Court of Appeals suspends Makah whaling


NEAH BAY, Wash. - Members of the Makah whaling commission are undisturbed by a 9th Circuit Court of Appeals ruling to temporarily suspend whaling activity by the Nation.

The panel of three 9th Circuit judges in San Francisco ruled whaling must stop because the National Marine Fisheries Service, which had been assisting the Makah gain approval for hunting from the International Whaling Commission in 1996, signed a cooperative agreement with the tribe before a required environmental assessment could be done by the NMFS.

The judges indicated there was the possibility the environmental assessment, completed in October 1997, could have been biased in favor of the tribe because of the previously signed agreement.

Suspension of all whaling activities by the tribe is scheduled to start 52 days after the court's June 9 decision. It will remain in effect until a new environmental assessment can be completed by the Fisheries Service and reviewed by the U.S. District Court in Tacoma.

The decision will have little immediate impact on the tribe. Bad weather has plagued sporadic and unsuccessful hunts so far this spring. No current permits have been issued to any of the tribe's whaling families. By the time the suspension takes effect, the spring whaling season, scheduled to end June 30, will be long over.

In the meantime, "should a family come forward asking for a permit we would certainly consider this decision by the court and confer and consult with the National Marine Fisheries Service agents as to whether the council gives a permit or not," says Keith Johnson, president of the Makah whaling commission.

Rep. Jack Metcalf, R-Wash., who led the appeal of U.S. District Court Judge Franklin Burgess' September 1998 decision not to implement an injunction to stop Makah whaling, and other whaling opponents were jubilant at the decision.

"Today's ruling is a huge victory," Metcalf said. "This ruling will put an immediate stop to the senseless slaughtering of gray whales."

But tribal officials point out that rather than a victory for their opponents, the suspension is really only a minor setback.

"The court did not in any way question the fact the Makah have a right to take these whales under its treaty," says tribal attorney John Arum. "And, it also didn't question the fact that this hunt was approved by the International Whaling Commission and is in conformance with international law. It's a temporary glitch in the road."

How long the "temporary glitch" will last depends upon how rapidly the Fisheries Service can instigate and complete another environmental assessment. According to spokeswoman Janet Sears, the service is considering the court's ruling and attempting to decide where and how to begin. Since the judges found no fault with the findings of the original assessment, department personnel are somewhat confused as to the parameters of a new assessment.

"Usually an environmental assessment takes several months," Sears says. "But in this case we're not sure how long it will take. It's hard to go back and change the timing on something when that something has already occurred."

Tribal officials say they hope the assessment and the District Court's consideration will be completed before the fall hunting season is scheduled to begin.

Appeals Judges Andrew Kleinfield, Barry Silverman and Stephen Trott reviewed the matter. In a 2-1 decision, Trott and Silverman said the Fisheries Service had violated the law by failing to conduct a review timely, objective and "in good faith."

In his dissenting opinion, Kleinfield said the government agency adequately scrutinized potential environmental consequences of the hunt and that the timing of the assessment was relatively unimportant.

The Makah, whose rights to hunt the whale are secured by an 1855 treaty with Gov. Isaac Stevens, have the International Whaling Commission's approval to take up to 20 whales over a five-year period ending in 2002. Environmental impact on the gray whale population, which has rebounded from near extinction to more than an estimated 26,000 animals, is considered minimal.