More on the legal opinion

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===== A message from the 'makahwhaling' discussion list =====

 

FROM WASHINGTON CITIZEN'S COASTAL ALLIANCE

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Here is the press release from Rep. Jack Metcalf's office. We thought we

should pass it on, as well as the article from Northwest Cable News.

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METCALF PLEASED BY NINTH CIRCUIT RULING HALTING MAKAH WHALING

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Washington, D.C. -- Congressman Jack Metcalf was pleased to announce a

positive court ruling today in his lawsuit to stop the Makah Tribe from

whaling off the Washington state coast. The Ninth Circuit United States

Court of Appeals ruled in favor of Rep. Metcalf, holding that the National

Marine Fisheries Service (NMFS) violated environmental laws in its rush to

grant the Makah the ability to kill whales.

 

" Can the Federal Defendants now be trusted to take the clear-eyed hard look

at the whaling proposal's consequences required by law, or will a new EA

(Environmental Assessment) be a classic Wonderland case of

first-the-verdict, then-the-trial? " the Court asked. " We have decided that

it is appropriate only to require a new EA, but to require that it be done

under circumstances that ensure an objective evaluation free of the previous

taint. "

 

" Today's ruling is a huge victory, " Metcalf stated, " I have been saying for

years that allowing the Makah tribe to continue to hunt will open the

floodgates to whaling worldwide. This ruling will put an immediate stop to

the senseless slaughtering of gray whales. "

 

Metcalf's appeal was a result of U.S. District Court Judge Franklin Burgess'

earlier decision not to implement an injunction to stop whaling by the Makah

Tribe. The appeal was argued February 8, 2000.

 

In 1996, Congressman Metcalf authored a resolution opposing a return to

whaling by the Makah Tribe. The House Resource's Committee's unanimous

approval of the resolution blocked the Makah from obtaining permission to

hunt. In 1997, Metcalf flew to the International Whaling Commission (IWC)

meeting to protest the Makah Tribe's planned hunt. He carried with him a

letter signed by 43 Members of Congress from coastal states in support of

his position. In 1998, Metcalf introduced H.Res. 425, a resolution

affirming Congressional opposition to commercial whaling.

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FROM NORTHWEST CABLE NEWS

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Court Overturns Makah Whaling Ruling

June 9, 2000, 03:30 PM, PST

 

 

 

 

 

 

A federal appeals court Friday overturned the ruling that allowed Washington

state's Makah Indians to resume whaling for the first time in more than 70

years.

 

A panel of the 9th U.S. Circuit of Appeals ruled 2-1 that the environmental

impact had not been adequately considered.

 

The decision reinstates a lawsuit filed by Rep. Jack Metcalf, R-Wash.,

sending it back before U.S. District Judge Franklin Burgess. Burgess had

dismissed arguments from the congressman and animal rights groups that the

environmental assessment for the hunt was inadequate.

 

" I'm very pleased with the ruling, " Metcalf told NorthWest Cable News. " I've

felt all along that I was right. When the lawsuit came along, we filed it

and now it's justified. I just don't feel we need to go to commercial

whaling again like we did 100 years ago. I just think it's wrong and we must

do what we can to stop it, and that's what I've done. "

 

When argued that whale hunting by the Makah Tribe wasn't commercial, Metcalf

replied that tribe is indeed hunting for commercial purposes.

 

" They filed papers with NOAA in order to start this hunt. At that time it

indicated that they did have intent to kill actually more than just whales,

it included sea lions and seals too, " said Metcalf. " This is a commercial

thing - they would be selling them to Japan as soon as they were able. "

 

John Arum, attorney for the Makah Tribe, spoke with NorthWest Cable News on

behalf of tribe in response to the ruling.

 

" The important thing is that the court did not question the fact that the

Makah tribe has the treaty right to hunt whales, " said Arum. " And it didn't

question the fact that the International Whaling Commission approved this

hunt under international law.

 

Arum said that the ruling addressed procedural problems relating to the

timing of the environmental assessment done by the Department of Commerce.

The agency reportedly started too late, and was ordered to redo the

environmental assessment.

 

" This is really just a temporary setback, " added Arum, " The agency will, of

course, redo the assessment. We are confident that the conclusion will

remain the same: that there is no significant impact from this hunt. "

 

Arum said the Makah Tribe needs to further analyze the decision and look at

their options before resuming the whale hunt.

 

" The court hasn't issued any injunction, but the court has told the district

court to suspend implementation of the agreement, " said Arum. " We need to

think about what that means in terms of actual hunting on the water. "

 

The case now goes back to federal court in Tacoma, Wash., for additional

proceedings, including a new environmental assessment to be done by the

government.

 

The Makah had hunted whales for generations until the 1920s, which

commercial whaling decimated the whale population. But the tribe moved to

resume the hunt after gray whales were removed from the Endangered Species

List in 1994.

 

The Makah, claiming whaling rights under an 1855 treaty, hunted and killed a

gray whale in 1999. Indian whalers have been out this spring but have not

been successful.

 

Biologists estimate 26,000 gray whales migrate each year between the waters

off Alaska and Mexico.

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