Ruling Allowing Whale Hunts by Makah Tribe Rejected

A federal appeals court on Friday rejected the environmental assessment that allowed the Makah Indian tribe to hunt gray whales off the coast of Washington, ruling that the government’s review was “slanted” in favor of allowing the controversial hunt.

The 2-to-1 ruling from the U.S. 9th Circuit Court of Appeals most likely ends the Makah tribe’s attempts to land a gray whale during the spring migration off the Pacific Coast, which now is winding down.

Whale protection groups hailed the ruling, which will force the National Marine Fisheries Service to look carefully at the whale hunt’s effect on resident gray whales and at other potential environmental consequences before any hunt could resume in the fall.

Attorneys for the Makah, a dwindling tribe in northwestern Washington that had sought to revive a long-standing whaling tradition it hadn’t practiced in 70 years, said they would seek a rehearing from the full appeals court.

“I would characterize it as a temporary setback. But it’s important to recognize that the court did not in any way question that the tribe has a treaty right to hunt whales,” said Seattle attorney John Arum, who is representing the tribe.

A coalition of whale protection groups and private citizens opposed to the hunt, however, said that the court ruling vindicated their belief that the federal government was “predisposed” to overlook environmental barriers to the whale hunt.

“What this basically means from our reading is there’s now no authorization in place from the federal government to allow the tribe to whale,” said attorney Jonathan Lovvorn of Washington, D.C., who is representing the plaintiffs.

“This is excellent news for whales and for the public process of environmental studies. We are absolutely elated that not only will the government have to conduct a new environmental analysis but that the agreement with the tribe to allow the killing of whales will be suspended while that new study is being conducted,” said Michael Markarian, executive vice president of the Fund for Animals, a national animal-rights group based in New York.

The federal government conducted its environmental review after it backed the Makah’s petition before the International Whaling Commission to engage in subsistence hunting. The commission oversees all hunts conducted under international treaty. The commission did not specifically recognize that the Makah have a right to hunt from the population of about 26,000 gray whales that migrate along the Pacific Coast. Instead, in 1997, it allowed the Makah to share in a subsistence hunting quota granted to Russian whalers in Siberia, taking up to five whales a year over the next five years.

In backing the Makah, the government concluded that the gray whales’ recovery from the precipitous decline brought on by heavy commercial whaling in the early part of the century was sufficient to assure the population would not be affected by the small cultural subsistence hunt.

Clashing repeatedly with anti-whaling protesters off the coast of Neah Bay, Wash., the Makah hunters have been able to land only a single whale, harpooned and shot in May 1999.

In their majority opinion, Judges Stephen S. Trott and Barry G. Silverman held that the federal government improperly signed a contract to help the Makah win authorization from the International Whaling Commission before preparing an assessment of the potential environmental consequences.

“It is highly likely that because of the [government’s] prior written commitment to the Makah and concrete efforts on their behalf, the [environmental assessment] was slanted in favor of finding that the Makah whaling proposal would not significantly affect the environment,” the court held.

Although the court majority ordered the government to prepare a new review, Judge Andrew J. Kleinfeld in a dissent said that the court could not order a new review when no judge had found the old one lacking, no matter how late in the process it was prepared.

“There is a legitimate clash of values between those who care more about whale hunting from the point of view of the hunter and those who care more from the viewpoint of the whale. The political organs of government have the authority to choose. We have no warrant in this case to interfere,” Kleinfeld wrote.

Brian Gorman, spokesman for the National Marine Fisheries Service, said the immediate effect of the ruling is not clear, other than requiring a new environmental assessment. “If the Makahs wanted to whale, I don’t know if they could legally continue or not. That’s something we’ll have to look into,” Gorman said.

Paul Watson of the Sea Shepherd Society, which has been a vigorous opponent of the whaling but was not among the plaintiffs, said Australia plans to lodge a complaint at the July meeting of the International Whaling Commission based on the Makah’s successful hunt last year.

He said Australia and other opponents of the Makah hunt will argue that the Makah improperly shared in the Russian subsistence hunting quota.