State of Alaska pertaining to nine species of marine mammals, the Secretary stated his intention not to adopt the state laws and regulations as federal regulations, 151/ but proposed implementing regulations which provided in part that "Any violation of the laws and regulations of the State of Alaska by those subject to the jurisdiction of the State shall be a violation of these regulations and may be punished in accordance with the procedures and penalties of section 105 of the Act ."152/ The effect of this position is to allow imposition of federal penalties for violations of state regulations and to allow federal prosecution of offenders who leave the state, but at the same time to permit the state regulations to be amended without compliance with the rulemaking procedures that might be required of federal regulations.153/ The legal uncertainty regarding this position is underscored by the fact that the Administrative Law Judge in the hearing on Alaska's request has specified it as one of several legal issues to which the parties are asked to address themselves.154/

151/ 41 Fed. Reg. 15174 (Apr. 9, 1976).

152/ 153/

154/

Id. at 15180.

Under the implementing regulations of the Secretary of
Commerce, notice of proposed changes of state laws or reg-
ulations must be given to the Secretary prior to becoming
effective. His preliminary decision to approve or disap-
prove the proposed changes must be published in the Federal
Register for the purpose of inviting comments or requests
for hearings. Under the Secretary's regulations, a public
hearing on such changes does not appear to be mandatory.
See 50 C.F.R. 215.106(c)-(h) at 41 Fed. Reg. 36661 (Aug.
(Aug. 31, 1976). Under the regulations of the Secretary of
the Interior, a discretionary hearings and opportunity for
public comment is available only with respect to the Secre-
tary's determination to disapprove changes in state laws or
regulations. See 50 C.F.R. 18.56(c)-(g) at 40 Fed. Reg.
59443 (Dec. 24, 1975). See also 41 Fed. Reg. 36659
(Aug. 31, 1976).

41 Fed. Reg. 21833 (May 28, 1976).

Alaska's request also raises the question whether the Act's special exemptions for Alaskan natives continue in effect after approval of the state's laws and regulations.155/ If the Act's special exemption for taking by Alaskan natives continues in effect after approval of the state's laws and regulations, then those laws and regulations cannot restrict native taking and at the same time permit sport or commercial taking. That is, the Act specifies that Alaskan native taking can be restricted only with respect to those species which have been declared depleted. If a species is depleted, however, sport or commercial taking is manifestly inconsistent with the purposes of the Act, and cannot be allowed. This result can be avoided only if the Alaskan native exemption can be eliminated in the process of approving the state's laws and regulations. The Secretary of the Interior adopted that view when he determined to return the management of the Pacific walrus to the state of Alaska.156/ He based his decision on the authority conferred by section 109 (b) (2) to waive the application of section 101.157/ The latter provision both imposes a moratorium and creates a special exemption from it for Alaskan natives. That decision is now being reconsidered in connection with the review of the proposed state laws and regulations applicable to the eight remaining species. While the Secretary's decision can be supported by a literal reading of the Act, it is at least doubtful whether such a reading is consistent with the clear trend of recent case law concerning restrictions on Indian hunting and fishing rights, at least where such rights are derived from treaties.158/

155/ Id.

156/ See 40 Fed. Reg. 54959 (Dec. 24, 1975). 157/ See 16 U.S.C. §1379 (a)(2) (Supp. IV 1974). 158/ See Chapter Three at text accompanying notes 27-65. Note, however, that the Alaska Constitution forbids the creation

Perhaps overshadowing all others, however, is the question whether any Alaskan laws and regulations can be consistent with the Act in light of Alaska's unique constitutional provision requiring that all wildlife be managed on the "sustained yield principle. "159/ These and other complex features of the Act's provision for return to state management prompted California to abandon its request for authority to manage the sea otter in favor of an administratively much simpler request for a scientific permit.160/

The novel approach to federalism reflected in the Marine Mammal Protection Act has its counterpart in the equally novel aspects of the Act pertaining to international marine mammal protection. At its most basic level, the Act has obvious international ramifications simply as a result of its moratorium on the importation of marine mammals and the complex procedures required

159/

160/

of any "exclusive right or special privilege of fishery" in
its waters. Alas. Const. art. VIII, $15. This is the pro-
vision which the Supreme Court declined to review in Reetz
v. Bozanich, 397 U.S. 82 (1970). See Chapter Three supra
at text accompanying note 23.

See Gaines & Schmidt, supra note 9 at 50112. A related
matter is Alaska's claim that the federal government lacks
any authority to regulate wildlife in Alaska as a result
of the Alaska Statehood Act, which transferred wildlife
management authority to the newly created state. See 48
U.S.C. Chapter 2 - Alaska. This claim, however, seeks to
elevate Alaska above the "equal footing" status of all
other states, and is thus without merit. See discussion in
Chapter Two at note 14.

-

One of the puz

See 41 Fed. Reg. 37822 (Sept. 8, 1976).
zling features of the Act's provision for a return to state
management is that a state with approved laws and regula-
tions will apparently not be allowed to issue scientific
and public display permits. See 50 C.F.R. $216.103(b)(2),
at 41 Fed. Reg. 36660 (Aug. 31, 1976). Although nothing in
the language of the Act seems to compel this result, it
does reflect a view set forth in the Conference Report,
H. Rep. No. 1488, 92d Cong., 2d Sess. 26 (1972).

for waiver of that moratorium. Beyond that, however, the Act seeks to mandate the development of an affirmative international program for marine mammal protection. The principal features of that program are described in detail in Chapter Ten.161/ To recapitulate them here briefly, they include a general directive to renegotiate existing international treaties and to initiate new treaties so as to embody the management principles contained in the Act. More specifically, they required a comprehensive study of the Interim Convention on Conservation of North Pacific Fur Seals and the immediate commencement of negotiations to bring that Convention into harmony with the Act if the study identified certain inconsistencies. Similarly, the Act directed the Secretary and the Secretary of State to commence negotiations within the Inter-American Tropical Tuna Commission to reduce the level of incidental taking of marine mammals in the tuna fishery. Finally, the Act contains authority to prohibit the importation of certain fishery products from countries using commercial fishing methods which result in the incidental kill or serious injury of marine mammals in excess of United States standards, or which are proscribed for United States fishermen.

161/ See Chapter Ten supra at text accompanying notes 22-26, 45-53, and 88-96.

The earliest federal efforts at wildlife regulation were motivated, at least in part, by a desire to prevent the extinction of wildlife as a result of man's activities. Thus, the debates that preceded passage of the Lacey Act show a great congressional concern with the then recent extermination of the passenger pigeon and the drastic depletion of many other bird species.1/ But the Lacey Act, like most of the federal legislation that followed it, was quite limited in terms of the range of wildlife it protected and the nature of the protection it afforded. It is only with

in the last decade that the need to confront the problem of endangerment more directly and more comprehensively has become apparent.

In the last decade, three successive federal statutes, each building upon the preceding one, and one major international treaty have attempted to establish a coordinated program to head off, or at least forestall, what had appeared to be the inevitable destruction of numerous wildlife species. Today that program utilizes each of the major wildlife regulatory tools available to accomplish its goal. Thus, it restricts the taking of species presently in danger of extinction or likely to become so, regulates the trade in them, provides for the acquisition of habitat needed for their survival, and mandates the consideration of impacts upon them resulting from various federal activities. In addition,

1/ See remarks of Congressman Lacey at 33 Cong. Rec. 4871 (1900). The House report that accompanied the Lacey bill noted that "In many of the States the native birds have been well-nigh exterminated." H.R. Rep. No. 474, 56th Cong., 1st Sess. 1 (1900).