(dissenting):
I respectfully dissent in two significant areas of the majority opinion.
First, I find that the abstention issue merits further consideration.
Initially, despite the conclusion reached in the majority opinion regarding “equitable restraint”, I am unable to agree to the extension 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 permit injunctive relief, even pendente lite, to cases where a federal plaintiff is threatened with imminent, though not pending or impending, state criminal prosecution based on future conduct. See concurring opinion of Mr. Justice Rehnquist, joined by the Chief Justice, in Steffel v. Thompson, supra, at 4365 [94 S.Ct. 1209]. That opinion stressed that the law of Steffel is limited to instances where declaratory relief is sought in situations involving threatened state criminal prosecution. Steffel provides no authority to grant injunctive relief under the circumstances of the instant cause. Mr. Justice Rehnquist points out the limited application of Steffel by hypothesizing a situation wherein a federal plaintiff threatened with imminent state criminal prosecution seeks and obtains a favorable declaratory judgment. If the successful federal plaintiff thereafter violated the state statute, considerations of an adequate remedy at law and “our federalism” could very well preclude the issuance of a federal injunction to enforce the declaratory judgment. Steffel v. Thompson, supra, at 4366-4367 [94 S.Ct. 1209]. Accordingly, it appears that identical considerations, absent aggravated circumstances or bad faith, would induce a federal court to withhold injunctive relief to a federal plaintiff where the federal plaintiff seeks injunctive relief, as distinguished from declaratory relief. To extend the holding of Steffel to include the granting of injunctive relief constitutes an avoidance by circumlo*444cution of the rationale set forth in Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
Further, I am reluctant to extend the doctrine of Steffel, which represents a long line of First Amendment cases, to this cause, which relates to the constitutional power of a state to preserve its natural resources. Cf. Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936).
Secondly, I disagree that a preliminary injunction should be ordered under the facts and circumstances of this case, notwithstanding my reservations upon the abstention issue.
a. The majority opinion adopts a set of criteria for the determination of the granting of a preliminary injunction which fails to give proper consideration of the most critical factor raised by the facts of this cause: the public interest. See King v. Saddleback Junior College District, 425 F.2d 426, 427 (9th Cir. 1970). See also 7 Moore’s Federal Practice, § 65.04[1], 65-45 (2nd Ed.1974).
The Bering Sea king crab population data obtained by the National Marine Fisheries Service establishes that the present capacity of commercial fishermen to take king crab far exceeds the estimated maximum sustained yield of the Bering Sea Shellfish Area. Biologists generally agree that productivity of this fishery cannot be sustained absent a regulatory scheme such as that which plaintiffs presently attack. See affidavit of Mr. Larry Edfelt, page 4. No federal regulation of American king crab fishermen in this area exists. It is highly likely that without some regulation by the State of Alaska over this fishery, overfishing will occur, with the destruction of king crab stocks below minimum levels of sustained yield. The eventual impact upon all king crab fishermen (including the plaintiffs), floating and shore-based crab processors, and the economy of western Alaska is difficult to assess. The public interest is not only a critical factor which must be considered in determining whether to grant injunctive .relief in this case, in my opinion it is a determinative factor militating against granting the injunction. It also is legally significant that the disputed regulations were promulgated by state officials at the request of federal officials.
b. A preliminary injunction should not be granted where the status quo would be disturbed. King v. Saddleback Junior College District, supra. The function of a preliminary injunction is to maintain the status quo pending a determination of the action on the merits. The status quo as of the date this action was commenced was the closure of the Bering Sea Shellfish Area to king crab fishing. Granting the preliminary injunction and permitting plaintiffs to resume fishing without restraint clearly disturbs the status quo.
c. I do not agree that plaintiffs are suffering irreparable harm, even though precluded under the Eleventh Amendment from suing the State of Alaska for damages. Under the 1973 regulations plaintiffs were not precluded from fishing for king crab in other areas of western Alaska or from fishing for tanner crab in the Bering Sea Shellfish Area. Indeed, under the recently-promulgated 1974 regulations, plaintiffs are free to fish for blue king crab in the Bering Sea Shellfish Area from July 1 until June 15. Under the 1974 regulations, there is no quota for blue king crab.
d. In my judgment, it is not sufficiently clear that plaintiffs have demonstrated with reasonable certainty that they will prevail on the merits to warrant granting a preliminary injunction.
Plaintiffs’ strongest argument is that based upon the due process clause of the Fourteenth Amendment. Plaintiffs have not shown, with reasonable certainty, that the disputed regulations are an attempt by the State of Alaska to assert control over an area beyond its territorial waters to which the State of Alaska has no legitimate governmental interest. *445The majority opinion focuses on the percentage of Bering Sea king crab caught in territorial waters to determine whether the State of Alaska has sufficient interest to regulate the Bering Sea Shellfish Area with Constitutional propriety. The evidence presently before the court relating to the quantity of king crab caught in territorial waters of the State of Alaska remains too conflicting to sustain a conclusion that plaintiffs are reasonably pertain to prevail on the merits of their due process claim. The problem is aggravated by the dispute over the precise delineation of the territorial waters of the State of Alaska. Further, I consider that certain interests of the State of Alaska other than those pertaining to the percentage of king crab caught within territorial waters should be considered in determining whether the requisite nexus exists such that due process will not be violated. Those legitimate state interests would include the long-term effect on local king crab fishermen and shore processors, of a reduction of king crab stocks below sustained yield levels. Until more definitive evidence concerning all the legitimate governmental interests of the State of Alaska has been presented to and considered by this tribunal, it appears unduly speculative to conclude at this juncture that plaintiffs are reasonably certain to prevail on the merits.
e. Finally, I do not agree that a balancing of hardships is a factor which weighs in favor of plaintiffs. As earlier stated, plaintiffs’ boats are free to fish for king crab in other areas of western Alaska and to fish for tanner crab in the Bering Sea Shellfish Area. Further, the 1974 regulations do not restrict the quota of blue king crab which may be taken in the disputed area. Against the anticipated loss of plaintiffs accruing from a loss of rights to unrestricted king crab fishing in the Bering Sea is balanced the legitimate public interest sought to be protected by the State. As stated earlier, if fishermen were permitted to fish for king crab without restriction in the Bering . Sea, it is likely that irreparable damages may be inflicted on another dwindling Alaskan resource. The hardship to be suffered by the persons adversely affected by such irreparable damage outweighs, whatever incidental hardship might be incurred by plaintiffs as a result of the fishing restrictions imposed by the subject regulations.
I would deny the motion for preliminary injunction.