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Court bars Makah whale hunt

By Hal Bernton
Seattle Times staff reporter

The 9th U.S. Circuit Court of Appeals has blocked the resumption of the Makah's gray-whale hunt, ruling yesterday that treaty rights do not exempt the tribe from the scrutiny of the federal Marine Mammal Protection Act.

"The intent of Congress cannot be hostage" to the intentions of tribal leaders, the three-judge panel wrote. It said it must be assumed that Congress intended its policies to "transcend the decisions of any subordinate group."

The federal appeals-court ruling is a victory for animal-protection groups that have fought for years in court to stop the Makah from resurrecting the gray-whale hunt off the Olympic Peninsula. One gray was taken in 1999, and the Makah have had the right to take up to five whales a year.

The ruling puts the hunt on hold, at least until the National Marine Fisheries Service completes what will probably be a lengthy review.

Brian Gorman, a spokesman for the service, said his agency was disappointed with the decision and that it would take a lot of analysis to figure out how to proceed in the next round of whale-hunt reviews, scheduled for next year.

The ruling also might have broader implications for the application of federal conservation laws to tribes that fish for salmon or rockfish under treaties, according to John Arum, an attorney for the Makah tribe.

"It's a very devastating decision if it stands," Arum said. "I think this case has implications that go way beyond whaling."

He said the decision runs outside the mainstream of 30 years of Native American law and that the tribe probably will seek a review by an 11-member panel of the 9th Circuit. The decision also might be appealed to the U.S. Supreme Court.

Animal-protection groups that launched the lawsuit hope the decision leads to a permanent end to whaling in the Lower 48 states.

"We are elated that the court has put a stop to this illegal and inhumane whale hunt," said Michael Markarian, president of The Fund For Animals.

Will Anderson, a Seattle plaintiff in the lawsuit, downplayed the ruling's effects on treaty rights and said he was a strong supporter of those rights.

The Makahs hunt under an 1855 treaty that gave the tribe "the right of whaling or sealing at usual and accustomed grounds and stations."

In the 1990s, the Makahs decided to renew the hunt after a hiatus of more than 70 years. By then, the gray-whale population had rebounded from near depletion, with more than 20,000 passing off the Olympic Peninsula on annual migrations.

The Makah's treaty rights helped win a quota from the International Whaling Commission and approvals from the National Marine Fisheries Service to conduct the first hunt in May 1999, despite lower-court challenges from animal-protection groups. The hunt brought an outpouring of tribal unity and cultural pride.

But since then, momentum for the hunt has waned, with the tribal council slashing funds for whaling.

Animal-protection groups have been continually in court to challenge the hunt.

In the successful appeal, the animal-protection groups argued that the National Marine Fisheries Service had ignored a federal permitting process required by the Marine Mammal Protection Act. That act, passed in 1972, banned most marine-mammal harvests except when the government issued special exemptions. But tribal harvests have often been conducted without marine-mammal permits.

The appeal also said the agency should have carried out a full environmental-impact statement on the effects of the hunt, rather than a shorter study known as an environmental assessment.

The Fund for Animals, The Humane Society of the United States and other plaintiffs were especially concerned about the hunt's potential effects on a small population of 30 to 50 grays that remain in Pacific Northwest waters for long periods rather than just passing through en route to Mexico birthing grounds or summer feeding grounds between Alaska and Russia.

Judge Marsha Berzon, who wrote on behalf of the panel, said that "there is at least a substantial question" whether killing five whales in a year's time from the smaller group might have a "significant impact" on the environment.

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com.

"Non-violence leads to the highest ethics, which is the goal of all evolution. Until we stop harming all other living beings, we are still savages."
- Thomas Edison


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