Criminal penalties of the same amounts may be imposed against foreign fishermen for the same offenses. In addition, it is a criminal offense for any foreign fisherman to engage in any fishery under the exclusive management authority of the United States, except in accordance with an applicable permit.82/ The maximum fees and prison terms for that offense are likewise $50,000 and six months, respectively. In addition to the foregoing, any fishing vessel, including all of its gear and cargo, is subject to forfeiture for any of the above described violations.83/ Also subject to forfeiture are all fish taken or retained in connection with or as a result of any violation of the Act. The Act establishes a rebuttable presumption that all fish found on board a seized vessel were taken or retained in violation of the Act.84/ Equally as important as the international ramifications of the Act are its provisions pertaining to state and federal relations. As has already been described, the principal responsibility for the development of comprehensive fishery management plans rests with the Act's unique Regional Councils. These hybrid state-federal agencies represent a significant inno 82/ Id. $309(a) (2). 83/ Id. $310(a). 84/ Id. $310(e). vation having no clear counterpart elsewhere in federal wildlife law.85/ Beyond the creation of wholly new planning institutions, the Act represents yet a third variation, among the three most recent major federal wildlife statutes, on the accomodation of respective state and federal roles. Unlike the Marine Mammal Protection Act and the Endangered Species Act of 1973, the Fisheries Management and Conservation Act does not include any automatic preemption of state regulatory authority over fishing. Rather, with the one exception discussed below, the Act preserves the right of the states to regulate the fishing outside its boundaries of vessels registered under its laws.86/ It even provides that management plans established for fisheries within the conservation zone may incorporate "the relevant fishery conservation and management measures of the coastal States nearest to the fishery."87/ The only time that a state may be preempted of its authority to regulate fishing within its boundaries is when the Secretary of Commerce, after notice and an opportunity for a full adversarial hearing, makes two 85/ The hybrid character of the Regional Councils will probably give rise to disagreement over whether they should be regarded as "federal agencies" for purposes of the National Environmental Policy Act, section 7 of the Endangered Species Act, and other statutes. The Secretary's guidelines apparently conclude that they should be so regarded. See 50 C.F.R. $602.5(a)(6) at 41 Fed. Reg. 39444 (Sept. 15, 1976). 86/ 87/ FCMA $306(a). The Act's provision for state regulation of FCMA $303(b) (5). findings: (1) that the fishing in a fishery covered by a fishery management plan "is engaged in predominantly within the fishery conservation zone and beyond such zone", and (2) that a state has taken or omitted to take any action, "the results of which will substantially and adversely affect the carrying out of such fishery management plan."88/ Having made these findings, he must notify the state and the appropriate Council of his intention to regulate the fishery within the boundaries of the state pursuant to the plan and implementing regulations in effect. 89/ At any time thereafter, the state may apply to the Secretary for reinstatement of its authority over the fishery, and if the Secretary finds that the reasons for which he assumed that authority no longer prevail, he shall promptly terminate it.90/ The most noteworthy feature of the above procedure, when compared to the Marine Mammal Protection Act, is that it is the Secretary who has the burden of establishing the legitimacy of federal authority. State authority is protected by what is in effect a presumption of validity. That presumption can be overborne, but only pursuant to rigorous adversarial procedures. 88/ Id. $306(b)(1). 89/ 90/ The Secretary's regulatory authority does not extend to the internal waters of any state. FCMA $306 (b) (2). When the Supreme Court in the nineteenth century enunciated the principle that wildlife was not the private property of any individual or group of individuals, but was instead the collective property of all the people, it established the paramount role of the government, as public trustee, in the task of wildlife conservation. Until the dawn of the present century, that role was fulfilled almost exclusively by the states. Beginning in 1900, however, the federal government assumed an increasingly significant share of that role. The expansion of the federal role in wildlife regulation occurred largely by a process of accretion. Federal wildlife regulation was initially limited to filling in the lacunae of state regulation, as with the Lacey Act, 1/ or addressing narrowly defined wildlife exigencies as they arose. The result was a patchwork of federal laws having little apparent unity of purpose or method. As such, those laws never came to be viewed by legal commentators as a coherent body of law worthy of analysis. Over the course of this century, the nature of the federal role in wildlife regulation has changed significantly. The federal effort has shifted from prescribing narrowly circumscribed remedies for particularly acute problems to attempting to provide comprehensive programs which address more broadly based wildlife conservation needs. Notwithstanding that change in purpose, the basic regulatory tools of recent federal wildlife legislation are the same as those utilized in 1/ 18 U.S.C. §§42-44 and 16 U.S.C. §§670(e) and 701 (1970). the earliest federal statutes. Restrictions on taking and commerce, acquisition of habitat, and mandatory consideration of wildlife impacts are all regulatory tools which were developed by the 1930's. The major innovation of recent legislation is in the effort to coordinate the use of these various regulatory tools to achieve comprehensive programs of wildlife conservation, and to establish a relationship between the states and the federal government capable of carrying out those programs. There are more subtle changes that can be perceived in the evolution of federal wildlife law, changes which may in fact represent the most significant aspects of that evolution because they give tangible content to the nineteenth century conception of wildlife as a public trust resource. The first of these changes is the steady expansion of the range of wildlife subject to legal protection. Initially, the exclusive focus of federal wildlife law was on game and other commercially valuable wildlife. The Lacey Act, although it applied literally to all "wild animals and birds," was understood to apply only to "game birds and fur bearing mammals."2/ In time, however, the need to expand the scope of its application became apparent, and it was amended to include all vertebrates, mollusks and crustaceans. The Black Bass Act of 1926 underwent a similar process of expansion from an initial application to only two species of game fish, then to all game fish, and finally to all fish of any kind. 3/ The culmination of this steady process of expansion of the range of wildlife subject to federal 2/ See Chapter Five supra at text accompanying note 20. 16 U.S.C. §§851-56 (1970). See Chapter Five supra at text accompanying note 30. 3/ |