tially completed at the time that the restrictions of the 1973 Act became operative. As such, it presents a familiar transitional problem like those that have accompanied other recent environmental legislation.142/ In that action, Hill v. TVA, plaintiffs challenged the completion of a dam which threatened to destroy virtually the entire habitat of a recently discovered fish, the endangered snail darter.143/ Though the court agreed that the dam would surely "jeopardize the continued existence" of the endangered fish, it refused to apply section 7 retroactively to prevent completion of a project which was nearly 80 percent finished at the time the species was discovered, and which would entail the loss of several million dollars of expenditures if halted. Although the court acknowledged that balancing the interests between wildlife conservation and development was a legislative rather than a judicial function, it asserted that Congress had already done that balancing by appropriating funds for the dam's construction after the existence of the fish had become known.144/ If that result is reversed on appeal, it would appear likely that an amendment of section 7 will be the result.145/ 142/ 143/ 144/ 145/ For a discussion of the many cases concerning the applica- 419 F. Supp. 753 (E.D. Tenn. 1976). One commentator has suggested that congressional exemptions 4. Federalism Under the 1973 Act When Congress passed the Marine Mammal Protection Act of 1972 and the Endangered Species Act of 1973, thus prohibiting the taking of all marine mammals and endangered species, it gave to the federal government a power which, with the few exceptions discussed in Chapter Four, had previously been exercised only by the states. In each Act, however, Congress intended to avoid ousting the states altogether from their established jurisdiction by creating a cooperative program in which both the states and the federal government would play important roles. Though only a little more than a year separated the two Acts, both the content and the manner of implementation of the cooperative programs they established differed quite markedly. the preceding chapter, the state and federal relationships under the Marine Mammal Protection Act was described in detail.146/ Here the object will be to compare that relationship with the counterpart relationship established by the Endangered Species Act. In The first major difference between the two Acts was that the Endangered Species Act's preemption of state authority over taking was neither immediate nor total. Rather, the 1973 Act established a transition period of up to fifteen months's duration during which the federal restrictions on taking of resident endangered and threatened species would be inapplicable.147/ vert the Act. Id. at n. 82. 146/ See Chapter Eleven infra at text accompanying notes 141-60. 147/ 16 U.S.C. $1535(g) (Supp. IV 1974). The statement in the text was made subject to three exceptions. The first of these, an exception so large as nearly to swallow the rule, provided that federal restrictions on taking were applicable, even during the transition period, to those species listed on Appendix I of the Convention or otherwise protected by international agreement. Although the Convention does not restrict the taking of any species on its various In addition, it expressly permits the states to enforce laws or regulations pertaining to taking which are more restrictive than the exemptions or permits provided for in the Act.148/ At the expiration of the transition period, the states are in much the same position as they were at the outset under the Marine Mammal Protection Act. However, like the Marine Mammal Protection Act, the 1973 Act offers the states an opportunity to continue to play a role in the management and conservation of resident endangered and threatened species, and to receive federal financial assistance in carrying out that role. The mechanism for doing this is the signing of a "cooperative agreement."149/ Cooperative agreements under the 1973 Act are unlike "cooperative arrangements" under the Marine Mammal Protection Act. The latter simply provide for delegation to the states of administration and enforcement of the federal act, without entitling the states to receive federal matching grants.150/ Yet cooperative agreements are also unlike the more complex mechanism provided by the Marine Mammal Protection Act for ap 148/ 149/ 150/ appendices, this exception was apparently designed to fa- Id. $1535(f). This provision allows the state of Alaska 16 U.S.C. $1535 (c) (Supp. IV 1974). See Chapter Eleven supra at text accompanying note 144. proval of state laws relating to the taking of marine mammals. Under that mechanism, such state laws can only be approved after a lengthy and detailed administrative process involving a formal public hearing and, once approved, must be "continuously monitored."151/ Cooperative agreements, on the other hand, are required to be signed whenever the Secretary determines, without any public hearing, informal rulemaking procedure, or even public notice, that a state's proposed program for conservation of endangered species meets the following five criteria: (1) authority resides in the State agency to conserve resident species of fish or wildlife determined by the State agency or the Secretary to be endangered or threatened; (2) the State agency has established acceptable conservation programs, consistent with the purposes and policies of this Act, for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data requested to the Secretary; (3) the State agency is autho- (4) the State agency is autho- (5) provision is made for public 151/ Id. at text accompanying notes 145-50. species of fish or wildlife as Approved state programs are subject to "periodic review at no greater than annual intervals."153/ The most important aspect of the criteria set forth in the Act is that they require the states to have authority to conserve any species of wildlife determined by the Secretary to be endangered or threatened.154/ Since the Secretary may determine "any member of the animal kingdom" to be an endangered or threatened species, the states, to be eligible to enter into a cooperative agreement and receive financial assistance, must have an authority that is equally broad. Because many states have traditionally had a more narrowly defined conception of what constitutes "wildlife" for regulatory purposes, this requirement has been resisted by some states.155/ What the states receive in return for meeting the criteria specified in the Act is eligibility for federal financial assistance of up to two thirds of the costs of approved programs.156/ That assistance is 154/ Note that such authority need not extend to plants. Query why criterion (4) is the only criterion which is not limited solely to "fish or wildlife"? 155/ 156/ See, To Amend the Endangered Species Act of 1973: Hearings Before the Subcomm. on Environment of the Senate Comm. on Commerce, 94th Cong., 2d Sess. 76-78 (1976) (statement of John S. Gottschalk). Although one of the purposes of the transition period was to allow the states to conform their laws to the federal standards in time to permit the signing of cooperative agreements prior to the expiration of that period, in fact there were no cooperative agreements signed until June, 1976. As of September 30, 1976, only fifteen states had signed cooperative agreements. 16 U.S.C. §1535(d) (2) (Supp. IV 1974). Where two or more states have a common interest in one or more endangered or threatened species, they may jointly enter into an agreement with the Secretary for which the federal share of |