terstate commerce "when made into authentic native articles of handicrafts and clothing."111/ If, however, the Secretary determines that such Alaskan native taking "materially and negatively affects the threatened or endangered species," he may prescribe regulations to restrict it for such period as is necessary.112/

In addition to the foregoing exemptions, the Secretary may also grant permits to engage in otherwise prohibited activities for certain specified reasons. Included among these are special "hardship" permits similar to those available under the 1969 Act.113/ like that earlier Act, however, the 1973 Act spells out in some detail what shall be deemed to constitute "undue economic hardship. "114/ Permits authorizing other

111/

112/

113/

114/

Un

16 U.S.C. $1539 (e) (1) (Supp. IV 1974). This exemption is
essentially the same as the similar exemption under the
Marine Mammal Protection Act, except for the inclusion of
non-native residents and the addition of the qualifier
"primarily." Implementing regulations fail to quantify
that term. See 50 C.F.R. $17.5(a) (1975). See also Chapter
Eleven supra at text accompanying notes 31-35.

16 U.S.C. $1539 (e) (4) (Supp. IV 1974). Compare the authori-
ty of the Secretary to regulate Alaskan native taking of
depleted marine mammals under the Marine Mammal Protection
Act. See Chapter Eleven supra at text accompanying notes
63-69.

16 U.S.C. $1539 (b) (Supp. IV 1974). See text accompanying note 25 supra. In Delbay Pharmaceuticals, supra note 105, it was held that endangered species products lawfully imported pursuant to a hardship permit issued under the 1969 Act could not be sold in interstate commerce subsequent to passage of the 1973 Act if they were held for commercial purposes at the time of passage.

As used in this subsection, the term "undue economic hardship" shall include, but not be limited to:

(A) substantial economic loss resulting
from inability caused by this Act to perform
contracts with respect to species of fish and
wildlife entered into prior to the date of
publication in the Federal Register of a notice
of consideration of such species as an endan-
gered species;

(B) substantial economic loss to persons
who, for the year prior to the notice of con-

wise prohibited activities may also be issued "for scientific purposes or to enhance the propagation or survival of the affected species."115/ In all cases, before issuing any permit, the Secretary must determine that the activity to be authorized "will not operate to the disadvantage" of the affected species.116/

3. The Protection of Habitat and

"Critical Habitat"

It will be recalled that the 1973 Act proclaimed a goal of protecting the ecosystems upon which endangered and threatened species depend. To accomplish this goal, it provides both direct and indirect means of protecting wildlife habitat. Insofar as direct protection is concerned, the major change made by the 1973 Act was the removal of all dollar limitations on the expenditure of money from the Land and Water Conservation Fund for acquisition of areas for the conservation of endangered and threatened wildlife species

115/

116/

sideration of such species as an en-
dangered species, derived a substantial
portion of their income from the lawful
taking of any listed species, which taking
would be made unlawful under this Act; or
(C) curtailment of subsistence taking
made unlawful under this Act by persons
(i) not reasonably able to secure other
sources of subsistence; and (ii) dependent
to a substantial extent upon hunting and
fishing for subsistence; and (iii) who
must engage in such curtailed taking for
subsistence purposes.

16 U.S.C. $1539 (b) (2) (Supp. IV 1974).
Id. $1539 (a). Query whether the 1973 Act was intended to
eliminate the availability of permits for "zoological and
educational" purposes that had existed under the 1969 Act?
See text accompanying note 24 supra. Note also that, un-
like the Marine Mammal Protection, permits may not be is-
sued for "public display" purposes. See Chapter Eleven
supra at text accompanying note 22.
16 U.S.C. $1539 (d) (2) (Supp. IV 1974).

and plants protected by the Convention.117/

For the indirect protection of wildlife habitat, the 1973 Act contains a novel and initially little noticed provision that may ultimately prove to be its most potent weapon. That provision is section 7, which reads in its entirety as follows:

117/

118/

The Secretary shall review other
programs administered by him and
utilize such programs in further-
ance of the purposes of this Act.
All other Federal departments and
agencies shall, in consultation
with and with the assistance of
the Secretary, utilize their au-
thorities in furtherance of the
purposes of this Act by carrying
out programs for the conservation
of endangered species and threat-
ened species listed pursuant to
section 4 of this Act and by taking
such action necessary to insure
that actions authorized, funded,
or carried out by them do not
jeopardize the continued existence
of such endangered species and
threatened species or result in
the destruction or modification of
habitat of such species which is
determined by the Secretary, after
consultation as appropriate with
the affected States, to be criti-
cal.118/

Id. $1534(b). Acquisition authority for plants was in-
cluded in the House passed bill, but not the Senate bill.
While accepting the House version, the conferees stated
that they expected this authority to "be used sparingly,
in cases where the needs of the situation are clear."
Rep. No. 740, 93d Cong., 1st Sess. 25 (1973) (Conference Re-
port).

H.R.

16 U.S.C. $1536 (Supp. IV 1974). Although section 7 was
initially little noticed, already more has been written
about it than about any other aspect of the 1973 Act. See,
e.g., Wood, Section 7 of the Endangered Species Act of
1973: A Significant Restriction for All Federal Activi-
ties, 5 ELR 50189 (1975); Comment, Implementing $7 of the
Endangered Species Act of 1973: First Notices from the
Courts, 6 ELR 10120 (1976); Note, Obligations of Federal
Agencies Under Section 7 of the Endangered Species Act of

In its two brief sentences, section 7 imposes four clearly discrete duties. These are:

(1) to review and utilize existing programs

to further the purposes of the Act;
(2) to utilize authorities to further such
purposes by carrying out conservation

programs;

(3) to "insure" that federal activities not
"jeopardize" the continued existence
endangered or threatened species; and
(4) to "insure" that federal activities
not destroy or modify habitat deter-
mined to be "critical."

Interpreting these various duties and understanding how
they intermesh is fraught with uncertainty. To date,
there have been no regulations issued to implement
them; nor are any of the key terms they employ defined
in the Act. 119/ In addition, insofar as they impose
affirmative obligations, as some of them appear to do,
the Act prescribed no timetables for their accomplish-

ment.

A further interpretational difficulty arises from the fact that literally, only the first duty applies to the Secretaries of Commerce and the Interior, while the remaining duties apply to "all other" federal agencies. Notwithstanding that fact, Congress, the agencies and outside commentators are of the view that the Secretaries of Commerce and the Interior must adhere to each of the duties specified in section 7.120/

119/

120/

1973, 28 Stan. L. Rev. 1247 (1976).

The Fish and Wildlife Service and the National Marine Fish-
eries Service circulated a set of interim guidelines, to
other federal agencies in April, 1976. These guidelines
are expected to form the basis of a proposed rulemaking to
establish formal regulations in early 1977.
Both the House and Senate reports describe the duties of
section 7 as applying to all federal agencies. See H.R.

As

Most of the attention thus far has focused on the duties to "insure" that the existence of endangered and threatened species not be jeopardized and that their critical habitats not be destroyed or modified.121/ to the first of these, the Act gives no clue as to what kind or quantum of injury constitutes jeopardization of the existence of a listed species. By requiring consultation with the Secretary, however, the Act suggests that his wildlife expertise will be a principal source of information on that question. As to the second duty, the Act fails to indicate how a "critical" habitat is to be determined, 122/ whether it must be determined for each listed species, 123/ and if so, when it

121/

122/

123/

Rep. No. 740, 93d Cong., 1st Sess. 10 (1973) and S. Rep.
No. 307, 93d Cong., 1st Sess. 8 (1973). The same view is
set forth in the interim guidelines, supra note 119. The
use of the term "other" is described as a "remnant" of the
1969 Act from which the "substance has vanished" in Note,
Obligations of Federal Agencies Under Section 7 of the En-
dangered Species Act of 1973, supra note 118 at 1253 n. 46
(1976). Perhaps a more satisfactory explanation is that
the duty of the Secretaries of Commerce and the Interior
to utilize their programs for furthering the purposes of
the Act subsumes the substance of the duties imposed on the
other federal agencies.

The duty to carry out conservation programs has been large-
ly overlooked. One commentator has suggested that this
duty "appears to create no enforceable obligations." Note,
Obligations of Federal Agencies Under Section 7 of the En-
dangered Species Act of 1973, supra note 118 at 1253 n. 48.
On the other hand, it would appear that section 7 at least
establishes the authority to carry out endangered species
conservation programs in agencies which did not previously
have such authority.

The Fish and Wildlife Service and the National Marine Fisheries Service jointly published a notice setting forth in very general terms the scope of the term "critical habitat" and stating their intention to determine such habitats according to the same rulemaking procedures that apply to listing of species at 40 Fed. Reg. 17764 (Apr. 22, 1975). The notice referred to in the preceding note promised to publish proposed critical habitat determinations "for each of the species now listed." However, the Fish and Wildlife Service has since advised that it will not determine critical habitats for foreign species because the absence of any requirement in the Act to consult with foreign governments concerning such determinations implied a congressional