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Makah whiting take nixed by federal court

SEATTLE ? A federal appeals court in Seattle has rejected a compromise agreement between the Makah Tribe and the National Maritime Fisheries Service.

On March 5, the U.S. Court of Appeals for the Ninth Circuit ruled invalid the agreement, which was forged in 1999 after several years of litigation and negotiation. In issuing the court's opinion, Judge Sidney R. Thomas wrote that the court's "difficulty with the published justification for the rule, is that it is devoid of any stated scientific rationale."

The agreement limited the annual catch of Pacific whiting the Makah were permitted to take to 32,500 metric tons.

In 1996, the NMFS proposed to use the "bio-mass" theory, under which the percentage of whiting in the tribe's "usual and accustomed area" is estimated. Under this arrangement, the allocation to the Makah was estimated at between 13,000 and 18,000 metric tons, or roughly 6.5 percent of the entire harvest available to all U.S. fishermen.

The Makah, however, maintained that a harvest-based formula be used, under which the tribe claimed entitlement to half the whiting in the North Columbia/Vancouver region, or 25 percent of the total U.S. harvest. Since the majority of the whiting stock pass through the tribe's usual and accustomed area, the tribe contended, it was entitled to half the whiting on the Pacific coast.

The bio-mass method was never implemented; its methodology was rejected in a court proceeding involving halibut allocation. After a series of proposals and counter-proposals, the Makah and NMFS in 1999 agreed to the 32,500-metric-ton limit, which equated to approximately 14 percent of the total U.S. catch.

The March 5 ruling remanded the case to NMFS. The court instructed the fisheries agency to either determine a new whiting allocation to the Makah that is both "consistent with the law and based on the best available science," or "to provide further justification for the current allocation." This further justification, the court said, must conform to the provisions of the Magnuson-Stevens Act of 1976 and the 1855 Treaty of Neah Bay, both of which set precedent in the matter.

Plaintiffs in the challenge to the 1999 compromise included the Midwest Trawlers Cooperative, the West Coast Seafood Processors Association, the Fishermen's Marketing Association and the States of Oregon and Washington.