431 U.S. 265 (1977)

DOUGLAS, COMMISSIONER, VIRGINIA MARINE RESOURCES COMMISSION
v.
SEACOAST PRODUCTS, INC., ET AL.

No. 75-1255.

Supreme Court of United States.

Argued January 17, 1977. Decided May 23, 1977. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.

*266 James E. Moore, Assistant Attorney General of Virginia, argued the cause for appellant. With him on the briefs were Andrew P. Miller, Attorney General, and Anthony F. Troy and James E. Kulp, Deputy Attorneys General.

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.^[*]

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.

*267 MR. JUSTICE MARSHALL delivered the opinion of the Court.

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. Section 28.1-81.1 of the Virginia Code (§ 81.1) (Supp. 1976),^[1] enacted in 1975, limits the *268 issuance of commercial fishing licenses to United States citizens. Under this law, participants in any licensed partnership, firm, or association must be citizens. A fishing business organized in corporate form may be licensed only if it is chartered in this country; American citizens own and control at least 75% of its stock; and its president, board chairman, and controlling board majority are citizens.

Section 28.1-60 of the Virginia Code (§ 60) (Supp. 1976)^[2]*269 governs licensing of nonresidents of Virginia to fish for menhaden, an inedible but commercially valuable species of fin fish.^[3] Section 60 allows nonresidents who meet the citizenship requirements of § 81.1 to obtain licenses to fish for menhaden in the three-mile-wide belt of Virginia's territorial sea off the Commonwealth's eastern coastline. At the same time, however, § 60 prohibits nonresidents from catching menhaden in the Virginia portion of Chesapeake Bay.

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, *270 the family of Seacoast's founder sold the business to Hanson Trust, Ltd., a United Kingdom company almost entirely owned by alien stockholders. Seacoast continued its operations unchanged after the sale. All of its officers, directors, boat captains, and crews are American citizens, as are over 95% of its plant employees.

At the time of its sale, Seacoast's fishing vessels were enrolled and licensed American-flag ships. See infra, at 272-274. Under 46 U. S. C. §§ 808, 835, the transfer of these vessels to a foreign-controlled corporation required the approval of the Department of Commerce. This was granted unconditionally over the opposition of Seacoast's competitors after a full public hearing that considered the effect of the transfer on fish conservation and management, on American workers and consumers, and on competition and other social and economic concerns. See 38 Fed. Reg. 29239-29240 (1973); 39 Fed. Reg. 7819, 33812-33813 (1974); App. 29-32. Following this approval, appellees' fishing vessels were re-enrolled and relicensed pursuant to 46 U. S. C. §§ 251-252, 263. They remain subject to all United States laws governing maritime commerce.

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 *271 struck down both statutes. It held that the citizenship requirement of § 81.1 was pre-empted by the Bartlett Act, 16 U. S. C. § 1081 et seq., and that the residency restriction of § 60 violated the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction of the Commissioner's appeal, 425 U. S. 949 (1976), and we affirm.^[4]

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. Although *272 the claim is basically constitutional in nature, deriving its force from the operation of the Supremacy Clause, Art. VI, cl. 2, it is treated as "statutory" for purposes of our practice of deciding statutory claims first to avoid unnecessary constitutional adjudications. See Hagans v. Lavine, 415 U. S. 528, 549 (1974).^[6] Since we decide the case on this ground, we do not reach the constitutional issues raised by the parties.

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 Act of Dec. 31, 1792, 1 Stat. 287.^[7] and now codified in 46 U. S. C., c. 2. "The purpose of a register is to declare the nationality of a *273 vessel . . . and to enable her to assert that nationality wherever found." The Mohawk, 3 Wall. 566, 571 (1866); Anderson v. Pacific Coast S. S. Co., 225 U. S. 187, 199 (1912). Vessels engaged in domestic or coastwise trade or used for fishing are "enrolled" under procedures established by the Enrollment and Licensing Act of Feb. 18, 1793, 1 Stat. 305, codified in 46 U. S. C., c. 12. "The purpose of an enrollment is to evidence the national character of a vessel . . . and to enable such vessel to procure a . . . license." The Mohawk, supra; Anderson v. Pacific Coast S. S. Co., supra.

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 46 U. S. C. §§ 262, 263, 319, 325; 46 CFR § 67.01-13 (1976). The form of a license is statutorily mandated: "license is hereby granted for the . . . [vessel] to be employed in carrying on the (. . . `coasting trade,' `whale fishery,' `mackerel fishery,' or `cod fishery,'^[8] as the case may be), for one year from the date hereof, and no longer." 46 U. S. C. § 263. The law also provides that properly enrolled and licensed vessels^[9] "and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries." § 251. Appellees' vessels were granted licenses for the "mackerel *274 fishery"^[10] after their transfer was approved by the Department of Commerce.

The requirements for enrollment and registration are the same. 46 U. S. C. § 252; The Mohawk, supra, at 571-572. Insofar as pertinent here, enrolled and registered vessels must meet identification, measurement, and safety standards, generally must be built in the United States, and must be owned by citizens. An exception to the latter rule permits a corporation having alien stockholders to register or enroll ships if it is organized and chartered under the laws of the United States or of any State, if its president or chief executive officer and the chairman of its board of directors are American citizens, and if no more of its directors than a minority of the number necessary to constitute a quorum are noncitizens. 46 U. S. C. § 11; 46 CFR § 67.03-5 (a) (1976). The Shipping Act, 1916, further limits foreign ownership of American vessels by requiring the Secretary of Commerce to approve any transfer of an American-owned vessel to noncitizens. 46 U. S. C. § 808.^[11]

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, *275 however, is the historic decision of Mr. Chief Justice John Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824), rendered only three decades after passage of the Act. Gibbons invalidated a discriminatory state regulation of shipping as applied to vessels federally licensed to engage in the coasting trade. Although its historic importance lies in its general discussion of the commerce power, Gibbons also provides substantial illumination on the narrower question of the intended meaning of the Licensing Act.

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).

*276 On appeal to this Court, Mr. Chief Justice Marshall held that the rights granted to Gibbons by federal law superseded the conflicting state-created rights asserted by Ogden. Marshall first considered the power of Congress under the Commerce Clause. He concluded that "[c]ommerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior," 9 Wheat., at 194, and that "[t]he power of Congress . . . , whatever it may be, must be exercised within the territorial jurisdiction of the several States." Id., at 196. The Court next defined the nature of the commerce power: "the power to regulate; that is, to prescribe the rule by which commerce is to be governed." Ibid. Ogden's claim that the States may exercise concurrent power over commerce, or even exercise their police powers, where that exercise conflicts with express federal law was rejected. Id., at 200-210.

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.

*277 Although Gibbons is written in broad language which might suggest that the sweep of the Enrollment and Licensing Act ousts all state regulatory power over federally licensed vessels, neither the facts before the Court nor later interpretations extended that far. Gibbons did not involve an absolute ban on steamboats in New York waters. Rather, the monopoly law allowed some steam vessels to ply their trade while excluding others that were federally licensed. The case struck down this discriminatory treatment. Subsequent decisions spelled out the negative implication of Gibbons: that States may impose upon federal licensees reasonable, nondiscriminatory conservation and environmental protection measures otherwise within their police power.

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 *278 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 *279 provisions have been repeatedly re-enacted in substantially the same form.^[14] We can safely assume that Congress was aware of the holding, as well as the criticism,^[15] of a case so renowned as Gibbons. We have no doubt that Congress has ratified the statutory interpretation of Gibbons and its progeny. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 414 n. 8 (1975); Snyder v. Harris, 394 U. S. 332, 339 (1969); Francis v. Southern Pacific Co., 333 U. S. 445, 449-450 (1948). We consider, then, its impact on the Virginia statutes challenged in this case.

*280 C

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 "authority *281. . . to carry on" the "mackerel fishery." And just as Gibbons and its progeny found a grant of the right to trade in a State without discrimination, we conclude that appellees have been granted the right to fish in Virginia waters on the same terms as Virginia residents.

Moreover, 46 U. S. C. § 251 states that properly documented vessels "and no others" are "entitled to the privileges of vessels employed in the coasting trade or fisheries." Referring to this section, Gibbons held: "[T]hese privileges . . . cannot be enjoyed, unless the trade may be prosecuted. The grant of the privilege . . . convey[s] the right [to carry on the licensed activity] to which the privilege is attached." 9 Wheat., at 213. Thus, under § 251 federal licensees are "entitled" to the same "privileges" of fishery access as a State affords to its residents or citizens.

Finally, our interpretation of the license is reaffirmed by the specific discussion in Gibbons of the section granting the license, now 46 U. S. C. § 263. The Court pointed out that "a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license." 9 Wheat., at 213-214. Gibbons recognized that the "grantor" was Congress. Id., at 213. Thus Gibbons expressly holds that the words used by Congress in the vessel license transfer to the licensee "all the right" which Congress has the power to convey. While appellant may be correct in arguing that at earlier times in our history there was some doubt whether Congress had power under the Commerce Clause to regulate the taking of fish in state waters,^[16] there can be no question today that such power *282 exists where there is some effect on interstate commerce. Perez v. United States, 402 U. S. 146 (1971); Heart of Atlanta Motel v. United States, 379 U. S. 241 (1964); Wickard v. Filburn, 317 U. S. 111 (1942). The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce. Cf. Toomer v. Witsell, 334 U. S. 385, 403-406 (1948).^[17] Accordingly, we hold that, at the least, when Congress re-enacted the license form in 1936,^[18] using language which, according to Gibbons, gave licensees "all the right which the grantor can transfer," it necessarily extended the license to cover the taking of fish in state waters, subject to valid state conservation regulations.^[19]

*283 D

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 Submerged Lands Act, 67 Stat. 29, 43 U. S. C. §§ 1301-1315, and a number of this Court's decisions^[20] recognize that the States have a title or ownership interest in the fish swimming in their territorial waters. It is argued that because the States "own" the fish, they can exclude federal licensees. The contention is of no avail.

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 *284 natural resources in the waters within state territorial jurisdiction. 43 U. S. C. § 1311 (a). But when Congress made this grant pursuant to the Property Clause of the Constitution, see Alabama v. Texas, 347 U. S. 272 (1954), it expressly retained for the United States "all constitutional powers of regulation and control" over these lands and waters "for purposes of commerce, navigation, national defense, and international affairs." United States v. Louisiana, 363 U. S. 1, 10 (1960); see 43 U. S. C. § 1314 (a). Since the grant of the fisheries license is made pursuant to the commerce power, see supra, at 281-282; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 377 (1883), the Submerged Lands Act did not alter its pre-emptive effect. Certainly Congress did not repeal by implication, in the broad language of the Submerged Lands Act, the Licensing Act requirement of equal treatment for federal licensees.

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 *285 conformity with the federal laws and Constitution. As we have demonstrated above, Virginia has failed to do so here.^[21]

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 *286 becoming increasingly scarce and more valuable, more such restrictions would be a likely prospect, as both protective and retaliatory measures.^[23] Each State's fishermen eventually might be effectively limited to working in the territorial waters of their residence, or in the federally controlled fishery beyond the three-mile limit.^[24] Such proliferation of residency requirements for commercial fishermen would create precisely the sort of Balkanization of interstate commercial activity that the Constitution was intended to prevent. See, e. g., H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 532-539 (1949); cf. Allenberg Cotton Co. v. Pittman, 419 U. S. 20 (1974). We cannot find that Congress intended to allow any such result given the well-known construction of federal vessel licenses in Gibbons.

For these reasons, we conclude that §§ 60 and 81.1 are preempted 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 *287 must fall under the Supremacy Clause. As we have noted above, however, reasonable and evenhanded conservation measures, so essential to the preservation of our vital marine sources of food supply, stand unaffected by our decision.

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, 46 U. S. C. § 263, confer upon their grantees an affirmative right to engage in fishing activities in the coastal waters of the United States on the same terms as any other fishermen. I also agree that the federal statute pre-empts similar state licensing legislation which would allow some to engage in the fishery while absolutely excluding any federal licensees. This, I believe, is as much as need be said to decide the case before us. Rather than stopping there, however, the Court embroiders upon this holding a patchwork of broader language whose purpose is almost as uncertain as its long-run effect.

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 *288 the fish and game within their boundaries. This is worthy of mention not because it is inconsistent with anything contained in the Court's opinion, but because I am not sure that the States' substantial regulatory interests are given adequate shrift by a single sentence casting the issue of state regulation as "simply whether the State has exercised its police power in conformity with the federal laws and Constitution." Ante, at 284-285.

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 *289 can in its reading of the Submerged Lands Act. While recognizing the Act as effecting a conveyance to the States of primary ownership and control of both "the lands beneath the oceans and natural resources in the waters within state territorial jurisdiction," ante, at 283-284, the Court makes more than can be justified of the statute's clause reserving federal control for "purposes of commerce, navigation, national defense, and international affairs." 43 U. S. C. § 1314 (a). It concludes on the basis of this reservation clause that since the enrollment and licensing statute was enacted under the commerce power, the Submerged Lands Act cannot have altered its pre-emptive effect.

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 o