Chapter Vn — Marine Mammal Management in Alaska 



Table 13. Number of Sea Otters, Walruses, and 

 Polar Bears Presented for Marking 

 and Tagging by Alaska Natives 



Year ' 



Pre-rule^ 



1988' 



1989 



1990 



1991' 



Sea Otters Walruses Polar Bears 



470 

 52 



273 

 188 

 127 



1,293 



1 



765 



1,483 



1,938 



139 



136 



105 



59 



3 



Sea otter and walrus data are provided on a calendar year 

 basis. Polar bear data are provided on the basis of the harvest 

 year, which runs from 1 July of the year indicated to 30 June 

 of the following year. 



"Pre-rule" refers to stocks of raw, unworked, or tanned 

 marine mammal parts from animals taken between 21 Decem- 

 ber 1972 and 26 October 1988 and still held by Native hunters 

 when the regulations became effective. 

 Figures include only marine mammals taken after 26 October 

 1988. Figures for polar bears include those animals taken 

 between 26 October 1988 and 30 June 1989. 

 Preliminary estimate only. Receipt of harvest certificates may 

 not be complete. 



preserved the right of Alaska Natives to take marine 

 mammals for handicraft purposes regardless of wheth- 

 er such items had been commonly made before the 

 Marine Mammal Protection Act took effect. 



On 21 July 1986, the Court ruled in favor of the 

 Service, holding that the language of the Act and its 

 legislative history supported establishing 1972 as a 

 cutoff date in the regulations. However, a new 

 challenge to the Service's definition was filed by an 

 intervening party (Didrickson) in October 1987. The 

 new challenge claimed that the regulation was uncon- 

 stitutionally vague because it did not provide sufficient 

 guidance to determine what handicrafts were common- 

 ly produced from sea otters before 21 December 1972 

 when the Act took effect. 



On 27 June 1988, the Court issued an order stating 

 that it would consider the new challenge and strongly 

 implying that the regulatory definition would be found 

 to be vague. The Court therefore suggested that the 

 Service undertake an administrative review to deter- 

 mine if the use of sea otters for handicrafts by Natives 

 calls for a special regulation or, at least, a supplemen- 



tary interpretation of the handicraft definition as it 

 applies to sea otters. 



The Service followed the Court's advice and, on 

 14 November 1988, published a proposed rule provid- 

 ing additional guidance on allowable uses of sea otters 

 in the making and selling of traditional handicrafts and 

 clothing. After an extensive comment period, the 

 Service published a final rule amending its regulatory 

 definition of "authentic native articles of handicrafts 

 and clothing" on 20 April 1990. The amended 

 definition clarifies that no items created in whole or in 

 part from sea otters fit within the definition. Under 

 the amended regulation, no sea otter handicrafts may 

 be sold. 



Plaintiffs challenged the legality of the final rule 

 and filed a motion on 17 July 1990 seeking to enjoin 

 enforcement of the new regulatory interpretation. 

 Plaintiffs contended that the regulation was inconsis- 

 tent with the rulemaking record which, they alleged, 

 supported the view that trade, barter, and other 

 economic uses of sea otter handicrafts and clothing by 

 Alaska Natives before 1972 were extensive. In 

 addition, plaintiffs reasserted their earlier argument 

 that the 1972 cut-off date for determining whether 

 handicrafts had been traditionally made was inconsis- 

 tent with the Marine Mammal Protection Act and its 

 legislative history. The Alaska Sea Otter Commission 

 filed a similar challenge, which was later consolidated 

 with plaintiffs' lawsuit. Friends of the Sea Otter, 

 which had supported adoption of the new regulation, 

 was granted intervenor status on 18 October 1990. 



At a status conference among the parties on 31 

 October, plaintiffs withdrew their motions for injunc- 

 tive relief and, instead, agreed to have the case 

 reviewed on cross-motions for summary judgment. 

 Oral argument was heard on 24 January 1991. 



The Court issued an opinion on 17 July 1991, 

 ruling in plaintiffs' favor. In so doing, the court 

 noted that "it was on the wrong track" when it initial- 

 ly ruled for plaintiffs in 1986. Upon re-examining 

 the matter, the court found that no deference was due 

 the Service's regulatory definition of "authentic native 

 articles of handicrafts or clothing" inasmuch as 

 Congress had already defined that term in section 

 101(b)(2) of the Marine Mammal Protection Act. 



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