dissenting:
Let it first be said that we are not dealing with a person who simply sought to subsist on a fishery closed to all but subsistence users. We deal with individuals who sought to make a great deal of money by taking an enormous quantity of herring spawn on kelp, and who only failed in their goal because they were as inept as they were greedy. The question is whether they can do such a thing and avoid a conviction for transporting their booty in interstate commerce. See 16 U.S.C. §§ 3372-73. I think not.
Defendants claim that they were improperly convicted because Alaska’s limits on the amount of spawn on kelp they can take are invalid and because the Alaska limitations on sales are also invalid. I believe they are incorrect on both scores.
*950The suggestion that it is somehow improper for Alaska to adopt limits on the amount that can be taken, because those limits may not encompass the vast amount that the defendants would like to sell under the “customary trade” guise, is hardly worthy of consideration. ANILCA assumes that any regulatory scheme will, indeed, be designed to protect fisheries, and may even restrict all subsistence use taking, if that is deemed necessary. 16 U.S.C. §§ 3112 and 3114. Thus, I fail to see how these defendants can parry the attack upon their actions by baldly asserting that the taking limits of 5 Alaska Admin.Code §§ 01.730(a) and (g) are somehow improper. More must be shown and was not.1 This, however, inevitably leads to their second and somewhat more serious point.
The Alaska regulations prohibit all sales of “subsistence-taken fish, their parts, or their eggs_” 5 Alaska Admin.Code § 01.010(d). I will assume for present purposes that spawn on kelp can be called subsistence-taken fish, which I do because the contrary was not argued in the trial court.2 I also assume, as does the majority, that through its administrative processes Alaska has, indeed, prohibited all cash sales of spawn on kelp, even by individuals whose ancestors did customarily trade in that commodity in days of yore. If so, is it always illegal to apply the regulations to sales which constitute customary trade?
It is true that ANILCA provides for customary trade, but as I have noted, it also provides for limitations on subsistence uses, which, of course, include that trade. 16 U.S.C. §§ 3112-14. For their part, the Alaska statutes also make provisions for customary trade, Alaska Stat. § 16.06.940(31), and confer upon the Board of Fisheries (Board) the duty of deciding what may be taken for that use. Alaska Stat. § 16.05.258. The Board has done so and does not, in general, prohibit customary trading, even for cash. 5 Alaska Admin.Code § 99.010. However, when it came to subsistence-taken fish and fish eggs, all sales were precluded and no exceptions were made for customary trade. 5 Alaska Admin. Code § 01.010(d). That being true, if the regulation is valid, the activities of these defendants were illegal.
But on what basis can it be said that the regulation is not valid? Surely, if the Board can prohibit all subsistence uses in order to protect the fishery, it can prohibit a part of those uses for the same purpose. Defendants’ suggestion that it is an all or nothing proposition — all subsistence uses or none at all — makes about as much sense as their claim that the Board cannot place any limits on the amount taken, so long as the amounts were once taken for any subsistence uses. For example, it seems obvious that the taking of vast amounts in order to sell them for cash on the international market may well put pressures on the fishery that would not occur otherwise. Excessive takings could, indeed, destroy a fishery. The Board was entitled to consider that. History demonstrates that peoples have often destroyed their environments, and the creatures within those environments, by overusing them. Many a civilization collapsed and many a creature became extinct from those causes long before the advent of mechanized modern man. We may, and rightly do, flog ourselves for our own excesses, but as Rene Dubos so pithily put it: “All over the globe and at all times in the past, men have pillaged nature and disturbed the ecological equilibrium, usually out of ignorance, but also because they have always been more concerned with immediate advantages than with long range goals.” R. Dubos, A God Within 161 *951(1972). This case shows that at least these individuals are not exempt from the reach of that observation.3
Perhaps one can attack the regulations in this criminal proceeding by showing that they improperly fixed the amount or improperly restricted usage of that amount, at least in this instance. But far more is needed than an incantation of the phrase “customary trade.” Nor can it be enough to show that one’s peoples once customarily traded. Clearly ANILCA does not say that is all there is to it. It seems to me that one must show that Alaska has abused its power to protect the fisheries by limiting their use in this way. Defendants made no attempt to do so. They did not pursue administrative remedies in order to have the fishery opened up further. See 16 U.S.C. § 3117; 5 Alaska Admin.Code §§ 99.010-030; 5 Alaska Admin.Code §§ 96.010-96.920. They simply went ahead and conducted their depradations.
Beyond that, in this case they contented themselves with presenting evidence that there had been customary trade, but did not present evidence to demonstrate that the Alaska restrictions could not limit it. That, as I see it, was their burden. See United States v. Skinna, 931 F.2d at 533. If they were to invalidate the regulation, they would have to show that the regulation was improper under the existing facts, or at least improper as applied.
This need not be an insurmountable burden. Defendants could have attempted to show that the limiting of the sale of spawn on kelp was not at all necessary to protect the fishery. Nor would it be improper to attempt to show that herring spawn taken other ways can be sold, whereas herring spawn acquired under a subsistence permit cannot be. That may well violate the directions of both ANILCA and the Alaska statutes. Both of those direct that priority be given to subsistence uses. Those injunctions would not appear to have been followed if non-subsistence users could sell herring spawn while subsistence users could not. See 16 U.S.C. §§ 3112(2) and 3114; Alaska Stat. § 16.05.258(c). But what is before us is not what could have been asserted and developed in the district court. We are faced with what was done there.
In short, the defense here was, at most, that the Haidas had engaged in extensive customary trade in the past, and that Alaska’s limitation or prohibition of that trade made the regulation of defendants’ activities- illegal, ipso facto. That defense depended on the following syllogism: Alaska allows some subsistence uses; customary trade (including cash sales) is a subsistence use; therefore, Alaska must allow customary trade (including cash sales). That syllogism is false. Thus, I respectfully dissent.
. I agree with the majority that defendants’ attack on this regulation is wholly speculative.
. The argument could be made that the phrase "or their eggs” only applies to subsistence taken fish. The eggs involved in spawn on kelp are not from subsistence taken fish, unless fish eggs are fish. On the other hand, the regulations do require a "fishing permit” to take spawn on kelp. 5 Alaska Admin. Code § 01.730(a), so it is not entirely unintelligible to treat spawn on kelp as fish. If the issue were raised, application of the rule of lenity to this seeming ambiguity would have to be considered. Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955); McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931).
. See also United States v. Skinna, 931 F.2d 530 (9th Cir.1991).