There is a distinct difference in the perception of the rights of the citizens to participate in the harvest of marine fisheries that differentiates the management philosophy of Louisiana and the National Marine Fisheries Service (and some other states).
Louisiana’s Public Trust Doctrine provides that public trust lands, waters and living resources in the State are held by the state in trust for the benefit of all the people, and establishes the right of the public to fully enjoy public trust lands, waters and the living resources for a wide variety of recognizable public uses.
The public trust doctrine of the common law states and the United States is based on the Institutes of Justinian. It eventually became part of the English common law, and was transferred to the common law states via English Law, whereas it came to Louisiana through the French and Spanish civil law traditions which were themselves based on Roman Law. Indeed Louisiana received a ”double dose” of the public trust because in 1812 it was under the equal footing doctrine. The English version of the public trust doctrine was superimposed over Louisiana’s civil law.
“LAR.S.-640.3 Right to fish B. The legislature also recognizes that all citizens of the state have the right to fish in and otherwise enjoy the marine waters as long as they are in compliance with current licensing requirements. Furthermore conservation and management decisions shall be fair and equitable to all the people of the state and implemented is such a manner that no individual, cooperation, or other entity acquires an excessive share of such rights and privileges.”
The Louisiana Constitution further provides that it is a right of the people to participate in the harvest of these living resources, a view that is supported by the majority of the people of the State. The value of a right supersedes monetary parameters, and economics play a secondary role in satisfying the support of the right of the people. This inevitably leads to the management of natural resources for maximum participation, and to many small individually owned and operated harvesting operations.
The coastal fishing communities in Louisiana are composed largely of just such many small individually owned and operated harvesting operations, selling a large portion of their catch to the public.
The Federal Government and some states view the living natural resources as property of the state and believe that the participation in the harvest of these natural living resources is a privilege to be granted or taken away to whomever and whenever they choose based on their interpretation of the public good or best interest, which is given principally an monetary value.
This has led to a management policy that is conducive to large seafood distributors and processors owning or controlling the harvesting operations and supporting this management philosophy. Because there is no moral or legal justification for infringing on a right of the people, the supporters of this philosophy claim that there is no other way to manage the resource except to infringe on the rights of the citizenry, and that establishing a privileged class is justified. It is particularly troubling that the government creation of a privileged class and then placing that class in a governing role to determine who may have the privilege of being included in that class runs contrary to the values of democracy.
Louisiana has always managed its marine fisheries for maximum participation and developed management regulations limiting individual fishing capabilities as a means to protect the fisheries resources and addressing environmental concerns.