MARINE MAMMAL COMMISSION — Annual Report for 1991 



Applying the statutory definition, the court found that, 

 as long as the underlying taking was not wasteful, the 

 Act exempted all Native handicrafts produced from 

 non-depleted marine mammals using traditional 

 methods {e.g., weaving, carving, stitching, sewing, 

 beading, drawing, and painting) whether or not such 

 handicrafts had traditionally been produced. There- 

 fore, the Court invalidated the Service's regulation. 



The Department of Justice filed a protective notice 

 of appeal in the case on 5 November 1991. A deci- 

 sion on whether to withdraw the appeal is pending. 

 A notice of appeal also was filed by Friends of the 

 Sea Otter on 7 November 1991. Briefing of the 

 appeal was expected to begin early in 1992. 



United States v. Oark — In 1988 a Yup'ik Eskimo 

 was criminally charged with violating section 

 101(b)(3) of the Marine Mammal Protection Act by 

 taking marine mammals in a wasteful manner. 

 Specifically, the U.S. Government alleged the defen- 

 dant had failed "to salvage for human consumption the 

 edible meat of approximately nine walrus." Before 

 the trial, the defendant filed a motion to dismiss the 

 charges. He claimed that the Marine Mammal Protec- 

 tion Act's requirement that the taking of a marine 

 mammal by an Alaska Native not be accomplished in 

 a "wasteful manner" was unconstitutionally vague. 

 The motion to dismiss was denied and the trial was 

 held on 19-20 July 1989. The jury found the defen- 

 dant guilty of illegally taking marine mammals in a 

 wasteful manner. On 24 August, he was sentenced to 

 three months in jail and fined $550. 



A stay of the sentence pending appeal was granted 

 and, on 30 August 1989, a notice of appeal was filed. 

 The defendant's appellate brief, filed on 1 December 

 1989, argued that the statutory requirement that 

 Native taking not be wasteful and the Fish and Wild- 

 life Service's regulatory implementation of the provi- 

 sion are unconstitutionally vague because "affected 

 persons must guess at what conduct is proscribed and 

 because arbitrary enforcement is encouraged." 



Late in 1989, the Alaska Federation of Natives 

 petitioned the Court of Appeals for leave to file an 

 amicus curiae brief and to participate in oral argu- 

 ment. The Federation asserted not only that the 

 statutory provision and the Service's regulations 



should be declared void for vagueness, but also that 

 the regulations prohibiting Natives from taking marine 

 mammals in a manner "which results in the waste of 

 a substantial portion" of the animal constituted an 

 impermissible interpretation of Congressional intent. 



The case was argued before the Ninth Circuit 

 Court of Appeals on 7 August 1990. The Court's 

 opinion, issued on 28 August 1990, upheld the 

 conviction for wasteful taking in violation of the 

 Marine Mammal Protection Act, and the Court found 

 the Service's regulation prohibiting the taking of a 

 marine mammal by an Alaska Native for subsistence 

 or handicraft purposes where a "substantial portion" 

 is wasted to be consistent with Congressional intent as 

 enunciated in the Act's legislative history. The Court 

 further determined that the regulation provides suffi- 

 cient notice of the conduct that is proscribed so as to 

 enable a jury to determine if wasteful taking occurred. 



The appellant filed a petition on 23 November 

 1990 to have the case reviewed by the United States 

 Supreme Court. On 7 January 1991, the Supreme 

 Court denied the appellant's petition, bringing this 

 matter to a close. 



Alaska Wildlife Alliance v. Jensen — In 1990, the 

 National Park Service authorized 109 cruise ship 

 entries into Glacier Bay, Alaska. At that time, the 

 Commission and others questioned the procedures 

 used by the Service to authorize entries in excess of 

 the 107-entry ceiling imposed by Service's own 

 regulations. On 21 August 1990, the Alaska Wildlife 

 Alliance filed a complaint challenging the National 

 Park Service's decision to authorize the two additional 

 cruise ship entries. The plaintiff alleged that the 

 Service, in authorizing those entries, did not follow 

 applicable procedures, exceeded the maximum allow- 

 able number established by regulation, and violated 

 the National Environmental Policy Act by not prepar- 

 ing a supplemental environmental assessment. Plain- 

 tiffs, however, did not seek injunctive relief and none 

 of the cruise ship entries authorized for 1990 were 

 enjoined. As noted in the humpback whale section in 

 Chapter II, 107 cruise ship entries into Glacier Bay 

 were authorized in 1 99 1. 



The plaintiffs also alleged that commercial fishing 

 operations being conducted in Glacier Bay violated 



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