These sections will, I am confident, make it clear that while no one may secure a truly vested property right in the fisheries, those who have over the past 50 years built up and developed the commercial fisheries of Alaska may not be ousted without cause.

In this same connection, section 6, in conjunction with section 7, lends a degree of certainty and continuity to the Alaska fishing industry heretofore largely wanting, by adopting principles which have for many years been applied in the grazing industry in the Western States. This principle is applicable where public authorities find that restriction in grazing is unavoidable and some people by force of circumstances must be restricted. In such cases, those who by previous use and proximity have better claims to use than newcomers or strangers should be the last to be eliminated.

These sections in no way restrict the power of the Director of the Fish and Wildlife Service to put into effect any conservation measure required. They simply insure that the potential opportunity to the claim jumper is foreclosed. Nor does the offering of preference of opportunity to those who have through their efforts developed the commercial fisheries in any sense create vested property rights in a natural resource. The paramount public interest in the conservation of the fisheries continues, and any and all fishing may be curtailed or restricted when conservation requires it.

The analogy which might be offered is that of the familiar concept in a somewhat different field, such as the Motor Carrier Act or Civil Aeronautics Act. Where the Federal Government finds it necessary to regulate or limit those who use the interstate highway, or engage in commercial air transport, preferential recognition is given to those who can qualify under what are usually called grandfather clauses. Obviously, no one has property rights in the highways or in the interstate airways, yet fundamental fairness has led Congress to recognize the general principle of preferential treatment to those who pioneered in these fields, and to accord recognition to previous experience and contribution.

In carrying out this thought and to make a change corresponding to that which I have suggested for section 5 on page 6 of the bill, I am requesting the committee to insert on page 9, line 9, after the word "Act", a further sentence reading:

Permits and leases first granted following the issuance of regulations under this Act shall be renewed by the Director except where he reasonably finds that the fishing privilege granted by any such permit or lease has been abused by the holder of such permit or lease, or that the renewal of such permit or lease will not effectuate the purposes of this Act.

Section 8 was inserted in the bill to relieve a conflict of jurisdiction between the Interior and War Departments. It does not in any way curtail the powers of the War Department under the Rivers and Harbors Act of 1899, but it does provide for an orderly procedure with reference to the application of that act to fishery appliances in Alaska. And we have with us today Colonel Goethals, who will make a statement immediately following mine.

Section 9 is a formal provision concerning the gathering of necessary fishery statistics.

Sections 10, 11, and 12 provide for public hearings in connection with the adoption of fishery regulations or the making of other determinations, for the public promulgation of regulations and for appeals and reviews of determinations of the Director of the Fish and Wildlife

Service. Heretofore it has been possible for regulations affecting particular individuals or the industry generally to be made in secret regardless of the disastrous effect such practice may have.

Charges of favoritism have not been unknown. These sections bring everything out into the open, where I am sure the present officials of the Service wish it to be. In the end, the power of the Department of the Interior is not substantially curtailed-the object of these provisions being, as indicated, to permit parties to be heard and at least be given an opportunity to present their case, before it is determined. Primarily, section 10 requires that those who regulate appear publicly at a hearing and set forth the facts and reasons upon which their proposed action is to be based.

The committee will note that subsection (e) of section 10 still permits the Director of the Fish and Wildlife Service to take whatever emergency action is necessary during the fishing season, in the event of unexpected variations in the run of fish.

Apart from the emergency wartime legislation, I doubt whether there is any Federal statute which confers upon administrative officials the scope of authority, affecting the means of livelihood of thousands of individuals, which is given by S. 930. I mean this bill. I am satisfied that the necessities of effective conservation require that this be done. Yet because the denial of a fishing license, or a permit, or lease or the granting, renewing, suspending, revoking, or any action in respect thereto may destroy the means of livelihood or mean tremendous losses during the short-lived fishing season, a system of rapid and full administrative review, as well as any necessary court review, seems essential.

Section 11 provides that such administrative review may be obtained in the event of a failure to act upon an application within 30 days. This time limitation is essential in view of the short fishing seasons and the necessity of adequate preparation for them.

Moreover, the opportunity to review administrative action is meaningless unless one knows the basis for action or refusing to act. Hence, section 11 requires that administrative action shall be in writing and shall set forth the reasons for any determination. As to certain fundamental rights, court review of the final administrative determination is provided. The method, time, and place for such court review are specifically set forth. Such careful specification seems necessary in view of the geographical dispersion of those who might be involved, and of the difficulties and uncertainties surrounding the securing of court review of administrative action in the absence of any specific statutory provision. As Congress has properly seen fit to provide in most recent enactments delegating its power to administrative agencies, this type of provision is essential for the protection of the citizens in the fortunately rare cases of administrative abuse of authority or wholly arbitrary action.

Sections 13 to 17, inclusive, are more or less routine enforcement provisions.

I should like to make one small addition to section 14 on page 20, which would read:

Authorized employees of the Department of the Interior shall at all times have free and unobstructed access to all canneries, salteries, cold storage, and other fish processing establishments as well as to all fish hatcheries.

The purpose of this is obvious, and I understand that the industry is fully in accord with the idea that officers of the Service should have access to all canneries. I also think it desirable to avoid some possible confusion which might arise out of the present language of section 16. As the committee undoubtedly knows, because of the wide geographical distances between Alaskan communities or fishing areas, the Alaska Criminal Code, enacted by Congress in 1899 (30 Stat. 1279,) provided that the United States Commissioners in Alaska could exercise the powers of a justice of the peace to try misdemeanor cases. Several court decisions have made it clear that this authority extends to violations of the fisheries laws, and as a practical matter this practice should be followed. In order that the present section will not be disturbed, I think it would be better to refer, on page 22, line 1, to "any court of competent jurisdiction." This change would mean striking out the word "district" in line 1, and the words "having jurisdiction of the defendant" in line 2 on page 22.

Sections 18, 19, and 20 relate to investigations, disposition of fees, and appropriations to the Fish and Wildlife Service.

Section 21 prohibits fishing by anyone who is not a citizen, unless he shall, in good faith, have declared his intention to become a citizen. Sections 22 and 23 are formal clauses relating to separability and repeals. I think the committee would care to have called to its attention the fact that the various Federal taxes, of 4 cents per case of salmon, 10 cents per barrel, and the like, originally imposed by the act of June 26, 1906, are continued. This is made clear by subsection (b) of section 23 on page 25 of the bill.

It will also be observed that section 8 of the 1906 act is continued. This makes it unlawful for anyone wantonly to waste or detroy salmon or other food fish caught in any of the waters of Alaska.

For the convenience of the committee I should like to offer for inclusion in the record at this point the existing statutes regulating the Alaskan fisheries in order that they may be available for the committee's use.

(The document referred to is as follows:)

LAWS RELATING TO THE PROTECTION OF THE ALASKA

FISHERIES 1

GENERAL AUTHORITY FOR REGULATION

[Act of June 18, 1926, 44 Stat. 752; 48 U. S. C. 221–224]

An Act to amend section 1 of the Act of Congress of June 6, 1924, entitled "An Act for the Protection of the Fisheries of Alaska, and for Other Purposes"

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of the Act of Congress of June 6, 1924, entitled "An Act for the protection of the fisheries of Alaska, and for other purposes," is amended so that it will read as follows:

"SECTION 1. That for the purpose of protecting and conserving the fisheries of the United States in all waters of Alaska the Secretary of the Interior from time to time may set apart and reserve fishing areas in any of the waters of Alaska over which the United States has jurisdiction, and which such area may

1 "Department of Commerce and Labor," "Secretary of Commerce and Labor," "Department of Commerce, and "Secretary of Commerce," wherever they appear in the Alaska Fishery Laws, have been changed to "Department of the Interior" and "Secretary of the Interior" in accordance with Reorganization Plan No. II 53 Stat. 1431), effective July 1, 1939. "Bureau of Fisheries" and "Commissioner of Fisheries," wherever they appear in the Alaska Fishery Laws, have been changed to "Fish and Wildlife Service" and "Director of the Fish and Wildlife Service" pursuant to Reorganization Plan No. III (54 Stat. 230), effective June 30, 1940.

establish closed seasons during which fishing may be limited or prohibited as he may prescribe. Under this authority to limit fishing in any area so set apart and reserved the Secretary may (a) fix the size and character of nets, boats, traps, or other gear and appliances to be used therein; (b) limit the catch of fish to be taken from any area; (c) make such regulations as to time, means, methods, and extent of fishing as he may deem advisable. From and after the creation of any such fishing area and during the time fishing is prohibited therein it shall be unlawful to fish therein or to operate therein any boat, seine, trap, or other gear or apparatus for the purpose of taking fish; and from and after the creation of any such fishing area in which limited fishing is permitted such fishing shall be carried on only during the time, in the manner, to the extent, and in conformity with such rules and regulations as the Secretary prescribes under the authority herein given: Provided, That every such regulation made by the Secretary of the Interior shall be of general application within the particular area to which it applies, and that no exclusive or several right of fishery shall be granted therein, nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of the Iuterior. The right herein given to establish fishing areas and to permit limited fishing therein shall not apply to any creek, stream, river, or other bodies of water in which fishing is prohibited by specific provisions of this Act, but the Secretary of the Interior through the creation of such areas and the establishment of closed seasons may further extend the restrictions and limitations imposed upon fishing by specific provisions of this or any other Act of Congress: Provided further, That the Secretary of the Interior is hereby authorized to permit the taking of fish or shellfish, for bait purposes only, at any or all seasons in any or all Alaskan Territorial waters. "It shall be unlawful to import or bring into the Territory of Alaska, for purposes other than personal use and not for sale or barter, salmon from waters outside the jurisdiction of the United States taken during any closed period. provided for by this Act or regulations made thereunder."

Approved June 18, 1926.

OYSTER CULTURE

[Act of August 2, 1937, 50 Stat. 557; U. S. C., Sup. IV, 223b]

An Act for the Protection of Oyster Culture in Alaska

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of the Act of Congress approved June 6, 1924, entitled "An Act for the protection of the fisheries of Alaska, and for other purposes" (43 Stat. 464), as amended by the Act of Congress approved June 18, 1926 (44 Stat. 752), is further amended by striking the period after the words "Alaskan Territorial waters", where they occur at the end of the second proviso, and inserting a colon in lieu thereof and after the colon the following: "Provided further, That the Secretary of the Interior, in his discretion, and upon such terms and conditions as he may deem fair and reasonable, is hereby authorized to lease bottoms in Alaskan Territorial waters for bona fide oyster cultivation for commercial purposes." Approved August 2, 1937.

BRISTOL BAY RESIDENCE REQUIREMENTS

[Act of April 7, 1938, 52 Stat. 208; 48 U. S. C., Sup. IV,

222al

An Act to Amend Public Law Numbered 282, Seventy-fifth Congress, Relative to the Fisheries of Alaska Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Public Law Numbered 282, Seventy-fifth Congress, entitled “An Act making further provision for the fisheries of Alaska,' approved August 14, 1937 (50 Stat. 639), is amended to read as follows: "That section 1 of the Act approved June 6, 1924, entitled 'An Act for the protection of the fisheries of Alaska, and for other purposes' (43 Stat. 464), as amended, is further amended by inserting in said section at the end of the first proviso thereof another proviso to read as follows: 'Provided further, That in the area embracing Bristol Bay and the arms and tributaries thereof, no person shall at any time fish for or take salmon with a stake net or set net, for commercial purposes, unless such person shall be a citizen of the United States and shall have theretofore continuously resided for the period of at least two years within said area; but for the salmon fishing season of 1938, residence within said area continuously

after June 1, 1937, shall be deemed sufficient compliance with the residence requirements of this proviso:'".

Approved, April 7, 1938.

*

REGULATION OF SALMON ESCAPEMENT

[Act of June 6, 1924, 43 Stat. 465; 48 U. S. C. 225, 234, 226–228]

An Act for the Protection of the Fisheries of Alaska, and for Other Purposes
*

*

*

*

*

*

SEC. 2. In all creeks, streams, or rivers, or in any other bodies of water in Alaska, over which the United States has jurisdiction, in which salmon run, and in which now or hereafter there exist racks, gateways, or other means by which the number in a run may be counted or estimated with substantial accuracy, there shall be allowed an escapement of not less than 50 per centum of the total number thereof. In such waters the taking of more than 50 per centum of the run of such fish is hereby prohibited. It is hereby declared to be the intent and policy of Congress that in all waters of Alaska in which salmon run there shall be an escapement of not less than 50 per centum thereof, and if in any year it shall appear to the Secretary of the Interior that the run of fish in any waters has diminished, or is diminishing, there shall be required a correspondingly increased escapement of fish therefrom.

SEC. 5. Section 5 of said Act of Congress approved June 26, 1906, is amended to read as follows:

"SEC. 5. That it shall be unlawful to fish for, take, or kill any salmon of any species in any manner or by any means except by hand rod, spear, or gaff for personal use and not for sale or barter in any of the waters of Alaska over which the United States has jurisdiction from six o'clock postmeridian of Saturday of each week until six o'clock antemeridian of the Monday following, or during such further closed time as may be declared by authority now or hereafter conferred, but such authority shall not be exercised to prohibit the taking of fish for local food requirements or for use as dog feed. Whenever the Secretary of the Interior shall find that conditions in any fishing area make such action advisable, he may advance twelve hours both the opening and ending time of the minimum thirty-six hour closed period herein stipulated. Throughout the weekly closed season herein prescribed the gate, mouth, or tunnel of all stationary and floating traps shall be closed, and twenty-five feet of the webbing or net of the 'heart' of such traps on each side next to the 'pot' shall be lifted or lowered in such manner as to permit the free passage of salmon and other fishes."

SEC. 6. Any person, company, corporation, or association violating any provision of this Act or of said Act of Congress approved June 26, 1906, or of any regulation made under the authority of either, shall, upon conviction thereof, be punished by a fine not exceeding $5,000 or imprisonment for a term of not more than ninety days in the county jail, or by both such fine and imprisonment; and in case of the violation of section 3 of said Act approved June 26, 1906, as amended, there may be imposed a further fine not exceeding $250 for each day the obstruction therein declared unlawful is maintained. Every boat, seine, net, trap, and every other gear and appliance used or employed in violation of this Act or in violation of said Act approved June 26, 1906, and all fish taken therein or therewith, shall be forfeited to the United States, and shall be seized and sold under the direction of the court in which the forfeiture is declared, at public auction, and the proceeds thereof, after deducting the expenses of the sale, shall be disposed of as other fines and forfeitures under the laws relating to Alaska. Proceedings for such forfeitures shall be in rem under the rules of admiralty.

That for the purposes of this Act all employees of the Fish and Wildlife Service designated by the Director of the Fish and Wildlife Service shall be considered as peace officers and shall have the same powers of arrest of persons and seizure of property for any violation of this Act as have United States marshals or their deputies.

SEC. 7. Sections 6 and 13 of said Act of Congress approved June 26, 1906, are hereby repealed. Such repeal, however, shall not affect any act done or any right accrued or any suit or proceeding had or commenced in any civil cause prior to said repeal, but all liabilities under said laws shall continue and may be enforced in the same manner as if committed, and all penalties, forfeitures, or liabilities incurred prior to taking effect hereof, under any law embraced in, changed, modified, or repealed by this Act, may be prosecuted and punished in the same manner and with the same effect as if this Act had not been passed.