Judge lifts Makah whaling ban

Associated Press

SEATTLE — A federal judge Friday rejected activists’ call for a halt to Makah whaling until their lawsuit challenging the hunt is resolved, saying the plaintiffs’ case does not have a "substantial likelihood" of success.

Judge Franklin Burgess’ ruling in Tacoma came on the third anniversary of the tribe’s first successful gray-whale hunt in decades, on May 17, 1999. Earlier this month, he imposed a 10-day temporary restraining order that remained in effect until Friday’s ruling.

Burgess said he is not persuaded that the federal defendants acted in bad faith. And he said the plaintiffs had not proven "irreparable injury" would occur if the hunts proceed.

"The record suggests that the only potential hardship facing the plaintiffs is the potential for aesthetic, emotional and economic harms," he wrote. "While the court is sensitive to plaintiffs’ concerns, these concerns are outweighed by the Makah Tribe’s rights under the Treaty of Neah Bay."

The tribe’s 1855 treaty is unique in protecting its centuries-old whaling tradition.

"It sounds like he’s cleared the way for the tribe to issue permits to whaling captains that want to hunt, that want to take out a crew," said Seattle attorney Marc Slonim, who argued for the Makah in Burgess’ courtroom Wednesday.

The plaintiffs are considering an appeal of the ruling to the 9th U.S. Circuit Court of Appeals, said spokeswoman Kimberly Ockene with the public-interest law firm Meyer &Glitzenstein in Washington, D.C.

The initial response to Burgess’ ruling from the Makah reservation at Neah Bay was brief and to the point.

"That’s good," said Wayne Johnson, who served as whaling captain for the communal hunt in 1999.

Tribal whaling stopped in the early 20th century after world whale populations had been decimated in pursuit of whale oil. The Makah moved to resume the hunts after gray whales — whose population of about 26,000 may be the largest ever — were taken off the Endangered Species List in 1994.

"We have continued to uphold the Makahs’ treaty right to hunt whales as long as they don’t harm the population in any way. We’re pleased the judge is continuing to uphold that right," said spokeswoman Janet Sears at the National Marine Fisheries Service, the Commerce Department agency whose work is under fire in this second lawsuit challenging the hunt.

"I’m disappointed," said plaintiff Will Anderson, a Seattle activist. "But I’m sure the legal process will continue."

"It’s not a resolution of the merits of our case, and we’re still hopeful and going forward," said spokesman Michael Markarian with the plaintiff group Fund for Animals in Washington, D.C.

The plaintiffs contend the government has failed to adequately study the impact of Makah whaling on public safety while hunts are under way. They also have concerns about so-called "resident whales," which stop to feed along the coast during the epic migrations of gray whales between winter breeding grounds off Mexico and summer feeding grounds off Alaska.

Dismissing the government’s environmental assessment as deficient, they are seeking a more extensive environmental impact statement on the hunt’s impact.

The first lawsuit by activists also challenged government actions in the case, and resulted last year in a revised environmental assessment that was less restrictive than the first one.

"We’re obviously disappointed with the ruling, particularly because it means the Makah can now begin whaling even through there are still serious concerns about safety and the impact of the hunt on the resident whales," Ockene said.

The International Whaling Commission allocated the Makah 20 gray whales in 1997 — part of a subsistence whale harvest for Russian native peoples. The tribe is trying for another allocation at the IWC meeting now under way in Japan.

"It’s looking very positive right now," tribal attorney Jon Arum of Seattle reported earlier this week from Japan. He said a decision would likely come next week.