By Mark Fina and Tyson Kade

Catch shares are a fishery management strategy under which persons are allocated exclusive access to specific portions of the total allowable catch of a fishery. Proponents of catch share management argue that these programs allow for more efficient management of annual catch limits and mitigate the negative biological and economic impacts associated with other management programs. Because of the exclusivity of their allocations, catch share programs have been characterized by their opponents as privatizing the public fisheries resource and granting catch share holders a property right to fish. However, case law suggests that a court is unlikely to conclude that catch shares constitute property or entitle a share holder to compensation under the Fifth Amendment takings clause if those shares are revoked or modified.

Nevertheless, the Magnuson-Stevens Fishery Conservation and Management Act instills catch shares with more attributes of property than other fishing permits. This paper examines the existing authority for establishing catch share management programs and the property right implications of that authority. Despite the low probability that a court would find a compensable taking, an analysis of takings law provides useful guidance to policymakers and fishery managers as they attempt to develop catch share programs. Consideration of takings law can help managers to structure a program that provides some of the benefits that arise from property rights, while avoiding potential claims of entitlement from catch share holders when program modifications are implemented.

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The above is the abstract for an article that originally appeared in 2 Washington Journal of Environmental Law & Policy 283 (2012). To read the full article, click here.