incentive to accept this alternative and, as a practical matter, it would be equivalent to a no-action alternative.

Question 21. What will be the impact of commercial harvesting on the various Antarctic species and the overall Antarctic ecosystem?

Answer. The impacts of commercial harvesting would, of course, depend upon whether and how such harvesting were regulated. Unregulated harvesting would have the greatest impacts-both in direct reduction of the populations of harvested species such as krill, and fin fish; and in indirect effects upon seals, whales, fish, birds, and cephalopods which depend upon the harvested species. Unregulated harvesting, therefore, would pose the maximum danger of upsetting the balance of the Antarctic marine ecosystem and the structure of its food chain. Such harvesting would tend to operate to produce short-term gains, while tending toward reduction in overall productivity in the long run.

The system established by the Convention on the Conservation of Antarctic Marine Living Resources, including its conservation standard, is designed to prevent over-exploitation of any Antarctic resource, [by] maintaining the health of the Antarctic marine ecosystem, ensuring that any harvesting of one species does not adversely affect related species and maintaining long-term productivity of the entire system.

Some changes in the Antarctic ecosystem would be expected as harvesting increased under the Convention, but the anticipated changes are much less than those expected with uncontrolled harvesting. Maintaining the health of the ecosystem and retaining long-term productivity is possible under this system. Although some disturbance of the ecosystem would occur, maintenance of balance between populations would be possible with carefully regulated harvesting.

Question 22. What will be the unavoidable adverse environmental impacts of this Convention?

Answer. Any system under which harvesting of living resources may take place involves the possibility of adverse environmental impacts. As noted above harvesting includes the possibility of reductions in target populations, dependent or related populations and changes in the relationships among the components of the ecosystem. The Convention on the Conservation of Antarctic Marine Living Resources has a basic objective of reducing to a minimum the possibility of such adverse environmental impacts. It aims at controlling harvesting in such fashion as to maintain in a healthy state populations of Antarctic marine living resources-whether the targets of exploitation, or dependent upon or related to such targets; restoration of any currently depleted populations (whales); and prevention of irreversible or long-term changes in the marine ecosystem. We are committed to see that the Convention is implemented so as to attain this objective.

Ibid., pp. 34-42.

On Nov. 10, 1981, the Committee ordered the Convention to be reported favorably to the Senate, with a procès-verbal of rectification, dated Mar. 18, 1981, that corrected a number of errors or linguistic inconsistencies among the various translations of the Convention. For the Committee's report, see S. Ex. Rept. 97-38, 97th Cong., 1st sess. (1981). The Department of State had transmitted the proces-verbal of rectification to the Committee in a letter from Richard Fairbanks, Assistant Secretary for Congressional Relations, to Senator Percy, dated Sept. 24, 1981. Ibid., pp. 8-9.

On Dec. 16, 1981, the Senate agreed to the resolution of ratification of the Convention, with the procès-verbal of rectification. Cong. Rec., Vol. 127, No. 188 (daily ed. Dec. 16, 1981), p. 15533.

The Antarctic Treaty, signed at Washington, Dec. 1, 1959, is at TIAS 4780; 12 UST 794; entered into force, June 23, 1961.

For the International Convention for the Regulation of Whaling with Schedule of Whaling Regulations, signed at Washington, Dec. 2, 1946, see TIAS 1849; 62 Stat. 1716; 4 Bevans, Treaties, etc. (1970) 248; entered into force, Nov. 10, 1948. For the Protocol to the International Convention for the Regulation of Whaling, done at Washington, Nov. 19, 1956, see TIAS 4228; 10 UST 952; entered into force, May 4, 1959.

The Convention for the Conservation of Antarctic Seals, with Annex and Final Act, done at London, June 1, 1972, may be found at TIAS 8826; 29 UST 441; entered into force, Mar. 11, 1978.

Marine Vessel Pollution

Tanker Pollution Prevention

On October 21, 1980, President Carter approved the Act to Prevent Pollution from Ships, Public Law 96-478, 94 Stat. 2297, 33 U.S.C. 1901 et seq.

The principal purpose of the legislation was to provide implementation, where required, for undertakings under the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, done at London, February 17, 1978 (the MARPOL Protocol), in regard to which see, also, the 1978 Digest, pp. 1074-1076, and the 1979 Digest, pp. 1087-1088.

See, also, H.R. Rept. 96-1224, 96th Cong., 2d sess. (1980); 1980 United States Code Congressional and Administrative News, Vol. 5 (1981), pp. 4849-4870.

In response to a request from the Embassy of Canada, set out in a note dated December 5, 1980, for a meeting of United States and Canadian representatives to compare findings on dioxin and to develop coordinated plans for monitoring, surveillance, and control of dioxin in the Great Lakes, the Department of State invited United States and Canadian officials and health and environmental scientists to meet at Washington on December 19, 1980, to discuss recent findings regarding 2, 3, 7, 8-TCDD (dioxin) in the Great Lakes and to develop an effective response to the problem.

A joint statement issued by the two delegations at the conclusion of their meeting reported, in part, as follows:

The Canadian delegation was led by the Department of External Affairs and included experts from the Ministries of Health and Welfare, Environment Canada, Fisheries and Oceans, and the Province of Ontario. The U.S. delegation, led by the Department of State, included experts from the Environmental Protection Agency, the Departments of Health and Human Services, Interior, and the Veterans Administration. Government specialists from the States of New York and Michigan also took part. Canadian scientists presented the results of a recent Environment Canada study which revealed the presence of 2,3,7,8-TCDD in Great Lakes herring gull eggs. The discovery of 2,3,7,8-TCDD in the Great Lakes Basin, through recent advances in analytical technology, shows that the compound has been present in declining

quantities in the eggs over the past decade. Other scientific findings from both governments on 2,3,7,8-TCDD and concerns related to health and environment were compared and discussed. As a result, Canada and the United States will be exchanging information and cooperating in an effort to:

• Identify sources of 2,3,7,8-TCDD in the Great Lakes, with particular attention being paid to sources related to 2,4,5-trichlorophenol production; it was reported that this material is no longer being produced in the Great Lakes Basin;

• Review the presence of 2,3,7,8-TCDD in fish, with emphasis on analytical methodology, human exposure, and evaluation of potential health hazards, and establish mechanisms to deal with these issues;

• Investigate the way that 2,3,7,8-TCDD is transported through and affects the environment; and

• Formulate plans for coordinated action.

In addition to these immediate actions, the Governments also plan to present to an international conference on dioxins, tentatively scheduled in Washington in October 1981, the results of the work accomplished.

Agencies of the Governments will continue to forward information on 2,3,7,8-TCDD to the International Joint Commission which, through its Great Lakes Water Quality Board and Science Advisory Board, is already considering this issue.

Dept. of State Press Release No. 351, Dec. 19, 1980; Dept. of State Bulletin, Vol. 81, No. 2047, Feb. 1981, pp. 32-33.

See, also, Dept. of State File No. P80 0162-1837.

Poplar River

-D.D.K.

On September 23, 1980, the United States and Canadian Governments exchanged notes at Ottawa that formally established a cooperative monitoring arrangement for the Poplar River. Developed in consultation with the governments of the State of Montana and the Province of Saskatchewan, the arrangement was in response to United States concerns about possible environmental effects in Montana from the Saskatchewan Power Corporation's power plant at Coronach, Saskatchewan.

The arrangement, set out in an annex to the notes, provided for the exchange of data, collected as described in attached technical monitoring schedules, in water quality, water quantity, and air quality monitoring programs being conducted in Canada and in the United States at or near the international boundary in response to the Saskatchewan Power Corporation development. It also provided for the dissemination of the data in each country, for assurance of data comparability, and for assistance in the technical interpretation of such data. The arrangement replaced and expanded upon a quarterly information exchange program instituted between the United

States and Canada in 1976, and would be implemented by the Poplar River Bilateral Monitoring Committee, whose composition, functions, and responsibilities were also set out in the annex to the notes. The Governor of the State of Montana and the Saskatchewan Minister of the Environment were each empowered to appoint a chief executive official of local government to participate as an ex-officio member of the Committee in its technical deliberations.

The monitoring arrangement, to be effective for an initial term of five years and subject to review and renewal thereafter, enables both governments to detect at an early stage any unforeseen effects of the Saskatchewan Power Corporation project. It helps, also, to ensure that mitigation measures required by the Saskatchewan and Canadian Governments provide adequate protection.

American Embassy at Ottawa to Dept. of State, telegram 05221, Sept. 23, 1980; Dept. of State Press Release No. 268, Sept. 23, 1980; Dept. of State Bulletin, Vol. 80, No. 2045, Dec. 1980, p. 34.

See, further: the 1979 Digest, pp. 1103-1111; the 1978 Digest, pp. 1116-1120; the 1977 Digest, pp. 626-627; and the 1976 Digest, pp. 590-594.

In regard to transfrontier air pollution, see this Digest, Ch. 11, §1, post.

Stikine River

See this Digest, Chapter 11, §1, post.

Boundary Waters Canoe Area Wilderness Act

In National Association of Property Owners v. United States, 499 F.Supp. 1223 (D. Minn. 1980), aff'd sub nom. Minnesota v. Black, 660 F.2d 1240 (8th Cir. 1981), cert. denied, 455 U.S. 1007 (1982), the United States District Court for the District of Minnesota on July 24, 1980 rejected a challenge to the Boundary Waters Canoe Area (BWCA) Wilderness Act of 1978, Public Law No. 95-495, approved October 21, 1978, 92 Stat. 1649, 16 U.S.C. 1132 note. That Act designated the BWCA as a wilderness area and prohibited the use of motorboats in a portion of the United States part of Lac La Croix, as well as in certain other boundary waters in the BWCA between Minnesota and Ontario. Plaintiffs, who included members of the Lac La Croix Indian Band from a reserve on the Canadian side of the lake, challenged this motorized use restriction on the grounds, inter alia, that it was inconsistent with the Webster-Ashburton Treaty, signed August 9, 1842 (TS 119, 8 Stat. 572, 12 Bevans 82), and the Boundary Waters Treaty (the Root-Bryce Treaty), signed January 11, 1909 (TS 548; 36 Stat. 2448; 12 Bevans 319).

Article II of the Webster-Ashburton Treaty provides, in relevant part:

It being understood that all the water communication and all the usual portages... as now actually used, shall be free and open to the use of the citizens and subjects of both countries.

12 Bevans, Treaties, etc. (1974), p. 85.

Without deciding whether a conflict existed between the Act and Article II of the Webster-Ashburton Treaty, Judge Miles W. Lord rejected the plaintiffs' challenge on the ground that even under the presumption of a conflict, the subsequently enacted statute would control. In analyzing the issue, the Court noted the view of the Department of State regarding Article II of the Treaty, as stated in a letter from Robert J. McCloskey, Assistant Secretary for Congressional Relations, to Congressman James Oberstar of Minnesota, prior to passage of the Boundary Waters Canoe Area Act:

[w]ith respect to your question on the use of mechanized transport on these waters, the Webster-Ashburton Treaty is clearly silent. . . . We believe that the intent of the "free and open" provision for these waters was to ensure that this important route remained open on an equal basis, to the nations of both countries. . . . In agreeing to free and open use of these waterways and portages, neither party intended to relinquish its sovereign role of imposing statutory limitations on behavior which would not be in the best interest of the respective country.

499 F.Supp. at 1234.

The Court also rejected the plaintiffs' argument that the motorized use restriction violated Article I of the Root-Bryce Treaty of 1909. That article provides in relevant part:

The High Contracting Parties agree that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels, and boats of both countries equally, subject, however, to any laws and regulations of either country, within its own territory, not inconsistent with such privilege of free navigation and applying equally and without discrimination to the inhabitants, ships, vessels, and boats of both countries.

Noting that the Province of Ontario had also barred motorized vehicles, including motorboats, in boundary waters in the Quetico Provincial Park adjacent to the Boundary Waters Canoe Area Wilderness, the Court found that this treaty, like the Webster-Ashburton Treaty, was intended to prevent discrimination, not to guarantee the use of mechanized transport. Thus, the Court held that Section 4 of the Boundary Waters Canoe Area Act, which applied equally to citizens of both countries, did not conflict with the 1909 Boundary Waters Treaty. It noted, however, that even if there had been a conflict, the plaintiffs' challenge would have failed, because the subsequent statute would control.

-C.M.S.