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Makah and the Courts

The first attempt by the U.S. government to secure a quota of gray whales for the Makah Indian tribe of Washington State was through the IWC in 1996; this attempt was unsuccessful (although the IWC subsequently agreed to a quota in 1997). Following this failed 1996 attempt, the U.S. entered into an "Agreement" with the Makah in 1997 that required developing the Makah Management Plan, which was to include time and area restrictions designed to avoid taking non-migrating "resident" whales. After the Agreement was concluded, the federal government then prepared and issued an Environmental Assessment (EA) which concluded that the hunt conducted on the migrating whales would have no significant impact on the environment. Anti-whaling groups filed a lawsuit in the federal district court (commonly referred to as the "Metcalf case") claiming that the EA was inadequate.

The federal district court upheld the EA, but on appeal by the anti-whaling groups, the 9th Circuit Court of Appeals reversed the federal district court decision. The Court of Appeals held the EA invalid, but not because it was technically inadequate. Rather, it was held invalid because it was prepared after the federal government concluded the Agreement with the Makah, indicating bias on part of the federal government towards approval of the hunt before conducting a review to determine if the hunt would have an adverse effect on the environment. The Court of Appeals ordered the federal government to prepare a new EA following the proper procedures, i.e., conduct an environmental assessment first, before taking further steps. The federal government and the Makah did not appeal the 9th Circuit Court of Appeals ruling and that ended the Metcalf case.

As a result of the decision in the Metcalf case, the federal government dissolved the Agreement with the Makah and began a new EA process. A second proposed EA was issued in January 2001. This second proposed EA, similar to the first EA, presented as the most favorable option a hunt that targeted migrating whales. Time and areas restrictions were proposed to avoid or minimize effects of the hunt on the "resident" whales. Similarly, the proposed new Management Plan included time and area restrictions to minimize the effects of the hunt on the “resident” whale population. But this second EA was also more favorable to the Makah by including an option with no time and area restrictions.

The second proposed EA was subjected to public review. Following the public review process, but prior to finalization of the second proposed EA, the Makah amended their proposed Management Plan by eliminating the time and area restrictions, thereby expanding the hunt to include the local non-migrating whale population. On July 12, 2001, the federal government published the final EA based on the amended Management Plan with a finding that the hunt would not cause any significant impact on the environment. The second EA did not evaluate the amendments made to the Management Plan that eliminated the time and area restrictions. Consequently, there was no opportunity for public comment on these amendments. Furthermore, the scientific studies upon which the second EA is based did not evaluate the amendments. All the scientific studies and the comments submitted during the public review process assumed a hunt limited by time and area restrictions in order to minimize or avoid the effects of the hunt on the "resident" population. But now the Tribe would be able to hunt without time and area restrictions, thereby expanding the hunt to include the local “resident” whales.

On January 10, 2002 a lawsuit (Anderson vs. Evans) was filed in the 9th Circuit Court of Appeals by a coalition of animal rights’ groups including the Fund for Animals and the Humane Society of the United States (the Plaintiffs). Two of several issues raised in the lawsuit relate directly to the earlier 9th Circuit Court ruling. The first issue relates to a challenge to the second environmental assessment (EA) issued by the U.S. Commerce Department on July 12, 2001. Under the National Environmental Protection Act (NEPA), the federal government must determine whether a proposed governmental action (in this case the approval of Makah whaling) significantly affects the quality of the environment. The first step in this NEPA determination is for the federal government to prepare an EA. The EA should provide evidence and analysis to determine whether the proposed federal action will significantly affect the quality of the environment.

If the EA determines the federal action will significantly affect the quality of the environment, the federal government must then prepare a more formal environmental impact statement (EIS) that provides a detailed and comprehensive analysis of the potential environmental impacts. With respect to the Makah hunt, the EA determined there would be no significant impact on the environment. Therefore, an EIS was not prepared. The Plaintiffs claim that the EA determination is wrong and that a more comprehensive EIS must be prepared.

The second issue claims that the federal government violated the provisions of the Marine Mammal Protection Act (MMPA) that prohibit the taking of a marine mammal in the absence of a permit or waiver. The federal government issued neither a permit nor a waiver under the MMPA to the Makah for taking the quota because of a commonly recognized legal principle that Indian treaty rights are exempt from the provisions of the MMPA. The federal government treaty with the Makah specifically protects the Makah right to hunt whales.

As a result of filing this lawsuit in January 2002, the federal district court in Tacoma issued a temporary restraining order on May 3, 2002 that prohibited the Makah from conducting a whale hunt through May 15. On May 15, the federal district court heard arguments to determine whether the temporary restraining order should be extended until the court could hear the lawsuit on its merits.

In its decision issued on May 17, the federal district court refused to extend the temporary restraining order until the case could be heard on its merits. The court determined that the lawsuit did not have a "substantial likelihood of success" on its merits because the Plaintiffs probably could not prove that the EA prepared by the U.S. government was arbitrary and capricious. Furthermore, the court found that the preservation of the Makah's whaling right in the 1855 Treaty of Neah Bay takes precedence over the requirements of the MMPA, consistent with the legal principle noted above. In other words, since the federal district court did not believe the lawsuit was likely to succeed on its merits, there was no basis for extending the temporary restraining order against hunting until making a final decision on the merits.

On May 31, the Plaintiffs appealed the May 17 federal district court ruling to the 9th US Circuit Court of Appeals. On June 7, the Court of Appeals upheld the federal district court ruling with no explanation or comment.

Although the Plaintiffs did not appeal the Court of Appeals decision of June 7, they did pursue their lawsuit on the merits in the federal district court. On August 8, 2002, the federal district court granted a summary judgment to the federal government and the Makah and dismissed the lawsuit. The summary judgment and dismissal was based upon the federal court's finding that the EA was not arbitrary and capricious and that the Treaty of Neah Bay takes precedence over the requirements of the MMPA.

The Fund for Animals and the Humane Society appealed the federal court summary judgment and dismissal to the 9th Circuit Court of Appeals. On December 19, 2002, a three-judge panel of the 9th Circuit Court of Appeals reversed the summary judgment and dismissal based upon a legal review of the two issues discussed above. In effect, this decision suspended implementation of the Agreement between the U.S. government and the Makah Tribe and removed the whaling quota issued to the Makah Tribe. The Court of Appeals found that the EA does not adequately address the impact of whaling on the local resident population of gray whales and the local ecosystem, thereby requiring the preparation of a full EIS under NEPA.

The crucial question before the Court of Appeals in this case, was whether expanding the hunt on this smaller group of local non-migrating whales could significantly affect the environment in the local area. Finding that the EA does not adequately address the question, the Court concluded that the answer to this question is both uncertain and controversial, thereby requiring the preparation of a full EIS under the guidelines of NEPA.

A second reason given by the Court for requiring a full EIS is the precedent the hunt may have upon other domestic groups who may wish to begin whaling. The U.S. government concluded in the EA that because the Makah Tribe is the only tribe with an explicit treaty-based whaling right, it is unlikely that approval of the Makah hunt will lead to an increase in whaling by other domestic groups. The Court stated that it could not agree with that conclusion, ruling that the U.S. government must consider if its support for Makah whaling creates a precedent that might have a consequent impact upon whales.

On the second issue, the Court ruled that the MMPA may regulate any pre-existing Makah Tribe whaling right under treaty if three conditions are met. The three conditions cited from a prior case are: (1) the U.S. has jurisdiction where the whaling occurs; (2) the MMPA applies in a non-discriminatory manner to treaty and non-treaty persons alike; and (3) the application of the statute to regulate treaty rights is necessary to achieve its conservation purpose. Regarding the first condition, the Court found that the U.S. has jurisdiction over the waters off the coast of the State of Washington where the whaling occurs. Regarding the second condition, the Court noted that only certain Native Alaskans with subsistence needs are exempted from the general ban on the taking of whales contained in the MMPA. Otherwise, it cannot be argued that the MMPA discriminates between treaty and non-treaty persons in the lower 48 states because members of the Makah Tribe are not being singled out any more than non-treaty persons.

Regarding the third condition, the Court found the critical question to be whether restraint on the Tribe's whaling pursuant to a treaty right is necessary to carry out the conservation purpose of the MMPA. In assessing this question, the Court noted that the major objective of the MMPA is to ensure that marine mammals continue to be significant functioning element in the ecosystem by not permitting them to become depleted below their optimum sustainable population size. To achieve this objective the Court further noted that a comprehensive moratorium and a permitting process was adopted. The Court concluded that without subjecting the Makah hunt to a review under the MMPA, there is no assurance that the takes will not threaten the role of gray whales as functioning elements of the marine ecosystem.

The Court expressed concern that if the Tribe's hunt could proceed without MMPA regulation, there is no certainty that future whaling by the Tribe would not jeopardize the gray whale population either through its current management plan or future expanded quotas. The Court noted that even though the Tribe has limited the scope of its hunt, it could improve upon and expand the hunt in the future under its treaty with the U.S. government.

Finally, the Court expressed concern that if the Makah hunt is exempt from application of the MMPA, other tribes could also claim the right to hunt marine mammals without complying with the MMPA. The Court noted that other Pacific coast tribes once hunted whales and that whale hunting by these tribes could be protected by less specific treaty language that reserves traditional rights for hunting and fishing.