In 1868, the year after Alaska became ours, the U. S. Congress called a halt to the plundering of the seal and sea otter herds in Alaskan waters. In the century that has elapsed between the hot pursuit of a seal poacher by a revenue cutter and the taking into custody of a Soviet trawler in the same waters, violations of our territorial waters have become commonplace and today demand an ever-increasing commitment of Coast Guard resources.
The enforcement of fisheries laws and treaties represents one of the major missions of the Coast Guard, and all indications are that the immediate and foreseeable future will bring still further expansion in this area. While the function has not until fairly recently been a major one, it does reach well back into the antecedents of the Coast Guard through the Revenue Marine and Revenue Cutter Service.
Federal control over the coastal fisheries began shortly after the formation of the "system of cutters" in 1790. Under the Coasting and Fishing Act of 1793, Coastal fisheries off the United States were limited to vessels of this country. The rule applied to the territorial sea, which was asserted by Secretary of State Thomas Jefferson to be one marine league (three nautical miles). Under the legislation, the government could only warn foreign fishing vessels and escort them beyond the three-mile limit. In general, this toothless statute had little effect on Revenue Cutter Service or Coast Guard operations, and, when foreign fishing began off our coasts on a large scale, new legislative solutions were required.
These new solutions were addressed to fisheries problems in the Pacific Northwest and Alaska, and, in fact, it was in Alaska that the Coast Guard’s antecedents first became actively involved in federal conservation efforts. Federal legislation with regard to fisheries and marine mammals began almost as soon as the 1867 Alaska cession. The next year, Congress forbade the taking of sea otter and other fur-bearing animals in Alaskan waters, and enforcement fell to the Revenue Cutter Service. Under this legislation, many foreign and U. S.-flag vessels were seized. Because of international complications when foreign craft were seized, a Fur Seal Arbitration began among the involved nations, and the Fur Seal Convention of 1911 and Fur Seal Act of 1912 followed. Under these authorities, President Woodrow Wilson promulgated in 1913 the ponderously-titled "Rules for Officers of Naval or other Public Vessels of the United States designated as a Guard or Patrol to Protect Seal Herds and Sea Otters in the North Pacific Ocean.” The Revenue Cutter Service and, upon its creation, the Coast Guard performed patrol functions.
Other legislation imposed further demands on the Alaska cutters. In 1906, following a report on Japanese fishing operations in the Aleutians by Revenue Cutter Service Captain W. H. Roberts, commanding the Revenue Cutter Perry, Congress passed the Alien Fishing Act, which prohibited aliens from commercial fishing in Alaskan waters. Shortly thereafter, in an incident that received considerable attention in the press, a gunfight occurred on Saint Paul Island between Japanese poachers and agents of the Department of Commerce and Labor, leaving five of the intruders dead. It fell to the cutter McCulloch to transport the 12 prisoners to Kodiak for trial. Under this law were arrested a number of foreign fishing vessels, including the Japanese schooner Tokai Maru, seized at Kaletka Bay in 1910. This particular case was hotly contested, but the imposition of fines against the vessel and crew was sustained on appeal.
In addition to the Alien Fishing Act, new demands arose from the negotiation of international agreements to conserve sockeye salmon and halibut stocks. Implementing legislation gave enforcement jurisdiction to the Coast Guard.1 By the time World War II began, fisheries police duty in Alaskan waters was a highly developed Coast Guard program.2
During this period, a variety of other fisheries conservation missions took shape, all calling for Coast Guard enforcement at sea. Thus, in 1950, Congress passed the Northwest Atlantic Fisheries Act to implement the International Convention for the Northwest Atlantic Fisheries (ICNAF). Until 1971, however, enforcement was limited to U. S. fishing vessels. Also enacted at the time were the Whaling Convention Act of 1950, the Tuna Conventions Act of 1950, and the North Pacific Fisheries Act of 1954.
Aside from these enactments, the federal role (and hence, the Coast Guard’s role) was a limited one. The Coasting and Fishing Act remained the only statute of general applicability concerning access to the coastal fisheries. Within the three-mile limit, then, the Coast Guard was limited to warning and escort, or to the provision of assistance to state enforcement personnel. This frustrating situation was perhaps best illustrated by the circumstances of the Barrios case. In early 1964, four Cuban fishing vessels were found by the Coast Guard fishing within the three-mile limit off the Florida Keys. Escorted into Key West, the vessels were turned over to the state for prosecution under Florida law, since no federal law other than the penalty-less Coasting and Fishing Act of 1793 had been violated by the intruders. After a trial, the Cuban masters were convicted in the state courts, and the U. S. Supreme Court declined review. The Barrios case arose at a time when foreign fishing off the U. S. coast was reaching a new level, and it helped dramatize the need for effective federal legislation and enforcement to protect national resources.
The second major phase of Coast Guard fisheries law enforcement came with the passage of the Bartlett Act in 1964. Under this legislation, criminal and civil penalties were prescribed for the first time for foreign fishing activities off any of the coasts of the United States. Originally the law prohibited only foreign fishing within the three-mile territorial sea and the taking of creatures of the continental shelf. The act was later amended at regular intervals to provide stronger penalties, to prohibit foreign fishing within a nine-mile contiguous fisheries zone beyond the three-mile limit, to permit the use of equipment of any federal agency, to bar support activities by foreign fishing fleets within 12 miles of the coast, and to include the American lobster (homarus Americanus) within the list of protected continental shelf species.
The Bartlett Act, however, got off to a slow start. It was not until September 1966 that the first foreign vessel, the Canadian Misty Moon, was apprehended and prosecuted for fishing within the three-mile limit. Nearly half a year after passage of the Contiguous Fisheries Zone Act of 1966, the first prosecution for a violation of the 12-mile exclusive fishing area occurred in the case of the Soviet trawler SRTM 8457. The prohibition on "activities in support of a foreign fishery fleet," grafted onto the Bartlett Act in 1968, was not invoked until the Soviet vessels Lamut and Kolyvan were seized in 1972; it has been the basis for a prosecution only once since that time. Finally, the ban on foreign taking of fishery resources of the continental shelf has been on the books since 1964, but it took more than ten years for the first vessel to be seized. That case involved the Italian trawler Tontini Pesca Quarto, and it arose more than a year after Congress declared that lobster is a creature of the continental shelf.3
Although the prohibition on foreign fishing took time to implement, it is certainly well-developed at present. Since 1964, 66 foreign fishing vessels have been seized and judicial proceedings commenced. Moreover, with the exception of one vessel seized by the U.S. Customs Service at dockside in Newark, New Jersey, every one of these vessels was arrested at sea by the Coast Guard. In general, these seizures have been carried out jointly by the Coast Guard and the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NOAA). The latter also has enforcement responsibility under the Bartlett Act. From the standpoint of litigation, the enforcement of this legislation must be among the more successful regulatory programs conducted by the federal government. In all but a handful of cases, the criminal prosecutions of foreign masters and the forfeiture actions against their vessels have been settled without a trial, and every case that has gone to trial has been resolved in the government's favor. The settlements of the forfeiture cases have been enormous by any standard, generally being figured in the hundreds of thousands of dollars. These forfeitures have, indeed, reached such high levels that in a few cases the owners of the ships have simply declined to defend against the government's charges.4
The diversity of the cases initiated by Coast Guard seizures under this legislation is extraordinary. The following table provides a flag-by-flag breakdown of Bartlett Act cases as of 1 December 1975:
Japan | 19 |
Canada | 13 |
Cuba | 11 |
Soviet Union | 9 |
Poland | 3 |
Bulgaria | 2 |
Italy | 2 |
Mexico | 2 |
South Korea | 2 |
Nationalist China | 1 |
Romania | 1 |
West Germany | 1 |
Total | 66 |
Perhaps as important as the enforcement of the prohibition on foreign fishing and other activities found in the Bartlett Act is the complex scheme of bilateral agreements that the United States has negotiated with foreign countries under that legislation. Such agreements provide concessions on both sides. Foreign craft are permitted to fish or conduct loading operations or make port calls that would otherwise be unlawful, and in return the foreign nations agree to refrain, for example, from fisheries which would otherwise be open to them. The agreements go far in conserving depleted or endangered fish stocks, and it has fallen to the Coast Guard and the National Marine Fisheries Service to ensure that foreign vessels honor the commitments their flag-states have made. Where the violations of the bilateral agreements do not fall within the prohibitions of the Bartlett Act, the enforcement may be limited to documentation and reporting of the circumstances through diplomatic channels. Although such proceedings do not lead to the courtroom, the difficulties of detection and documentation of infringements are comparable to cases where federal court proceedings are begun.
Similar to such monitoring programs is the “Joint Enforcement Scheme” established in 1971 by the ICNAF nations. This scheme does not authorize vessels of one nation to arrest vessels of another on the high seas, but it does permit boardings by designated inspectors. Under this program, hundreds of foreign fishing vessels have been boarded off New England for the purpose of checking compliance with ICNAF conservation rules. Bilateral agreements with the Soviet Union, Poland, and Romania also provide for voluntary inspection programs along the lines of the ICNAF scheme. When violations of ICNAF regulations are discovered, prosecution is the responsibility of the vessel’s flag-state. When a bilateral agreement is found to have been violated, a diplomatic protest may be registered. If the violation of the international agreement is such (for example, intentional harvest of lobster) as to constitute a violation of the Bartlett Act, then the vessel may be seized by the United States and her master prosecuted.
A final important development during the period from 1964 to 1975 is the elaboration of strict guidelines for enforcement of the ban on foreign exploitation of living resources of the continental shelf. With the adoption of energetic enforcement in this area at the end of 1974, the United States was faced for the first time with a truly extensive patrol area in which enforcement could, under the 1958 Convention on the Continental Shelf, be a matter for our own courts rather than the courts of the foreign vessel’s flag-state. With the likelihood of further extensions of U. S. jurisdiction, the lessons of such enforcement programs may soon form the basis for further refinement of patrol methodologies.
A review of this intermediate period in the history of Coast Guard enforcement of fisheries laws and treaties shows both continuity and change. The elements of continuity are three-fold: close cooperation with a variety of sister agencies, gathering of evidence for legal proceedings, and wise use of physical resources in the face of new demands.
The changes that have taken place since 1964 are rather startling. For the first time, major emphasis has been placed on the use of radar and other sophisticated position-fixing equipment in a major law enforcement program. Similarly, while aircraft had been used previously for law enforcement purposes (including fisheries), aviation patrols have had more of a key role in the success of all the fisheries enforcement programs during this period than hitherto. In particular, the use of helicopters launched from vessels such as the 210-foot medium endurance cutters and the 378-foot Hamilton-class high endurance cutters has become increasingly frequent and increasingly central to the enforcement program.5
Other changes concern people rather than hardware. The complex body of fisheries rules enacted since 1964 has required a new sophistication on the part of law enforcement personnel. It is no longer sufficient simply to find the offending fishing vessel. The boarding officer (whether Coast Guard or National Marine Fisheries Service) must now have a detailed and confident understanding of fishing methods and be able to identify fish species and gear with a minimum of difficulty. In addition, as dealings with foreign fishing vessels and fleets have become more frequent, and as the powers exercisable with respect to such vessels more pervasive, the need for tact and diplomacy has increased. If the hardware and technology questions, involved in the enforcement of fisheries laws and treaties are tests of the new Coast Guard, these more elusive characteristics will be the test of the new Coastguardsman.6
The final dividend of the recent period of fisheries law involvement by the Coast Guard is only now being realized. Not only have officers and men with fisheries enforcement experience gained in Alaskan waters been transferred in the ordinary course to duty stations in other areas, thereby making their experience available elsewhere, but the increasing involvement of Coast Guard units far removed from Alaska in fisheries Incidents has contributed to the growth of substantial fisheries enforcement background throughout the Coast Guard. With greater experience available in this fashion, greater confidence in performance of the law enforcement mission can be achieved. The recent trend to foreign vessel seizures off the Atlantic and Gulf Coasts is reflective of this important development.
The year 1976 could mean increased Coast Guard involvement in fisheries law and treaty enforcement. Extension of jurisdiction over fisheries to a 200-mile economic zone, whether as a result of the Third U.N. Conference on the Law of the Sea or as a result of unilateral action by the United States, would escalate the demands placed on the Coast Guard. All of the Coast Guard's available energies would be required if such a change comes about.
Attention is already being paid to the material problems that will have to be faced with a massive expansion of enforcement and surveillance responsibilities. Thus, in accordance with the mandate of Congress, the Coast Guard is conducting an evaluation of "all available techniques of enforcement including, but not limited to, the use of satellites, remote sensing devices, vessels, aircraft, radar, or devices implanted on the seafloor."7 This review will involve the service's research and development capacity in the fisheries conservation mission to an unprecedented degree. Novel demands will also be placed upon the Coast Guard in other respects. For example, entirely new patrol philosophies will, in all likelihood, have to be developed. Training efforts in fisheries law enforcement, foreign language instruction, and law will also probably have to be augmented. Thorny legal questions can be expected to arise—on which the Coast Guard will wish to be consulted—with regard to the complex interaction between preexisting statutes and legislation international agreements establishing an extended U.S. jurisdiction over fisheries.
This coming phase of the fisheries role will put new emphasis on several issues that have to date not been fully resolved. First, Congress will have to decide whether an expansion of patrol efforts is worth the taxpayers money. It is to be hoped that the legislators will not impose a patrol regime that is either unrealistically limited or inflated beyond the levels of effort that can be justified by reference to the economic and other interests sought to be protected.
Another such issue concerns the assignment of primary responsibility for enforcement and surveillance to a particular federal agency. This issue is one that need not be resolved in haste, for relations between NOAA and the Coast Guard’s fisheries programs have been marked by an unusual degree of interagency cooperation and candor. Nevertheless, it is an issue of importance to the Coast Guard, for with it comes the ancillary question of whether the service is to continue development of its in-house fisheries expertise or to revert to a less active role as provider of platforms for other specialized agencies.
If the present course of development is a proper one that should be nurtured, then one might well ask the further question as to whether some reorganization of the government’s marine fisheries and conservation agencies is in order. Regardless of the resolution of this question, the enforcement of fisheries laws and treaties has never received as much attention and commitment of Coast Guard resources as it does now. Moreover, all available evidence strongly suggests even great dedication of human and material resources as a reflection of the growing recognition of the national interest in the conservation of all marine resources.
Commissioned an ensign upon graduation from Coast Guard Officer Candidate School in June 1969, Lieutenant Fidell served on active duty at the Marine Inspection Office, Los Angeles-Long Beach, California, the office of the Commander, First Coast Guard District, Boston, and during 1971-1972, as Assistant Chief, Maritime Laws and Treaties Branch, Coast Guard Headquarters. He holds degrees from Queens College and Harvard Law School and was graduated with honor from the U. S. Naval Justice School in 1969. He is now in private law practice with the firm of LeBoeuf, Lamb, Leiby & MacRae in Washington, D.C.
1 For an excellent review of these and other fisheries measures sec Jacobs, "United States Participation in International Fisheries Agreements,” Journal of Maritime Law & Commerce, Vol. 6, 1975, p. 471.
2 U. S. Coast Guard (Research and Statistics Section, Operations Division), Bering Sea Patrol (Washington: U. S. Government Printing Office, 1942).
3 Lieutenant Eugene R. Fidell, USCGR, "The Law and Fishery Enforcement on the High Seas,” U. S. Naval Institute Proceedings, July 1975, pp. 95-97.
4 Despite the absence of prize money, it is reported that crew members of fisheries patrol vessels keep close tabs on their vessels’ respective "records in forfeitures. One crew boasts that its commanding officer is the first member of the Bartlett Act "Million Dollar Club”.
5Captain Edward F. Oliver, USCG, "The USCGC Hamilton (WHEC-715). Coast Guard Ship of the Future,” U. S. Naval Institute Proceedings, October 1969, pp. 86-100.
6 The need for discretion is, of course, not limited to dealings with foreign fishing vessels. With the development of the Offshore Lobster Fishery Patrol off New England, investigation of gear conflicts between U. S. and foreign fishermen called for exercise of an unusual measure of discretion. In many respects, American fishermen are no more pleased with fisheries boardings than are foreign skippers.
7 Act of 1 October 1974, §7, Public Law No. 93-430, U. S. Statutes at Large, Volume 88, p. 1183.
Opinions expressed in this article are those of the author and are not to be construed as representing the views of the Department of Transportation or the U. S. Coast Guard.