Court Rules Makah Whale Hunt Illegal

By Cat Lazaroff

SEATTLE, Washington, December 23, 2002 (ENS) - A federal appeals court has ruled that the Makah tribe's hunting of gray whales off the coast of Washington violates the Marine Mammal Protection Act. The ruling reverses a previous trial court decision, finding that in approving the hunt, the government had failed to comply with its own regulations governing activities that may harm the environment.

A three judge panel from the Ninth Circuit Court of Appeals ordered a halt to all Makah whale hunts until the federal government can complete a comprehensive environmental impact analysis, and both government and tribe comply with the requirements of the Marine Mammal Protection Act (MMPA).

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The gray whale was taken off the federal endangered species list in 1994. (Photo courtesy NMFS)
"Having reviewed the environmental assessment prepared by the government agencies and the administrative record, we conclude that there are substantial questions remaining as to whether the tribe's whaling plans will have a significant effect on the environment," wrote Judge Marsha Berzon. "The environmental assessment simply does not adequately address the highly uncertain impact of the tribe's whaling on the local whale population and the local ecosystem."

The ruling, which came in a legal challenge filed by The Fund for Animals, The Humane Society of the United States, and other groups and individuals, marks the first time that the tribal hunt has been ruled in violation of the federal law that protects ocean mammals.

"We are elated that the court has put a stop to this illegal and inhumane whale hunt," said Michael Markarian, president of The Fund for Animals. "American citizens want our whales to be protected, not persecuted. The government has twice failed to produce an environmental study to justify this activity, and it should stop fleecing American taxpayers to promote whale hunting."

The plaintiffs had argued that the government failed to adequately study the ways in which the Makah whale hunt could harm the environment, as required under the National Environmental Policy Act (NEPA). Their argument was bolstered by a 2001 decision by the National Marine Fisheries Service (NMFS) which expanded the Makah's whaling permit to include a small population of gray whales that lives year round in the Juan de Fuca Strait.

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Makah whalers paddle their canoes in front of Neah Bay during a cultural celebration. (Photo courtesy Makah Tribe)
Previous permits from NMFS had banned hunting of the resident gray whales, which number between 30 and 50 animals, compared to the estimated 26,000 gray whales that migrate past the Strait twice each year. Under the 2001 decision, the Makah could kill up to five of the resident whales each year.

The plaintiffs also argued that the government's authorization of the whale hunt violated the Marine Mammal Protection Act, which expressly prohibits whaling, while creating an exemption for Alaskan tribes but not for the Makah.

The Makah, who are based at Neah Bay, Washington some 30 miles west of Port Angeles, resumed their hunt in 1999 after an hiatus of almost three-quarters of a century. They claimed it was a part of their tradition and culture, and in fact, whaling is written into the Makah's 1885 Treaty, making the Makah the only U.S. tribe to have explicit permission to whale.

Tribal officials said that Friday's appeals court ruling sets a dangerous precedent for the authority of all Indian treaties, which the U.S. Constitution defines as "the supreme law of the land," ranking higher than federal laws such as the MMPA.

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The Makah have treaty rights to hunt gray whales. (Photo courtesy International Fund for Animal Welfare)
"The Makah Tribe is deeply concerned about the effect of this ruling on its treaty fishing rights and the treaty fishing rights of all Indian tribes in the Northwest," the Makah tribal council said in a news release.

"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 council stated.

Critics of the Makah whale hunt charge that it cannot be justified as under cultural or subsistence arguments because the tribe's hunting methods have changed so much since they gave up whale hunts in the 1920s. At that time, the population of gray whales that summers in and around Neah Bay had been decimated by commercial whalers, leaving the Makah with their traditional canoes and spears little chance of landing a whale.

But after the gray whale was removed from the federal Endangered Species List in 1994, the tribe petitioned for permission to resume the hunt. Under requirements set by the National Marine Fisheries Service (NMFS), the tribe can still hunt in traditional dugout canoes - though boats with motors are most often used now - but must kill the whales with guns, a method the federal agency calls more "humane" than spear hunting.

"This attempt to circumvent our environmental and marine mammal protection laws has failed," said Wayne Pacelle, a senior vice president for The Humane Society of the United States. "Let's hope that this represents the final chapter in this wrongheaded effort to resume whale killing in the United States."

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In May 1999, Makah whaling captain Wayne Johnson watches the distribution of the only whale killed since the Makah resumed their hunt. (Two photos courtesy Sea Shepherd Conservation Society)
Since the Makah resumed the hunt in 1998, the tribe has had success just once. In May 1999, tribe members in a dugout canoe killed a gray whale with three harpoons and two rifle shots, towing the carcass to a beach in Neah Bay where the tribe butchered it and ate whale meat and blubber in a celebration of their tribal heritage.

"That day the whale was on the beach, the whole town was down there," Makah tribal chair Nathan Tyler told the "Seattle Post-Intelligencer."

"People were happy and looking forward to getting some of that whale meat," Tyler added. "Everybody is going to feel it here. They are not going to be happy with the decision."

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A Makah whaling supporter in 1999. (Photo courtesy Sea Shepherd Conservation Society)
The Makah plan to appeal the decision to the full panel of 9th Circuit court judges, and said they will take the case to the United States Supreme Court if necessary.

The 54 page decision issued by the U.S. Court of Appeals for the Ninth Circuit is available at: http://www.fund.org/uploads/ninthcircuit.pdf