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Beck v. Department of Commerce

ELR Citation: 23 ELR 20435
Nos. No. 91-36323, 982 F.2d 1332/(9th Cir., 12/28/1992)

The court holds that environmental groups, initially allowed permissive intervention on behalf of the federal government in litigation challenging the U.S. Fish and Wildlife Service's adoption of regulations interpreting the Marine Mammal Protection Act's (MMPA's) exception for Alaska Natives regarding the Act's moratorium on takings, have standing to appeal a judgment invalidating part of the regulations in question, even though the government had since dismissed its appeal and acquiesced in that judgment. Although the MMPA imposed a moratorium on takings and importation of all marine mammals, Alaska Natives were statutorily exempt from the moratorium if the taking was for subsistence purposes or for the creation and sale in interstate commerce of authentic native articles of handicrafts and clothing. Alaska Natives challenged a regulation adopted by the Service that interpreted this exemption as applying only to articles that were commonly produced on or before December 21, 1972, and in 1990, specified that no item made from northern sea otters met that requirement. Citizen groups intervened on behalf of the government, and both appealed the district court's judgment. However, the government has since dismissed the appeal, acquiescing in the lower court's judgment, and now challenges the standing of the groups to proceed with the appeal.

The court holds that the groups alleged a case or controversy, and that the group, not just the government, had established an injury necessary to support standing to defend the regulation. The groups' intervention was based on injury to their interests. Moreover, the groups were not retroactively creating jurisdiction based on post-complaint litigation conduct, because jurisdiction existed under the Administrative Procedure Act prior to the government's decision to acquiesce to the district court's judgment, and it continues to exist. The court holds, however, that the government was correct in dismissing its appeal. The present posture of the case prevents the groups from arguing that the regulation was entitled to the deference normally accorded an agency's interpretation. Instead, they must establish that the regulation was the only reasonable interpretation of the MMPA, and they cannot do so. Finally, the court holds that the portion of the regulation at issue was not mandated by the MMPA. The plain restriction of the statute on the method of production, and Congress' rejection of amendments that would have limited Alaska Natives takings for purposes of commercial sale, indicate that application of the 1972 cutoff resulted in the artificial and unintended exclusion of any uses of sea otters or other natural materials.

Counsel for Plaintiffs/Appellees
Joseph D. Johnson
Alaska Legal Services Corporation
1016 W. 6th Ave., Ste. 200, Anchorage AK 99501
(907) 272-9431

Counsel for Defendant
Katherine W. Hazard
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000