Terry Haines is a Kodiak deckhand and representative for Fish Heads, an advocacy group dedicated to preserving the vitality of Alaska's fishing communities. Contact Terry Haines

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Kuato's Law

June 24, 2006

Kodiak, Alaska

My favorite movie might just be "Total Recall". Remember when Governor Cohagen privatized the air on Mars? When he shut off the air to Venusville, he achieves improved efficiency in the same way fisheries managers plan to fix our fisheries.

The Magnuson Stevens Act plows onward toward reauthorization. But there is a magician's trick being played on the American people. While Senator Stevens waves one hand in the air shouting "Look I'm protecting the ecosystem!" the left hand of darkness is privatizing wild fish, a resource just as vital to coastal communities as air or water.

Right now, 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.

Back in 1805 a guy named Lodowick Post scared up a wild fox, and gave chase. He ran it up and down the town, and just about thought he had the fox caught. But then a fellow named Pierson looked up from his jug of hard cider and blasted it 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, "The Fast- Fish belongs to the party fast to it." and Two, "The 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. Anyone 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 anyone, 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 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? Easy. The same way you cheat on your taxes. 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:

1. The entire structure is built on legal sand, and 2. It's not over yet.

Well, in "Total Recall" Arnold won in the end. Remember Kuato's Law "You are what you do."

"Thanks to Seth Macinko and David Bromley for their paper 'Property and Fisheries in the Twenty First Century: Seeking Coherence from Economic and Legal Doctrine'"