On August 8, 2002, U.S. District Court Judge Franklin D. Burgess dismissed a lawsuit in which The HSUS, The Fund for Animals, and others claimed that the National Marine Fisheries Service (NMFS) conducted a flawed Environmental Assessment (EA) that allows the Makah Tribe to hunt gray whales off the Olympic Peninsula in Washington state.

Dr. Naomi Rose, marine mammal scientist for The HSUS, noted that Burgess's decision was "completely lacking in substantive analysis." She noted, however, that the ruling was not a surprise, given that Burgess had ruled against a previous lawsuit brought by The Fund for Animals on the original EA—a decision that was overturned on appeal. The HSUS and The Fund will appeal Burgess's latest ruling as well.

The recently dismissed January 2002 lawsuit challenged NMFS's latest EA. The suit alleged that NMFS failed to follow the strict standards laid down by an appeals court for environmental analyses of the Makah's hunt, and failed to consider the best available science when determining the impact of the hunt on resident whales.

Although families within the Makah Tribe had indicated they intended to conduct hunts during the annual Makah Days festival (August 24 and 25), no kill was reported. Moreover, no whaling permits are known to have been issued by the Tribal Council. A hunt could take place this fall, but some are suggesting that funding and other factors may prevent a hunt before spring 2003. The HSUS plans to continue monitoring the situation.

The Makah's campaign to resume whaling began in 1994, when gray whales were taken off the Endangered Species list. The species annually migrates past the Makah reservation on the northwest tip of the Olympic Peninsula, where the tribe has lived for centuries. Members of the Makah Tribe claim that whaling is part of their cultural heritage even though they have not actively whaled since the turn of the 20th century.

Despite a ban on whaling in the United States, the Makah tribe was granted a quota in 1998 by the NMFS to kill five gray whales a year until 2002. The U.S. agency granted the quota without specific recognition from the International Whaling Commission (IWC). In the spring of 1999, the tribe killed its first whale in more than 70 years.

The circumstances under which the Makah plan to hunt this year are significantly different than three years ago. After an appeals court ruled in 2000 that the NMFS must order a new environmental assessment of the Makah whale hunts, the agency published a revised EA in July 2001 that actually expanded the area in which the tribe could hunt. The EA also allowed the Makah to kill "resident" gray whales, a small group who summer in Puget Sound rather than migrate with the rest of the population to the Bering Sea.

"The Marine Mammal Protection Act states that marine mammals should be managed so they remain functioning elements of their ecosystems," says Rose. "Allowing the hunters to kill resident whales doesn't comply with this standard, because there is a real risk that the loss of even one or two residents a year will result in altering the local ecology."

In May 2002, members of The HSUS attended the IWC's annual meeting in Japan, working to block the Makah's request for an aboriginal quota. During the IWC's Scientific Committee meeting, it was announced that the gray whale population estimate had dropped from about 26,600 in 1997–1998 to about 17,400 in 2001–2002. The IWC commissioners apparently did not take this news into account when considering the Makah's application for a gray whale quota. The IWC passed the gray whale quota, which retains the same language that allows the United States to permit the Makah to whale.

Despite this disappointing decision, The HSUS and other animal protection groups will continue our battle in the U.S. courts.