Didrickson v. U.S. Dept. of Interior, 91-36323

• Decision Date: 28 December 1992
• Docket Number: No. 91-36323,91-36323
• Citation: 982 F.2d 1332
• Parties: 23 Envtl. L. Rep. 20,435 Boyd DIDRICKSON and Marina Katelnikoff Beck, Plaintiff-Intervenors, v. UNITED STATES DEPARTMENT of the INTERIOR, et al., Defendants. and Friends of the Sea Otter, et al., Defendant-Intervenors. ALASKA SEA OTTER COMMISSION and Ilarion Pletnikoff, Plaintiffs, v. UNITED STATES DEPARTMENT of the INTERIOR, et al., Defendants. and Friends of the Sea Otter, et al., Defendant-Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1332

982 F.2d 1332

23 Envtl. L. Rep. 20,435

Boyd DIDRICKSON and Marina Katelnikoff Beck, Plaintiff-Intervenors, v. UNITED STATES DEPARTMENT of the INTERIOR, et al., Defendants. and Friends of the Sea Otter, et al., Defendant-Intervenors.

ALASKA SEA OTTER COMMISSION and Ilarion Pletnikoff, Plaintiffs, v. UNITED STATES DEPARTMENT of the INTERIOR, et al., Defendants. and Friends of the Sea Otter, et al., Defendant-Intervenors.

No. 91-36323.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 18, 1992.

Decided Dec. 28, 1992.

Stuart L. Somach and Sandra K. Dunn, DeCuir & Somach, Sacramento, CA for defendants-intervenors-appellants.

Katherine W. Hazard, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Carol H. Daniel and Joseph D. Johnson, Alaska Legal Services Corp., and Eric Smith, Anchorage, AK, for plaintiffs-appellees.

Beck and Didrickson; Eric Smith, Anchorage, AK, for plaintiffs-appellees Alaska Sea Otter Com'n and Pletnikoff.

Appeal from the United States District Court for the District of Alaska.

Before: HUG, D.W. NELSON, and T.G. NELSON, Circuit Judges.

HUG, Circuit Judge:

This case concerns the validity of a portion of the regulation issued by the United States Fish and Wildlife Service ("FWS") interpreting the Marine Mammal Protection Act of 1972 ("MMPA"), Pub.L.No. 92-522, 86 Stat. 1027, codified at 16 U.S.C. §§ 1361-1407 (1988), as it applies to Alaska Natives who make authentic articles of handicrafts and clothing from sea otters. The MMPA imposes a complete moratorium on takings and importations of all marine mammals. Takings by Alaska Natives are exempt from the moratorium if the taking is for subsistence purposes or for the creation and sale in interstate commerce of authentic native articles of handicrafts and clothing. The principal question in this appeal is whether the regulation of the FWS properly interpreted the statute when it restricted the exemption to apply only to articles that were commonly produced on or before December 21, 1972, and specifying that no item made from northern sea otter met that requirement. Ruling on cross-motions for summary judgment, the court invalidated that portion of the regulation.

Also involved in this case is a novel procedural issue. The Friends of the Sea Otter, Greenpeace, Alaska Wildlife Alliance, and the Humane Society of the United States (collectively referred to as "FSO") were allowed by the district court to intervene as permissive intervenors on behalf of the Government. The Government and the FSO appealed the judgment of the district court. The Government has since dismissed this appeal and now acquiesces in the judgment of the district court. The FSO have proceeded with the appeal. The Government now challenges the standing of the FSO to proceed with the appeal.

The district court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1361. We have jurisdiction over the FSO's primary appeal pursuant to 28 U.S.C. § 1291, and we affirm.

I.

Some exceptions to the MMPA moratorium on takings are provided explicitly in the Act, and the Secretary of the Interior is given broad powers to permit exceptions for certain purposes. 16 U.S.C. § 1371(a) (1988).

The exception at issue concerns takings by Alaska Natives. Section 1371(b) provides that the moratorium does not apply to takings of marine mammals by coastal Alaska Indians, Aleuts, and Eskimos if the taking:

(1) is for subsistence purposes; or

(2) is done for purposes of creating and selling authentic native articles of handicrafts and clothing: Provided, That only authentic native articles of handicrafts and clothing may be sold in interstate commerce: And provided further, That any edible portion of marine mammals may be sold in native villages and towns in Alaska or for native consumption. For the purposes of this subsection, the term "authentic native articles of handicrafts and clothing" means items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices. Traditional native handicrafts include, but are not limited to weaving, carving, stitching, sewing, lacing, beading, drawing, and painting; and

(3) in each case, is not accomplished in a wasteful manner.

16 U.S.C. § 1371(b) (1988). The statute also provides that the Secretary of Interior may regulate takings by Alaska Natives if the Secretary determines that any species or stock of marine mammals is "depleted." Id.

In the original regulations promulgated by the FWS to implement the MMPA, the definition of "authentic native articles of handicrafts and clothing" was the same as that contained in the statute. 37 Fed.Reg. 25,731 (1972). In the final regulation, the FWS added the requirement that the items be "commonly produced on or before December 21, 1972." 39 Fed.Reg. 7262 (1974) (codified at 50 C.F.R. § 18.3). In 1990, the regulation was amended to exclude all items made from sea otters. 55 Fed.Reg. 14,973, 14,978 (1990).

II.

In 1984, Marina Rena Katelnikoff Beck, an Aleut living on Kodiak Island, and her father killed several sea otters. Mrs. Katelnikoff Beck made several items of handicrafts and clothing from the pelts, and placed the items for sale. In May 1985, the FWS agents confiscated items including growling teddy bears, pillows, hats, mittens, and fur flowers characterized by Katelnikoff Beck as "cat-tails," "pussy willows," and "puffs," on the basis that they did not fall within the native handicraft exception because they were not of a nature commonly made or produced prior to the passage of the MMPA in 1972.

Mrs. Katelnikoff Beck challenged the requirement in 50 C.F.R. § 18.3 that Native articles of handicrafts and clothing made for sale in interstate commerce be those "commonly produced on or before December 21, 1972," in order to be exempt from the moratorium on takings imposed by the MMPA. Both parties moved for partial summary judgment, and the FSO appeared as amicus curiae in favor of the Government's motion.

Before the court ruled on the motions, another Alaska Native, Boyd Didrickson, a Tlingit living in Sitka, moved to intervene as Plaintiff-Intervenor on June 16, 1986. The FWS had confiscated a parka and hat made for sale by Didrickson out of sea otter fur because they contained metal snaps and zippers, which did not qualify as traditional, according to the FWS. Didrickson's parka and hat were later returned to him, after the FWS regional director issued a memorandum stating that traditional parkas could be made from sea otter pelts and could be sold by Alaska Natives. However, Didrickson was also informed by the FWS that the offer for sale of some of those items to non-Natives would continue to be illegal.

Didrickson's motion to intervene was granted, and on July 21, 1986, the court granted the Government's motion for partial summary judgment and upheld the regulation. The district court found that Congress's intent in passing the native handicraft exception was to protect existing "cottage industries," but not to encourage "a greatly expanded cash economy" based upon those industries. Katelnikoff v. United States Dep't of Interior, 657 F.Supp. 659, 665 (D.Alaska 1986). The court held that the FWS regulation was a reasonable interpretation of the statute and thus was valid. Id. at 667. The plaintiffs' application for interlocutory appeal was denied, and Katelnikoff Beck then agreed to the dismissal of her claims.

The Government sought dismissal of Didrickson's action, and Didrickson amended his complaint to allege that the regulation approved by the district court was void for vagueness. The Government moved for dismissal again, but the district court denied the motion and advised the Government to review administratively the regulation as it applied to the taking of sea otters. The judge was concerned with the requirements that the items be "commonly produced on or before December 21, 1972." He described the Government's position on what uses of sea otter pelts were permissible as a "moving target," and expressed "doubt ... that the Government has fully and adequately considered the possibility of establishment of bona fide, eighteenth century uses of sea otter pelts which would not be precluded by the clear language of 50 C.F.R. § 18.3."

The Government began a review of the regulation by publishing a proposed amendment to the regulation, to ban all takings of sea otters for purposes of creating handicrafts or clothing for sale, on the ground that Alaska Natives had not "commonly produced and sold handicrafts or clothing from sea otters within living memory." 53 Fed.Reg. 45,788, 45,789 (1988). The litigation was stayed pending issuance of a final rule.

After extensive hearings in which the Alaska Natives and the FSO participated and submitted evidence, the FWS amended the regulation on April 20, 1990, to provide in effect that items created in whole or in part from the sea otter did not meet the exemption from the MMPA. 55 Fed.Reg. 14,973 (1990). The FWS based its conclusion upon the finding that "no handicraft trade using sea otters by Alaska Natives was in existence prior to passage of the Act that would allow the utilization of sea otters under the handicraft exemption." Id.

III.

The Alaska Natives vigorously contest this factual determination on the basis of extensive evidence of centuries of use by Alaska Natives of the sea otter for many purposes, including clothing, handicrafts and items of barter and trade. They point to the fact that after the Russians' occupation and their discovery of the uses of the sea otter in 1742, the Russians, using the Alaska Natives to harvest the sea otter, banned the sea otters' use by Alaskan Natives. This restriction continued after Russia sold Alaska to the United States, as a practical matter, because their...