ELR Citation: ELR 21243
No(s). 89-30276 (9th Cir. Aug 28, 1990)

The court rules that a U.S. Fish and Wildlife Service (FWS) regulation promulgated under the Marine Mammal Protection Act (MMPA) is consistent with Congress' intent to protect native Alaskan subsistence hunting and a limited economy and is not unconstitutionally vague. Although the MMPA provides native Alaskans with an exemption from the moratorium on the taking or importation of marine mammals and products, the Act prohibits exempted takings in a wasteful manner. The regulation defines wasteful manner as a process resulting in the waste of a substantial portion of a marine mammal. Appellant, a native Alaskan, was prosecuted for killing nine walrus, removing their heads and other specific body parts, butchering one, leaving two carcasses on the beach, and losing six carcasses under tow at sea. The court finds that Congress intended the native Alaskan exemption in the MMPA to protect subsistence hunting and the use of mammal parts for a limited cash economy, so long as neither use is wasteful. The court holds that in light of this legislative authority, the FWS regulation does not exceed the statutory authority, since the prohibition of taking marine mammals where a substantial portion is wasted, even as to native Alaskans, is consistent with congressional intent. The court holds that the regulation's prohibition of wasting a "substantial portion" of a marine mammal is not void for vagueness because the words are sufficiently clear and of common usage to place defendant on notice that his actions violated the Act.

Counsel for Defendants-Appellant
Nancy Shaw, Ass't Federal Public Defender
800 A St., Ste. 205, Anchorage AK 99501
(907) 271-2277

Counsel for Plaintiff-Appellee
M. Alice Thurston
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Roney^* and Fernandez, JJ.