Fallout from gray whale court decision continues

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

 

FROM WASHINGTON CITIZEN'S COASTAL ALLIANCE

------------

 

HAPPINESS, RELIEF- AND A DEFINITE SENSE OF UNEASE

Sekiu, WA: 9:27am PDT

 

It is quiet today in Sekiu, as the fallout from yesterday's 'Metcalf v.

Daley' continues to settle. Reinforcements arrived late last night to

bolster the presence of activists based here, but no one is certain what

will happen next. However, we will keep a close eye on developments, and

patrols by the various vessels here will continue.

 

The Seattle television media has done a fairly good job of reporting this

event, but as usual, the Seattle P-I is putting out some incredibly biased-

and blatantly untrue- stuff in today's paper (see below). The Seattle Times

did a bit better job, but as you can tell, NO one is really certain WHERE

things go from here. We advise all of you to monitor the situation closely-

even though yesterday's ruling was a huge victory for us, there remains an

uneasy feeling that Makah whalers may yet try to kill a whale before the

month is out. As you read the articles below, you will see how confused the

situation has become.

 

However, one thing is certain: the various federal agencies involved in

pushing this hunt down our throats have GOT to be feeling the pressure this

weekend. Can you imagine the legal consequences for the US Coast Guard

should they attempt to enforce a whale hunt that has just been ruled

illegal- and suspended- by a US Court of Appeals? We also think that those

agencies who colluded with the Makah Whaling Commission in this debacle

should be starting to feel little drops of sweat down their collective

necks, as well- especially as they look forward to re-doing the entire

Environmental Assessment again! Think they had a hard time getting that

through last time? Imagine what they'll have to face THIS time!

 

As always, visit www.stopwhalekill.org frequently for more information!

*****

 

 

 

FROM BREACH MARINE PROTECTION

---

BRITISH GROUP WINS REPRIEVE FOR GRAY WHALES

 

US APPEALS COURT OVERTURNS MAKAH WHALING RULING

 

A United States federal appeals court overturned the ruling that allowed

Washington State's Makah Indians to re-start killing whales. The Ninth

Circuit Court of Appeals ruled in favour of the Yorkshire based Breach

Marine

Protection (BMP) and other plaintiffs, holding that the National Marine

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

the

Makah the ability to kill whales. In 1999, the Makah killed a female baby

Gray whale under this US government authorisation.

 

" 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.

 

" This is a major victory for the whales! " said David Smith, BMP's Campaigns. " The ruling is justification for four years of work and many

thousands of pounds spent. It has been a long, hard road through the US

court

system, but justice has finally been done " .

 

Initially, the maiming and slaughter of thirty four Eastern Pacific Gray

whales was at stake. But when a 'consensus' of Commissioners at the 40

country strong International Whaling Commission meeting (including the UK)

in

1997 allowed the United States to claim they had IWC authorisation to kill

Gray whales, this set a new precedent for whaling world-wide.

 

" Anyone indigenous to an area that had a history of whaling could now claim

the same 'rights' as the Makah. " Smith said in 1997. " It's called 'cultural'

whaling, the name for a loophole that nations looking to kill whales can

drive a coach and horses through. Here in Yorkshire they whaled from Hull

and

Whitby; I'm indigenous to this area, shall I now claim a 'cultural right' to

slaughter whales in the North Sea? "

 

The global implication of Makah whaling was one of the motivations which

took

Breach Marine Protection 6,000 miles to courts in Washington State and San

Francisco. " Another was that none of the big, household name 'anti-whaling'

groups were prepared to take up the issue in any meaningful way " said a BMP

spokesperson today. " A lot of groups made a big thing of this issue in their

newsletters but that's where it stopped. None in the UK were prepared to

help

with, or support, our legal challenge -- the likes of WWF, Greenpeace and

others saw this as a political hot potato that would burn the fingers of

their friendship with the almighty Americans " .

 

Both of these two groups have already backed attempts by the US government

to

weaken US " Dolphin-Safe " tuna import laws. Indeed, a report to the NMFS,

unearthed under the US Freedom Of Information procedure whilst preparing the

Appeal, alleges that Greenpeace US actually sent a letter of support to the

Makah.

 

Last year, Breach Marine Protection was banned from both IWC meeting and the

UK Whale Forum for a peaceful protest it undertook in support of Gray whales

at the IWC headquarters in Cambridge. Three requests were made by BMP, the

IWC was asked to:

 

a) place the Makah whaling issue on its agenda at Grenada (IWC meeting) in

isolation.

 

b) the Commissioners take a clear, public, open and pressure free vote

purely

on the USA Makah whaling proposal.

 

c) now that Gray whales have been killed by the Makah before the IWC

meeting,

the IWC holds the USA Government fully responsible for undermining the IWC -

an international Convention - and the international community, and uses any

redress open to the Commissioners under to it International Law or by

applying IWC sanctions against the USA.

 

These very reasonable requests sought a democratic vote (something that

should have happened in 1997) of IWC Commissioners on one of the most

controversial issues the IWC has ever considered. But instead of democracy,

a

behind-closed-doors meeting of IWC Commissioners acted as accusers, judge

and

jury, allowing BMP no representation and banned it from IWC meetings. Later,

the UK Commissioner wrote to BMP also banning it from UK Whale Forum

meetings

for the same peaceful protest.

 

" The United States Court proves that the US acted illegally by allowing the

Makah to kill whales. Breach Marine Protection acted to uphold the law by

demonstrating at the IWC headquarters, we will now be seeking reparation

from

both the IWC and the British government for defamation brought on by their

bans " BMP said today.

 

For immediate release.

 

Note: the next IWC meeting opens in Adelaide, Australia on the 3rd. July.

 

More, contact:

 

David Smith

0973 898282

 

3, St. John's Street, Goole, E. Yorkshire, DN14 5QL, UK

Tele: +44 (0)1405 769375

Fax: +44 (0)1405 769439

24hr.: 0973 898282

e-mail: BreachEnv

 

http://www.Breach.org: incl. the World-Wide Sign-On Petition in support of

the 'Peoples Resolution on the Abolition of Inhumane Commercial Slaughter of

Whales' (now with over 10,000,000 group sponsored and individual

signatures!)

*****

 

 

 

SAME OLD CRAP FROM THE P-I

----------------------------

 

Makah whaling decision reversed--but court ruling may not stop hunting

Saturday, June 10, 2000

 

By MIKE BARBER, SAM SKOLNIK and PAUL SHUKOVSKY

SEATTLE POST-INTELLIGENCER REPORTERS

 

A federal appeals court yesterday overturned a 1998 lower court decision

that allowed the Makah tribe to resume whaling after a 70-year hiatus.

 

But while a victory for animal rights groups, the ruling does not appear to

prevent the tribe from hunting whales and may in fact strengthen the Makah's

position that the hunt is legal.

 

The 2-1 ruling by the 9th U.S. Circuit Court of Appeals stemmed from a 1998

lawsuit filed by U.S. Rep. Jack Metcalf, R-Wash., and several animal rights

activists against the Makah and the U.S. government. The court said the

environmental impact of the tribe's whaling was not adequately considered.

 

The judges wrote that before the National Marine Fisheries Service can make

such a pact, it must take a good-faith " hard look " at the environmental

damages the agreement can cause.

 

Jonathan Lovvorn, a Washington, D.C.-based attorney for Metcalf and the

other plaintiffs, called the ruling " a huge vindication for what our clients

have been saying about the whale hunt. "

 

Lovvorn said the decision quashes the 1996 contract between the Makah and

the federal government that allows the tribe to kill whales until and unless

the government conducts a complete environmental assessment of the hunt.

 

" Unless the tribe begins whaling without the consent of the government,

they're stopped from doing it, " Lovvorn said. " That's what we wanted in the

first place. "

 

Lawyers close to the battle predict that a new environmental study could

take from a few months to more than a year, which could delay or prevent a

fall hunt or even whaling next spring.

 

" It's kind of devastating because we've been trying to jump through all the

hoops for years, and then this happens to us, " Ben Johnson Jr., chairman of

the Makah Tribal Council, said of the tribe's efforts to ensure the legality

of its return to whaling for cultural purposes.

 

Lawyers for the Makah and the government dispute the notion that the Makah

are even temporarily kept from whaling.

 

It is " an unsettled question, " said John Arum, a lawyer for the tribe. The

ruling " does not address the question of whether they can whale. There is

likely to be some delay. But the tribe wasn't going to be hunting this

summer anyway because the (whale) migration will end soon. "

 

Regardless, the decision affirms the Makah treaty rights to hunt whales and

acknowledges that the tribe has the permission of the International Whaling

Commission. Protesters have claimed it does not.

 

The tribe retained the right to whale when it signed the 1855 Treaty of Neah

Bay, surrendering most of its land on the Olympic Peninsula. Some Indian law

experts say the treaty allows the Makah to whale any time they wish,

regardless of the current judicial wrangling.

 

Reid Chambers, a former associate solicitor for the U.S. Interior Department

who has three decades of Indian law experience, said the 9th Circuit ruling

was aimed at the government and " didn't enjoin the Makah from doing

anything.

 

" It sounds like the Makah can go ahead and do their whaling while the

(fisheries service) is doing its environmental assessment, " Chambers said.

" No executive agency has any authority to abrogate the treaty. Only Congress

can. "

 

The appellate court, in an opinion written by Judge Stephen Trott,

questioned the objectivity of previous environmental assessments by the

government, noting that a policy choice to allow the Makah to hunt might

have " slanted " its analysis.

 

The judges not only called for a new environmental assessment, but for one

" done under circumstances that ensure an objective evaluation free of the

previous taint. "

 

The judges, however, did not say that federal environmental protection laws

take precedence over Makah treaty rights. At the most, a study would only

delay the tribe's exercise of its whaling rights, they wrote.

 

" The Makah's 70-year hiatus in connection with whale hunting suggests that a

modest delay occasioned by the need to respect (the National Environmental

Protection Act's) commands will cause no harm, " the judges said.

 

Dissenting Judge Andrew Kleinfeld, however, said the issue of treaty rights

vs. environmental concerns was settled in the long process the Makah took to

return to whaling.

 

" The federal government reconciled two policies, one favoring aboriginal

Indian interests and another favoring preservation of sea mammals, by

choosing to advance the Indian whale-hunting interests, " Kleinfeld wrote.

 

The lawsuit was filed by Metcalf and several animal rights, conservation and

whale watching groups, including Australians for Animals, Beach Marine

Protection, the Fund for Animals and Deep Sea Charters Inc., as well as

several individuals who oppose the hunt.

 

The defendants are the Makah tribe and U.S. government agencies, including

the National Oceanic and Atmospheric Administration and the National Marine

Fisheries Services, which approved the hunt when gray whales were removed

from endangered species lists in 1994.

 

Brian Gorman, spokesman for fisheries service office in Seattle, said the

1855 treaty remains intact.

 

While a question now may be pending regarding temporary whaling

restrictions, Gorman said, " The court was never asked to address the

question, 'Do the Makah have the right to hunt whales?' "

 

The Makah resumed whaling in October 1998 after Metcalf lost his suit in the

lower court. In May 1999, a whaling crew in a dugout harpooned a whale,

which was killed quickly with a .50-caliber gun.

 

The Makah are the only tribe in the continental United States to retain

whaling as a treaty right. The tribe stopped whaling in the 1920s when the

mammals became scarce, but petitioned to resume it as part of their culture

when Eastern Pacific gray whales rebounded from near extinction.

 

In 1997, the International Whaling Commission gave the United States a quota

of 20 whales that can be taken in Makah hunts through 2004.

 

Two Makah families have been hunting whales this spring as the mammals make

their northward migration along the Pacific coast. The migration, however,

is nearing its end, and one of the two cedar dugout canoes used was damaged

in recent weeks.

*****

 

 

 

A LITTLE BETTER EFFORT FROM THE SEATTLE TIMES

------------------

Court voids approval of Makah whaling

 

by Hal Bernton and Lynda V. Mapes

Seattle Times staff reporters

 

The 9th Circuit Court of Appeals yesterday suspended federal approval of the

Makah whale hunt, ordering a new study of environmental risks.

 

The ruling by a three-member panel of the court in San Francisco is a

victory for opponents of the Makah hunt who said federal officials flouted

environmental laws by agreeing to the hunt long before the National Marine

Fisheries Service (NMFS) had done its environmental review. The court found

fault with the timing of the process rather than the content of the report.

 

The order will take effect later this summer, and it's unclear what impact -

if any - the ruling will have on the Makahs' gray-whale hunt. The tribe in

Neah Bay, Clallam County, last year killed its first gray in more than 70

years.

 

Opponents hope the whaling will be shut down for at least a few years while

federal officials perform a lengthy, detailed review. In the meantime, they

hope they can rally more public opposition to the hunts.

 

" We believe, when the government looks with an unbiased eye, they will not

approve the hunt, " said Mike Markarian, executive vice president for the

Fund for Animals, one of several national and international animal-rights

groups that joined U.S. Rep. Jack Metcalf, R-Langley, in the lawsuit.

 

But Keith Johnson, president of the Makah Tribal Whaling Commission, called

the ruling a " temporary setback " that will have little effect on the hunts.

 

By the time the ruling takes effect in 52 days, the spring whaling season

will be closed. During this season, the tribe has embarked on nine hunts,

throwing seven harpoons but not striking any whales, Johnson said.

 

The hunt is scheduled to resume in the fall. By then, the Makah whalers hope

the new study will be finished and approved by the courts.

 

The study will be conducted by the Northwest regional office of the NMFS.

Agency officials said they're unsure how long it will take.

 

" It normally takes a couple of months. But this will certainly be subject to

court scrutiny, so I know we will want to be careful, " said Brian Gorman, a

spokesman for the NMFS.

 

The Makahs secured the right to whale under an 1855 treaty that ceded their

claims to Olympic Peninsula lands. The lawsuit did not challenge those

treaty rights. Instead, it focused on the federal review process for the

hunt under the National Environmental Policy Act.

 

Appeals Court Judges Stephen Trott, Barry Silverman and Andrew Kleinfield

reviewed the lawsuit. It was a 2-1 decision.

 

In the majority opinion, Trott and Silverman said the NMFS had violated the

law by failing to conduct a review that was timely, objective and " in good

faith, not an exercise in form over substance. "

 

In 1996, the federal agency promised to help the Makahs gain approval for

the hunt from the International Whaling Commission (IWC). The judges said

that commitment to the tribe biased the agency as it launched the

environmental review, which wasn't completed until Oct. 17, 1997.

 

In his dissenting opinion, Kleinfield said the government did take " a hard

look " at the environmental consequences of the hunt and so long as that was

done, the timing was not critical.

 

The Makahs have international approval to take up to 20 whales over five

years ending in 2002. The study concluded the hunt would not pose any risks

to a gray-whale population estimated at more than 26,000.

 

But under the majority opinion, the agency must redo the study under the

supervision of the U.S. District Court in Tacoma.

 

John Arum, attorney for the tribe, said the ruling was narrow in scope and

had little immediate effect.

 

" It's a very limited ruling. What it means is some delay while they go back

and do an environmental assessment. But there is a psychological effect. It

puts back into play again all the issues that were raised before. "

 

Those issues include the effects of the hunt on the whale population and on

whale watching.

 

Eric Glitzenstein, attorney for Metcalf, said the ruling made a statement

about the importance of unbiased, vigorous governmental review.

 

" The court found the government clearly committed itself to supporting the

hunt before looking at what its impact would be. It was essentially a

forgone conclusion, while they were simultaneously pretending to study the

hunt in an environmental assessment, " Glitzenstein said.

 

" The public's participation was essentially pro forma and pointless. "

 

Alberta Thompson, the tribe's most outspoken opponent of the hunt, was

delighted by the ruling.

 

" Anything that will save the whales, that's what I am for, " Thompson said.

She sees no subsistence need for the whale or genuine revival of tradition

in the hunt.

 

" They are not that hungry. And tradition? I don't see any tradition in

towing a canoe with a motorboat. That's not the whaling I heard my elders

talk about. " They said it would get kids off drugs and booze, but this town

hasn't changed; it's like any other town. "

*****