Alaska Natives for such purposes within living memory. Noting 

 that the intent of the Act was to preserve existing Native 

 uses of marine mammals, the Service proposed to amend the 

 definition of "authentic Native articles of handicrafts and 

 clothing" to indicate clearly that no items created in whole 

 or in part from sea otters fit within the definition and, 

 therefore, such items cannot be sold. Public comments on the 

 proposed rule are due early in 1989. 



A second matter involved the criminal prosecution of an 

 Alaska Eskimo whaler for allegedly hunting and killing a bowhead 

 whale in excess of his village quota, in violation of the 

 Cooperative Agreement between the National Oceanic and 

 Atmospheric Administration and the Alaska Eskimo Whaling 

 Commission (see Chapter III) . Under the regulations 

 implementing the Whaling Convention Act, it is illegal to 

 whale except in accordance with the Cooperative Agreement. 

 On 24 October 1988, the defendant filed a motion to dismiss 

 the charges against him, arguing that: the Cooperative 

 Agreement was not in force when the alleged violations occurred 

 since notice of its extension beyond 31 December 1987 had not 

 been published in the Federal Register ; the Cooperative 

 Agreement impermissibly delegated management and enforcement 

 authority over subsistence whaling to the Alaska Eskimo Whaling 

 Commission, a non-governmental body; and the charged offenses 

 are unconstitutionally vague. 



A United States Magistrate in the District of Alaska 

 reviewed the defendant's motion to dismiss and, on 15 November 

 1988, recommended that it be denied. In support of that recom- 

 mendation, the Magistrate found that: the three applicable 

 statutes, the Whaling Convention Act, the Marine Mammal 

 Protection Act, and the Endangered Species Act, when read in 

 concert, authorized entry into the Cooperative Agreement; the 

 defendant had actual notice of the applicability of the pro- 

 visions of the Cooperative Agreement when he allegedly undertook 

 the prohibited activities; under the regulatory scheme, whaling 

 may only be conducted in accordance with the Cooperative Agree- 

 ment and, if the Cooperative Agreement had lapsed, no whaling 

 would be authorized; and the statutes and regulations challenged 

 by the defendant provide fair notice of the conduct that they 

 forbid. 



A trial was scheduled for 18 November 1988, but when the 

 District Court adopted the Magistrate's recommended positions, 

 the defendant entered a guilty plea, reserving the right to 

 appeal the interpretations of the applicable law. Sentencing 

 is scheduled for 27 January 1989. 



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