DOUGLAS, COMMISSIONER, VIRGINIA MARINE RESOURCES COMMISSION v. SEACOAST PRODUCTS, INC., ET AL.
No. 75-1255
Supreme Court of the United States
Argued January 17, 1977—Decided May 23, 1977
431 U.S. 265
John J. Loflin, Jr., argued the cause for appellees. With him on the brief were Thomas H. Willcox, Jr., James C. Howell, and Franklin G. Hunt.*
*Briefs of amici curiae urging reversal were filed by Joseph E. Brennan, Attorney General of Maine, Edward F. Bradley, Jr., Assistant Attorney General, David H. Souter, Attorney General of New Hampshire, Donald W. Stever, Jr., Assistant Attorney General, and Julius C. Michaelson, Attorney General of Rhode Island, for the States of Maine, New Hampshire, and Rhode Island; by Francis X. Bellotti, Attorney General, and Terence P. O‘Malley and Howard Whitehead, Assistant Attorneys General, for the Commonwealth of Massachusetts; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Weinberg and John G. Proudfit, Assistant Attorneys General, for the State of New York; and by Ammon G. Dunton, Jr., and Philip B. Kurland for the Virginia Seafood Council et al.
Solicitor General Bork, Assistant Attorney General Taft, Deputy Solicitor General Randolph, Bruce C. Rashkow, and Ralph J. Gillis filed a brief for the United States as amicus curiae urging affirmance.
Briefs of amici curiae were filed by Richard R. Wier, Jr., Attorney General, and June D. MacArtor and Harrison F. Turner, Deputy Attorneys General, for the State of Delaware; and by Francis B. Burch, Attorney General, Henry R. Lord, Deputy Attorney General, and Warren K. Rich, Assistant Attorney General, for the State of Maryland.
The issue in this case is the validity of two Virginia statutes that limit the right of nonresidents and aliens to catch fish in the territorial waters of the Commonwealth.
I
Persons or corporations wishing to fish commercially in Virginia must obtain licenses.
Appellee Seacoast Products, Inc., is one of three companies that dominate the menhaden industry. The other two firms, unlike Seacoast, have fish-processing plants in Virginia and are owned by American citizens. Hence, they are not affected by either of the restrictions challenged in this case. Seacoast was founded in New Jersey in 1911 and maintains its principal offices in that State; it is incorporated in Delaware and qualified to do business in Virginia. The other appellees are subsidiaries of Seacoast; they are incorporated and maintain plants and offices in States other than Virginia. In 1973,
At the time of its sale, Seacoast‘s fishing vessels were enrolled and licensed American-flag ships. See infra, at 272-274. Under
In past decades, although not recently, Seacoast had operated processing plants in Virginia and was thereby entitled to fish in Chesapeake Bay as a resident. Tr. of Oral Arg. 28-29, 34. More recently, Seacoast obtained nonresident menhaden licenses as restricted by § 60 to waters outside Chesapeake Bay. In 1975, however, § 81.1 was passed by the Virginia Legislature, c. 338, 1975 Va. Acts, and appellant James E. Douglas, Jr., the Commissioner of Marine Resources for Virginia, denied appellees’ license applications on the basis of the new law. Seacoast and its subsidiaries were thereby completely excluded from the Virginia menhaden fishery.
Appellees accordingly filed a complaint in the District Court for the Eastern District of Virginia, seeking to have §§ 60 and 81.1 declared unconstitutional and their enforcement enjoined. A three-judge court was convened and it
II
Seacoast advances a number of theories to support affirmance of the judgment below. See Fusari v. Steinberg, 419 U. S. 379, 387 n. 13 (1975); Dandridge v. Williams, 397 U. S. 471, 475 n. 6 (1970). Among these is the claim that the Virginia statutes are pre-empted by federal enrollment and licensing laws for fishing vessels.5 The United States has filed a brief as amicus curiae supporting this contention. Al-
The well-known principles of pre-emption have been rehearsed only recently in our decisions. See, e. g., Jones v. Rath Packing Co., 430 U. S. 519, 525-526 (1977); De Canas v. Bica, 424 U. S. 351 (1976). No purpose would be served by repeating them here. It is enough to note that we deal in this case with federal legislation arguably superseding state law in a “field which . . . has been traditionally occupied by the States.” Jones v. Rath Packing Co., supra, at 525. Pre-emption accordingly will be found only if “‘that was the clear and manifest purpose of Congress.’ Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947).” Ibid. We turn our focus, then, to the congressional intent embodied in the enrollment and licensing laws.
A
The basic form for the comprehensive federal regulation of trading and fishing vessels was established in the earliest days of the Nation and has changed little since. Ships engaged in trade with foreign lands are “registered,” a documentation procedure set up by the Second Congress in the
A “license,” in turn, regulates the use to which a vessel may be put and is intended to prevent fraud on the revenue of the United States. See
The requirements for enrollment and registration are the same.
B
Deciphering the intent of Congress is often a difficult task, and to do so with a law the vintage of the Enrollment and Licensing Act verges on the impossible. There is virtually no surviving legislative history for the Act.12 What we do have,
The case challenged a New York law intended to encourage development of steamboats by granting Robert Fulton and Robert Livingston the exclusive right to operate steam-powered vessels in all of the State‘s territorial waters. The right to navigate steamboats between Elizabethtown Point, N. J., and New York City was, by assignment from Fulton and Livingston, granted to Aaron Ogden. Thomas Gibbons began operating two passenger ferries in violation of Ogden‘s submonopoly. Gibbons’ steamboats had been enrolled and granted “license . . . to be employed in carrying on the coasting trade” under the Enrollment and Licensing Act. Id., at 203.
Ogden nevertheless obtained an injunction from the New York courts enforcing the monopoly by restraining Gibbons from running his ferries in New York waters. Chancellor James Kent rejected Gibbons’ pre-emption claim based upon his federal licenses. Kent found that the sole purpose of the license was to “giv[e] to the vessel an American character,” i. e., to establish its nationality as an American-flag ship. This would have reduced various duties and taxes assessed under federal law, but in Kent‘s view, it did not oust the power of the State to regulate the use of chattels within its borders. 4 Johns. Ch. 150, 156-159 (1819). The highest state court affirmed, ruling that “the only effect” of the license was “to determine [the vessel‘s] national character, and the rate of duties which she is to pay.” 17 Johns. 488, 509 (1820).
The Court then turned to the question whether “the laws of New-York” did “come into collision with an act of Congress” so that “the acts of New-York must yield to the law of Congress.” Id., at 210. Mr. Chief Justice Marshall found the conflict unquestionable: “To the Court it seems very clear, that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies, unequivocally, an authority to licensed vessels to carry on the coasting trade.” Id., at 212. The license granted to Gibbons under the Act “must be understood to be what it purports to be, a legislative authority to [Gibbons‘] steamboat . . . ‘to be employed in carrying on the coasting trade, for one year from this date.‘” Id., at 214. The Court rejected Ogden‘s argument—and the holding of the New York courts—that the license “gives no right to trade; and that its sole purpose is to confer the American character.” Ibid. Finally, the Court decided that the statutory phrase “coasting trade” encompassed the carriage of passengers for hire as well as the transport of goods. Id., at 215-219.
For example, in Smith v. Maryland, 18 How. 71 (1855), the Court upheld a conservation law which limited the fishing implements that could be used by a federally licensed vessel to take oysters from state waters. The Court held that an “enrolment and license confer no immunity from the operation of valid laws of a State,” id., at 74, and that the law was valid because the State “may forbid all such acts as would render the public right [of fishery] less valuable, or destroy it altogether,” id., at 75. At the same time, the Court explicitly reserved the question of the validity of a statute discriminating against nonresidents. Ibid. To the same effect is the holding in Manchester v. Massachusetts, 139 U. S. 240 (1891). There, state law prohibited the use by any person of certain types of fishing tackle in specified areas. Though Manchester was a Rhode Island resident basing a claim on his federal fisheries license, the Court held that the statute
“was evidently passed for the preservation of the fish, and makes no discrimination in favor of citizens of Massachusetts and against citizens of other States. . . . [T]he statute may well be considered as an impartial and reasonable regulation . . . and the subject is one which a State may well be permitted to regulate within its
territory, in the absence of any regulation by the United States. The preservation of fish . . . is for the common benefit; and we are of opinion that the statute is not repugnant to the Constitution and the laws of the United States.” Id., at 265.
More recently, the same principle was applied in Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960), where we held that the city‘s Smoke Abatement Code was properly applicable to licensed vessels. Relying on earlier cases, we noted that “[t]he mere possession of a federal license . . . does not immunize a ship from the operation of the normal incidents of local police power.” Id., at 447. As an “[e]venhanded local regulation to effectuate a legitimate local public interest,” id., at 443, the ordinance was valid.
Although it is true that the Court‘s view in Gibbons of the intent of the Second Congress in passing the Enrollment and Licensing Act is considered incorrect by commentators,13 its
The federal licenses granted to Seacoast are, as noted above, identical in pertinent part to Gibbons’ licenses except that they cover the “mackerel fishery” rather than the “coasting trade.” Appellant contends that because of the difference this case is distinguishable from Gibbons. He argues that Gibbons upheld only the right of the federal licensee, as an American-flag vessel, to navigate freely in state territorial waters. He urges that Congress could not have intended to grant an additional right to take fish from the waters of an unconsenting State. Appellant points out that the challenged statutes in no way interfere with the navigation of Seacoast‘s fishing boats. They are free to cross the State‘s waters in search of fish in jurisdictions where they may lawfully catch them, and they may transport fish through the State‘s waters with equal impunity.
Appellant‘s reading of Gibbons is too narrow. Gibbons emphatically rejects the argument that the license merely establishes the nationality of the vessel. That function is performed by the enrollment. 9 Wheat., at 214. Rather, the license “implies, unequivocally, an authority to licensed vessels to carry on” the activity for which they are licensed. Id., at 212. In Gibbons, the “authority . . . to carry on” the licensed activity included not only the right to navigate in, or to travel across, state waters, but also the right to land passengers in New York and thereby provide an economically valuable service. The right to perform that additional act of landing cargo in the State—which gave the license its real value—was part of the grant of the right to engage in the “coasting trade.” See Harman v. Chicago, 147 U. S. 396, 405 (1893).
The same analysis applies to a license to engage in the mackerel fishery. Concededly, it implies a grant of the right to navigate in state waters. But, like the trading license, it must give something more. It must grant “author-
Moreover,
Finally, our interpretation of the license is reaffirmed by the specific discussion in Gibbons of the section granting the license, now
Application of the foregoing principles to the present case is straightforward. Section 60 prohibits federally licensed vessels owned by nonresidents of Virginia from fishing in the Chesapeake Bay. Licensed ships owned by noncitizens are prevented by § 81.1 from catching fish anywhere in the Commonwealth. On the other hand, Virginia residents are permitted to fish commercially for menhaden subject only to seasonal and other conservation restrictions not at issue here. The challenged statutes thus deny appellees their federally granted right to engage in fishing activities on the same terms as Virginia residents. They violate the “indisputable” precept that “no State may completely exclude federally licensed commerce.” Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 142 (1963). They must fall under the Supremacy Clause.
Appellant seeks to escape this conclusion by arguing that the
The Submerged Lands Act does give the States “title,” “ownership,” and “the right and power to manage, administer, lease, develop, and use” the lands beneath the oceans and
In any event, “[t]o put the claim of the State upon title is,” in Mr. Justice Holmes’ words, “to lean upon a slender reed.” Missouri v. Holland, 252 U. S. 416, 434 (1920). A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of “owning” wild fish, birds, or animals. 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. Ibid.; Geer v. Connecticut, 161 U. S. 519, 539-540 (1896) (Field, J., dissenting). The “ownership” language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing “the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.” Toomer v. Witsell, 334 U. S., at 402; see also Takahashi v. Fish & Game Comm‘n, 334 U. S. 410, 420-421 (1948). Under modern analysis, the question is simply whether the State has exercised its police power in
III
Our decision is very much in keeping with sound policy considerations of federalism. The business of commercial fishing must be conducted by peripatetic entrepreneurs moving, like their quarry, without regard for state boundary lines. Menhaden that spawn in the open ocean or in coastal waters of a Southern State may swim into Chesapeake Bay and live there for their first summer, migrate south for the following winter, and appear off the shores of New York or Massachusetts in succeeding years. A number of coastal States have discriminatory fisheries laws,22 and with all natural resources
For these reasons, we conclude that §§ 60 and 81.1 are pre-empted by the federal Enrollment and Licensing Act. Insofar as these state laws subject federally licensed vessels owned by nonresidents or aliens to restrictions different from those applicable to Virginia residents and American citizens, they
The judgment of the District Court is
Affirmed.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE POWELL joins, concurring in the judgment and concurring in part and dissenting in part.
I concur in the judgment of the Court and join in all but Parts II-D, and III of its opinion. As the Court states, it appears that licenses issued to appellees’ ships under the federal licensing statute,
The Court‘s treatment of the States’ interests in their coastal fisheries appears to me to cut a somewhat broader swath than is justifiable in this context. True enough, the States do not “own” free-swimming creatures within their territorial limits in any conventional sense of that term, Missouri v. Holland, 252 U. S. 416, 434 (1920); Pierson v. Post, 3 Cai. 175 (N. Y. 1805). It is therefore no answer to an assertion of federal pre-emptive power that such action amounts to an unconstitutional appropriation of state property. But it is also clear that the States have a substantial proprietary interest—sometimes described as “common ownership,” Geer v. Connecticut, 161 U. S. 519, 529 (1896)—in
The precedents of this Court, none of which are disputed today, have upheld a variety of regulations designed to conserve and maintain the collective natural resources of the State. Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Patsone v. Pennsylvania, 232 U. S. 138 (1914); Geer v. Connecticut, supra; Manchester v. Massachusetts, 139 U. S. 240 (1891); McCready v. Virginia, 94 U. S. 391 (1877); Smith v. Maryland, 18 How. 71 (1855); see Takahashi v. Fish & Game Comm‘n, 334 U. S. 410, 420-421 (1948). The exact bases for these decisions vary, but the cases are consistent in recognizing that the retained interests of States in such common resources as fish and game are of substantial legal moment, whether or not they rise to the level of a traditional property right. The range of regulations which a State may invoke under these circumstances is extremely broad. Neither mere displeasure with the asymmetry of the pattern of state regulation, nor a sensed tension with a federal statute will suffice to override a state enactment affecting exploitation of such a resource. Barring constitutional infirmities, only a direct conflict with the operation of federal law—such as exists here—will bar the state regulatory action. See Jones v. Rath Packing Co., 430 U. S. 519 (1977); Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 142 (1963). This is true no matter how “peripatetic” the objects of the regulation or however “Balkanized” the resulting pattern of commercial activity. Ante, at 285-287.
Also, I think the Court has decided more than it properly
I agree that the Submerged Lands Act does not countermand the pre-emption worked by the federal licensing legislation, but this is not because that legislation was enacted pursuant to one of the four categories of constitutional powers explicitly reserved to the Federal Government in the Act. It seems to me a difficult issue, not to be decided in a single sentence, whether the States take only a statutory title and right of control subject to those encumbrances previously created by exercise of the commerce, navigation, national defense, and international affairs powers. An alternative reading would be that the reservation-of-powers clause only gives fair warning of the possibility that the Government may, at some future time and in furtherance of these specified powers, find it necessary to intrude upon state ownership and management of the coastal submerged lands and natural resources. Such a view would take the statute for what it appears to be on its face—a quitclaim of the entire interest held by the Government when the Act was enacted—rather than a transfer of that interest subject to regulatory enactments previously passed under one of the four powers.
Interpretation of this reservation clause seems unnecessary to me at this time because the primary grant of the Act does not extend to any interest over free-swimming fish. The
This is true quite apart from the reservation of powers in
Notes
Section 28.1-81.1 provides: “Licenses for taking of fish restricted to United States citizens.— (a) No commercial license for the taking of food fish or fish for the manufacture into fish meal, fish oil, fish scrap or other purpose shall be granted to any person not a citizen of the United States, nor to any firm, partnership, or association unless each participant therein shall be a citizen of the United States, nor to any corporation unless the same be a citizen of the United States as hereinafter defined. This requirement shall be in addition to, and not in lieu of, any other requisite to the issuance of a license imposed by this chapter or any other provision of the Code of Virginia as amended from time to time. “(b) Within the meaning of this section, no corporation shall be deemed a citizen of the United States unless seventy-five per centum of the interest therein shall be owned by citizens of the United States and unless its president or other chief executive officer and the chairman of its board of directors are citizens of the United States and unless no more of its directors than a minority of the number necessary to constitute a quorum are noncitizens and the corporation is organized under the laws of the United States or of a state, territory, district, or possession thereof. “(c) Seventy-five per centum of the interest in a corporation shall not be deemed to be owned by citizens of the United States (i) if the title to seventy-five per centum of its stock is not vested in such citizens free from any trust or fiduciary obligation in favor of any person not a citizen of the United States; or (ii) if seventy-five per centum of the voting power in such corporation is not vested in citizens of the United States; or (iii) if, through any contract or understanding, it is so arranged that more than twenty-five per centum of the voting power in such corporation may be exercised, directly or indirectly, in behalf of any person who is not a citizen of the United States; or (iv) if by any other means whatsoever control of any interest in the corporation in excess of twenty-five per centum is conferred upon or permitted to be exercised by any person who is not a citizen of the United States.”
Section 28.1-60 provides in pertinent part: “Nonresidents generally.—(1) Catching fish for oil or guano prohibited.—No nonresident of this State shall take or catch any fish, in the waters of the Commonwealth, or in the waters under its joint jurisdiction, for the purpose of converting the same into oil, fish scrap, fish meal or guano, except as hereinafter provided; nor shall any nonresident be concerned or interested with any resident as partner or otherwise, except as a stockholder in a domestic corporation, in taking or catching fish in any of the waters of this State to be manufactured into oil, fish scrap, fish meal or guano, or in such manufacture, except as hereinafter provided. “(2) Resident not to be interested.—Nor shall any resident of this State be concerned or interested with any nonresident as partner or otherwise, except as stockholder in a domestic corporation, in taking or catching fish in any of the waters of this State to be manufactured into oil, fish scrap, fish meal or guano, or in such manufacture, except as hereinafter provided, or knowingly permit any nonresident to use his name for either purpose. “(3) License for taking menhaden fish.—A nonresident person, firm or corporation may take or catch the fish known as ‘menhaden,’ within the three-mile limit on the seacoast of Virginia and east of a straight line drawn from Cape Charles Lighthouse to Cape Henry Lighthouse for the purpose of converting the same into oil, fish scrap, fish meal or guano between the third Monday of May and the third Friday of November, inclusive, of each year; provided such person, firm or corporation has applied for and obtained license to take and catch such fish within the above-defined area and in accordance with the following requirements. . . . . “(6) Penalty for violation.—Any person, firm or corporation violating any of the provisions of this section shall be guilty of a misdemeanor.”
The quaint categories of the statute have remained unchanged since the “mackerel fishery” was added by the
A license for the “mackerel fishery” entitles the holder to catch “cod or fish of any other description whatever.”
A corporation is considered to be a citizen for purposes of this requirement only if it meets the same citizenship tests imposed for registration of a vessel and, in addition, if citizens own a controlling interest in it, or for a vessel used in the coastwise trade, if citizens own a 75% interest.
As noted above, appellees received approval from the Secretary of Commerce for the transfer of their vessels to the ultimate ownership of the noncitizen Hanson Trust, Ltd.
Criticism began in the concurring opinion of Mr. Justice Johnson, 9 Wheat., at 222, 231-233. He thought the Enrollment and Licensing Act was simply the American formulation of a navigation Act, commonly used by commercial nations to encourage shipping on vessels owned and manned by their citizens to promote the local economy and assure maritime strength in case of war. See generally G. Gilmore & C. Black, Jr., The Law of Admiralty §§ 11-3, 11-4 (2d ed. 1975).
Chancellor Kent soon exercised his prerogative as the country‘s foremost legal scholar to take sharp exception to Marshall‘s statutory construction:
“If congress had intended that a coasting license should confer power and control, and a claim of sovereignty subversive of local laws of the states within their own jurisdictions, it was supposed they would have said so in plain and intelligible language, and not have left their claim of supremacy to be hidden from the observation and knowledge of the state governments, in the unpretending and harmless shape of a coasting license, obviously intended for other purposes.
“The only great point on which the Supreme Court of the United States, and the courts of this state, have differed, is in the construction and effect given to a coasting license. . . . The formidable effect which has been given to a coasting license, was a perfect surprise upon the judicial authorities of this state; and none of the persons concerned in the former decisions in our state courts on this subject, ever entertained the idea, as I apprehend, that congress intended, by a coasting license, a grant of power that was to bear down all state regulations of internal commerce that stood in its way.” 1 J. Kent, Commentaries on American Law 408, 411 (1st ed. 1826).
Mr. Justice Frankfurter agreed, calling Marshall‘s view “esoteric statutory construction.” F. Frankfurter, The Commerce Clause 15, 17, 20 (1937). See also R. Faulkner, The Jurisprudence of John Marshall 85 (1968); M. Baxter, The Steamboat Monopoly 34-35, 52 (1972); Campbell, Chancellor Kent, Chief Justice Marshall and the Steamboat Cases, 25 Syracuse L. Rev. 497, 519-532 (1974); Mann, The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause, 38 Ind. L. J. 117, 180-181, 209-212, 236-237 (1963).
Indeed, an amendment to the license form made at the time of the 1936 re-enactment specifically authorizes “the taking of fish.” Acting to reverse a Circuit Court of Appeals decision, The Pueblos, 77 F. 2d 618 (CA2 1935), Congress authorized issuance of licenses for the “coasting trade and mackerel fishery.” The amendment explains that vessels so documented “shall be deemed to have sufficient license for engaging in the coasting trade and the taking of fish of every description, including shellfish.”
Appellant claims that the challenged statutes have a legitimate conservation purpose. He argues that § 81.1 is a valid response to the grave problem of overfishing of American marine stocks by foreign fleets. Similarly, § 60 is said to be an essential enforcement mechanism for net-size restrictions on menhaden fishermen.
The claims are specious. Virginia makes no attempt to restrict the quantity of menhaden caught by her own residents. A statute that leaves a State‘s residents free to destroy a natural resource while excluding aliens or nonresidents is not a conservation law at all. It bears repeating that a “state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 538 (1949). A State cannot escape this principle by cloaking objectionable legislation in the currently fashionable garb of environmental protection. Moreover, despite its foreign ownership, Seacoast is subject to all United States shipping and fisheries laws. And the record does not support the claim based on enforcement of the net-size restriction.
Furthermore, the cases upon which appellant relies are factually distinguishable. In McCready v. Virginia and Geer v. Connecticut neither petitioner asserted a claim under a pre-emptive Act of Congress. Smith v. Maryland, 18 How. 71 (1855), Manchester v. Massachusetts, 139 U. S. 240 (1891), and Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960), did raise Licensing Act claims, but the statutes there upheld operated equally against residents and nonresidents.