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Law
Appeals court shoots down Makah whaling case


A federal appeals court on Monday refused to reconsider its decision against the Makah Nation's controversial whale hunt.

The tribe and the Bush administration had asked the 9th Circuit Court of Appeals to rehear the case. But the request was rejected in an order that sets up a potential appeal to the U.S. Supreme Court.

The parties have 90 days to consider their next move. In the meantime, the tribe won't be allowed to exercise its rights under the 1855 Treaty of Neah Bay.

The tribe is the only one in the United States with a treaty right to hunt whales. The practice was suspended in the early 1900s due to worldwide exploitation of the gray whale that nearly drove the species into extinction.

The animal's numbers rebounded, leading to its removal from the endangered species list. The tribe then sought permission to restart its hunt and, after considerable debate, took its first whale in more than 70 years in May 1999.

From the start, animal-rights activists opposed the hunt and launched a series of legal challenges against the National Marine Fisheries Service, an agency of the Department of Commerce that took the lead in the matter. Up until December 2002, though, opponents had only succeeded in delaying the hunt.

That was when the a three-judge panel of the 9th Circuit ordered the NMFS to prepare a full environmental impact statement on the hunt. "Having reviewed the environmental assessment prepared by the government agencies and the administrative record, we conclude that there are substantial wrote questions remaining as to whether the tribe's whaling plans will have a significant effect on the environment," wrote Judge Marsha S. Berzon for the majority.

The decision also shifted the landscape against the tribe in another way. The court, for the first time, said the tribe's treaty right has been limited by the Marine Mammal Protection Act (MMPA), a 1972 law designed to protect species like the gray whale.

"The tribe has no unrestricted treaty right to pursue whaling in the face of the MMPA," Judge Ronald M. Gould wrote in another part of the opinion.

Whale hunt opponents cheered this new line of reasoning but the tribe saw it as a near abrogation of the treaty. Several Washington tribes thought so too and supported the tribe in its bid for reconsideration.

The request for a rehearing that was denied yesterday was also accompanied by a motion to have the December 2002 ruling declared moot. Government lawyers cited a one-whale quota issued to the tribe that had expired by the time of the ruling.

The judges who wrote the opinion disagreed and said the expiration of the quota "was nothing more than the government�s voluntary cessation of challenged conduct."

An appeal to the Supreme Court isn't the only option available. The tribe and the government can issue yet another environmental review and seek public comments on the hunt. While animal-rights activists have been vocal in their opposition, the tribe has it share of supporters, in Indian Country and beyond.

Court Decisions:
Anderson v. Evans (June 7, 2004) | Anderson v. Evans (December 20, 2002)

Relevant Documents:
Makah Whaling Environmental Assessment | Marine Mammal Protection Act

Relevant Links:
Makah Nation - http://www.makah.com