MARINE MAMMAL COMMISSION — Annual Report for 1992 
On 27 June 1988 the court issued an order stating 
that it would consider the new challenge. In its order 
the court described the Service’s position as to per- 
missible uses of sea otter pelts as a “moving target” 
and strongly implied that the regulatory definition 
would be found to be void for vagueness. The court 
therefore suggested that the Service undertake an 
administrative review to determine if the use of sea 
otters for handicrafts by Natives calls for a special 
regulation or at least a supplementary interpretation of 
the handicraft definition as it applies to sea otters. 
The Service followed the court’s advice. On 20 
April 1990 after an extensive public comment period, 
it issued a rule providing additional guidance on 
allowable uses of sea otters in the making and selling 
of traditional handicrafts and clothing. The amended 
definition of “authentic native articles of handicrafts 
and clothing” clarified that no items created in whole 
or in part from sea otters fit within the definition. 
Under the amended regulation, no sea otter handi- 
crafts could be sold. 
The plaintiff-intervenor challenged the legality of 
the rule and filed a motion on 17 July 1990 seeking to 
enjoin enforcement of the new regulatory interpreta- 
tion. The original plaintiff in the lawsuit joined in 
that challenge. The Alaska Sea Otter Commission 
also filed suit, challenging the Service’s new regula- 
tion. These challenges were later consolidated into a 
single lawsuit. 
The plaintiffs contended that the regulation was 
inconsistent 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 exten- 
sive. In addition, plaintiffs reasserted their earlier 
argument that the 1972 cut-off date for determining 
whether handicrafts had been traditionally made was 
inconsistent with the Marine Mammal Protection Act 
and its legislative history. Friends of the Sea Otter, 
which had supported adoption of the new regulation, 
was granted intervenor status in the case. 
The court issued its opinion on 17 July 1991, 
tuling in plaintiffs’ favor. In so doing, the court 
noted that “it was on the wrong track” when it initial- 
ly upheld the regulation in 1986. Upon reexamining 
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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. 
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 Federal defendants filed a protective notice of 
appeal in the case on 5 November 1991, but later 
moved to dismiss its appeal, in essence acquiescing in 
the district court ruling. Friends of the Sea Otter filed 
a notice of appeal on 7 November 1991. Inasmuch as 
Friends of the Sea Otter had participated in the district 
court case as an intervenor, the Federal government 
challenged the ability of that group to pursue the 
appeal, claiming that, absent a government appeal, 
Friends of the Sea Otter could not seek to defend the 
handicraft regulation. The Federal government also 
argued that Friends of the Sea Otter had not estab- 
lished the requisite standing to sustain an appeal. 
The United States Court of Appeals for the Ninth 
Circuit issued its opinion in the matter on 28 Decem- 
ber 1992. The court ruled that Friends of the Sea 
Otter had a sufficient interest in the matter to satisfy 
the jurisdictional and standing requirements for an 
appeal. The court then addressed the merits of the 
case, affirming the lower court ruling. The court 
found that the Marine Mammal Protection Act places 
two requirements on what constitutes authentic native 
articles of handicrafts and clothing: “(1) they must be 
made at least in part from ’natural materials’ and (2) 
the type of production must be done in traditional 
Native ways, such as weaving, carving, and stitching, 
but not through methods of mass production.” It 
found no basis for the additional requirement that 
handicraft items be of a type made and sold prior to 
1972. “Application of the 1972 cut-off,” the court 
stated, “results in the artificial and unintended exclu- 
sion of any uses of sea otters” for making and selling 
handicrafts. 
