method, particularly looking at migratory species.

[1] Antonia Noori Farzan, The ‘Codfather’ was a Seafood Kingpin, Until Fake Russian Mobsters Took Him Down. Now He’ll Never Fish Again, Wash. Post (Aug. 20, 2019), https://www.washingtonpost.com/nation/2019/08/20/codfather-fishing-russian-mobsters-carlos-rafael/.

[2] Id.

[3] See Food and Agriculture Organization of the United Nations (2018) Overview of Food Fraud in the Fisheries Sector.

[4] Oceana, Oceana Study Reveals Seafood Fraud Nationwide (2013)  https://oceana.org/sites/default/files/National_Seafood_Fraud_Testing_Results_Highlights_FINAL.pdf.

[5] Presidential Task Force on Combatting IUU Fishing and Seafood Fraud, NOAA (2014).

[6] Id. 

[7] Id.

[8]Frequently Asked Questions, Nat’l Ocean Council Comm. on IUU Fishing and Seafood Fraud, https://www.iuufishing.noaa.gov/FAQs/IUUFishingFAQs.aspx.

[9] Id.

[10] The Magnuson-Stevens Act, 16 U.S.C. §§ 1811–1884 (1976), amended by P.L. 104–297 (1996) and P.L. 109–479 (2007).

[11]Lacey Act, 16 U.S.C §§ 3371–3378 (1900).

[12] See 16 U.S.C. § 3373(a).

[13] See 16 U.S.C. § 3373(d).

[14] Id.; see also National Ocean Council Committee on IUU Fishing and Seafood Fraud, Recommendation 12: Agency Enforcement Authority,  https://www.iuufishing.noaa.gov/RecommendationsandActions/RECOMMENDATION12.aspx.

[15] Id.

[16] National Ocean Council Committee on IUU Fishing and Seafood Fraud, Recommendation 12: Agency Enforcement Authority,  https://www.iuufishing.noaa.gov/RecommendationsandActions/RECOMMENDATION12.aspx.

[17] Telephone Interview with Lieutenant Commander Stutt, United States Coast Guard (Aug. 2, 2019).

[18]Catch Shares, NOAA https://www.fisheries.noaa.gov/insight/catch-shares#where-can-i-find-more-information?

[19] Id.

[20] Id.

[21] Id.; see also Interactive Dashboards of Fishery Data, Measuring the Effects of Catch Shares https://www.catchshareindicators.org/.

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