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Judge throws out attempt to halt Makah whaling

Tribe's treaty rights found to outweigh other interests

Three years to the day that the Makah nation returned to whaling by killing its first whale in more than 70 years, the small tribe on the northwest corner of Washington state yesterday won another affirmation of its treaty rights.

U.S. District Judge Franklin Burgess rejected calls from animal rights activists to halt Makah whaling until a lawsuit they filed challenging the hunt is resolved.

"Once again, this court has been called upon to address issues" concerning the tribe's right to hunt, Burgess's order denying an injunction began, noting previous challenges to the hunt.

"While the court is sensitive to plaintiffs' concern, these concerns are outweighed by the Makah Tribe's rights under the (1855) Treaty of Neah Bay," his order concluded.

Burgess said he was not convinced that the Makah and the federal regulatory agencies that conducted environmental assessments to allow the hunt were acting in bad faith, and that "there is not a substantial likelihood of plaintiffs' success on the merits."

"The record suggests that the only potential hardship facing the plaintiffs is the potential for aesthetic, emotional and economic harms," the judge said.

The Makah are the only native people in the lower 48 states to specifically retain a right to whale in their treaty with the United States. After giving up whaling in the 1920s, when whale populations were decimated by commercial hunting, the tribe initiated efforts to resume it for cultural, spiritual and subsistence reasons when gray whales were removed from the endangered species list in 1994.

Since then the tribe has tried to accommodate various environmental review processes by seeking U.S. government assistance through the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service. Among the stipulations are that they can conduct a traditional hunt in a dugout canoe but must kill the whale quickly and humanely with a large-caliber gun.

"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's courtroom Wednesday.

Plaintiff's lawyers saw it differently.

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

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.

"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 plaintiffs argue that the government failed to adequately study the impact of Makah whaling on public safety while hunts are under way. Activists also believe the government's environmental impact assessment, conducted a year ago in response to a 1998 lawsuit they filed, is flawed and want a more extensive environmental impact statement.

However, Burgess said the new plan "reflects thoughtful consideration and a thorough examination of all the environmental and safety concerns plaintiffs raise."

The activists also dispute assessments of so-called "resident whales," those that feed along the coast during the migrations of gray whales to and from winter breeding grounds off Mexico and summer feeding grounds off Alaska.

The 1998 challenge by activists backfired, however, when it resulted in a less restrictive assessment that allowed Makah whalers to hunt "resident" whales and to expand the range of the hunt.

In Neah Bay yesterday, Burgess's decision was seen as yet another affirmation of treaty rights that were specifically negotiated in return for Makah lands.

"Everybody is feeling great about it," said Arnie Hunter, vice president of the Makah Whaling Commission and traditional chief of Neah Bay. "It is important for us. We have a treaty right. It's U.S. law. It's a treaty that needs to be protected.

"We figured that's the way (the decision) would go because what is a federal judge going to do, not honor a U.S. treaty?" asked Hunter.

Hunter worked the chase boat during the tribe's successful hunt on May 17, 1999, when a whaling crew in a dugout canoe hunted and killed the first whale in more than 70 years, a female gray whale.

Despite the victory, no one was rushing out to get a whaling permit yesterday, Hunter said.

A Makah Whaling Commission representative is now attending the International Whaling Commission conference in Japan, where the tribe is trying for another portion of a subsistence harvest already granted to Russian native peoples.

The Makah tribe has been allocated five of the Russian peoples' quota in 2001 and 2002 and must use the whales for Makah ceremonial or subsistence purposes.

In addition, a key whaling captain is in Hawaii, building canoes with native Hawaiians, he said.

"Everybody is busy trying to earn a living. A lot of the guys are fishermen and there's nobody around. But it's nice to have our treaty rights affirmed," Hunter said.

The Associated Press contributed to this report. P-I reporter Mike Barber can be reached at 206-448-8018 or mikebarber@seattlepi.com

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