by Fish and Wildlife Service agents, intervened in the proceed- 

 ing, adopting the legal arguments of the original plaintiff. 



On 21 July 1986, the U.S. District Court for the District 

 of Alaska issued a decision in favor of the Fish and Wildlife 

 Service. Relying on both the express provisions and the legis- 

 lative history of the Marine Mammal Protection Act, the Court 

 held that it was a reasonable exercise of the Service's author- 

 ity to establish a 1972 cutoff date as part of its regulations. 

 The question of whether the seized handicrafts of the original 

 plaintiff were commonly produced by Alaska Natives prior to 

 the regulatory cutoff date was expected to be reviewed in an 

 administrative proceeding. However, the intervenor, on 13 

 October 1987, raised a new challenge to the validity of the 

 regulatory definition of "authentic Native articles of 

 handicrafts and clothing," claiming that the regulation is 

 unconstitutionally vague because it is unclear what handicrafts 

 were produced prior to 21 December 1972. 



On 27 June 1988, the Court issued an order stating that 

 it would entertain the new argument despite the fact that 

 civil penalty proceedings against the intervenor had been 

 dismissed by the Fish and Wildlife Service. To do otherwise, 

 the Court ruled, would be "manifestly unfair" to the intervenor, 

 who still lacked clear guidance on what handicrafts could or 

 could not be legally made. 



While not ruling on the merits of the case, the Court 

 strongly suggested that the regulatory definition was uncon- 

 stitutionally vague since it was not clear to the Court what 

 items could legally be made and sold as handicrafts. The 

 Court indicated that, while the definition of "authentic Native 

 articles of handicrafts and clothing" may be appropriate for 

 other species of marine mammals, it may not be workable for 

 sea otters because there has been so little traditional use 

 of sea otters by Alaska Natives during the 19th and 20th cen- 

 turies. As such, the Court suggested that the best way to 

 resolve the issue would be for the Service to undertake an 

 administrative review of the issue for the purpose of ascer- 

 taining whether the special case surrounding Native uses of 

 sea otters calls for a special regulation or, at least, a 

 definitive interpretation of the handicraft definition as it 

 applies to sea otters. 



In response to the Court's recommendation, the Service, 

 on 14 November 1988, published a proposed rule to provide 

 additional guidance on the allowable use of sea otters for 

 the making and selling of traditional handicrafts and clothing. 

 After reviewing the available information, the Service 

 preliminarily concluded that sea otters were not being taken 

 for handicraft purposes when the Marine Mammal Protection Act 

 was passed and, apparently, had not been taken legally by 



177 



