In accordance with the most recent federal court decision in the Makah whaling dispute dated June 7, 2004, the Makah and the federal government are currently engaged in the completion of two steps before whaling can commence. One step is to prepare a full environmental impact statement [EIS] under the National Environmental Policy Act. The preparation of a full EIS is a major task, and particularly so if the federal government undertakes the task itself. However, with regard to the preparation of the Makah whaling EIS, the federal government has contracted the task out to an independent contractor.
Three local public scoping meetings were held in October as part of the EIS
public review process: in
The second step to be taken before whaling can resume, is to secure a waiver for a permit under the Marine Mammal Protection Act. A moratorium on the taking of marine mammals, including whales, by US citizens is currently in effect under the MMPA. Therefore, in order to resume whaling, a potential harvester must secure either a permit or a permit waiver in accordance with provisions of the MMPA. The normal process is to apply for a permit, however, since the Makah have a treaty right to whale, they do not believe a permit is legally required and consequently they are seeking a permit waiver.
Although a permit waiver has never been granted under the MMPA, the Makah are hopeful that the process for seeking a permit waiver under the MMPA can begin as soon as the first draft of the EIS is completed. The process involves a public administrative hearing before an administrative law judge.
Both the EIS, once approved by the federal government, and the final decision of the administrative law judge are subject to review by a federal judicial court. It can be assumed that regardless of the decisions of these administrative reviews, the decisions will be appealed to the federal courts by concerned parties.
The Makah have initiated a third step that is not related to the June 7, 2004 federal court decision and does not involve the federal government. This third step involves securing a legislative exemption under the MMPA similar to the exemption granted to the Alaskan bowhead hunters. The Makah believe they have a strong argument for securing a legislative exemption because the Makah are the only Native American tribe with a treaty right to whale. Alaskan Natives, who do not have express treaty rights to whale, were granted the legislative exemption under the MMPA when it was first enacted some 30 years ago. If the Makah can receive a legislative exemption, they would no longer be subject to the administrative and judicial process for seeking approval of their whaling.
However, even though the Makah may have a strong legal argument in support of a legislative exemption, the Makah will need the political support of the U.S. Congress in order to obtain legislative approval for any such exemption. This approval requires approval by both the House of Representatives and the Senate, and is then signed into law by the U.S. President. Mustering political support is not expected to be easy, given the lobbying power of the anti-whaling organizations who oppose a legislative exemption.
The Makah first began looking into the possibility of a legislative exemption
during a trip to
During an October visit to
January 30 2003
The first attempt by the U.S. government to secure a quota of gray whales for the Makah Indian tribe of Washington State was through the IWC in 1996; this attempt was unsuccessful (although the IWC subsequently agreed to a quota in 1997). Following this failed 1996 attempt, the U.S. entered into an "Agreement" with the Makah in 1997 that required developing the Makah Management Plan, which was to include time and area restrictions designed to avoid taking non-migrating "resident" whales. After the Agreement was concluded, the federal government then prepared and issued an Environmental Assessment (EA) which concluded that the hunt conducted on the migrating whales would have no significant impact on the environment. Anti-whaling groups filed a lawsuit in the federal district court (commonly referred to as the "Metcalf case") claiming that the EA was inadequate.
The federal district court upheld the EA, but on appeal by the anti-whaling groups, the 9th Circuit Court of Appeals reversed the federal district court decision. The Court of Appeals held the EA invalid, but not because it was technically inadequate. Rather, it was held invalid because it was prepared after the federal government concluded the Agreement with the Makah, indicating bias on part of the federal government towards approval of the hunt before conducting a review to determine if the hunt would have an adverse effect on the environment. The Court of Appeals ordered the federal government to prepare a new EA following the proper procedures, i.e., conduct an environmental assessment first, before taking further steps. The federal government and the Makah did not appeal the 9th Circuit Court of Appeals ruling and that ended the Metcalf case.
As a result of the decision in the Metcalf case, the federal government dissolved the Agreement with the Makah and began a new EA process. A second proposed EA was issued in January 2001. This second proposed EA, similar to the first EA, presented as the most favorable option a hunt that targeted migrating whales. Time and areas restrictions were proposed to avoid or minimize effects of the hunt on the "resident" whales. Similarly, the proposed new Management Plan included time and area restrictions to minimize the effects of the hunt on the "resident" whale population. But this second EA was also more favorable to the Makah by including an option with no time and area restrictions.
The second proposed EA was subjected to public review. Following the public review process, but prior to finalization of the second proposed EA, the Makah amended their proposed Management Plan by eliminating the time and area restrictions, thereby expanding the hunt to include the local non-migrating whale population. On July 12, 2001, the federal government published the final EA based on the amended Management Plan with a finding that the hunt would not cause any significant impact on the environment. The second EA did not evaluate the amendments made to the Management Plan that eliminated the time and area restrictions. Consequently, there was no opportunity for public comment on these amendments. Furthermore, the scientific studies upon which the second EA is based did not evaluate the amendments. All the scientific studies and the comments submitted during the public review process assumed a hunt limited by time and area restrictions in order to minimize or avoid the effects of the hunt on the "resident" population. But now the Tribe would be able to hunt without time and area restrictions, thereby expanding the hunt to include the local "resident" whales.
On January 10, 2002 a lawsuit (Anderson vs. Evans) was filed in the 9th Circuit Court of Appeals by a coalition of animal rights' groups including the Fund for Animals and the Humane Society of the United States (the Plaintiffs). Two of several issues raised in the lawsuit relate directly to the earlier 9th Circuit Court ruling. The first issue relates to a challenge to the second environmental assessment (EA) issued by the U.S Commerce Department on July 12, 2001. Under the National Environment Protection Act (NEPA), the federal government must determine whether a proposed governmental action (in this case the approval of Makah whaling) significantly affects the quality of the environment. The first step in this NEPA determination is for the federal government to prepare an EA. The EA should provide evidence and analysis to determine whether the proposed federal action will significantly affect the quality of the environment.
If the EA determines the federal action will significantly affect the quality of the environment, the federal government must then prepare a more formal environmental impact statement (EIS) that provides a detailed and comprehensive analysis of the potential environmental impacts. With respect to the Makah hunt, the EA determined there would be no significant impact on the environment. Therefore, an EIS was not prepared. The Plaintiffs claim that the EA determination is wrong and that a more comprehensive EIS must be prepared.
The second issue claims that the federal government violated the provisions of the Marine Mammal Protection Act (MMPA) that prohibit the taking of a marine mammal in the absence of a permit or waiver. The federal government issued neither a permit nor a waiver under the MMPA to the Makah for taking the quota because of a commonly recognized legal principle that Indian treaty rights are exempt from the provisions of the MMPA. The federal government treaty with the Makah specifically protects the Makah right to hunt whales.
As a result of filing this lawsuit in January 2002, the federal district court in Tacoma issued a temporary restraining order on May 3, 2002 that prohibited the Makah from conducting a whale hunt through May 15. On May 15, the federal district court heard arguments to determine whether the temporary restraining order should be extended until the court could hear the lawsuit on its merits.
In its decision issued on May 17, the federal district court refused to extend the temporary restraining order until the case could be heard on its merits. The court determined that the lawsuit did not have a "substantial likelihood of success" on its merits because the Plaintiffs probably could not prove that the EA prepared by the U.S. government was arbitrary and capricious. Furthermore, the court found that the preservation of the Makah's whaling right in the 1855 Treaty of Neah Bay takes precedence over the requirements of the MMPA, consistent with the legal practice noted above. In other words, since the federal district court did not believe the lawsuit was likely to succeed on its merits, there was no basis for extending the temporary restraining order against hunting until making a final decision on the merits.
On May 31, the Plaintiffs appealed the May 17 federal district court ruling to the 9th US Circuit Court of Appeals. On June 7, the Court of Appeals upheld the federal district court ruling with no explanation or comment.
Although the Plaintiffs did not appeal the Court of Appeals decision of June 7, they did pursue their lawsuit on the merits in the federal district court. On August 8, 2002, the federal district court granted a summary judgment to the federal government and the Makah and dismissed the lawsuit. The summary judgment and dismissal was based upon the federal court's finding that the EA was not arbitrary and capricious and that the Treaty of Neah Bay takes precedence over the requirements of the MMPA.
The Fund for Animals and the Humane Society appealed the federal court summary judgment and dismissal to the 9th Circuit Court of Appeals. On December 19, 2002 a three-judge panel of the 9th Circuit Court of Appeals reversed the summary judgment and dismissal based upon a legal review of the two issues discussed above. In effect, this decision suspended implementation of the Agreement between the U.S. government and the Makah Tribe and removed the whaling quota issued to the Makah Tribe. The Court of Appeals found that the EA does not adequately address the impact of whaling on the local resident population of gray whales and the local ecosystem, thereby requiring the preparation of a full EIS under NEPA.
The crucial question before the Court of Appeals in this case, was whether expanding the hunt on this smaller group of non-migrating whales could significantly affect the environment in the local area. Finding that the EA does not adequately address the question, the Court concluded that the answer to this question is both uncertain and controversial, thereby requiring the preparation of a full EIS under the guidelines of NEPA.
A second reason given by the Court for requiring a full EIS is the precedent the hunt may have upon other domestic groups who may wish to begin whaling. The U.S. government concluded in the EA that because the Makah Tribe is the only tribe with an explicit treaty-based whaling right, it is unlikely that approval of the Makah hunt will lead to an increase in whaling by other domestic groups. The Court stated that it could not agree with that conclusion, ruling that the U.S. government must consider if its support for Makah whaling creates a precedent that might have a consequent impact upon whales.
On the second issue, the Court ruled that the MMPA may regulate any pre-existing Makah Tribe whaling right under treaty if three conditions are met. The three conditions cited from a prior case are: (1) the U.S. has jurisdiction where the whaling occurs; (2) the MMPA applies in a non-discriminatory manner to treaty and non-treaty persons alike; and (3) the application of the statute to regulate treaty rights is necessary to achieve its conservation purpose. Regarding the first condition, the Court found that the U.S. has jurisdiction over the waters off the coast of the State of Washington where the whaling occurs. Regarding the second condition, the Court noted that only certain Native Alaskans with subsistence needs are exempted from the general ban on the taking of whales contained in the MMPA. Otherwise, it cannot be argued that the MMPA discriminates between treaty and non-treaty persons in the lower 48 states because members of the Makah Tribe are not being singled out any more than non-treaty persons.
Regarding the third condition, The Court found the critical question to be whether restraint on the Tribe's whaling pursuant to a treaty right is necessary to carry out the conservation purpose of the MMPA. In assessing this question, the Court noted that the major objective of the MMPA is to ensure that marine mammals continue to be significant functioning element in the ecosystem by not permitting them to become depleted below their optimum sustainable population size. To achieve this objective the Court further noted that a comprehensive moratorium and a permitting process was adopted. The Court concluded that without subjecting the Makah hunt to a review under the MMPA, there is no assurance that the takes will not threaten the role of gray whales as functioning elements of the marine ecosystem.
The Court expressed concern that if the Tribe's hunt could proceed without MMPA regulation, there is no certainty that future whaling by the Tribe would not jeopardize the gray whale population either through its current management plan or future expanded quotas. The Court noted that even though the Tribe has limited the scope of its hunt, it could improve upon and expand the hunt in the future under its treaty with the U.S. government.
Finally, the Court expressed concern that if the Makah hunt is exempt from application of the MMPA, other tribes could also claim the right to hunt marine mammals without complying with the MMPA. The Court noted that other Pacific coast tribes once hunted whales and that whale hunting by these tribes could be protected by less specific treaty language that reserves traditional rights for hunting and fishing.
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November 2003
On November 26, 2003 the US 9th Circuit Court of Appeals denied petitions of the U.S. government and the Makah Indians for a full court rehearing of its three-judge panel decision dated December 19, 2002 in the case entitled Anderson vs. Evans. That three-judge panel suspended implementation of the Agreement between the U.S. government and the Makah Tribe and disallowed the whaling quota issued to the Tribe. The panel ruling was based on its opinion that the U.S. government had failed to comply with the National Environmental Policy Act and the Marine Mammal Protection Act.
The 9th Circuit did not give a reason for denying the petitions for rehearing. However, the Court, along with its ruling denying the petitions, republished the December 19, 2002 decision with several amendments and stated that subsequent petitions for rehearing by the full 9th Circuit Court of Appeals may be filed. We speculate that the Court provided a further opportunity for a rehearing because of the amendments. At this time, the Makah are likely to file a petition for rehearing by the full court. Any such petition must be filed within 90 days. The U.S. government has not indicated at this time whether to file a petition.
In the meantime, while the legal issues regarding the National Environmental Policy Act and the Marine Mammal Protection Act are being fought in the federal courts, the U.S. government is proceeding with preparing a full environmental impact statement in accordance with the December 19, 2002 decision. The process is slow and will take some time to complete. The more challenging issue is how application of the Marine Mammal Protection Act may affect the hunt if the December 19, 2002 decision is upheld and not overruled.
On December 5 2003, the Seattle Times published an editorial supporting the Makah treaty right to whale:
A Whale Hunt is also a Treaty Right
(Seattle Times, Opinion, p. B6)
THE Makah Indians have a treaty right to hunt gray whales that ply the waters off their land in the far northwestern corner of the state.
No amount of legal maneuvering or interference by animal-rights groups should be allowed to trump that entitlement.
The Makah Tribe is the only U.S. tribe with a whaling right clearly specified in their treaty, which was signed nearly 150 years ago.
Largely for that reason, the 9th Circuit of Appeals erred when it said the Makahs must obtain a waiver from the federal government before they can hunt whales. Until now, tribes argue, they have been allowed to manage their own fisheries, including whaling, unless the government can show the action creates a conservation problem.
There is no evidence the Makahs have created such a problem. A panel of appellate judges recently refused to reconsider an earlier ruling. But they should.
Gray whales are no longer endangered. The government's own experts, who support the treaty right to hunt whales, say the biological impact of taking up to five whales a year from a population of 17,000 to 26,000 gray whales that swim these waters would be insignificant.
It is unfair to allow delays and politicking to continue. Past performance is a good indicator of future performance, and the Makahs have been restrained and judicious.
The Makahs waited until gray whales were no longer endangered, then went to the government to seek an opportunity to take whales under agreements with the International Whaling Commission. This process took roughly three years. The tribe remained patient and reasonable.
The Makahs were authorized to take up to five whales in 1999, but killed only one. More recently, the tribe slashed its whaling budget and abandoned its own whaling commission. The idea now is for families to hunt whales on their own for ceremonial purposes as they did for many years in the past.
The Makahs had abandoned whaling for 70 years but still maintain it is part of their culture and tradition.
Whaling will never be popular nor acceptable to some people. But just because something is unpopular does not mean the Makahs ought to renounce permission to do it. The Makahs have a treaty right to hunt whales and should be allowed to exercise it.
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A June 8 2004 article in the SeattlePost-Intelligencer newspaper reported the
latest court decision under the title “Court again rebuffs Makah’s appeal
over whaling”. An abbreviated version of the article appears below; the full
text can be found at
For the third time, a federal
appeals court ruled yesterday the Makah Tribe must comply with more stringent
environmental procedures before seeking to hunt gray whales -- a decision likely
to mean years of process before tribal whalers will know whether they can ever
legally hunt again.
The decision from a three-judge panel of the 9th U.S. Circuit Court of
Appeals essentially echoed two previous rulings by the court:
The Makah Tribe cannot hunt gray whales until the U.S. government conducts a
full-blown environmental analysis; and the tribe and the federal agency that
sponsors its hunts also must win an exception to the Marine Mammal Protection
Act before any tribal whaling can take place again.
Animal rights activists who took the U.S.-sponsored Makah hunts to court
hailed yesterday's ruling as the latest sign that America's legal system doesn't
support the killing of whales.
"The Court of Appeals has been emphatic on this point ... and it's
obviously something the American public doesn't want," said Michael
Markarian, director of the Fund for Animals, a group among a coalition that sued
to stop the tribe's hunts off the Olympic Peninsula.
Reached by telephone yesterday, a tribal councilman at the Makah Indian
Nation in Neah Bay was stunned by the ruling, saying tribal officials had not
yet been made aware of it.
Councilman Micah McCarty, who also is on the tribe's Whaling Commission,
added tribal officials have not had a chance to contemplate how to respond to
the ruling.
After hearing the news, tribal member Wayne Johnson vowed yesterday that his
tribe would whale again.
"It's another treaty broken by the United States, " said Johnson,
who was the tribe's whaling captain during the tribe's successful whale hunt in
1999. "I am going whaling again."
John Arum, a Seattle lawyer who prepared the tribe's unsuccessful appeals to
the court's rulings on the matter… [said that] in order to pursue whaling, the
tribe -- the only Indian group in the United States with an explicit treaty
right to hunt whales -- now essentially has two options: it can petition to have
the case heard by the U.S. Supreme Court…or, the tribe can simply comply with
the court's ruling -- a process that likely will take "several years, at
least," Arum said.
The ruling requires the National Marine Fisheries Service to do an
environmental impact study to ensure that the tribe's whale hunts would not hurt
gray whale populations.
It also calls for the tribe to seek a waiver to the federal Marine Mammal
Protection Act, which generally outlaws anyone in the United States from harming
or killing marine mammals.
Even as the tribe has sought to appeal the three-judge panel's ruling on the
issue -- twice unsuccessfully seeking to win a review by the full 9th Circuit --
federal marine officials have been conducting the environmental study called for
by the court.
Although the court panel previously said its ruling on the case in no way
addresses abrogating -- or abolishing -- guarantees afforded to the tribe in its
treaty, some Indian law experts say it essentially does just that.
Robert Anderson, director of the University of Washington's Native American
Law Center, said "I would say
that's an abrogation in my view," said Anderson, who fears the case could
be used as a precedent to assail Indian treaty rights across the nation.
But Eric Glitzenstein, a Washington, D.C., lawyer for the anti-whaling opponents, yesterday called suggestions the case could have sweeping implications on treaty rights "a sky-is-falling type of argument."