(concurring) :
While I concur in the opinion of the court, I think more discussion is warranted on the abstention issue. See footnote 2 ante. The fact that the State did not raise the issue does not preclude its applicability. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). A review of the record in this case reveals no pleadings or arguments by any plaintiff on any state law ground. The lack of such distinguishes this case from Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). A review of the record in State of Alaska v. Charles Bundrant, Cr. No. 73-724, a case in the Alaska Superior Court similar to the present one, reveals no pleadings or argument on any state law .ground. Thus, Askew v. Hargrave, 401 U.S. 476, 91 §,. Ct. 856, 28 L.Ed.2d 196 (1971) is not applicable.
An admittedly superficial review of a line of argument not presented in this case reveals the following: The purpose of the statutes underlying the contested regulations is: *443Plaintiff asserts 5 AAC 36.040 has absolutely no rational relation to the protection of any state fishery in arguing that the “landing law” constitutes an unreasonable restraint on interstate and foreign commerce. A.S. 44.62.300 provides for judicial review of state regulations and authorizes an action for declaratory relief in the Alaska Superior Court. The courts will ascertain whether the agency’s regulation exceeds the scope of the power delegated by the legislature and will determine whether the regulation is reasonable. Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971). Thus, had this state law ground been presented, the constitutional issue could have possibly been avoided. However, it appears that the abstention doctrine does not extend to such lengths. From the record before this court and from the record before the Bundrant Court, abstention is not necessary in this case.
*442“. . . [t]o conserve the migratory fish and migratory shellfish found inside the waters of the state. . . .” A.S. 16.10.180(4).
*443I share the concern of Chief Judge von der Heydt with reference to extending the rationale of Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505, 42 U.S.L.W. 4357 (1974), to this non-First Amendment' case where no prosecution of the plaintiff is pending or impending and no proscribed past conduct has occurred.' See 42 U.S.L.W. at 4361 n. 12 [94 S.Ct. 1209], See also Hart' and Wechsler, The Federal Courts and the Federal System, 1045-1050 (2d ed.1973). However, this injunction is preliminary and operates effectively only until July 1, 1974, when the season for King Crab opens, and after the 31,-000,000- — pound quota is met.1 If this case is brought to trial soon, the injunction may be in effect for two months.
Concerning the existence of a legitimate state interest in the regulation of the Bering Sea Shellfish Area, it seems to me that the burden of proving such should rest upon the State. Plaintiffs should not be forced to prove a negative on this issue.
. The 23,000,000 — pound quota for 1973 was filled between June 15, 1973, and September 6, 1973.