FISH AND FISHING
State and federal governments share authority
over the regulation and management of fish and
fishing in the United States. Although states
must defer to the U.S. government in areas pre-
empted by federal regulators, state governments
nonetheless play a primary role in the day-to-
day management of fish and wildlife. The fed-
eral government oversees the actions taken by
states in this area, funds state programs, and
resolves disputes that might involve conflicting
state interests, the rights and powers of Native
American tribes, or INTERNATIONAL LAW.
From earliest times, fish and fishing have
played a crucial role in the life of the people of
North America. Native Americans of all tribes
depended heavily on fish to eat and to trade, and
fishing also held an important place in native cul-
tural practices and religious rites. Beginning in
the sixteenth century, and possibly even earlier,
European adventurers were drawn to the rich
fishing grounds off the coast of New England,
and the settlers who followed them eagerly har-
vested the tremendous stocks of fish they found
in America’s lakes, rivers, and coastal areas. Fish
were considered to be an inexhaustible resource,
a common property available to all.
As early as the late eighteenth century, how-
ever, it became clear that the rush to exploit fish
and other species of wildlife was jeopardizing
the continued survival of several species. Even-
tually, state governments passed laws regulating
hunting and fishing practices, and established
fish and game agencies to enforce those laws.
Because these state laws met with very limited
success, the federal government soon stepped in
and passed legislation designed to strengthen
them and make them more enforceable. Over
time, the federal government’s role in managing
and protecting fish and wildlife grew, occasion-
ally conflicting with state authority. The ques-
tion of wildlife jurisdiction was ultimately
resolved by the Supreme Court, which found the
federal government to be the ultimate authority
in the area of fish and wildlife management.
Though states must ultimately defer to fed-
eral authority, state governments continue to
play the primary role in fish and wildlife man-
agement, determining details such as harvesting
seasons, methods, and limits. The federal gov-
ernment plays a broader role in protecting and
managing wildlife, including funding state
wildlife programs, regulating the commercial
harvesting of fish, managing national forests
and wildlife refuges, and negotiating interna-
tional treaties involving ocean fisheries. Finally,
the federal government has played a principal
role in adjudicating the fishing rights of Native
American tribes, determining what rights are
guaranteed by the treaties signed between the
tribes and the federal government, and working
to ensure that those rights are protected.
The Evolution of U.S. Wildlife Law
The evolution of U.S. laws governing the
management of fish and fishing is complex. The
different types of fishing practiced in the United
States—commercial and recreational, for exam-
ple—have required different types of laws and
regulations. In addition, many of the general
provisions of wildlife law, such as those address-
ing the question of state versus federal authority,
apply not only to fish but also to birds and fur-
bearing animals, whereas other provisions, such
as those regulating ocean fisheries, apply only to
fish and fishing.
In general, the objective of wildlife law has
been to regulate the taking of fish and other
wildlife species in order to ensure their contin-
ued survival. Early attempts by the states to reg-
ulate fish and wildlife were based on the state
ownership doctrine. This doctrine declared that
the authority over wildlife rested with each state,
which held the resource as a public trust.
Despite states’ efforts, state wildlife laws
often provided too little protection too late.
Over the last part of the nineteenth century, it
became clear that the states were unable to
enforce effectively the laws they had passed, and
migrations and movements of fish and animals
across state lines made it difficult for states to
regulate harvests in any rational way. Wildlife
populations dwindled, and recreational fishers
and hunters began to pressure the federal gov-
ernment to take action. George Grinnell, a
prominent sportsman and editor of Forest and
Stream magazine, led the way, establishing inter-
est groups to lobby Congress on behalf of
wildlife. In 1886, Grinnell founded the National
Audubon Society, and in 1888, he founded the
Boone and Crockett Club, both of which were
instrumental in securing passage of the Lacey
Act of 1900 (ch. 553, 31 Stat. 187 [current,
amended version at 16 U.S.C.A. §§ 701,
3371–3378, and 18 U.S.C.A. § 42 (1985)]),
which was the first federal wildlife statute.
The Lacey Act prohibited the interstate ship-
ment of wildlife taken in violation of state law.
This provision did not ban the taking of wildlife,
but used Congress’s power to regulate interstate
commerce as a way to enforce state game laws. It
effectively put market hunters—hunters who
took great numbers of game for commercial
purposes—out of business. In addition, the act
gave real authority to the U.S. Biological Survey,
