Court says no more Makah whale hunting!

A federal appeals court ruled Friday that the Makah Tribe could not resume gray whale hunts, siding in favor of whaling opponents who argued that a federal assessment of the hunt was arbitrary.

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COURT SAYS NO MORE MAKAH WHALE HUNTING
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December 20, 2002
KOMO Staff & News Services

SEATTLE - A federal appeals court ruled Friday that the Makah Tribe could
not resume gray whale hunts, siding in favor of whaling opponents who argued
that a federal assessment of the hunt was arbitrary.

The ruling by a three-judge panel of the 9th Circuit Court of Appeals in San
Francisco orders the National Oceanic and Atmospheric Administration and the
National Marine Fisheries Service to prepare a full environmental impact statement.

The statement would be a more exhaustive review of the hunts' effect than
the much shorter environmental assessment.

The appeals panel said the Commerce Department agencies failed to comply
with the National Environmental Policy Act when their assessment determined
there was no significant impact.

"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," said Judge Marsha S. Berzon,
writing for the panel.

The court also said the whale hunts violate the Marine Mammal Protection
Act, which requires that any marine mammal whose numbers have fallen 60
percent be designated as depleted.

The threshold for protection under the MMPA is less than that required for
listing as threatened or endangered under the Endangered Species Act, which
has stricter requirements for species protection.

This is the second time an environmental assessment by the fisheries service
has been rejected by the appeals court.

In 1999, a circuit panel found the agency violated the environmental policy
act when it approved a hunt-management plan before completing its study of
the hunt's impact.

"Clearly, we're disappointed," said NMFS spokesman Brian Gorman in Seattle,
adding that the agency would likely follow through with the court's order.

The agencies have 90 days to file an appeal with the U.S. Supreme Court.

The tribe's lawyer, John Arum, said he had not completed reading the court's
opinion and could not immediately comment on the decision.

Calls to Makah tribal Chairman Nathan Tyler were not immediately returned.

Friday's decision was especially important for animal welfare groups who had
appealed an August ruling by U.S. District Court Judge Franklin D. Burgess
in Tacoma that they failed to prove the agencies' assessment of the hunts'
impacts was arbitrary or capricious.

"We are extremely excited about the courts decision," said Michael
Markarian, president of the Fund for Animals. "This is the second time the
court has told the U.S. government that they failed to prepare an adequate
environmental study of the Makah whale hunt."

The lawsuit filed by the New York-based Fund for Animals, the Washington,
D.C.-based Humane Society of the United States and others contends that
Makah whaling would endanger public safety. It also contends whaling would
harm resident gray whales - those which linger in Washington's Strait of
Juan de Fuca while the bulk of the population migrates between Alaska and
Mexico.

Makah whaling rights are guaranteed by their 1855 treaty.

After a seven-decade break, the triben at the tip of Washington's Olympic
Peninsula moved to resume whaling after gray whales were removed from the
Endangered Species List in 1994. Tribal whalers have killed one whale, in
May 1999.

In May, the International Whaling Commission authorized the tribe to
continue whaling, allowing a take of up to four gray whales annually for
five years.