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Hopson v. Kreps

Citation: 10 ELR 20720
No. No. 79-4151, 622 F.2d 1375/16 ERC 2062/(9th Cir., 07/14/1980)

The Ninth Circuit Court of Appeals remands to the district court a suit challenging Department of Commerce regulations which prohibit the taking of bowhead whales without permitting an exemption for subsistence hunting by Alaskan natives. Appellants' argument is that the federal regulations must fall because they are based on International Whaling Commission regulations which in turn are invalid since they exceed the scope of the Commission's jurisdiction. The appellate court rules that the district court erroneously determined that it lacked jurisdiction because the case presented a non-justiciable political question. The question whether an agency exceeded its authority in promulgating regulations falls squarely within the jurisdiction of the federal courts. That the controversy as a whole may touch on sensitive foreign policy concerns does not deprive the courts of power to resolve the narrow legal question posed by appellants. The court declines to address the government's alternative argument that the Commerce Department's adoption of the Commission's regulations was committed by law to the Secretary's discretion and is therefore unreviewable. The question is better resolved in the first instance by the district court after full briefing. Therefore, the district court is reversed as to its jurisdictional ruling; the case is remanded for further consideration of the question of reviewability.

Counsel for Appellants
Stephen S. DeLisio
Merdes, Schaible, Staley & DeLisio
943 W. 6th Ave., Anchorage AK 99510
(907) 279-9574

Charles A. Goldmark
Wickwire, Lewis, Goldmark & Schorr
500 Maynard Bldg., 119 First Ave. S, Seattle WA 98104
(206) 622-9603

Counsel for Appellees
Bruce C. Rashkow, Margaret N. Strand
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2750

Alexander O. Bryner, U.S. Attorney
U.S. Federal Bldg. & Cthse., 701 C St., Anchorage AK 99513
(907) 271-5071

Before WALLACE and FARRIS, Circuit Judges, and EAST,* District Judge.