Makah Whaling Plans Delayed Again

Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002).

Stephanie Showalter, J.D., M.S.E.L.

For the second time in as many years, the Ninth Circuit Court of Appeals determined that the federal government’s environmental assessment of the Makah Tribe’s whaling plans is inadequate.1 The court also addressed whether the provisions of the Marine Mammal Protection Act (MMPA) apply to the Tribe’s proposed whale hunt.

Background
The Makah Tribe of Washington State is a traditional whaling tribe. The Makah are the only Native American tribe to have entered into a treaty with the United States to protect their whaling rights. In 1855, in exchange for the majority of the Makah’s land on the Olympic Peninsula, the Makah Tribe was awarded the “right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.”2 The Makah continued to whale until the late 1920s, traditionally targeting the North Pacific gray whale.

There are two distinct populations of North Pacific gray whales, an eastern stock, the California gray whales, and a western stock located in East Asian waters. California gray whales annually migrate between the North Pacific and Mexico. The gray whale was once considered an endangered species, but conservation measures were successful and the whale was removed from the endangered species list in 1994. With the delisting of the gray whale, the Makah began pursuing the revival of whaling off the coasts of Washington State and the Strait of Juan de Fuca.

In 1996, the United States agreed to assist the Makah in obtaining a gray whale aboriginal subsistence quota from the International Whaling Commission (IWC). Whaling is closely regulated in the United States by the Whaling Convention Act and the MMPA, and internationally by the IWC. The IWC sets the annual whaling quotas for a variety of whale stocks. The issue of aboriginal subsistence whaling deeply divides the IWC. Originally, the International Convention for the Regulation of Whaling (ICRW) allowed the taking of gray whales by aboriginal peoples only “when the meat and products of such whales are to be used exclusively for local consumption by the aborigines.”3 This language has undergone several alterations and now the ICRW schedule limits the use of the gray whale quota to aboriginal groups “whose traditional aboriginal subsistence needs have been recognized.”4 Unfortunately, the schedule does not specify whether the subsistence needs have to be recognized by the IWC or the individual countries.

The Environmental Assessment
The National Environmental Policy Act (NEPA) requires federal agencies to consider the environmental impacts of their actions. If a proposed federal action, such as the issuance of a whaling quota, would “significantly affect the quality of the human environment,” the agency must prepare an Environmental Impact Statement (EIS) thoroughly analyzing the environmental impacts.5 An agency may first prepare an Environmental Assessment (EA) to determine whether a full EIS must be completed.

In 1997, the first EA related to this controversy was prepared as a result of pressure applied by several conservation organizations. In the EA, the National Marine Fisheries Service (NMFS) made a “finding of no significant impact” and, therefore, did not prepare an EIS. The NMFS awarded the Makah a quota to take five gray whales per year. The “finding of no significant impact” was challenged in federal court. The district court granted summary judgment in favor of the NMFS. In 1999, the Makah resumed whaling and killed one whale. On appeal, the Ninth Circuit held that the EA was inadequate because it was prepared by the NMFS after, not prior to, making a commitment to the Makah to authorize the management plan.6 The court ordered the preparation of a second EA.

A new Draft EA was issued in January 2001. The EA was based upon the Makah’s management plan which restricted the hunt to a particular location to ensure the hunters only targeted migrating whales. Before the comment period on the Draft EA expired, the Makah amended their management plan. The Makah’s new plan contains no geographic limitations and allows the Makah to take up to five whales per calender year. In 2001, the NMFS issued its Final EA based upon the new management plan and made a “finding of no significant impact.” On December 13, 2001, the NMFS granted the Makah a quota of five gray whales in 2001 and 2002 and approved the Makah’s management plan.

In January 2002, the second Final EA was challenged by conservation organizations alleging violations of both NEPA and the MMPA. The district court held that the NMFS adequately evaluated the environmental impacts of issuing a subsistence whale quota. The district court also ruled that the Treaty of Neah Bay, which preserved the whaling rights of the Makah, took precedence over the requirements of the MMPA.

NEPA
There are three areas which the environmental groups claim the NMFS’s EA fails to adequately address: (1) the impact on public safety; (2) the controversy and uncertainty surrounding the possible effects of the whale hunt; and (3) the precedential effect of approval.

One of the factors an agency must address in an EA is the “degree to which the proposed action affects public health or safety.”7 The plaintiffs argued that the Makah’s proposed whale hunt, involving high-powered rifles, small boats, and powerful marine mammals, presents a serious safety issue. To evaluate the safety issues surrounding the whale hunt, the NMFS relied on an expert hired by the Tribe. The safety expert had previously made recommendations to the Tribe, which are reflected in the Tribe’s management plan, including requiring safety officers on the vessels and firing restrictions. The plaintiffs argued that the EA is deficient because the NMFS relied on a non-independent expert. However, a government agency may rely on experts hired by others if the agency objectively analyzes the qualifications and conclusions of the expert, which the NMFS did in this situation. After evaluating all the scientific evidence, the NMFS determined that public safety would not be endangered by the proposed whale hunt. The Ninth Circuit held that the NMFS findings with regard to public safety were not arbitrary or capricious.

When determining whether an EIS needs to be prepared, an agency must evaluate “the degree to which the effects on the quality of the human environment are likely to be highly controversial”8 or “highly uncertain.”9 The parties to this action agreed that the Makah whale hunt will not have a significant impact on the overall California gray whale population. The plaintiffs, however, argued that the impact on the whales in the local area is uncertain. A small number of whales arrive in the Makah’s proposed hunting area each summer. A portion of these whales are returning whales, whales which have been in the area in previous summers, although not necessarily returning every year. There is no scientific information available on the recruitment mechanism of this smaller group of whales. There is also no information on what impact the hunt will have on the local whales. The main concern is whether whales who have not previously visited the local area will do so to replenish the population, in the event that returning whales are killed during the Makah’s hunt. The NMFS failed to address this crucial question of impact on the local area. Because of the controversial and uncertain nature of the effects, the court determined a full EIS must be prepared by the agency.

An agency must also look at “the degree to which the action may establish a precedent for future actions with significant effects or represent a decision in principle about a future consideration.”10 The approval of the Makah’s whale hunt could have significant precedential impact. The declaration by the United States of the subsistence needs of one of its own aboriginal groups, instead of the IWC, could be used as a precedent for other countries to do the same, thereby undermining the authority of the IWC. As the EA failed to examine the potential precedential impact of the approval in other IWC nations, a full EIS is required.

MMPA
The environmental groups also argued that the United States issued a gray whale quota in violation of the MMPA. Under the MMPA, the taking of marine mammals is prohibited in the absence of a permit or a waiver. The federal government and the Makah Tribe claim that § 1372(a)(2) of the MMPA exempts the Makah’s whaling from this moratorium. A taking of a marine mammal is lawful under the MMPA if the take has been “expressly provided for by an international treaty, convention, or agreement to which the United States is a party and which was entered into before [1972] or by any statute implementing any such treaty, convention, or agreement.”11 The Ninth Circuit rejected the application of this exemption, reasoning that the approval of the Makah’s gray whale quota in 1997 does not predate the MMPA. Furthermore, it is unclear from the vague language of the 1997 aboriginal quota whether the IWC intended to benefit the Makah Tribe. The federal government cannot rely on the treaty exception to exempt the Makah’s whaling activities.

Because the Makah have a preexisting treaty right to hunt whales, the MMPA is applicable only if (1) the United States has jurisdiction where the whaling occurs, (2) the MMPA applies in a non-discriminatory manner, and (3) the application of the MMPA to the Makah’s treaty rights is necessary to achieve the conservation purposes of the statute.12 The court held that the MMPA is applicable to the Tribe’s proposed hunt. First, the U.S. has jurisdiction over the whaling, as the Makah plan to hunt in U.S. waters. Secondly, the MMPA’s moratorium applies to everyone except certain native Alaskans with subsistence needs and is, therefore, not discriminatory. Finally, the MMPA must be applied to the proposed hunt to effectuate the conservation purposes of the Act. If the Makah were allowed to proceed with its whale hunt free from regulation under the MMPA, future hunting could jeopardize the gray whale populations. Without regulation, the Makah could expand the quota or utilize more efficient technology to kill more whales. In addition, other tribes with treaties reserving traditional “hunting and fishing” rights might attempt to resume hunting without complying with the MMPA. The court concluded that “the Tribe has no unrestricted right to pursue whaling in the face of the MMPA.”13

Conclusion
The Ninth Circuit vacated the whale quota issued to the Makah Tribe by the United States. The NMFS must prepare a full EIS addressing the concerns raised by the court. In addition, the Tribe must apply for a permit or waiver under the MMPA before whaling may resume legally.

ENDNOTES
1. For an in-depth analysis of the court’s original decision in 2000, see Fletcher, New Assessment Required in Makah Whale Hunt, 20:4 Water Log 8 (2000).
2. Treaty of Neah Bay, 12 Stat. 939, 940 (1855).
3. ICRW, 62 Stat. 1716, 1723 (1946).
4. Anderson v. Evans, 314 F.3d 1006, 1013 (9th Cir. 2002) (citing IWC Chairman’s Report of the 49th Annual Meeting, 19 (1997)).
5. 42 U.S.C. § 4332(C) (2003).
6. Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000).
7. 40 C.F.R. § 1508.27(b)(2) (2003).
8. 40 C.F.R. § 1508.27(b)(4) (2003).
9. 40 C.F.R. § 1508.27(b)(5) (2003).
10. 40 C.F.R. § 1508.27(b)(6) (2003).
11. 16 U.S.C. § 1372 (a)(2) (2003).
12. Anderson, 314 F.3d at 1026.
13. Id. at 1029.

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