MARINE MAMMAL COMMISSION - Annual Report for 1995 



tion Act. The critical issue identified by the Commis- 

 sion was whether the pelts had been "significantly 

 altered from their natural form." The Commission 

 was concerned that the painted pelts, once exported, 

 could readily be transformed into other saleable items, 

 in no way related to the Native artwork. 



The 1994 amendments to the Marine Mammal 

 Protection Act prohibit export of any marine mammal 

 or marine mammal product taken in violation of the 

 Act or for any purpose other than public display, 

 scientific research, or enhancement of the species or 

 stock. The Commission noted that the proposed 

 export would not be for one of these enumerated 

 purposes and may be impermissible. 



On 6 October 1994 the Service wrote to the peti- 

 tioner denying the request to export and re-import the 

 three sea otter pelts. It stated that, while export of 

 just three pelts may not adversely affect the Alaska 

 sea otter population, the specimens were taken as part 

 of a total harvest that may not be biologically sustain- 

 able at the local population level. The Service also 

 concluded that the pelts did not qualify as Native 

 articles of handicrafts because they had not been 

 significantly altered from their natural form. The 

 Service noted that, if the petitioner's intent was to 

 market Native paintings, rather than sea otter pelts or 

 handicrafts, a different substrate could be used. The 

 Service also questioned whether the proposed develop- 

 ment of a broad foreign market would contravene the 

 Marine Mammal Protection Act's provisions against 

 producing handicrafts through mass production. 



On 8 November 1994 Kuiu Kwan Inc. wrote to the 

 Service seeking reconsideration of the permit denial. 

 The petitioner alleged that the Service was improperly 

 seeking to protect sea otters from possible over- 

 harvesting by means that are contrary both to the 

 Marine Mammal Protection Act and the Service's own 

 regulations. The petitioner contended that there are 

 only two legal bases for denying a permit request 

 under CITES: (1) the subject wildlife was not lawful- 

 ly taken or (2) the proposed export activity would be 

 detrimental to the survival of the species. The peti- 

 tioner argued that the Service had no factual basis for 

 finding that the proposed export would be detrimental. 



The Service's alternative ground for denial — that 

 the proposed export would violate the Marine Mam- 

 mal Protection Act provision limiting sale to "au- 

 thentic Native handicrafts" — was also challenged by 

 the petitioner. The petitioner argued that, because the 

 proposed export activity specifically excludes any sale 

 in commerce, it could not possibly result in a viola- 

 tion of the Act. The petitioner also disputed the 

 Service's conclusion that the pelts were not signifi- 

 cantly altered from their original form, and questioned 

 the basis for the Service's speculation that a buyer of 

 the handicrafts might subsequently alter the pelts. 



By letter of 3 January 1995 the Service responded 

 to the petitioner's request for reconsideration, again 

 denying the permit application. In its letter the 

 Service stated that the applicant's request for reconsid- 

 eration neither introduced any new evidence nor 

 refuted in any way the Service's basis for its initial 

 denial of the permit request. By way of clarification, 

 the Service noted that Article IV(2)(a) of CITES 

 requires a finding of no-detriment prior to allowing 

 the export of specimens of species listed in Appendix 

 II, and that the Service continued to be unable to find 

 that the proposed export would not be detrimental to 

 the survival of the species. 



As a second point, the Service noted that it cannot 

 issue a CITES permit for an activity that would be in 

 violation of the Marine Mammal Protection Act. The 

 Service found that the export of not-for-sale samples 

 for market research is considered a commercial 

 activity. Because the altered pelts do not qualify as 

 Native handicraft, these items cannot be exported 

 under the Marine Mammal Protection Act. 



On 15 February 1995 the applicant appealed the 

 decision to the Director of the Fish and Wildlife 

 Service. A decision on the matter was postponed for 

 six months to allow the Service time to develop a 

 handicraft policy. Subsequently, the Director asked 

 the Service's Alaska regional office to work with 

 Native groups to develop a handicraft policy. On 18 

 September the regional office circulated a draft policy 

 to Native groups for review. 



On 9 November 1995 the Deputy Director of the 

 Fish and Wildlife Service wrote to the applicant 

 denying the request for a CITES export permit. That 



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