In the one case in which Congress sought to regulate migratory birds without a treaty, two District 

 Courts held the Act unconstitutional in the exercise of the States' ownership of animals ferae naturae 

 and their pohce power to regulate the taking and use of such aiiimals. However, subsequent Supreme 

 Court decisions have found that when shrimp are caught for shipment and sale in interstate commerce 

 the trust upon which the State owns or controls the shrimp for the benefit of its people is lost, and the 

 protection of the commerce clause attaches at the time of the taking. The Supreme Court and lower 

 Federal courts have oft stated that in the absence of Federal legislation, the State may regulate the 

 taking and use of migratory species. Despite giving title to "natural resources" in the waters within the 

 boundaries of the States, and Congress' vesting of the right and power of the States to manage the 

 natural resources in accordance with State law under the Submerged Lands Act, the power of Congress 

 to regulate interstate commerce has not been diminished. The proprietary right to the living resources 

 has been affirmed, to the extent it existed, but the authority to regulate interstate commerce has not 

 been relinquished by the Congress. 



While asserting that there is ample authority under the commerce clause for the United States to 

 regulate U.S. fisheries, we contend that measures short of Federal regulation can be invoked toward 

 removal of inhibiting institutional barriers, and for the rehabihtation of U.S. commercial fisheries on 

 sound scientific, economic, and legal concepts. The issue of how such change can be achieved is a very 

 sensitive poUtical question that hits at the very roots of American federalism. The question is not 

 whether Congress has the power to create change, but whether Congress will assert the power and how. 



II. ORGANIZATIONAL ALTERNATIVES FOR FISHERIES 



A. A Statement of Fisheries Problems 



\. Federal Authority 



Regulation of the fisheries in the United States is exercised by the States under existing law; the 

 Federal Government acts in a research, advisory, and coordinating role. Inasmuch as there has been no 

 substantial change since the following excerpt was included in a Senate Report of the 79th Congress, it is 

 apropos here: 



. . . In the States, the Federal Government acts, for the national interest, as a research, advisory, and 

 coordinating agency wherever several States are concerned with a common conservation problem. It 

 engages in fishery restoration and management activities, including propagation, independently in waters 

 under Federal jurisdiction, and in collaboration with the States in other waters where national interest is 

 involved. It develops and disseminates knowledge about whole fishery resources (i.e., as opposed to local 

 segments of them). It collaborates in the conservation of species shared between the United States and 

 other nations. It promotes the fullest and most widespread utilization of the commercial fish catch, and 

 the achievement of the highest standard of quality of the fishery products. 



The foregoing is a statement of an ideal. The Federal Government has never done justice to these 

 functions because its fishery conservation agency. . . has never been given broad enough direction by the 

 Congress to permit it to carry out a unified program to suit the needs of the country as a whole. Without 

 a fundamental plan, the Service has evolved by a process of tacking on projects one by one, which have 

 generally been thrust upon it to meet particular crises, often as the result of pressure by special groups. 

 The appropriations to the Service are based principally on the support of these projects. Thus the 

 Federal Service is helpless to execute a dynamic program based on national needs; instead, it can only 

 carry on with its agglomerate of activities inherited from the past, and wait for further crises which its 

 timely services would otherwise have averted. . . .^^ 



25 



'Fishery Resources of the United States," Sen. Doc. No. 51, 79th Congress, 1st Sess. (1945), Committee on 

 Commerce, at p. 132. 



VII-76 



