Aquatic invasive species in the coastal west: an analysis of state regulation within a federal framework.

I. INTRODUCTION

An invasive species is a normative species(1) introduced, whether accidentally or intentionally, into a new ecosystem.(2) An aquatic invasive species (AIS), as defined by the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA),(3) is a nonnative species that threatens the diversity or plenitude of native marine species, threatens the ecological stability of infested waters, or threatens the ability of infested waters to support agricultural, aquacultural, commercial, or recreational activities.(4) The West Coast of the United States is an area where AIS have taken hold and run roughshod over native plants and animals, invading habitat and aggressively competing for limited food supplies.(5) In fact, in some westcoast waters, AIS completely dominate existing ecosystems. For example, San Francisco Bay currently has over 234 AIS, constituting by weight up to 99% of its total marine life(6) and causing the extinction of many native species.(7) In addition to environmental losses, AIS cause significant economic losses throughout the United States and the coastal West. One conservative estimate places cumulative national economic losses due to AIS at over $1.2 billion,(8) while another places average annual losses alone at about $122 billion.(9)

To combat mounting environmental and economic losses, Congress enacted several pieces of legislation to regulate invasive species generally and AIS specifically. These statutes include the Lacey Act(10) and NANPCA. Most recently and significantly, Congress enacted the National Invasive Species Act (NISA),(11) which amended NANPCA. For three significant reasons, none of these laws adequately regulate AIS.(12) First, the current legislation is a product of a limited legislative agenda in which Congress sought regulation of AIS to curb impacts only on agricultural interests, rather than on the environment as a whole.(13) Second, the federal scheme regulating AIS rests largely on voluntary compliance.(14) Finally, the federal scheme addresses only one AIS introduction vector,(15) that of ballast water discharge,(16) and ultimately falls to consider other known introduction vectors.

Because current federal law does not comprehensively address AIS, state regulation must be considered as an alternative means of AIS management.(17) Arguably, states are better able to regulate AIS introduction and establishment than federal agencies for several reasons. To begin, the great diversity of AIS would be easier to monitor at the local level.(18) Also, the variety of introduction vectors would be simpler to manage at the state level.(19) Finally, states have firsthand knowledge of what is actually happening in their waters with respect to prevention of AIS introduction and eradication of already established AIS. On the other hand, there are obstacles to state regulation of AIS, such as Commerce Clause objections, federal preemption arguments, and implementation inconsistencies.(20) Consequently, state law regulation of AIS would be best accomplished with specific federal guidance and empowerment.

The purpose of this Article is to explore state law as a means of regulating AIS within a larger federal law framework. Because western coastal states provide an interesting sampling of AIS problems and statutory responses to those problems, this Article uses the state laws of California, Oregon, Washington, and Alaska as a basis for studying the relationship between state and federal law. Part II examines the introduction, establishment, and impact of AIS in the marine environments of the coastal West. Part III presents a two-fold analysis: 1) It assesses the effectiveness of current federal law in regulating AIS and highlights deficiencies in the federal scheme, and 2) it discusses the constitutional limitations on state AIS regulation, specifically examining constraints imposed by the Commerce and Supremacy Clauses. Part IV analyzes the shortcomings of existing AIS laws in California, Oregon, Washington, and Alaska and discusses the general need for more uniform state AIS regulation. Part V suggests how Congress should amend the existing federal statutory framework to allow not only increased, but also cohesive state involvement in AIS regulation. Part VI concludes that any effective, comprehensive state A/S regulation must be shaped by federal guidance and federally imposed minimum thresholds for state programs.

II. AN ANALYSIS OF AQUATIC INVASIVE SPECIES IN THE COASTAL WEST

The threat of invasion by normative species has always existed. It is arguably a natural process that should be allowed to continue unheeded.(21) The problem with this theory is that it falls to take into account the rate at which humans are responsible for accelerating the pace of successful introductions, as compared to those that would occur naturally.(22) The last five hundred years or so demarcate an era of human expansion that has resulted in the increasingly rapid disruption and weakening of Earth's ecosystems.(23) The fragile condition of these systems renders them vulnerable to the establishment of invasive species.(24) In addition, rates of introduction have escalated with the advent of new modes of conveyance by trade and travel.(25) Airplanes, boats, and automobiles provide sufficiently quick and spacious travel, facilitating entry of a number of invasive species into habitat zones otherwise out of reach.(26)

In the late 1950s, Charles Elton, a renowned British ecologist, warned that modern society was witnessing great historical dislocations of the world's fauna and flora.(27) Indeed, the scope of invasion is alarming, as are its effects.(28) Over 4500 invasive species are now established in the United States.(29) These species greatly threaten biological diversity(30) because they are often able to out-compete and displace native organisms,(31) As would be expected, they also add to the stress already suffered by endangered and threatened native species,(32) One study indicates that invasive species are second only to habitat destruction among the leading causes of species loss nationwide.(33) However, some experts fear that invasive species ultimately will contribute to the demise of the human population by destroying natural processes and ecosystems necessary to human survival.(34)

Whether invasive species will eventually lead to human extinction or not, the current problems posed by the influx of invasive species are pressing. The United States, reflecting the global trend,(35) has witnessed an increase in the number of invasive species living within its borders during the last two hundred years.(36) This increase has been in both terrestrial and aquatic realms.(37) For example, the number of established invasive plant species, estimated at close to one hundred in 1790, grew to roughly two thousand by 1990.(38) Similarly, invasive mollusk(39) and fish species have increased dramatically in the last two hundred years.(40) In 1790, two invasive mollusk species were established in the United States, but by 1990 that number had risen to about ninety-one.(41) Likewise, established invasive fish species, numbered at about two in 1790, had increased to close to seventy by 1990.(42)

One way of controlling AIS establishment is by regulating known introductory vectors of AIS. Indeed, prevention of new introductions is arguably the best line of defense against AIS.(43) Therefore, it is essential to identify methods of introduction. An understanding of how AIS have been introduced in the coastal West is necessary to the development of any comprehensive state regulatory scheme.

A. AIS Introductions in the Coastal West

California, Oregon, Washington, and Alaska host a variety of AIS.(44) AIS are introduced through various vectors.(45) Some are intentionally introduced, while others are accidentally introduced.

1. Intentional Introductions of AIS in the Coastal West

AIS are intentionally introduced in a number of ways in the coastal West. First, state agencies, such as fish and game departments, deliberately introduce AIS for recreational purposes.(46) For example, in Washington, state officials intentionally introduced a number of freshwater fish, including bluegill, yellow perch, largemouth bass, and green sunfish, to enhance recreational fishing opportunities.(47) In addition to intentional release for recreational purposes, state agencies introduce commercial AIS to create new aquaculture industries.(48) To illustrate, the Pacific oyster, a species that was imported from Japan, is now harvested in bays from Washington to California.(49) Finally, state agencies in the coastal West intentionally introduce some AIS in order to use them for biological pest control purposes.(50)

Other parties are also responsible for the intentional introduction of AIS. The federal government has not only purposefully released AIS, it also funded the deliberate release of AIS throughout the country, including the coastal West.(51) The U.S. Fish and Wildlife Service (FWS) has varied, and often conflicting, duties.(52) On the one hand, it has a duty to prevent the introduction and spread of injurious AIS, in part to safeguard threatened and endangered species.(53) But it also has a responsibility to promote recreational hunting, fishing, and aquaculture involving the introduction and establishment of AIS.(54) In its administration of the Federal Aid Program, the FWS has been responsible for the introduction of numerous invasive species, something for which it has often been condemned.(55)

Similarly, private individuals have been responsible for the deliberate introduction of AIS in the coastal West.(56) Some species are introduced for economic purposes to create new fisheries or trades.(57) For example, Alaska residents who visit the lower forty-eight states return to Alaska with various AIS, such as oysters, and release them off of their piers with the intent to grow and eventually harvest them.(58) In Washington, an invasive water rodent, known as nutria, was imported by people who intended to raise the animal for its fur; when the fur venture failed, the nutria were simply released into the wild where they became established and caused various environmental problems.(59)

Private individuals purposefully release AIS for other reasons as well. One reason for introduction of certain AIS, such as hydrilla,(60) is that they provide food for the native species that hunters and fishermen like to catch.(61) Another reason for private introduction is that AIS themselves provide increased fishing and hunting opportunities.(62) To illustrate, in California, biologists believe that pike were deliberately introduced by fisherman for sport purposes.(63)

In hundreds of documented cases, AIS have been brought into the coastal West and other parts of the United States illegally by private individuals.(64) For example, in California, state officials believe the Chinese mitten crab(65) may have been deliberately released to establish a fishery(66) by individuals who illegally smuggled live crabs into the country in travel luggage.(67) Elsewhere, ornamental horticulture species have been illegally trafficked into the country and released.(68)

Plants are not always introduced illegally, however. Many law-abiding landowners introduce invasive plant species that are not prohibited by state law.(69) Purple Loosestrife, also known as the "Purple Plague," was first introduced in New England in the 1800s as an ornamental plant; today, it is found in every state but Florida.(70) This invasive species has devastating effects on wetland areas, growing rampant in them and drying them up.(71) Despite the fact that this plant is listed as a noxious weed in roughly a dozen states, it is still being sold today as a landscape plant in some jurisdictions.(72) Indeed, garden shops and mall order plant catalogues offer invasive species by the dozens for lawful sale in the coastal West.(73)

Many of the species intentionally introduced into the coastal West were considered harmless at the time of their release.(74) Little, if any, preintroduction evaluation of potential harms was performed before the species were released.(75) Lack of foresight has resulted in many of these introductions going awry.(76)

2. Unintentional Introductions of AIS in the Coastal West

Accidental introductions have caused the release of many destructive AIS in the coastal West. Unintentional introduction vectors can be rather obscure, and as a consequence, they are often overlooked. Nonetheless, these vectors must also be identified and regulated to prevent future AIS introductions.

Negligent release is responsible for the introduction of some AIS populations.(77) To explain, while the release is intentional, it is typically not intended to introduce AIS. Ballast water(78) discharge(79) is considered the most significant method of negligent AIS introduction.(80) In Oregon, ships arriving from Japan were found to be carrying over 360 species of AIS in their ballast water.(81) The possibilities of AIS introduction via ballast water seem endless, considering that about 39,000 ships currently sail the oceans.(82) More disquieting is the likelihood that ballast water discharge of AIS hitchhikers will increase as world trade accelerates.(83) Ballast water transport is an especially effective and comfortable mode of travel for most AIS.(84) The ballast hold provides a safe environment, sustaining numerous AIS stowaways for days and even weeks while transporting them across vast water bodies.(85) Upon discharge, AIS are delivered to new ecosystems in which none of their native predators and competitors are living; if new climates are tolerable, AIS are likely to flourish.(86) Negligent release of AIS is not limited to ballast water discharge, however.(87) AIS can be released unintentionally when fishermen clean "live wells."(88) For example, some Alaskan fishermen spend part of the year fishing in the lower forty-eight states or Mexico; when they return to Alaska, they clean their live wells by dumping the foreign contents into Alaskan waters.(89) Live wells are likely to contain living species, and there is deep concern among scientists in Alaska that out-of-state AIS will be introduced in this manner and will subsequently become established in the state.(90)

Fisherman can also unwittingly spread AIS throughout different areas of a state by releasing infected fish or shellfish. To illustrate, in Alaska, fishermen accidentally spread bacteria from an isolated system in Glacier Bay to the whole of southeast Alaska.(91) After catching crabs infected with the bacteria in Glacier Bay, the fishermen would return to their home ports only to discover that they had caught "bitter crabs," which is what crabs infected with the bacteria are commonly called.(92) Upon discovery, they would toss the living infected crabs back into the ocean where they would subsequently mix with new crab populations, allowing the bacteria to spread.(93)

There are documented cases of unintentional AIS distribution by fishermen in California as well. Beginning the day at one site, the fishermen move to a new area, and dump live bait that was caught at the first location into waters at the second location.(94) Although unintentional, this has been an effective method of relocating small fish.(95)

Another way that species are unintentionally introduced is through escape from aquaculture and horticulture pens.(96) It is thought that the east coast blue crab may have been introduced in this manner in California.(97) AIS introduced for ornamental purposes, including plants,(98) fish, shrimp, and other aquatic invertebrates, commonly escape confinement.(99) Likewise, AIS introduced as exotic pets, such as aquarium fish, sometimes escape captivity and become established in the wild.(100)

AIS are also unintentionally introduced through the packing materials in which live seafood is stored while being transported from coast to coast.(101) For example, east coast blue crab is packed in seaweed when it is shipped from the east coast to the west coast for sale in live markets.(102) California state experts believe that the green crab made its way to the West hidden away in seaweed packing materials. It subsequently escaped and was able to become established.(103)

Finally, negligent AIS introduction can be as innocuous as out-of-state recreational boaters carrying the species into a jurisdiction on boat bottoms, where plant AIS grow.(104) In 1997, experts considered recreational boat introduction of AIS the most problematic vector in Oregon.(105) Arguably, that is not the case today.(106) However, this example demonstrates how insidious introduction can be.

The methods of introduction discussed here are by no means exhaustive. Indeed, as one commentator suggests, the possible methods of negligent introduction of AIS due to human activity is virtually limitless.(107) As already noted, prevention of AIS is not only the best weapon against AIS establishment, sometimes it is the only weapon.(108) Therefore, it is obvious that any comprehensive AIS regulatory scheme must address and prohibit, or at least limit, as many introduction vectors as possible.

B. A Discussion of the Status and Impacts of AIS in the Coastal West: The Green Crab and the Chinese Mitten Crab as Examples

Of the many AIS that are introduced, not all are able to become established in their new environments, but those that do typically spread quickly from one legal jurisdiction to another. Simply put, these species observe ecosystem boundaries, not political boundaries. They respond to food sources, temperature, and general conditions rather than state lines. Therefore, the status of an invasive species in one state is likely to be an accurate forecast of how successful the species will be in a neighboring state, provided that the ecosystem is contiguous or sufficiently similar to support the species. Because there are thousands of AIS in the coastal West,(109) not all of them can be described here. However, analysis of two sample AIS, the green crab and Chinese mitten crab, illustrate AIS establishment, impacts, and migration patterns.

The green crab is of particular concern in the coastal West.(110) It was found in 1989 in California's San Francisco Bay.(111) From there, biologists believe it traveled north on the Davidson Current, a north-south current dominating winter surface water patterns in the Pacific Ocean along the West Coast.(112) The green crab was first recorded in Oregon in March of 1997,(113) but experts suspect that it made its way to the state one year prior, where it remained undetected during the winter months.(114) Since its arrival in Oregon, it has continued to move north at an alarming rate; from Coos Bay, where it was first recorded, it has moved approximately 160 miles north to Tillamook Bay in a year's time.(115) To date, the green crab has not reached Washington or Alaska, but both states, in anticipation and fear of a likely near-term invasion, are attempting to prevent introduction of this species.(116)

This little three-inch shore crab is an unusually adaptable creature, able to tolerate freshwater and seawater, withstand freezing temperatures, survive in a variety of tidal habitats, and live out of water for up to two months when sheltered under seaweed.(117) The female crab can produce up to 200,000 eggs at a time, and the larvae can survive as plankton for close to three months, allowing their distribution in coastal currents.(118) The green crab is a fierce predator and voracious eater.(119) It preys on crabs, small clams, oysters, and yellow shore crabs.(120) It has potential to devastate commercial fisheries up and down the west coast.(121) To date, the green crab has been able to successfully resist eradication efforts, but researchers are considering various control methods, including establishing a green crab recreational fishery.(122)

Another AIS causing concern in the coastal West is the Chinese mitten crab. This crab was first detected in California's San Francisco Bay in 1992, but biologists suspect that it became established in the state several years prior.(123) According to Kathy Heib, an expert on the mitten crab at the California Department of Fish and Game, it took less than ten years for the mitten crab to migrate to Washington State on the Davidson Current.(124)

Surprisingly, the Chinese mitten crab has not yet been detected in Oregon.(125) One adult male mitten crab was found in the Columbia River near Portland, Oregon in 1997; however, it was later identified as a Japanese, rather than a Chinese, mitten crab.(126) Even if the Chinese mitten crab has not migrated yet to Oregon, it is certainly likely to do so in the near future.(127)

Biologists in Alaska believe that these crabs will be found there in the near future as well.(128) However, there is some question regarding the crabs' ability to successfully establish in Alaska.(129) Alaska's ecosystems are quite healthy and more resistant to AIS invasion.(130) Further, the Chinese mitten crab requires more burrowing surface and biomass than Alaskan rivers can provide.(131) Nevertheless, if the mitten crabs were able to establish in salmon rivers, they would likely be a big problem for the native salmon populations in Alaska.(132)

The overall negative impacts of a large Chinese mitten crab population are unknown, but reasonable speculations are possible. First, the crabs' propensity to burrow into embankments, especially river banks and levees, makes the species's destructive capacity great.(133) In California, there is fear that the crabs will accelerate erosion to existing levees.(134) Second, the crab carries Oriental lung fluke, which can infect humans who handle or eat raw crabs.(135) Third, while juvenile crabs subsist primarily on vegetation, maturing and adult crabs eat other animals, potentially causing declines in native invertebrate populations and affecting the food chain as a whole.(136)

The Chinese mitten crab population is growing in California,(137) and so is the amount of damage caused by the crabs. In California, the most severe damage resulting from the crabs is disruption to the Central Valley Project's fish salvage operations.(138) The fish salvage operations rescue fish by channeling them into tanks and releasing them back into the delta.(139) In one week, ninety-eight percent of the fish died because the crabs had delayed and clogged operations to such a great extent.(140) Ultimately, nobody knows what the destructive potential of the crabs is in California or elsewhere.(141)

The green crab and Chinese mitten crab are but two examples of AIS in the coastal West. There are many more AIS that are common to two or more states in the coastal West: hydrilla, zebra mussel, spartina, purple loosestrife, Asian copepod, milfoil, Asian clam, Manila clam, and shipworm are just a very few.(142) AIS statistics in the coastal West are alarming. At present, twenty-eight percent of fish species in the West are of foreign origin.(143) One-fifth of all the plants growing in California, including some aquatic plants, are nonnative.(144) Over four hundred AIS populate San Francisco Bay, and in some parts of the Bay all native species have been displaced or are extinct as a result AIS introductions.(145) At least two hundred invasive plants and animals are established in the Sacramento-San Joaquin Delta.(146) Statistically one new AIS is introduced annually into California.(147) The following partial list reflects just some of the AIS that can be found in Washington: 1) over twenty invasive aquatic invertebrates species, 2) over thirteen invasive fish species, and 3) over ten aquatic plant species.(148) In Oregon, one or more new species are introduced every two years.(149) Statistics are not readily available for Alaska, and that may be a result of the fact that fewer invasions occur in that state.(150)

Every year, established AIS spread to new geographic regions and increase in population. More habitat has been lost to invasive species in the last ten years than to development.(151) Invasive species are a major environmental threat, possibly more devastating to native species and ecosystems than development, logging, and toxic waste.(152)

Established invasive species are very difficult to eradicate; some say eradication is "impossible."(153) Although manual eradication is preferred over pesticide or herbicide eradication,(154) manual extraction is more effective when the invader is a terrestrial plant,(155) rather than an aquatic plant, animal, insect, or microscopic organism. Legal schemes aimed at managing AIS must focus on prevention because eradication of aquatic species is so difficult.

III. AQUATIC INVASIVE SPECIES REGULATION: THE DEFICIENCIES OF THE CURRENT FEDERAL APPROACH AND THE INCREASED NEED FOR A UNIFORM STATE APPROACH

Current federal regulation of aquatic and terrestrial invasive species is woefully incomplete.(156) In recent years, the lack of federal guidance in this area of the law has caused the scientific and environmental communities to turn their attention to state and local regulation as an alternative method of controlling AIS.(157) A brief analysis(158) of the federal AIS scheme demonstrates why federal laws are inadequate and why states should play a more active role in AIS management. Constitutional hurdles to state regulation are avoidable, provided states regulate AIS with constitutional requirements in mind.

A. Federal Laws

To date, there are several federal enactments that attempt to regulate AIS.(159) The most significant laws are the Lacey Act,(160) Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990,(161) and National Invasive Species Act of 1996.(162) None of these laws adequately regulate AIS. The following summary reveals why federal law fails to provide comprehensive AIS regulation.

1. The Lacey Act

The Lacey Act of 1900 represents the first solid congressional effort to control the introduction of invasive species.(163) It operates according to a "dirty list."(164) The Act bans species deemed to be "injurious wildlife."(165) Any species without that designation is not listed and may be introduced into the country.(166) The Lacey Act fails to adequately regulate AIS for a number of reasons. First, it only excludes a short list of species that are considered "injurious wildlife,"(167) failing to prohibit many wildlife species that are dangerous to native species and to human health and welfare.(168) Second, the Lacey Act does not attempt to regulate viruses, parasites, diseases, or other pathogens, except in a limited number of areas.(169) Third, the Act fails to provide for accidental or unintentional introductions,(170) and it does not contain any provisions designed to prevent the escape of invasive species once they have been imported.(171) Fourth, the listing process is time consuming and effectively prevents the Fish and Wildlife Service, the Act's administering agency, from acting quickly to ban a newly discovered harmful species.(172) Fifth, the Lacey Act gives states the authority to release exotic fish and wildlife into the environment, but it does not provide any guidance on how it can be done safely, without negative consequences to native species.(173) Finally, the Lacey Act does not comprehensively regulate the movement of prohibited species through interstate commerce.(174)

2. Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA or the Act)

NANPCA was enacted in reaction to the swift invasion of the Great Lakes by the zebra mussel(175) via ballast water discharge.(176) Most significantly, the Act requires the Secretary of Transportation to promulgate rules preventing the release of AIS into the Great Lakes as a result of ballast water discharge.(177) It also mandates the creation of an Aquatic Nuisance Species Task Force, which is charged with designing a program that prevents the introduction of AIS.(178)

However, the Act is deficient for several reasons. First, its scope is too narrow; it requires the Secretary of Transportation to promulgate regulations governing ballast water discharge only for ships putting into port in the Great Lakes.(179) Second, it focuses exclusively on ballast water as an AIS introduction vector.(180) As previously discussed, ballast water discharge is just one of many important vectors.(181)

3. National Invasive Species Act of 1996 (NISA)

NISA reauthorized NANPCA in 1996.(182) Proponents of NISA argue that it did much more than merely reinforce the principles on which NANPCA rests.(183) Perhaps it did, but it still fails to adequately regulate AIS. NISA attempts to prevent AIS introduction by requiring ships operating in the Great Lakes to exchange ballast water prior to putting into port.(184) It also provides for the establishment of voluntary national guidelines to prevent the introduction and spread of invasive species as a result of ballast water discharge.(185) However, to date, mandatory ballast exchange is only required in the Great Lakes, and no voluntary guidelines have been created for the rest of the country.(186) Therefore, NISA has the same shortcomings as NANPCA: the scope of the mandatory regulations in the Act is limited to the Great Lakes region;(187) and the only AIS introduction vector subject to regulation under the Act is ballast water.(188)

NISA also suffers from a third problem: it lacks a viable enforcement mechanism.(189) A safety exemption for ballast water exchange exists under NISA.(190) This exemption allows vessel masters the sole discretion to determine whether a ballast exchange on the high seas would compromise ship safety.(191) Further, upon determining that vessel safety would be compromised by a high seas ballast exchange, the ship can discharge ballast water in any harbor.(192) Without some safeguard against abuse of vessel-master discretion,(193) this provision seems to defeat the very purpose of NISA.(194)

Another NISA problem is one common to many federal environmental initiatives: funding for implementing NISA is scarce.(195) About $28 million was authorized for NISA's implementation(196) Yet, in 1997, only approximately $1 million was actually appropriated for NISA.(197)

The current federal approach to AIS regulation is fragmented and severely limited in scope. Although the Lacey Act provides national regulation, the limited number of species it regulates renders its regulatory scheme virtually ineffective. NANPCA and NISA require ballast water exchange only in the Great Lakes region. As of yet, no voluntary or mandatory national guidelines have been established under NISA, but some observers believe voluntary guidelines would be fruitless anyway. Further, the safety exemption in NISA considerably limits the applicability of its regulations. A new federal scheme must be developed to govern AIS. In the meantime, however, states schemes may be able to prevent AIS introduction.

B. Potential Obstacles for State Regulation of AIS

Two constitutional limits on state power must be considered whenever state regulation is contemplated.(198) First, the Commerce Clause is implicated because state AIS regulatory schemes will likely limit the importation of certain species and products from other states.(199) Second, Supremacy Clause concerns arise because Congress has already addressed AIS, even if to a limited extent.(200) Ultimately, the challenges raised by the Commerce Clause and Supremacy Clause do not inhibit state regulation of AIS, but they must still be examined and carefully avoided by state legislators when crafting AIS laws.

1. Commerce Clause Concerns

One of the basic premises of the Commerce Clause is that state law must not discriminate against or unreasonably burden interstate commerce.(201) However, there is an exception to this rule that appears to be applicable to carefully crafted state regulation of AIS.(202) The exception articulates the following two-part test: 1) a state law facially discriminating against interstate commerce will be considered valid if it serves a legitimate local purpose; and 2) the state can demonstrate that it had no reasonable and nondiscriminatory alternate means to achieve that purpose.(203) Typically, this is a very difficult test to satisfy.(204)

Nevertheless, using this exception in Maine v. Taylor,(205) the Supreme Court upheld the constitutionality of a Maine statute banning the importation of out-of-state baitfish.(206) The Court upheld the Maine law even though it clearly discriminated against out-of-state baitfish dealers.(207) First, the Court determined that Maine's statute served two legitimate local purposes: 1) it protected Maine's wild fish populations from the substantial uncertainty of baitfish parasites that would be introduced in conjunction with the baitfish; and 2) it protected native species from the unpredictable consequences of nonnative species being inadvertently introduced in the baitfish shipments.(208) Second, the Court concluded that the district court was correct in holding that no less-discriminatory means of protecting against these threats were available.(209)

Maine stands for the proposition that a state can regulate not only AIS importation, but also the importation of products packaged in a way that may allow the inadvertent introduction of AIS.(210) It also demonstrates that a state's ban of out-of-state items is constitutional when the threat posed by those items involves "substantial uncertainties." Therefore, a state is free to regulate AIS importation under Maine if the consequences of importation are uncertain, as long as it does not unnecessarily discriminate against out-of-state interests.

2. Supremacy Clause Concerns

The second constitutional doctrine that must be examined when state regulation of AIS is contemplated is federal preemption under the Supremacy Clause.(211) The general precept of the Supremacy Clause is that where Congress has acted, state law may not conflict with or obstruct federal law.(212) Federal preemption of state law, whether express(213) or implied,(214) can limit or even foreclose the state role in AIS regulation.(215) To date federal preemption of state invasive species law is more likely in the realm of agricultural law than in the area of fish and wildlife regulation.(216) This results in part from the fact that there are more federal laws governing invasive species impacting agriculture than there are federal laws impacting wild lands or waterways.(217) Nevertheless, there are a few areas in which state AIS regulation raises federal preemption questions.

First, the Lacey Act,(218) which regulates through a dirty list of banned species,(219) explicitly preempts states from permitting the foreign importation of the listed species.(220) However, the Lacey Act does not impede stricter state regulation of those same species.(221) Further, because it bans only a limited number of species, the importation and release of any unlisted AIS is left to the discretion of state regulation.(222) In drafting AIS regulations, therefore, states only need to be mindful not to draft laws permitting the importation of the short list of prohibited species already addressed by the Lacey Act.

The regulatory power of NANPCA is expressly confined to the Great Lakes.(223) Likewise, NISA's mandatory regulatory area is limited to the Great Lakes and, although the statute requires the promulgation of voluntary national guidelines,(224) none have been created yet. The limited scope of NANPCA's and NISA's mandatory regulations likely allows states in regions other than the Great Lakes to govern ballast water discharge until such time as the federal government creates a national regulatory ballast exchange program.(225) Further, NISA expressly authorizes states and localities to regulate AIS generally, eliminating preemption concerns.(226)

The Lacey Act, NANPCA, and NISA are the statutes that would most likely preempt state AIS regulation, but none of these laws significantly limit the power of states to regulate AIS.(227) A number of AIS introductory vectors are simply not considered in the federal scheme, and presumably states are not preempted from regulating those vectors or the various species that may be introduced through them. Federal preemption will not pose significant hurdles to state AIS regulatory schemes, provided state legislation does not cover the areas that the federal scheme addresses.

Neither the Commerce Clause nor the Supremacy Clause significantly limits state regulation of AIS. Indeed, given the gaps and inadequacies of the federal scheme, it appears that state regulation of AIS is quite necessary. However, state regulation without federal guidance may not be sufficient to adequately address AIS because AIS are interjurisdictional in nature and state-by-state regulation may produce inconsistent and conflicting results.

IV. AN EXAMINATION OF CURRENT AQUATIC INVASIVE SPECIES LAW IN CALIFORNIA, OREGON, WASHINGTON, AND ALASKA: WHY IT Is INADEQUATE AND WHY UNIFORM STATE GOVERNANCE OF AQUATIC INVASIVE SPECIES Is NECESSARY

None of the state laws this Article surveys provide adequate regulation of AIS. Each state system contains fragmented, incomplete laws that will never adequately protect the public or environment from the harms caused by AIS. The shortcomings of the laws are especially evident with regard to AIS introduction and eradication. An analysis of the primary AIS laws of California, Oregon, Washington, and Alaska(228) reveals why federal regulatory minimums must be established to guide state law development in the AIS arena.

A. Current AIS State Law in the Coastal West and Why it Fails

Currently, California, Oregon, Washington, and Alaska are all, to varying degrees, experiencing AIS-related problems. Of the four jurisdictions, California has suffered the most as a result of AIS introduction and establishment and has the most proactive AIS legal scheme. Oregon and Washington also suffer from AIS-related problems, although to a lesser degree than California, and both states are in the process of revising their AIS laws to make them more stringent. Alaska is the least AIS-beleaguered of any of the four states, and as a result, its AIS laws are the least developed. Despite these four states' differing approaches to AIS, none of them has created a regulatory scheme adequate to effectively address AIS.

1. California

California has some of the most progressive laws in the coastal West to regulate AIS.(229) California is the only state to have an effective ballast water exchange regulation specifically designed to prevent AIS introduction.(230) It is also one of the few states employing an aquatic "clean list" to address AIS.(231) This list prohibits the importation of all live aquatic plant or animal species except those listed.(232) Further, California law prohibits release of most AIS, making it unlawful to plant or place a live fish, fresh or salt water animal, or aquatic plant from outside of the state in state waters without the written permission of the Department of Fish and Game.(233) .Although California law is the most comprehensive of the states in this study, it is still unable to fully address and regulate the introduction, movement, and eradication of AIS.

First, although it employs a clean list for live aquatic animal and plants, the existing legal framework fails to address viruses, diseases, and other pathogens.(234) Second, California's clean list has several exceptions allowing the importation of mollusk and crustacean species.(235) Although the law prohibits the release of these species, it does not adequately address the possibility that they will escape confinement after they are introduced.(236) Third, the laws fail to include provisions for notice to and cooperation with neighboring states, which is arguably an important ingredient in efficient AIS regulation because AIS do not observe political boundaries and only coordinated efforts between states will result in effective AIS control.(237) Finally, the laws do not delineate how to eradicate established AIS or how to mitigate the negative impacts of established AIS. Despite all of these problems, California's laws are still, by far, more progressive than other states in the coastal West, including those of its neighbor, Oregon.

2. Oregon

The State of Oregon does not have a comprehensive regulatory scheme concerning AIS, but it is currently considering how to improve its AIS laws.(238) Current Oregon law contains gaps, and ultimately the patchwork of provisions fails to adequately regulate AIS. First, section 498.052 of the Oregon Revised Statutes regulates imported wildlife and domestically raised wildlife of extrajurisdictionai origin, stating such wildlife may not be released(239) in the state without a permit from the State Fish and Wildlife Commission.(240) As defined by the statute, the term "wildlife" includes fish, but not crustaceans, aquatic insects, aquatic organisms, or aquatic pathogens.(241) Consequently, section 498.052 fails to regulate a number of AIS, including virtually all aquatic invertebrates.(242) According to section 498.222(1), live fish may not be transported or released(243) into state waters from which they did not originate without a permit from the State Fish and Wildlife Commission.(244) This provision, like section 498.052, is limited in its scope because it only regulates fish species.(245) Neither section 498.222(1) nor section 498.052 regulates the introduction of aquatic invasive crustacean, insect, organism, or pathogen species.(246) Nor do any other provisions of Oregon law apply.(247) This is a potentially disastrous oversight in Oregon's legal scheme, as these kinds of AIS can damage native ecosystems and species, as well as commercial aquaculture ventures.(248)

Invertebrate AIS are not regulated by any Oregon laws either.(249) Invertebrates are spineless animals,(250) such as mollusk species, which include snails, oysters, and squid.(251) Invertebrate AIS can wreak havoc on an ecosystem if their introduction and rates of establishment are left unchecked.(252) In order to effectuate a comprehensive AIS legal regime, the Oregon legislature must enact legislation to regulate these types of invasive species.(253)

Oregon's scheme does not regulate ballast water discharge in the state's ports and harbors.(254) As already discussed, ballast water discharges can introduce a variety of AIS. While it is by no means the only method of AIS introduction, it is certainly one that is commonly identified as being problematic.(255) To create a comprehensive regulatory scheme for AIS, Oregon must enact a statute regulating ballast water discharge, as well as other known introductory vectors, both intentional and unintentional.

Another problem with Oregon's laws is that they do not address eradication of already established AIS. This is an important consideration as pesticides and herbicides should be used at a minimum for AIS damage control purposes. In addition, Oregon's laws do not require notice to other states when there is an AIS release that could potentially jump jurisdictions.

Oregon is currently in the process of updating its AIS regulations(256) and hopefully it will enact a better regulatory scheme in the near future. However, until Oregon's AIS laws are modified, the state's AIS scheme will remain fractured and incomplete. Similarly, an examination of Washington's AIS regulations reveals some of the same shortcomings suffered by Oregon's current scheme.

3. Washington

Washington currently uses a dirty list(257) to regulate AIS that is similar in function to the list in the Lacey Act.(258) Under Washington's laws, only species that are considered "deleterious exotic wildlife" are listed and regulated.(259) By definition, deleterious exotic wildlife can include any species in the animal kingdom that is nonnative to Washington and is designated as dangerous to native wildlife species or the environment.(260) Once designated as deleterious, species may not be imported, held, transferred, possessed, propagated, offered for sale, sold, or released, except for medical or zoological purposes.(261)

Washington's dirty list approach poses several problems. First, the only species regulated are those on the list.(262) Currently, there are only a few fish species listed and one amphibian.(263) Second, before designating a species as deleterious, the Department of Wildlife and Wildlife Director must determine that it is nonnative to Washington and that it poses dangers to the state's wildlife or environment.(264) As a practical matter, one of the few ways to ascertain a species's negative impacts on native species and habitat is through observations of the consequences of a prior release.(265) However, by the time an AIS's impacts are discernible, it is probably already well entrenched in its new ecosystem and, once established, an AIS is very difficult to eradicate.(266) In addition to these problems, Washington's plan does not address accidental introduction of AIS, and it does not address possible escape of already imported species.

To its credit, Washington has created laws specific to two aquatic invasive plants, spartina(267) and purple loosestrife.(268) It has deemed these plants "aquatic noxious weeds"(269) and recognizes that they pose serious environmental threats.(270) The state, aware of its inability to eradicate these weeds now, intends to formulate a plan to eliminate the weeds sometime within the next three years(271) and has delegated this task to at least three different state agencies.(272)

Like Oregon, Washington is currently in the process of revamping its regulatory approach to AIS.(273) Hopefully, it will attempt to prevent future invasions of the type already experienced with spartina and purple loose-strife(274) by enacting a clean list to prevent the importation of all AIS except those not known to have negative impacts on native ecosystems and species. It should also enact a ballast water provision specifically aimed at prohibiting AIS introductions resulting from ballast water discharge.(275) The new AIS laws should also require notice to and cooperation with neighboring states. Finally, the state must continue to address eradication of already established AIS. To date, Washington's laws are inadequate to govern AIS, but the state has become aware of existing deficiencies and is attempting to improve current regulations.

4. Alaska

Unlike Washington, Alaska is not attempting to improve its existing AIS regulations at this time. Until it does so, its laws will be unable to prevent most AIS introductions. Perhaps Alaska has not updated its AIS laws because, unlike the other three states examined, Alaska has not yet suffered significant AIS invasions.(276) It is possible that due to its healthier ecosystems and colder climate, it will not experience such invasions.(277) However, if AIS do find an adequate environmental niche in Alaska, there is very little in the way of state regulation to prevent their introduction and establishment.(278)

Alaska currently regulates invasive fish species(279) by prohibiting the importation of out-of-state fish.(280) However, the prohibition is limited to importation for purposes of stocking fish or rearing fish in state waters.(281) Presumably, out-of-state fish can be imported for other reasons, but the statute is silent on this issue. In addition, Alaskan law specifies that ornamental fish may be imported into the state but cannot be released into state waters.(282) Allowing importation but not release is a restraint on AIS introduction, but the law does not provide guidance on prevention of aquaria escape, a perfectly viable method of unintentional AIS introduction.(283)

Alaska also regulates the importation of live oysters.(284) A person with a permit may import and release oysters from the Pacific coast of North America for aquaculture purposes.(285) Similarly, with certain provisos, the law allows the importation and release of scallop species that originate elsewhere in Alaska for aquaculture objectives.(286) Apparently, through statutory silence, the law prohibits the importation and release of oysters and scallops from places other than those specified.(287)

Alaska's laws do not address through either clean or dirty lists any AIS other than fish, oyster, and scallop species.(288) The list of AIS left unregulated is obviously quite sizeable and includes crustaceans, mollusks, plants, pathogens, and others. The state must enact more comprehensive AIS regulations to address various species and vectors.(289) To date, it does not have any ballast water regulations,(290) although it would undoubtedly benefit from preventing possible introductions through the discharge of ballast water.(291) Alaska's regulatory scheme should also include a requirement for cooperation with and notification of other states.

Each of the states examined--California, Oregon, Washington, and Alaska--regulates AIS differently, bringing unique cultural and economic perspectives into their legislative compositions. Yet, none of the approaches regulates AIS in a completely satisfactory manner. Nevertheless, there are reasons why states should continue to regulate AIS, especially under the guidance of a federal mandate requiring cohesion and minimum substantive elements.

B. The Need for Uniform State Regulation and Management

While the current state laws of the coastal West fail to provide adequate AIS regulation, so too does current federal law.(292) Indeed, many environmentalists and local authorities view the federal government's failure to enact comprehensive regulation with disfavor.(293) Consequently, many grassroots, state-level efforts have arisen in an attempt to control AIS.(294) However, state laws must eventually meet certain regulatory thresholds because piecemeal state-by-state regulation will never be sufficient to regulate AIS. The best way to ensure uniform state standards is through federal guidance.(295)

There are powerful arguments to be made for state regulation. First, and perhaps most obviously, the federal government has failed to create comprehensive AIS regulation.(296) Second, a state has firsthand knowledge of what kinds of AIS may be entering its jurisdiction and through which vectors.(297) Third, a state can better monitor the myriad of AIS that are in its jurisdiction. Next, as a general rule, state response is more immediate than federal response in acute situations.(298) Finally, a state process is often less cumbersome than a federal process, allowing more flexibility and efficiency in approaching AIS management.(299)

Despite these reasons for permitting state regulation of AIS, however, there are several reasons why states simply cannot efficiently regulate AIS without federal guidance. By their very nature, AIS are interjurisdictional and, therefore, pose threats that are national in scope.(300) In addition, state-by-state regulation can produce inconsistent results and conflicts(301) and states lack the power to control the importation and release of AIS in neighboring states.(302) Further, although federal regulation may be difficult to initiate, once it is enacted it can be broad in scope and application.(303)

The current trend is not toward exclusive state or federal regulation of AIS but rather toward cooperative federal-state efforts. A cohesive AIS regulatory program must involve elements of both state and federal expertise.(304) Ideally, the federal government should facilitate the establishment of state AIS regulation by providing incentives to the states.(305) One such incentive is dispersal of federal money for qualifying state programs.

V. CHANGING THE FEDERAL SCHEME TO ENCOURAGE COHESIVE STATE REGULATION OF AQUATIC INVASIVE SPECIES

The current federal scheme encourages the establishment of state AIS programs through technical assistance and funding grants in the National Invasive Species Act (NISA).(306) However, it fails to impose necessary conditions on grant recipients.(307) This section examines NISA's existing grant program and comments on how that program should be modified to create better state AIS regulation.

Currently, each state(308) seeking federal funding is required to submit a "comprehensive management" plan to the Aquatic Nuisance Species Task Force (Task Force)(309) for approval.(310) The details of such plans are left largely to the discretion of the states.(311) There are a few required elements, however. First, the state plan must detail activities or areas within the state for which federal assistance is needed to minimize or eliminate the environmental, health, and safety risks associated with AIS.(312) Second, each plan must identify the management practices that will be used by the state to reduce AIS infestations.(313) Third, the state plan must identify AIS programs designed for prevention and control of target AIS.(314) Fourth, it must identify federal activities required for AIS prevention.(315) Fifth, it must specify any additional authority it will require under the plan, if any, to protect public health, property, and the environment from AIS.(316) Finally, it must submit enabling legislation and schedules for plan implementation, and it must list the state's annual objectives.(317) In developing the plan, the state should "involve" local governments, regional entities, Indian tribes, and public and private organizations "to the maximum extent practicable."(318)

The federal mandates regarding state plans are vague and incomplete.(319) They should be amended to provide the states with additional guidance by requiring several new elements. First, a state plan should be required to list all known AIS and all known AIS introduction vectors, and state law should be required to address as many AIS introduction vectors as possible. Requiring that each state use a clean list to control AIS importation would be helpful because prevention of incoming AIS is arguably the best defense to AIS invasion.(320) States should also prohibit intentional introductions of AIS.(321) In addition, they should attempt to prevent unintentional AIS introductions,(322) such as escape, by requiring that AIS holding facilities meet adequacy standards.(323) Second, states should be required to raise public awareness of AIS concerns. Specifically, states should create a list of native species and nonnative species and make it available to the public; the list should be updated as new AIS are introduced. In addition, states should be responsible for promoting the planting and farming(324) of native species. Improved public awareness of AIS issues would help to prevent many unintentional introductions and would generally increase the momentum in the war against AIS.

Third, states should be required to cooperate with neighboring states in a more specific manner than the federal scheme currently suggests. Specifically, states ought to be required to inform other states of AIS releases, whether intentional or not, so as to allow other states to prepare for potential invasions. Doing this will help prevent unwanted AIS establishment in neighboring jurisdictions. Also, states should be required to enter into cooperative plans with other states in cases where host ecosystems are interjurisdictional. This will improve AIS eradication and general management by creating an ecosystem-specific approach, rather than an approach confined to state lines.

Fourth, states should prohibit commercial landscapers from selling AIS plants, such as spartina or purple loosestrife, that are outlawed by neighboring states, especially in cases where host ecosystems are interjurisdictional. This requirement will ensure two things: 1) it will minimize the possibility of the plant AIS becoming problematic in the state; and 2) it will increase the efficiency of neighboring states' efforts to eradicate the plant AIS.

Fifth, states should be required to mandate that AIS be eradicated by means other than pesticides or herbicides, except in severe cases and upon a showing of no feasible or prudent alternative. Herbicides and pesticides can be effective, but they can damage fragile native species and ecosystems, and they can even pose threats to human life.

States should have the power to manage AIS, but the only way to ensure a comprehensive, cohesive system of state management nationwide is through improved federal guidance. By including the requirements and objectives suggested above, state regulatory schemes can be improved in terms of both efficiency and effectiveness. Once improved upon, state regulation can act as a powerful weapon in the war against AIS invasion.

VI. CONCLUSION

Aquatic invasive species are wreaking havoc on America's ecosystems and native species. They cause widespread habit degradation and outcompete native species for food and habitat. Once established, AIS are virtually impossible to eradicate, and eradication efforts are costing the country billions of dollars. Therefore, it is critically important that laws are enacted to restrict the introduction and spread of AIS and, where possible, to eradicate already established AIS populations.

To date, the federal government has not legislated sufficient solutions to the AIS problem, and it may take some time for it to do so. In the meantime, however, the federal government should encourage efficient state AIS regulation by offering federal grant money to states that develop and implement regulatory schemes that meet minimum federal objectives. States can be a powerful tool in AIS management, but only if their efforts are coordinated by federal guidelines.

(1) A normative species can be a plant, animal, insect, arachnid, or plant pathogen species.

(2) Steven A. Wade, Stemming the Tide; A Plea for New Exotic Species Legislation, 10 J. LAND USE & ENVTL. L. 343, 353 (1995). An invasive species is also defined as "any species or other viable biological material that enters an ecosystem beyond its historic range, including any such organism transferred from one country into another." Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), 16 U.S.C. [subsections] 4701-4751, 4702(9) (1994). Different jurisdictions use different terms to describe invasive species. Electronic Mail Interview with Paul Shinkawa, Legal Counsel for Resource Protection, Texas Parks & Wildlife Dep't (Nov. 19, 1998) [hereinafter Shinkawa Email Interview] (on file with author). Other catch-phrases applied to both terrestrial and aquatic invasive species include: harmful, nuisance, noxious, exotic, normative, alien, and nonindigenous species. Some commentators draw a distinction between those species that are normative to a specific ecosystem and those that are nonnative to a particular country and ecosystem within that country. See Wade, supra, at 353 (defining a species from outside of a given country as "exotic" and species from within a nation, but outside of a particular ecosystem, as "transplant"). For the sake of simplicity, the term "invasive species" will be used most commonly in this Article.

(3) 16 U.S.C. [sections] 4702(9) (1994).

(4) Id. [sections] 4702(2).

(5) For example, Chinese mitten crabs have invaded California coastal waters, as have striped bass, threadfin shad, channel catfish, golden shiners, and white catfish. Nancy Vogel, Mitten Crabs Choking Delta Facility, SACRAMENTO BEE, Sept. 17, 1998, at B1; see also John L. Dentler, Noah's Farce: The Regulation and Control of Exotic Fish and Wildlife, 17 U. PUGET SOUND L. REV. 191, 193-94 (1993) (explaining that in Washington, freshwater fish such as largemouth bass, bluegill, yellow perch, and green sunfish have been introduced, and some AIS, like walleye, are now spreading throughout the Columbia River system). British Columbia, Canada also has been invaded by nonnative species. However, this Article is limited to an examination of American legal initiatives. There are a number of Canadian legal provisions that have potential to regulate invasive species. For information, contact the BC Working Group on Non-Indigenous Species, Department of Fisheries and Oceans, Colin Levings, Department Head, Coastal and Marine Habitat Science at 604/924-2549 or visit the World Wide Web at <http:/www.wsg.washington.edu/pubs/bioinvasions/bioinvasions3.html>.

(6) Marian Westley et al., Aliens Invade America!, NEWSWEEK, Aug. 10, 1998, at 50.

(7) David M. Whalin, The Control of Aquatic Nuisance Nonindigenous Species, 5 ENVTL. LAW. 65, 82 (1998). According to a recent study by David Pimentel, an ecologist at Cornell University, invasive species are responsible for the placement of more than 40% of indigenous plants and animals on the nation's endangered or threatened species list. Richard L. Hill, Nonnative Species Take Toll, OREGON--, Jan. 25, 1999, at A7.

(8) OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, PUB. No. OTA-F-565, HARMFUL NON-INDIGENOUS SPECIES IN THE UNITED STATES 69 (1993) [hereinafter OTA REPORT].

(9) Westley et al., supra note 6, at 46. The Pimentel study found that economic damages caused by the 30,000 invasive species found in' the United States are costing the country $123 billion annually. Hill, supra note 7, at A7.

(10) Lacey Act of 1900, ch. 553, 31 Stat. 187, partially repealed by Lacey Act Amendments of 1981, Pub. L. No. 97-79, 95 Stat. 1073 (codified as amended at 16 U.S.C. [subsections] 701, 3371-3378, 18 U.S.C. [sections] 42 (1994)).

(11) National Invasive Species Act of 1996 (NISA), 16 U.S.C. [subsections] 4701-4751 (Supp. II 1996).

(12) See generally Whalin, supra note 7, at 104-07, 121-24 (calling the Lacey Act a failure, finding NANCPA geographically limited, and faulting NISA for being voluntary); Dentler, supra note 5, at 210-12, 217-18 (listing the Lacey Act's numerous shortcomings and suggesting that NANCPA could do even more to protect the Great Lakes); Wade, supra note 2, at 346-52 (providing the general framework of the Lacey Act and NANCPA and highlighting the regulatory problems of both).

(13) Telephone Interview with Linda Drees, Attorney, U.S. Fish & Wildlife Serv. (Sept. 29, 1998) [hereinafter Drees Interview].

(14) Whalin, supra note 7, at 123-24.

(15) "Vector" is a term that is commonly used to describe a method of introduction of an invasive species. Id. at 83-89.

(16) For a discussion of ballast water discharge, see infra notes 78-86 and accompanying text.

(17) Sharonne O'Shea & Allegra Cangelosi, Trojan Horses in our Harbors: Biological Contamination from Ballast Water Discharge, 27 U. TOL. L. Rev. 381, 388-94 (1996).

(18) In the San Francisco Bay alone, there are more than 200 species of AIS. Andrew N. Cohen & James T. Carlton, Nonindigenous Aquatic Species in a United States Estuary: A Case Study of the Biological Invasions of the San Francisco Bay and Delta (visited Oct. 1, 1998) <http://nas.nfrcg.gov/sfmvade.htm>.

(19) Introduction vectors of AIS include ballast water discharge, human introduction, importation of nonindigenous fish bait, and invertebrate-laden seaweeds associated with lobster and fish bait importation. Whalin, supra note 7, at 83-87. Human introduction of AIS can be as unwitting as out-of-state recreational boaters carrying marine hitchhikers from one state to another. Id. at 87 (citing Oregon Gears Up to Fight Weed That Devastates Marine Life, N.Y. TIMES, Sept. 7, 1997, at 40).

(20) O'Shea & Cangelosi, supra note 17, at 394-400.

(21) Telephone Interview with Dr. Robert Piorkowski, Mariculture Program Coordinator, Alaska Dep't of Fish & Game (Nov. 11, 1998) [hereinafter Piorkowski Interview] (commenting that the movement of species from one ecosystem to another is a natural process, whether society views such movement with or without disfavor).

(22) The achievements of mankind often have mixed results.

   [A]s transportation becomes more sophisticated, we can enjoy fresh mangos
   from Mexico, Chilean-grown Atlantic salmon, and Washington-grown Pacific
   oysters, while sitting in a garden planted with Mediterranean lavender and
   English roses. Our ability to transport ourselves and our products around
   the planet is one of mankind's greatest achievements. This ability has
   brought with it the means for both intentional and unintentional transfer
   of organisms.

Bio-invasions: Breaching Natural Barriers (visited Nov. 27, 1998) <http://www.wsg.washington.edu/pubs/bioinvasions/bioinvasions.html> [hereinafter Breaching Natural Barriers].

(23) Robert Devine, Botanical Barbarians--Their Good Looks Conceal Nefarious Intentions: How Invasive; Species Run Roughshod over North America's Native Plants, SIERRA, Jan.-Feb. 1994, at 50, 53.

(24) Breaching Natural Barriers, supra note 22, at 8 ("When the environment of an existing system of species is modified or disturbed, such as a cleared forest or a polluted estuary, the opportunity for new species to move in is greater.")

(25) David Quammen, Planet of Weeds: Tallying the Losses of Earth's Animals and Plants, HARPER'S MAG., Oct. 1998, at 57, 66.

(26) Id.

(27) Devine, supra note 23, at 53.

(28) Id.

(29) Quammen, supra note 25, at 66.

(30) See infra note 35 and accompanying text. In addition to threatening diversity, invasive species ultimately threaten survival of species as well:

   As the total number of species declines, plants and animals that may be
   important food resources, that play a critical role in the food web, or
   that contain medicinal qualities may disappear. Surviving species will have
   fewer buffers against catastrophic fluctuations in the environment. If, for
   example, a fish species loses many or some of its food resources, any
   threat or damage to the remaining food resource can be far more detrimental
   to the fish because alternatives have been lost. Thus homogenization of
   habitats and species can have far-reaching effects.

Breaching Natural Barriers, supra note 22, at 8.

(31) Quammen, supra note 25, at 66. As one specialist explains, invasive species outgrow, out-mature, and simply out-compete native species. Telephone Interview with Neff Richmond, Shellfish Fishery Biologist, Oregon Dep't of Fish & Wildlife (Nov. 25, 1998) [hereinafter Richmond Interview].

(32) Quammen, supra note 25, at 66 ("[A] report, from the U.N. Environmental Program, declares that almost 20 percent of the world's endangered vertebrates suffer from pressures (competition, predation, habitat transformation) created by exotic interlopers.").

(33) Westley et al., supra note 6, at 46.

(34) See Quammen, supra note 25, at 68.

   We come to a certain fretful leap of logic that otherwise thoughtful
   observers seem willing, even eager, to make: that the ultimate consequence
   will be the extinction of us. By seizing such a huge share of Earth's
   landscape, by imposing so wantonly on its providence and presuming so
   recklessly on its forgivingness, by killing off so many species, they say,
   we will doom our own species to extinction.

Id.

(35) Devine, supra note 23, at 53. One source gives some random examples of the impacts of invasive species abroad:

   [Al German zoo gave ... a seaweed native to the Pacific Ocean, to various
   institutions around the world. The Oceanographic Museum of Monaco flushed
   its tanks into the Mediterranean Sea, from which point this seaweed started
   to establish itself.  The seaweed is toxic to many marine plants and
   animals and, to date, there is no successful control method. As another
   example, a giant earthworm introduced into the Philippines through the
   importation and planting of higher yielding rice strains is menacing the
   2,000 year old Banaue rice terraces in that region. The only known
   effective, environmentally-benign means of controlling the earthworm
   involves treatment with a mixture of certain vines from an adjacent
   rainforest. The vines, however, are depleted.

Whalin, supra note 7, at 88 (citations omitted).

According to paleontologist David Jablonski of the University of Chicago's Hinds Geophysical Laboratory, the Earth is entering a period of biological "mass extinction," whereby millions of plant, animal, and insect species will be lost. Prior extinctions of similar magnitude occurred at various times during the Earth's history. The five most devastating mass extinctions stand out in geologic history: Ordovician, Devonian, Permian, Triassic, and Cretaceous. The mass extinction the Earth is now entering will be the sixth. Each of the five major episodes noted above represents an almost incomprehensible loss in species diversity from which the Earth was only slowly able to recover. The rough estimates of recovery time waiver between 5 and 10 million years. Quammen, supra note 25, at 58. Invasive species are one of only five major factors contributing to the current mass extinction. Id. at 65.

(36) OTA REPORT, supra note 8, at 94. The cumulative estimated number of nonindigenous species in the United States has risen dramatically from the late 1700s to 1990. Id. For example, nonindigenous terrestrial vertebrate species numbered at less than 20 in 1790, but by the 1980s close to 100 existed. Id. Similarly, in 1840 there were less than 20 nonindigenous plant pathogen species, but by 1990 there were over 180. Id.

(37) Id.

(38) Id. Similarly, in the last 200 years, the number of established invasive terrestrial vertebrates species have increased from less than 10 to about 100. Id.

(39) A mollusk is an invertebrate, such as an oyster, snail, or squid, that is characterized by a soft body that is sometimes enclosed in a shell. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1455 (3d ed. 1971) [hereinafter WEBSTER'S]. Aquatic invasive mollusk species include the Asiatic clam, the Atlantic oyster, the blue crab, the giant tiger shrimp, the mitten crab, and the opossum shrimp to name but a few. For a more complete list of invasive aquatic mollusk species, see OTA REPORT, supra note 8, at 104.

(40) Id. at 94.

(41) Id.

(42) Id.

(43) Id. at 8.

   [T]he only effective way to control NIS [non-indigenous species] is to
   prevent their [introduction] into an ecosystem in the first instance. Once
   a species is introduced into an ecosystem, it may take years before damage
   becomes evident, and at that point it is usually too late to control the
   species if it has established a strong foothold in the ecosystem.

Whalin, supra note 7, at 89 (citations omitted).

(44) Although invasive fish species inhabit each state in the coastal west, the most successful populations have been established in the "sun-belt" states, where water temperatures are warmer and allow year-round outdoor aquaculture. OTA REPORT, supra note 8, at 94-95. Perhaps because of its colder climate and healthier ecosystems, Alaska has been invaded by very few AIS. Piorkowski Interview, supra note 21.(45) Whalin, supra note 7, at 83-87.

(46) OTA REPORT, supra note 8, at 82.

(47) Dentler, supra note 5, at 193. Although less frequently, state agencies still release nonnative fish species for recreational purposes. OTA REPORT, supra note 8, at 83. For example, in the terrestrial realm, state officials continue to import and release invasive birds for game hunting. Id. at 82.

(48) Id. at 83.

(49) Id.

   Elsewhere, cultivated AIS have potential to replace native species: It has
   become very common in the southern states to build shrimp aquaculture
   farms. A [nonnative] species known as Pacific white shrimp ... is preferred
   by shrimp farmers because of its rapid growth in confined quarters. This
   exotic shrimp species is believed to be capable of out-competing and
   displacing native shrimp in the South Atlantic and Gulf of Mexico waters.
   However, since it is more susceptible to cold temperatures than native
   shrimp, there has been a concern that in the wild, it could displace native
   shrimp over a period of years and then die-off in mass during a cyclical
   cold spell. This would devastate the commercial shrimping industry and
   disrupt the food chain in these waters.

Shinkawa Email Interview, supra note 2.

(50) See OTA REPORT, supra note 8, at 82 (noting that among other things, fish have been introduced for pest control purposes).

(51) Id. at 185-86.

(52) Id. at 184.

(53) Id.

(54) Id. at 184-85.

(55) Id. at 185-86.

(56) Dentler, supra note 5, at 194.

(57) Piorkowski Interview, supra note 21.

(58) Id.

(59) Dentler, supra note 5, at 194. Subsequent to their release, the nutria established wild populations in the state and now damage agriculture. Id. Because these animals are water rodents, similar to beavers, they are also presumably affecting the freshwater habitats that they inhabit by competing with native species for space and food. Id.

(60) Hydrilla is an invasive aquatic weed that has spread quickly throughout United States waterways, including those in the coastal West. According to the Nature Conservancy, it is able to grow up to 10 inches per day and forms a thick "carpet" that ducks are able to walk on at the surface of the water. In mm, this carpet causes other aquatic plants and animals below the water's surface to lose light and eventually die. Clogging lakes, ponds, and streams in this manner, it also makes waterways inaccessible to swimmers and boaters. Stephanie Flack & Elaine Furlow, America's Least Wanted: The Dirty Dozen--A Line-Up of the Country's Twelve Meanest Environmental Scoundrels (visited Nov. 6, 1998) <http:// www.tnc.org/news/magazine/nov_dec/index.html>.

(61) OTA REPORT, supra note 8, at 263 (discussing, for example, how hydrilla is considered important duck food by hunters and how hunters like the plant for this reason).

(62) For example, game hunters in Washington released the mountain goat, native to the Cascade mountains, into the Olympic mountain range to increase hunting opportunities. Dentler, supra note 5, at 194.

(63) Telephone Interview with Kathy Heib, Associate Biologist, California Dep't of Fish & Game (Nov. 7, 1998) [hereinafter Heib Interview].(64) OTA REPORT, supra note 8, at 82.

(65) For specific information on the Chinese mitten crab and its impacts in the coastal West, see infra notes 123-41 and accompanying text.

(66) The other possibility is that the Chinese mitten crab was accidentally released via ballast water discharge. Heib Interview, supra note 63.

(67) Id. The ovaries of the female crabs are considered a delicacy by Chinese people. "In some Asian markets in San Francisco and Los Angeles, the crabs have sold--illegally--for $20 each." Vogel, supra note 5, at B2.

(68) OTA REPORT, supra note 8, at 82.

(69) Flack & Furlow, supra note 60.

(70) Id.

(71) Id. (noting further that endangered native orchid species are being out-competed for their wetland habitats by .the invader).(72) Id.

(73) Wade, supra note 2, at 358.

(74) Breaching Natural Barriers, supra note 22, at 7 ("Bringing [new] species to new areas was considered a safe proposition, and their establishment was viewed as a success story...."). Another species that is highly problematic in the coastal West and elsewhere is tamarisk, also known as salt cedar. This tree was planted in the 1800s by settlers for shade, wood, and erosion control. Flack & Furlow, supra note 60. Established in arid regions of the west today, its deep roots deplete springs, while the salt that it excretes from its leaf glands makes surrounding soil unable to support native vegetation. Id.

(75) Dentler, supra note 5, at 194 (explaining that the release of various invasive species took place before concern developed over the species' impacts).

(76) OTA RETORT, supra note 8, at 61; see also Breaching Natural Barriers, supra note 22, at 7 (discussing the many uncertainties that accompany the intentional introduction of invasive species).

(77) Piorkowski Interview, supra note 21.

(78) "Ballast" is defined as "a relatively heavy substance used to ... improve [a ship's] stability." WEBSTER'S, supra note 39, at 84. "Ballast water" is water carried by ships to assist with balance and stability. Dentler, supra note 5, at 196 n.30.

(79) When a ship reaches its destination harbor, it usually discharges its ballast water in that harbor. "[Ballast] water is usually pumped out of the vessel during the loading and unloading process." Dentler, supra note 5, at 196 n.30.

(80) Whalin, supra note 7, at 83.

   In the age of wooden-hulled ships a variety of wood-boring ... and fouling
   ... organisms were translocated between harbors around the world. Steel
   cargo vessels have replaced those ships. These vessels use large volumes of
   sea and flesh water as ballast to keep them stable and seaworthy--taking on
   and discharging millions of tons of ballast water daily in ports and
   harbors around the world. From phytoplankton to fish, ballast water has
   been implicated in more than 100 [A/S] introductions worldwide.

Breaching Natural Barriers, supra note 22, at 7. Nevertheless, one A/S expert warns that although ballast water is a significant means of introduction, it is merely one of many possible introduction methods. Heib Interview, supra note 63.

(81) O'Shea & Cangelosi, supra note 17, at 381.

(82) Wade, supra note 2, at 357.

(83) Id.

(84) O'Shea & Cangelosi, supra note 17, at 381.

(85) Id. at 388-95.

(86) Id. at 382; see also Deborah Schoch, Invasion of the Green Aliens; Nonnative Plants are Threatening to Take Over the State's Wild Lands, Where They Force Out Indigenous Species and Disrupt the Lives of Animals, L.A. TIMES, NOV. 2, 1998, at A1 ("[S]ome of the most aggressive weeds are those sprouting free of natural enemies such as insects that curbed their spread in their native lands.").

(87) Whalin, supra note 7, at 87-88.

(88) Live wells are storage areas in a fishing vessel where catch is stored. Live well discharge is like small-scale ballast water discharge.

(89) Piorkowski Interview, supra note 21.

(90) Id.

(91) Id.

(92) Id.

(93) Id.

(94) Heib Interview, supra note 63.

(95) Id.

(96) Id.

(97) Id.

(98) OTA REPORT, supra note 8, at 83.

(99) Id. at 83-84.

(100) Id. at 84-85.

(101) Heib Interview, supra note 63.

(102) Id.

(103) Id.

(104) Whalin, supra note 7, at 87-88.

(105) Id.

(106) Richmond Interview, supra note 31.

(107) Whalin, supra note 7, at 88.

(108) Id. at 89.

(109) An excellent source for a general discussion of invasive species in the United States is OTA REPORT, supra note 8.

(110) Breaching Natural Barriers, supra note 22, at 6 ("The recent arrival of the European green crab ... on the West Coast of the United States is cause for great concern.").

(111) Heib Interview, supra note 63.

(112) Richmond Interview, supra note 31. Because of the phenomenon of El Nino, the Davidson Current was very strong in 1997, the year that the green crab was first discovered in Oregon. It was the strength of this current, coupled with other favorable conditions, such as warm water down-welling, that was thought to have made possible the green crab introduction in Coos Bay, Oregon. Today, the green crab is thought to be generally available in the Davidson Current and will likely continue its migration and spread. Id.

(113) Id.

(114) Id.

(115) Id.

(116) Piorkowski Interview, supra note 21 (explaining that the green crab could have devastating impacts on Alaska's commercial fisheries, particularly the Dungeness and king crab fishery populations, as well as commercial little neck clam populations); see also Breaching Natural Barriers, supra note 22, at 6 (wondering what will happen to Pacific Northwest estuaries if the green crab reaches Washington state). "Since the green crab can prey on juvenile crabs and shellfish, a northward spread to the Washington coast could put our Dungeness crab, clam and oyster fisheries at risk." Id.

(117) Breaching Natural Barriers, supra note 22, at 6.

(118) Id.

(119) Id. "Known for their enormous appetites, one adult green crab can reportedly eat 40 half-inch clams each day and can devour crabs as large as themselves. They also prey on numerous other organisms which means they may compete for the same food sources as native fish and bird species." Id.

(120) To date, there is evidence that the green crab is capable of eating small oysters, but the details of the crab's food preferences are still uncertain. Therefore, the vulnerability of the commercial seed oyster populations in Oregon, for example, is uncertain. Richmond Interview, supra note 31. In Oregon, researchers are conducting experiments to determine what type of prey the green crab prefers, so as to determine which commercial fisheries may be at greatest risk for predation. Id.

(121) Id.; see also supra note 116.

(122) Breaching Natural Barriers, supra note 22, at 6 (noting that despite the small size of the crab, the meat is considered very tasty).

(123) Heib Interview, supra note 63.

(124) Id. The Chinese mitten crab is catadromous. This means that it is born in saltwater and migrates to freshwater, where it spends much of its life cycle, eventually returning to salt water to spawn and die. Because of its catadromous nature, the Chinese mitten crab must be in saltwater to reproduce (its eggs will not coalesce in freshwater). It reproduces only during the winter months; therefore, the crab reproduces in the ocean during the time that the Davidson Current is controlling. Id.

(125) Richmond Interview, supra note 31.

(126) Heib Interview, supra note 63. As a matter of clarification, the mitten crab responsible for damage in California and Washington is Chinese in origin.

(127) Id.

(128) Piorkowski Interview, supra note 21. The mitten crab is likely to continue its successful invasion throughout the coastal West, with the possible exception of Alaska. In California, the crabs are spreading at surprising rates. In about six years, they were able to migrate east from the San Francisco Bay area to San Joaquin County. They have also traveled north to the upper reaches of the Delevan National Wildlife Refuge and south to the San Luis National Wildlife Refuge. Kathy Heib, Life History and Background Information on the Chinese Mitten Crab, Draft Press Release, California Dep't of Fish & Game 1 (Nov. 5, 1998) [hereinafter Life History]. "It doesn't appear the crabs have hit the limit of their range." Vogel, supra note 5, at B1. To date, the crabs have not become established in southern California. However, they are slowly making their way south and are expected to become established residents in the southern reaches of the state within the next few years. The crabs have already successfully infiltrated California's vast aqueduct network, and it is likely that they will soon become established in southern California. According to Ms. Heib, the crabs, which can live in freshwater for up to three years, will probably survive a trip to southern California in the aqueduct system. Heib Interview, supra note 63.

(129) Piorkowski Interview, supra note 21.

(130) Not only are the ecosystems less disrupted and better able to ward off intruders, but Alaska's colder temperatures prohibit the establishment of many AIS. Id. Some experts believe that the farther north an AIS travels, the less likely it will be to find an available microniche in which to establish. Id.

(131) Id. The state is considered a geologically young area with rocky rivers and riverbanks that are composed of fewer grams of carbon than their counterparts in the lower 48 states. Roughly 200 grams of carbon per square meter is characteristic of Alaskan rivers. In the contiguous U.S., the rivers have an average of 1500 grams of carbon per square meter. Id.

(132) Id.

(133) Life History, supra note 128, at 3-4.

(134) Heib Interview, supra note 63. In China and Korea, the crab has damaged rice field levees; in Germany, another place that the Chinese mitten crabs have become established, the crab has damaged river banks, levees, and structural foundations. Life History, supra note 128, at 3-4.

(135) Life History, supra note 128, at 3.

(136) Id. at 5 ("A large mitten crab population could reduce invertebrate populations and change the structure of the estuary's fresh and brackish water benthic communities.").

(137) The exact number of crabs in California is unknown. However, since the early 1990s when just a few isolated crabs were located in San Francisco Bay, the increase in numbers has been virtually exponential. See id. at 1 (describing the extent of the mitten crab's presence in areas beyond the San Francisco Bay). At various fish salvage sites in California's biggest water project, the Central Valley Project, the crabs numbered in the thousands daily this autumn: "From early September through early October 1998, 10,000 to 20,000 mitten crabs per day were reported by USBR [United State's Bureau of Reclamation] and up to 10,000 crabs per day by DWR [California Department of Water Resources].... In contrast, only 25 crabs were reported from both facilities in 1996." Life History, supra note 128, at 4 (emphasis added).

(138) Vogel, supra note 5, at B1. Thousands of crabs are "crawling out of trucks, climbing ropes and scaling heaps of their fellow crustaceans ... on their drive to spawn in the salt water of the Sacramento-San Joaquin Delta." Id.

(139) Id.

(140) Id.

(141) Id.

(142) Breaching Natural Barriers, supra note 22.

(143) OTA REPORT, supra note 8, at 94.

(144) See Schoch, supra note 86, at A24. Funding to fight invasive plants is limited: "The federal Bureau of Land Management [BLM] spent $250,000 controlling weeds in California last year. It asked for an increase to $1.24 million this year--only to get cut back to about $150,000." Id. Yet, one BLM spokesperson noted, `We could easily gobble up $5 million....'" Id.

(145) Whalin, supra note 7, at 82 ("[Invasive species] clearly dominate this ecosystem and have been responsible, either singularly or in combination, for the extinction of numerous native species.").

(146) Vogel, supra note 5, at B1 (discussing how fish screens at the Central Valley Project sometimes catch only invasive species, such as striped bass, threadfin shad, white catfish, channel catfish, golden shiner, and, of course, Chinese mitten crabs).(147) Heib Interview, supra note 63.

(148) Breaching Natural Barriers, supra note 22, at 10. Even when AIS become food sources for endangered species, scientists are unsure that the species will ultimately benefit. For example, studies show that the Asian copepod is an AIS that now lives in the lower Columbia River estuary, as well as in ten other estuaries on the Pacific coast. This AIS is displacing native copepod, a food source for endangered juvenile salmon populations in the Columbia River system. As a result, the juveniles are eating Asian copepod. Scientists fear that the Asian copepod "may prove to be an unreliable substitute [for displaced native copepod]. A sudden decline in their population could leave salmon without an adequate food supply until or unless native copepod populations recover." Id. at 6.

(149) Electronic Mail Interview with James T. Carlton, Professor of Marine Sciences, Williams College (Nov. 27, 1998) [hereinafter Carlton Interview] (on file with author). Since the spring of 1997, the green crab, a New Zealand sea slug, a Japanese Oyster Drill (a type of aquatic snail), and a worm from South Africa (known as Sabellid Polychaete) have been introduced into Oregon. Experts also believe that a Japanese clam that has invaded Alsea Bay and Humboldt Bay in California has been introduced this year to Coos Bay, Oregon. Id.

(150) See supra note 130 and accompanying text.

(151) Devine, supra note 23, at 54.

(152) David P. Eldridge, Leviathan Lurks: Might the National Invasive Species Act of 1996 Actually Authorize Invasion by Proscribed Species?, 6 S.C. ENVTL. L.J. 47, 49 (1997).

(153) Breaching Natural Barriers, supra note 22, at 9. ("[E]radication of established nonnatives is usually impossible."). Nobody seems to know what to do about invasive species. Even FWS has failed to develop a comprehensive eradication or control plan for invasive species. OTA REPORT, supra note 8, at 186.

(154) As a practical matter, herbicides and pesticides are more effective than manual eradication, but some native ecosystems and species are too fragile to sustain their use. In addition, herbicides and pesticides can pose threats to humans.

(155) One of the most effective methods of eradicating and limiting the spread of invasive plants on wild lands is to hand-pluck them out of the ground. See Schoch, supra note 86, at A24. Even if effective, manual extraction requires a number of hands and a great deal of effort. Finding willing workers is problematic, especially because state organizations usually cannot afford to pay for eradication. Id.

(156) See generally Eldridge, supra note 152 (evaluating the National Invasive Species Act); Wade, supra note 2 (calling for new exotic species legislation due to inadequacies in current law); Dentler, supra note 5 (criticizing existing federal laws).

(157) Carlton Interview, supra note 149.

(158) An in-depth analysis of federal invasive species law falls outside of this Article's scope. For more information, see Eldridge, supra note 152; Wade, supra note 2; Dentler, supra note 5.

(159) The White House issued Executive Order 13,112 on February 3, 1999, requiring federal agencies to assess the problems caused by invasive species and to coordinate control efforts. Exec. Order No. 13,112, 64 Fed. Reg. 6183 (Feb. 3, 1999). Furthermore, Senator Patrick Leahy (D-Vt.) recently introduced Senate Bill 2480, the Invasive Pest Control Act, to prevent the introduction of foreign species that threaten American forests. Electronic Mail Circulated by American Lands Invasive Species Program (Sept. 25, 1998). If enacted, this bill is unlikely to have a meaningful impact on AIS regulation because it targets terrestrial invasive species that harm forests.

(160) 16 U.S.C. [subsections] 3371-3378 (1994 & Supp. III 1997); 18 U.S.C. [sections] 42 (1994 & Supp. III 1997).

(161) 16 U.S.C. [subsections] 4701-4751 (1994 & Supp. III 1997).

(162) 16 U.S.C. [subsections] 4701-4751 (Supp. III 1997) (amending the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990).

(163) Dentler, supra note 5, at 210. Initially, the Act regulated birds and animals deemed injurious to agricultural and horticultural interests. 18 U.S.C. [sections] 42 (1994 & Supp. III 1997). One commentator notes that "limiting nonnative introductions was merely a positive side effect of the Act's main goal of protecting agriculture from exotic pests." Wade, supra note 2, at 346. The federal scheme has been criticized for failing to protect wild lands from invasive species, instead focusing efforts on agricultural lands. See Schoch, supra note 86, at A24 ("The nation's wild lands are being overlooked in favor of crop lands."). Some commentators state that a similar philosophy pervades all national laws. Id. If this is true, it is likely that any federal scheme adopted to regulate AIS will be intended to benefit aquaculture and mariculture industries, rather than to protect natural aquatic ecosystems as a whole. This kind of piecemeal approach to regulation will ultimately fail to protect aquatic ecosystems and may eventually lead to ecosystem collapses. Simply stated, fully functioning ecosystems are too interdependent to be protected only partially from AIS.

(164) A dirty list bans the importation of any species named on the list. OTA REPORT, supra note 8, at 210. In creating a dirty list, analysts consider the detrimental impacts a species may have on economic, ecological, or health factors. Id. at 108. There are two problems with this type of AIS regulation. First, to be listed a species must have known harmful impacts on native species or habitat. However, the negative impacts of nonnative species are often undetectable until after the species have been introduced. Dentler, supra note 5, at 211. Second, the dirty list presumes that unlisted species are safe and allows introduction of unlisted species. This permits potentially destructive AIS entry into a jurisdiction. OTA REPORT, supra note 8, at 108. To date, the dirty list approach guides most federal and state AIS regulation. Id.

Another type of list that can be used is a "clean list." Id. at 210. A clean list bans the importation of all species except those that are listed. Id. at 108. Clean listing is the most restrictive approach to invasive species regulation. Under a clean list regime, the individual seeking to introduce or release the unlisted species bears the burden of showing that such an introduction or release will not negatively impact native species or the ecosystem as a whole. Currently, Hawaii is the only state using a clean list to regulate every major fish and wildlife species. Id. at 210.

(165) 50 C.F.R. [sections] 16 (1997).

(166) Some commentators lament the extremely narrow scope of the Lacey Act list. Dentler, supra note 5, at 210-11. In 1926, Congress passed the Black Bass Act. 16 U.S.C. [subsections] 851-856 (repealed 1981). It augmented the Lacey Act by adding fish to the list of species regulated by the Lacey Act. Id. In 1981, Congress combined the Lacey Act and the Black Bass Act. Eldridge, supra note 152, at 51-52.

(167) 50 C.F.R. [sections] 16.11 (1997). The Act currently covers 23 taxonomic categories. OTA REPORT, supra note 8, at 203. "in 1926, the Black Bass Act supplemented the Lacey Act by adding fish to the list of covered organisms." Wade, supra note 2, at 346.

(168) Dentler, supra note 5, at 212.

(169) Id. ("[O]utside of certain diseases known to afflict salmon, trout, and birds, the Act does not address the possibility that an imported exotic species will release viruses, diseases, or parasites.").

(170) Wade, supra note 2, at 348.

(171) Dentler, supra note 5, at 212.

(172) Wade, supra note 2, at 348.

(173) Dentler, supra note 5, at 212. (174) Wade, supra note 2, at 348.

(175) The zebra mussel is an AIS that clogs water pipes used by industry. It also eats phytoplankton, outcompeting native freshwater species that rely on phytoplankton as a primary food source. It originally infested the Great Lakes and has since spread throughout the United States and is now found in every region of the nation, including the coastal West. By 2002, the zebra mussel is expected to cost the nation a total of $5 billion in damages. Flack & Furlow, supra note 60.

(176) Dentler, supra note 5, at 217.

(177) Id.

(178) Wade, supra note 2, at 351.

(179) 16 U.S.C. [sections] 4711(a) (1994 & Supp. III 1997).

(180) Id.

(181) See supra Part; II.A. 1-2.

(182) Eldridge, supra note 152, at 55.

(183) Id. ("NISA re-authorizes NANPCA; however, it achieves more than simply reinforcing the principles behind the 1990 legislation.... NISA introduced sweeping changes to NANPCA's progeny.").

(184) 16 U.S.C. [sections] 4711(b)(2)(B)(i) (Supp. III 1997). The Act requires ballast exchange or use of "an environmentally sound alternative." Id. [sections] 4711(b)(2)(B)(iii).

(185) Id. [sections] 4711(c)(1). Upon determining that voluntary compliance is not adequate, the statute authorizes the creation of mandatory ballast exchange guidelines. Id. [sections] 4711(f)(1). So far, neither voluntary nor mandatory national guidelines have been issued under the Act. Carlton Interview, supra, note 149. One commentator criticized use of voluntary guidelines, as well as the Secretary of Transportation's discretion to transform voluntary national guidelines into mandatory regulations. Eldridge, supra note 152, at 59 (stating Congress should either impose checks on the Secretary's discretion or simply bypass the use of voluntary guidelines and create mandatory requirements instead).

   (186) Some commentators have found the lack of guidance frustrating: The
   USCG [United States Coast Guard] was to issue the [voluntary] national
   reg[ulations] for ballast water by October 1997. As of [late] 1998, the
   USCG has not issued the reg[ulations]! We know that the USCG is woefully
   understaffed and underfunded to tackle a national ballast water program,
   but that "excuse" holds little sway in certain corners.

Carlton Interview, supra note 149.

(187) 16 U.S.C. [sections] 4711(b)(2)(B)(i) (Supp. III 1997).

   The "sense on the street" is that if we want to move slowly (painfully so),
   then hook your wagon to the federal star--fully 10 years after the
   discovery of the zebra mussel in the US, there is still no
   federally-mandated ballast management program for ships arriving in
   America!

Carlton Interview, supra note 149.

(188) 16 U.S.C. [sections] 4711 (Supp. III 1997).

(189) Eldridge, supra note 152, at 57.

(190) 16 U.S.C. [sections] 4711(k) (Supp. III 1997).

(191) In pertinent part, the statute states: "The master of a vessel is not required to conduct a ballast water exchange if the master decides that the exchange would threaten the safety or stability of the vessel, its crew, or its passengers because of adverse weather, vessel architectural design, equipment failure, or any other extraordinary conditions." Id. [sections] 4711(k)(1) (emphasis added).

(192) Id. [sections] 4711(k)(2)(A) ("[A] vessel that does not exchange ballast water on the high seas under paragraph (1) shall not be restricted from discharging ballast water in any harbor.").

(193) It is possible that vessel masters will opt out of mandatory ballast water exchange by using the safety exemption for purposes of expedience. The Act only requires that the vessel master argue that he suffered "extraordinary conditions" that prevented him from performing a ballast water exchange. Id. [sections] 4711(k)(1). To avoid sanctions associated with noncompliance, the vessel master need only argue that he acted in "good faith" when determining whether a ballast exchange would threaten ship, passenger, or crew safety. Id. [sections] 4711(g)(4)(A).

(194) Eldridge, supra note 152, at 59 ("Although vessels and their crews should avoid harm, the master's discretion as to when it is indeed safe to exchange ballast thwarts the statute's interests.").

(195) Id. at 58.

(196) Id. at 58 ("[A]pproximately $28,425,000 are unequivocally earmarked to implement NISA in fiscal year 1997."); see also 16 U.S.C. [sections] 4741 (Supp. III 1997) (authorizing appropriations).

(197) Eldridge, supra note 152, at 58 (noting that in 1996 and 1997 the same "paltry sum" of $1,192,000 was appropriated by Congress for NISA's implementation).

(198) This Article does not attempt an in-depth analysis of federal-state relationships for purposes of AIS lawmaking. Instead, it provides a brief description of two primary doctrines that can circumscribe state governance in the AIS context.

(199) For example, a state may wish to limit the importation of live species from another state that would otherwise be sold in seafood markets.

(200) O'Shea & Cangelosi, supra note 17, at 397.

(201) The Commerce Clause grants Congress the power "[t]o regulate Commerce ... among the several States." U.S. CONST. art. I, [sections] 8, cl. 3. However, state acts can be prohibited if they burden or discriminate against interstate commerce. That is, even if Congress has not legislated under the Commerce Clause in a particular area, the Commerce Clause imposes negative implications that limit state powers to legislate. "Although the Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that [the Commerce Clause] also limits the power of the States to erect barriers against interstate trade." Maine v. Taylor, 477 U.S. 131, 137 (1986) (quoting Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35 (1980)).

(202) Maine, 477 U.S. at 137.

(203) See Hughes v. Oklahoma, 441 U.S. 322, 337 (1979) ("At a minimum such facial discrimination invokes the strictest scrutiny Of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.").

(204) See generally Philadelphia v. New Jersey, 437 U.S. 617 (1978) (holding that New Jersey statute prohibiting the importation of solid and liquid waste violated the Commerce Clause); Dean Milk Co. v. Madison, 340 U.S. 349 (1951) (holding that city ordinance prohibiting sale of milk unless bottled within five miles of city and relieving city authorities of duty to inspect farms located more than 25 miles from city violated the Commerce Clause).

(205) 477 U.S. at 131.

(206) Id. at 132. "A person is guilty of importing live bait if he imports into this State any live fish, including smelts, which are commonly used for bait fishing in inland waters." ME. REV. STAT. ANN. tit. 12, [sections] 7613 (West 1994).

(207) Maine, 477 U.S. at 151.

(208) Id. at 142-43.

(209) Id. at 151. Although the Court noted there was a factual dispute concerning the availability of alternatives, it decided, "We are in no position to resolve this factual dispute, and we conclude in any event that the District Court's findings regarding parasites adequately support the constitutionality of the challenged statute." Id. at 143 n. 15.

(210) Although a state has the power to regulate AIS introduction within its own borders, it "lack[s] the power to stop the importation and release of a [potential AIS] in a neighboring State." OTA REPORT, supra note 8, at 202.

(211) U.S. CONST. art. VI, cl. 2.

(212) John A. Chatowski, Cipollone and the Clear Statement Rule: Doctrinal Anomaly or New Development in Federal Preemption?, 44 SYRACUSE L. REV. 769, 769 (1993). There is an inherent tension between the Supremacy Clause and the Tenth Amendment. Id. "While the Supremacy Clause proclaims that the laws of the United States are supreme, the Tenth Amendment and constitutional structure equally bespeak a recognition of the desire to maintain a degree of state sovereignty." Id.

(213) When Congress explicitly demonstrates the intent to supplant state regulation, preemption is deemed express. S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U.L. REV. 685, 700 (1991).

(214) Implied preemption arises when a federal law is silent or ambiguous, or when there is doubt as to whether state and federal regulation may operate coextensively. Id.

(215) O'Shea & Cangelosi, supra note 17, at 397.

(216) OTA REPORT, supra note 8, at 202-03.

(217) Schoch, supra note 86, at 1; see also supra note 163.

(218) For a discussion of the Lacey Act, see supra Part III.A.1.

(219) For a discussion of dirty lists, see supra note 164 and accompanying text.

(220) OTA REPORT, supra note 8, at 203.

(221) Id.

(222) Dentler, supra note 5, at 212.

(223) 16 U.S.C. [sections] 4711(a) (1994 & Supp. III 1997).

(224) 16 U.S.C. [subsections] 4711(c), 4722(a) (Supp. III 1997).

(225) O'Shea & Cangelosi, supra note 17, at 399.

(226) 16 U.S.C. [sections] 4725 (Supp. III 1997) ("Nothing in this chapter shall affect the authority of any State or political subdivision thereof to adopt or enforce control measures for aquatic nuisance species, or diminish or affect the jurisdiction of any State over species of fish and wildlife.").

(227) Other statutes that more actively preempt state regulation in the area of invasive species are the Federal Noxious Weed Act of 1974, 7 U.S.C. [subsections] 2801-2818 (1994); the Federal Plant Pest Act of 1957, 7 U.S.C. [subsections] 150aa-150jj (1994); and the Federal Plant Quarantine Act of 1912, 7 U.S.C. [subsections] 151-167 (1994). These statutes were enacted primarily to protect agricultural interests and, therefore, have little affect on AIS regulation. OTA REPORT, supra note 8, at 203.

(228) This Article assesses only relevant AIS provisions of state law.

(229) Of all of the laws studied herein, California is the only state to regulate ballast water discharge. Further, its clean list approach regulates more AIS than the approaches of the other states that were examined. A clean list identifies species that are permitted entry into a jurisdiction and bans all unlisted species. For additional explanation of clean listing, see supra note 164 and accompanying text.

(230) CAL. FISH & GAME CODE [sections] 6432 (West 1998). The California legislature required the adoption of the International Maritime Organization's GUIDELINES FOR PREVENTING THE INTRODUCTION OF UNWANTED AQUATIC ORGANISMS AND PATHOGENS FROM SHIP'S BALLAST WATER AND SEDIMENT DISCHARGES (1991) as state policy. Id. Pursuant to these guidelines, the vessel masters of any ship capable of taking in or discharging ballast water, must submit a "ballast water control report form," as a prerequisite to using state waters. Id. [sections] 6434. Further, failure of a vessel master to submit such a form may result in an infraction that is punishable by a maximum fine of $500. Id. [sections] 6435. The state of Washington also has a ballast water regulation, but it does not address AIS in any way. Unlike California's ballast water regulation which states in part, "[g]uidelines for preventing the introduction of unwanted aquatic organisms," Washington's ballast water provisions speak to navigability and depth guidance for ballast discharge. WASH. REV. CODE [sections] 88.26.060 (1998).

(231) See supra note 164 and accompanying text.

(232) CAL. FISH & GAME CODE [sections] 2271 (West 1998) (prohibiting the importation of any live aquatic plant or animal without the written permission of the Department of Fish and Game).

(233) CAL. FISH & GAME CODE [sections] 6400 (West 1998). An assembly bill introduced by Assembly Member Bernie Richter in January of 1998 sought to amend [sections] 6400 to include attempted crimes and to impose heavy penalties for both attempted and completed crimes. The proposed changes included a minimum fine of $20,000 for each violation, a 5-year revocation of the defendant's fishing privileges, and liability "for all resulting damages, as specified, that were caused by his or her unlawful activity." In addition, the defendant would be charged with a felony for violating the law. A.B. 1625, 1997-98 Reg. Sess. (Cal. 1998). The version that passed was slightly different. CAL. FISH & GAME CODE [sections] 12,023 (West Supp. 1999). The maximum fine is raised to $50,000 for each violation, the defendant's state fishing privileges are revoked, and the defendant is liable "for all monetary damages directly, indirectly, and proximately caused thereby." Id. [sections] 12,023(b). Rather than a felony, the defendant would only be charged with a misdemeanor for violating [sections] 6400. Id. [sections] 12,023(a).

(234) This is a rather minor point given that most pathogens and other microscopic populations will likely piggy-back into state waters on host plant or animal species, but it is still possible that such organisms could be introduced independently.

(235) CAL. FISH & GaME CODS [sections] 2271 (West 1998). The statute reads in pertinent part:

   (b) This section does not apply to the following plants or animals unless
   the plants or animals are or may be placed in waters of the state:

      (1) Mollusks.

      (2) Crustaceans.

      (3) Ornamental marine or freshwater plants and animals not utilized for
      human consumption or bait and maintained in closed systems for personal,
      pet industry, or hobby purposes.

   (c) This section does not apply to any live aquatic plants or animals
   imported by a registered aquaculturist.

Id.

(236) The exceptions in [sections] 2271(b) of the California Code do not adequately address escape as a possible means of unintentional introduction. The statute states the exceptions apply "unless the plants or animals are or may be placed in waters of the state." Id. [sections] 2271(b) (emphasis added). However, this is unlikely to provide adequate guidance on escape, and escape is a viable means of unintentional introduction. For more information on unintentional introduction through escape, see supra notes 96-100 and accompanying text.

(237) See infra Part V for a discussion of the importance of notice and cooperation among the states.

(238) Telephone Interview with Larry Cooper, Staff Biologist, Oregon Dep't of Fish & Wildlife (Nov. 25, 1998) [hereinafter Cooper Interview]. The Department of Fish and Wildlife (DFW) is using a one-year grace period to evaluate what should be done about AIS. The Oregon Water Integrity Review Panel is currently responsible for assessing a species's potential harm to native habitat and species. However, DFW is unsure about whether this panel should be responsible for creating regulations to govern AIS or whether a new panel should be created to promulgate AIS regulations. Id. Presently, "there is not much of a plan for marine, aquatic nuisance species." Richmond Interview, supra note 31.

(239) This provision does not speak to importation of species, just release of species.

(240) OR. REV. STAT. [sections] 498.052 (1997).

(241) The term "wildlife" is defined as "fish, wild birds, amphibians, reptiles and wild mammals." Id. [sections] 496.004(17).

(242) See infra note 250.

(243) As with [sections] 498.052, supra note 240 and accompanying text, [sections] 498.222(1) does not specifically prohibit the importation of species.

(244) OR. REV. STAT. [sections] 498.222(1) (1997). Oregon's standard for denying a fish release permit is "if the commission :finds that the release of the fish into a body of water would adversely affect existing fish populations." Id. [sections] 498.222(2). This standard ignores the possible ramifications of release on native aquatic species other than fish.

(245) In its regulation of fish species, [sections] 498.222(1) is duplicative of [sections] 498.052, except that [sections] 498.052 does not address the transport of fish. Interestingly, [sections] 498.242 prohibits the possession of walking catfish and piranha species. An exception is available for zoos, public parks, educational institutions, and museums if they apply for a special permit from the Oregon Fish and Game Commission. Id. [sections] 498.242(2). However, permit issuance is conditioned on a preliminary finding that the holding facilities for the prohibited fish species are adequate to prevent escape. Id.

Unlike [sections] 498.242, which prohibits public possession of walking catfish and piranhas, [sections] 498.222(1) allows members of the public to possess invasive fish species; the proviso in [sections] 498.222(1) is merely that invasive fish species may not be released or transported while alive. To date, [sections] 498.222(1) does not address escape, nor does it condition possession upon a finding that holding facilities are adequate to prevent escape.

In creating [sections] 498.242, the Oregon legislature demonstrated the need to address escape insofar as piranhas and walking catfish are concerned. Yet, it chose not to regulate possible escapes with respect to the numerous other fish species that exist and may be possessed by the public. In order to create a comprehensive, effective body of law to regulate AIS, the Oregon legislature will need to approach all AIS with the same caution demonstrated in [sections] 498.242.

(246) See generally id. [sections] 498.052 (prohibiting release of domestically raised or imported wildlife without a permit); id. [sections] 498.222(1) (prohibiting transportation or release of fish without a permit).

(247) See generally id. tit. 41 (dealing with wildlife only); id. tit. 48 (1997) (dealing with animals in general).

(248) For examples of the types of problems caused by the green crab, see supra notes 116, 119-21 and accompanying text. For examples of damage caused by the Chinese mitten crab, see supra notes 13341 and accompanying text.

(249) Electronic Mail Interview with Mark Sytsma, Research Associate Professor of Environmental Sciences and Resources, Portland State University (Nov. 9, 1998) [hereinafter Sytsma Interview] (noting the introduction of invasive invertebrates is not yet regulated in Oregon and invasive invertebrate species "sort of fall between the cracks").

(250) Invertebrates are species "having no backbone." WEBSTER'S, supra note 39, at 1189.

(251) See supra note 39.

(252) For example, in Oregon, the Japanese Oyster Drill, a recently introduced invasive aquatic snail, is capable of "drilling" into and feeding on oysters raised for aquaculture projects. Richmond Interview, supra note 31. Another invertebrate AIS, an aquatic worm from South Africa, referred to as "sabellid polychaete," is drilling holes in and feeding on commercially harvested abalone. Id.

(253) Beginning in January 1999, Oregon will use a clean list to regulate AIS. Cooper Interview, supra note 238. Use of an AIS clean list will significantly improve the state's regulatory scheme.

(254) Os. REV. STAT. tit. 41 (1997) (dealing with wildlife in general but never addressing ballast water discharge); id. tit. 48 (dealing with animals in general but never addressing ballast water discharge).

(255) See Whalin, supra note 7, at 87 ("[B]allast water is likely the most significant source of[introduction]."). Not all authorities view ballast water discharge as the most important introduction vector. Heib Interview, supra note 63 (explaining that while ballast water discharge is one method of AIS introduction, it is neither the only method, nor the most significant method, but merely one of many equally problematic vectors).

(256) Cooper Interview, supra note 238. Among other things, Oregon is considering passing a noxious weed statute. Sytsma Interview, supra note 249. Whether this statute, if passed, will regulate aquatic invasive plants or plant pathogens remains to be seen. If it does, it will certainly aid in the control of AIS.

(257) For a discussion of dirty lists, see supra note 164 and accompanying text.

(258) For a discussion of the Lacey Act, see supra Part III.A. 1.

(259) WASH. REV. CODE [sections] 77.12.020 (1998).

(260) Id. [sections] 77.08.010.

(261) WASH. ADMIN. CODE. [sections] 232-12-017(2) (1997).

(262) See generally id. [sections] 232-12-017(1) (listing the species currently regulated).

(263) Id. [sections] 232-12-017(1)(a)-(b). Some of the listed fish species include walking catfish, diploid grass carp, grinnel, piranha, rudd, and gar-pikes. Id. [sections] 232-12-017(1)(a)(i)-(vii). The listed amphibian is the African clawed frog. Id. [sections] 232-12-017(1)(b)(i).

(264) WASH. REV. CODE [sections] 77.15.290 (1998).

(265) Dentler, supra note 5, at 223-24 (noting Washington has attempted to address this problem by using its emergency powers to ban species before they are found to have adverse impacts on the environment). The state's emergency powers are located at WASH. REV. CODE [sections] 34.05.350 (1998). Arguably, it would be more efficient for the state to use a clean list instead of its emergency powers. A clean list would allow it to ban all species except those known not to be detrimental to native species and the environment. This system would also allow the state to shift the burden of proof regarding negative impacts to anyone seeking to import a nonlisted species.

(266) See supra notes 153-55 and accompanying text.

(267) WASH. REV. CODS [sections] 17.26.005(1) (1998).

(268) Id. [sections] 17.26.005(2).

(269) Id. [sections] 17.10.080.

(270) Id. [sections] 17.26.006 ("This state is facing an environmental disaster.").

(271) Id.

(272) Id. (delegating the duty to formulate a working plan to the Department of Natural Resources, the Department of Fish and Wildlife, and the Parks and Recreation Commission).

(273) Electronic Mall Interview with Scott Smith, Washington State Non-Indigenous Species Coordinator (Nov. 29, 1998).

(274) For a description of the legislative findings concerning spartina and purple loosestrife, see WASH. REV. CODS [sections] 17.26.005 (1998) (noting in part that "spartina threatens to permanently convert and displace native freshwater and saltwater wetlands" and that "[p]urple loosestrife is displacing native plants and ... threatening an extremely important part of this state's wildlife habitat").

(275) The state's current regulation of ballast water discharge is limited to establishing depth and location guidelines, entirely independent of AIS concerns. Id. [sections] 88.28.060.

(276) Electronic Mail Interview with Herman Savikko, Fishery Biologist, Alaska Dep't of Fish & Game (Nov. 6, 1998) ("To my knowledge we haven't had any known recoveries of several foreign species now impacting other Pacific West Coast locations."). This statement was confirmed in a telephone interview with Dr. Robert Piorkowski. Piorkowski Interview, supra note 21.

(277) Piorkowski, supra note 21.

(278) See generally ALASKA ADMIN. CODS tit. 5 (1998) (illustrating the lack of regulation in the Fish & Game section of the code).

(279) Id.

(280) Id. [sections] 41.070(a) (1998). Section 41.005 prohibits live fish possession, transport, export, or release into state waters by a person without a permit. Id. [sections] 41.005.

(281) Id. [sections] 41.070(a). Additionally, the law prohibits the use of "live nonindigenous fish as bait." Id. [sections] 01.010(n).

(282) Id. [sections] 41.070(c).

(283) For a discussion of the viability of escape as an introduction vector, see supra notes 96-100 and accompanying text. Obviously, many aquarium fish could not survive in Alaska's cold temperatures, but it is possible that some could, especially if they are chosen for survivability in outdoor pens. The state attempts to prevent AIS introduction in the form of ornamental fish by prohibiting their intentional release, as well as their waste and waste water. ALASKA ADMIN. CODE tit. 5, [sections] 41.070(C) (1998). However, Alaska still fails to consider the possibility of escape.

(284) Id. [sections] 41.070(b).

(285) Id. The provisos for release require that imported oyster stocks be derived from oysters that have been commercially cultured on the Pacific coast of North America for at least three generations. Id. [sections] 41.070(c). Another provision requires that all imported oyster stocks be free from diseases nonindigenous to Alaska. Id. 286 Id. [sections] 41.070(d).

(287) The law is silent regarding oysters that originate outside of the North American Pacific coast and scallops that are from areas other than Southeastern Alaska and the Yakutat areas of Alaska. See generally id. [sections] 41.070. There is no clean list regulating oyster or scallop importations elsewhere in the Code.

(288) For a discussion of clean and dirty lists, see supra note 164 and accompanying text.

(289) To its credit, the state requires that imported clams are subjected to hand inspections and treatment in a freshwater bleach solution to prevent introductions of clam pathogens. Piorkowski Interview, supra note 21.

(290) According to one mariculture expert, the U.S. Coast Guard randomly monitors ballast water in Alaska, but not in accord with regulatory duties. Id.

(291) The state should also enact a requirement for the appropriate cleansing of "live wells." Live wells are the bins that fisherman store their catch in; they are also potential storage areas for AIS. When fishermen move from one fishing area to another, they rinse and empty their live wells, potentially introducing AIS in the process. Id.

(292) See supra Part III.A. 1-3.

(293) Carlton Interview, supra note 149.

(294) In response to inquiries made by this author, James T. Carlton, a renowned expert on the subject of AIS, stated:

   Your work to couple state efforts under a federal aegis sounds good ... but
   is all "too kind" in this late 1990s world of state grassroots
   efforts--which in large part are sufficiently fed up with the federal
   process that they've decided to "go it alone" and kick-butt (so to
   speak).... While between 1990 and 1996 I was generally in favor of federal
   control (that would also dictate by implication state-level efforts) I must
   say that my envirocolleagues have made persuasive arguments that if we wait
   for the feds ... well, we'll be waiting a long, long time indeed.

Id.

(295) For a discussion of why state regulation without federal guidance is inadequate, see infra notes 300-02. For a discussion of current federal guidance of state AIS regulation, as well as proposed amendments to that guidance, see infra Part V.

(296) See supra Part III.A. 1-3.

(297) See OTA RETORT, supra note 8, at 201 ("States control the entry of NIS [non-indigenous species] across State borders and release of NIS within the State.").

(298) Telephone Interview with Paul Shinkawa, Legal Counsel for Resource Protection, Texas Parks & Wildlife Dep't (Dec. 3, 1998) [hereinafter Shinkawa Telephone Interview].

(299) Id.

(300) OTA REPORT, supra note 8, at 203. For example, see supra notes 111-16, 124 and accompanying text.

(301) See Dentler, supra note 5, at 227. In the terrestrial realm, the inconsistent consequences of state-by-state regulation are no different. Shinkawa Email Interview, supra note 2 (noting that one state placed incentives on killing prairie dogs, while a neighboring state was considering listing prairie dogs as an endangered or threatened species).

(302) OTA REPORT, supra note 8, at 207. For example, a conflict recently arose between Maryland and Virginia concerning Virginia's proposed intentional release of the Pacific oyster into the Chesapeake Bay, a body of water the two states share. Maryland feared the Pacific oyster would threaten its native oyster fishery, whereas Virginia sought to create a new fishery with the Pacific oyster because its own native oyster populations were in historic decline. Virginia has not introduced the Pacific oyster to date; however, under principles of state sovereignty, it could at any time. This example demonstrates the inherent ecological, economic, and policy differences driving AIS treatment in each state, as well as the inconsistent outcomes that can result from those differences. Id.

(303) Shinkawa Telephone Interview, supra note 298.

(304) See OTA RETORT, supra note 8, at 203.

(305) Id.

(306) 16 U.S.C. [sections] 4724 (Supp. III 1997). Indeed, both California and Washington are seeking eligibility for federal funding under NISA. Carlton Interview, supra note 149.

(307) Drees Interview, supra note 13.

(308) NISA also permits the formation of interstate plans whereby at least two states create one plan or states and Indian tribes work together to create one plan. 16 U.S.C. [sections] 4724(a) (Supp. III 1997).

(309) NISA establishes the Task Force in [sections] 4721 to administer the purposes of the Act. Id. [sections] 4721. Task Force membership is composed of the Director and Undersecretary of the U.S. Fish and Wildlife Service, the Administrator of the U.S. Environmental Protection Agency, the Commandant of the U.S. Coast Guard, the Secretary of Agriculture, and other key federal agency figures. Id. [sections] 4721(b).

(310) Id. [sections] 472,1(a)(1).

(311) The statute does not define the term "comprehensive" or specifically detail which elements must be included in a plan.

(312) Id. [sections] 472,1(a)(1)(A).

(313) Id. [sections] 4724(a)(2).

(314) Id. [sections] 4724(a)(2)(A).

(315) Id. [sections] 4724(a)(2)(B).

(316) Id. [sections] 4724(a)(2)(C).

(317) Id. [sections] 4724(a)(2)(D).

(318) Id. [sections] 4724(a)(3)(A).

(319 Drees Interview, supra note 13.

(320) See supra note 43 and accompanying text.

(321) For a discussion of intentional AIS introduction vectors, see supra Part II.A. 1.

(322) For a discussion of unintentional AIS introduction vectors, see supra Part II.A.2.

(323) See supra notes 96-100 and accompanying text.

(324) Farming is used generically in this context, meaning both as commercial fish and shellfish harvests and as agricultural harvests.

VIKI NADOL, Masters Degree in Environmental Law at Northwestern School of Law, Lewis and Clark College, expected August 1999; J.D., Valparaiso University, 1996; B.A., Valparaiso University, 1991. The author wishes to thank the following for their generous teachings and time: Professor Michael Blumm, Jim Carlton, Larry Cooper, Linda Drees, Kathy Heib, Dr. Robert Piorkowski, Neil Richmond, Paul Shinkawa; and Mark Systma. The author also wishes to give special thanks to her husband, Greg, for his support, patience, and love.