Almost a year after a federal appeals court barred the Makah Tribe from hunting gray whales off the coast of Washington state's Olympic Peninsula, the court has refused to rehear the case "en banc" (with a full panel of 11 judges, rather than just three). This latest ruling is the last chapter in a long and tortuous tale, in which the court reaffirmed the position of The HSUS and the Fund for Animals that the environmental review of the Makah hunt was inadequate and illegal.
The rejection of the en banc request in late November leaves intact the definitive December 2002 ruling by the Ninth Circuit Court of Appeals, which overturned an earlier decision and determined that the National Marine Fisheries Service (NMFS) violated not only the National Environmental Policy Act (NEPA) but also the Marine Mammal Protection Act (MMPA) when it granted the Makah a quota to kill up to five whales per year. The court's refusal to rehear the decision en banc means as a practical matter that there will be no whaling in 2004, as any additional appeals would take some time to be resolved. NMFS has yet to decide what it will do, although the Makah tribe's lawyer has stated he intends to continue the appeal process.
The Full Story
The legal battle over Makah whaling began in 1996, when the tribe requested a gray whale quota from the U.S. government after the whale had been removed from the endangered species list. They neared their goal in 1997 when the NMFS produced an Environmental Assessment (EA) which concluded that an annual quota of up to five gray whales would have no significant impact on the species' population. The Makah, however, were to avoid a small group of resident feeding gray whales who remain in the Puget Sound area throughout the summer (unlike most gray whales who continue to migrate to polar waters).
A group of animal protection groups filed a lawsuit challenging the EA, which clearly had been prepared after the government had decided to grant a quota to the Makah, thereby violating NEPA's requirement that environmental effects must be evaluated prior to making decisions. It was largely on the basis of this violation that the lawsuit (although initially lost in U.S. District Court) won on appeal, and the U.S. Ninth Circuit Court of Appeals ordered NMFS to produce a new EA. While this lawsuit made its way through the courts, the Makah conducted their only successful hunt, killing a young female gray whale in May 1999.
The hunt generated a lot of controversy, not only in the United States, but also at the international level. The United States is a member of the International Whaling Commission (IWC), the only body universally recognized as competent to regulate whaling. The IWC, which currently bans commercial whaling, allows aboriginal subsistence whaling under certain circumstances. It has formulated a very strict definition of aboriginal subsistence whaling—a definition the Makah hunt does not meet.
The IWC has therefore never recognized the Makah's aboriginal subsistence whaling claim. It does, however, recognize the claim of the Siberian natives of Chukotka and, because of this, has set a quota for gray whales. The U.S. government's unilateral decision to allow the Makah to take up to five gray whales per year has remained controversial among IWC members.
A More Dangerous EA
The revised EA, published in July 2001, was even worse than the initial one; the revised one gave the Makah permission to target resident whales. Despite obvious scientific uncertainty about the status of this small group of animals (both in terms of its genetic distinction and its ecological importance to the Puget Sound area), NMFS concluded that removing up to five resident whales would have an insignificant impact on the population. This conclusion was clearly influenced by the Makah's preference for hunting in the late spring and summer when the weather is calmer and when only resident whales are present on the hunting grounds.
Deeply concerned about the conservation and welfare of the resident whales, The HSUS and other plaintiffs filed a lawsuit to challenge this revised EA. This time around, the plaintiffs made the claim that the hunting prohibition of the MMPA applied to native hunts such as the Makah's. We pointed out that, treaty rights notwithstanding, only Native Alaskans have special MMPA provisions and procedures that govern their subsistence hunts of marine mammals. We maintained that the standard MMPA restrictions apply to all other native hunts, so if a tribe wishes to kill marine mammals, it must apply for a waiver under the MMPA. Our lawsuit was dismissed in August 2002 by U.S. District Court Judge Franklin D. Burgess, with little elaboration. We immediately appealed, and on December 20, the three judges on the U.S. Ninth Circuit Court of Appeals overturned Judge Burgess's decision. In a 43-page ruling, the judges found for the plaintiffs, who had claimed that the EA upon which NMFS based its decision was deficient. The decision failed to take a "hard look" (which the appeals court specifically required in its order overturning the first EA) at the issues surrounding the hunt, including public safety and the conservation of the resident gray whales.
Furthermore, The HSUS and the other plaintiffs maintained that the hunt requires an Environmental Impact Statement (EIS), which is a far more thorough analysis of an action than an EA. The Ninth Circuit judges settled this question definitively. They wrote:
In sum, given the substantial uncertainty and controversy over the local impact of the Makah Tribe's whaling and its possible precedential effect, an EIS should have been prepared...the agencies' inquiry itself was deficient. Thus, an EIS is required.
The ruling further stated:
What is in hot dispute is the possible impact on the whale population in the local area where the Tribe wants to hunt. In our view, the answer to this question—of greatly increased importance with the revision of the [EA] so as expressly to allow hunting of local nonmigrating animal—is sufficiently uncertain and controversial to require the full EIS protocol.
The Treaty of Neah Bay
To counter our claim that the MMPA's prohibition against hunting marine mammals should apply to the Makah, the tribe maintains that its 1855 treaty, the Treaty of Neah Bay, expressly preserves its right to whale. However, the treaty does so "in common with all citizens of the United States," the appeals court judges noted, quoting from the treaty itself. They further wrote:
The Tribe has no unrestricted treaty right to pursue whaling in the face of the MMPA. Instead, having concluded that the MMPA is applicable to regulate the Tribe's whaling because the MMPA's application is necessary to effectuate the conservation purpose of the statute, and because such application is consistent with the language of the Neah Bay Treaty, we conclude that the issuance by NOAA [the National Oceanic and Atmospheric Administration, which is the parent agency of NMFS] of a gray whale quota to the Tribe, absent compliance with the MMPA, violates federal law.
In short, while the court did not rule that the Makah lacked a treaty right to hunt whales, it held that the Makah must comply with the MMPA if they wish to pursue any such right. Under the MMPA, entities may apply for waivers to the law's prohibitions. The court has ordered the Makah to follow the MMPA's waiver procedures before proceeding with their hunt.
The Makah and their attorneys have stated in the media that this ruling will have damaging implications for treaty rights across the board. They claim that this ruling will be used to negate treaty rights. This is not the case. The MMPA has specific procedures that allow tribes to exercise their treaty rights to hunt marine mammals. This ruling in no way negates those rights. It does, however, go a long way toward ensuring that strong conservation principles will govern the exercising of those rights, which anyone who respects the environment should approve.
Opposing the Hunt, Not the Makah
The HSUS has opposed the Makah hunt from the beginning, not because we oppose native treaty rights or even the aboriginal subsistence hunting of marine mammals. The HSUS does not oppose the Makah or Makah culture. However, says HSUS marine mammal scientist Dr. Naomi Rose, "We do oppose any killing of marine mammals when it is done in an inhumane manner."
"We also oppose marine mammal hunts when they do not meet clear subsistence needs—that is, when it is for commercial, sport, or other non-subsistence purposes. We oppose any hunting that is not in compliance with the strong conservation principles this country included in its landmark environmental laws of the late 1960s and early 1970s. And we oppose all whaling that is not in compliance with our international treaty obligations," Rose continues.
The HSUS has worked for decades at the international level to improve the humaneness of aboriginal subsistence whaling and to minimize the quotas needed to meet subsistence needs. NMFS's campaign to classify the Makah hunt as aboriginal has been nothing more than a blatant effort to circumvent NEPA and the MMPA.
Rose notes that The HSUS has tried to work with the Makah. "We have continued to maintain a dialog with the Makah regarding the hunt," she says. "We know the hunt is not, in fact, universally supported within the tribe. We respect the Makah's culture, history, and treaty rights, but we also respect our present-day environmental laws and international treaty obligations, and insist that federal agencies do as well."
An End to the Controversy
The HSUS is elated by the appeals court ruling and its rejection of the en banc request. The ruling's depth and detail support a great many of the arguments we have made for the last six and a half years. We hope this most recent decision will put to rest the controversy surrounding this hunt, and we sincerely hope that the EIS and MMPA waiver process will result in permanent protection for the resident gray whales of Puget Sound.
