Who Owns the Flying Duck? — Terry Haines, Pacific Fishing, June 2006
Common resources privately held
Who Owns the Flying Duck?
Who owns the air? Who owns the ocean? Who owns a duck flying overhead, on his way to his summer house in the Arctic marshes?
Does everyone? Does anyone?
Legions of lobbyists are marching on Washington to join the crusade to divvy up every fish that swims within two hundred miles of the United States of America. But the government doesn’t even own the fish that it is giving away. This is the duck that hovers over the reauthorization of the Magnuson-Stevens Act, ready to release its payload.
Who Owns the Flying Duck? (ctnd.)
Back in 1805 a guy named Lodowick Post scared up a wild fox and gave chase. He ran it up and down the town, until he just about thought he had the fox caught. But then a fellow named Pierson looked up from his jug of hard cider and blasted the fox as it ran by. The tug of war over the carcass went all the way to the New York Supreme Court. The court looked back at the legal precedent, and it was plain. Anything that is wild, or not already under the dominion of man, becomes property upon possession, not on a scale based on how much work you did. This is pretty obvious to fishermen. No amount of work or investment guarantees you will land one single watermarked dog salmon. It is the nature of the business. When you harvest from nature, the only thing that counts is results.
In Moby Dick, Herman Melville called it the “Loose Fish-Fast Fish” rule. It says, one, “A FastFish belongs to the party fast to it,” and two, “A Loose-Fish is fair game for anybody who can soonest catch it.” In other words, you don’t own that halibut until it is actually on board. Any one who ever tried to land a three-hundred pounder hot off the bottom in shallow water already knows this. Lawyers and politicians apparently don’t.
Yeah, but isn’t the fish really owned by the government, who kindly gives it up to the citizen upon capture?
No. When the state of Missouri tried to claim possession of the wild birds within its bounds, Oliver Wendell Holmes slapped its hand, saying, “Wild birds are not in the possession of any one, and possession is the beginning of ownership.”
In Douglas vs. Seacoast Products Inc., the Court said in its decision, “Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture.” The government has responsibility, but not ownership.
Spelled out in “Geer vs. Connecticut,” the government’s “power or control” over wild stocks is to be exercised”…as a trust for the benefit of the people, and not as a prerogative for the advantage of government, as distinct from the people, or for the benefit of private individuals as distinct from the public good:”
So how does the Fed manage to give away a wild resource, something it does not own, to private citizens, who by definition can’t own it either? With a loophole.
They don’t give away the resource. They give away the privilege of trying to harvest it. Since every American citizen is born with that privilege now, what they are really doing is taking away the right to harvest a wild resource from everyone else. IFQs, DAPs, LAPs — whatever you want to call them, they amount to stripping the right of every other American to access an unowned resource.
They hope to get away with it by claiming that a lack of ownership leads to a “race for fish,” and the resource suffers as a result. The idea is that if you own something, you will take better care of it. Unfortunately, privatization has instead resulted in a predominance of absentee slumlords. They maximize their returns by using the leverage of their elite status to demand excessive rents.
Slumlords don’t care about the building or the tenants. They care about the rents.
The processor industry is getting similar royal status by stripping the right of every American citizen to buy a fish.
So, as MSA nears completion — complete with “Regional Fisheries Associations” (Processor Quotas) and “Limited Access Privileges” (IFQs), while grandfathering in every mistake now being made (Gulf of Alaska Groundfish and Bering Sea Crab Rationalization) — remember two things:
First it is built on legal sand, and second – it’s not over.
Terry Haines is a longtime commercial fisherman and crewmen activist living In Kodiak, Alaska. Haines is a founding member and officer of the Kodiak Crewmen Association, and FISH HEADS, and he writes about the world of Alaska fishing as seen from the deck.
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