Makah whale hunt faces another review

FROM THE ARCHIVE

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MONDAY, DECEMBER 23, 2002

A federal appeals court on Friday ordered the Bush administration to prepare yet another environmental review of a Washington tribe's controversial whale hunt.

In a unanimous decision, the 9th Circuit Court of Appeals rejected what it called a less thorough analysis of the Makah Nation's hunt. Citing a "hot dispute" about the impact on the gray whale population, a three-judge panel said the National Marine Fisheries Service (NMFS), an agency of the Department of Commerce, violated federal law by not preparing a full environmental impact statement (EIS).

"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 Circuit Judge Marsha S. Berzon.

The reasoning followed a June 2000 opinion in which the 9th Circuit found fault with federal approval of the hunt but did not strike it down. This time around, though, the court said the tribe's treaty rights are 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," Circuit Judge Ronald M. Gould wrote.

Animal-rights activists who have fought the hunt for several years welcomed the decision. "Let's hope that this represents the final chapter in this wrongheaded effort to resume whale killing in the United States," said Wayne Pacelle of the Humane Society, one of the plaintiffs in the lawsuit.

Makah tribal leaders on the other hand predicted impacts on others in Indian Country. "Today's ruling may lead to new, draconian restrictions being imposed on tribal fishing notwithstanding the tribe's treaty rights and regardless of the actual impact of the tribal fishing on the resource," the tribal council said in a statement on Friday.

Whale hunting is a Makah tradition that dates back thousands of years. An 1855 treaty with the federal government secured the tribe's right to hunt but the tribe stopped in the 1920s after international exploitation reduced the gray whale's numbers.

Today, the whale is no longer in danger of dying out and after it was taken off the endangered species list in 1994, the tribe sought federal and international approval to resume the hunt. In court and at the agency level, the Clinton and Bush administrations have supported the tribe. The International Whaling Commission (IWC), of which the United States is a member, approved a quota earlier this year.

The appeals court praised the tribal leadership, which has changed throughout the controversy, for taking these and other steps to continue its traditions. But the judges said the MMPA clearly applied to a tribal sovereign.

"The intent of Congress cannot be hostage to the goodwill or good judgment or good sense of the particular leaders empowered by the tribe at present; it must be assumed that Congress intended to effectuate policies for the United States and its residents, including the Makah tribe, that transcend the decisions of any subordinate group," wrote Gould.

Despite the ramifications, the ruling has no immediate effect. Tribal fishermen, who come from traditional hunting families, haven't taken to the waters of Neah Bay for more than a year. The last time a whale was successfully landed was in 1999, when the hunt first resumed.

But a new EIS could take a year to finalize because it is more complex. The EA that was struck down by the court was the product of seven months of work plus six months of public comment and review.

In addition, the tribe and the NMFS will have to seek a permit to take whales under the MMPA, the court said.

Get the Decision:
ANDERSON v. EVANS, No. 02-35761 (9th Cir. December 20, 2002)

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

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