MAKAH WHALE EIS

 

In response to Federal Register Doc. 081905B

 

“Notice of Intent to Conduct Public

Scoping Meetings and to Prepare an

Environmental Impact Statement

Related to the Makah Tribe’s

Continuation of Treaty Right Hunting

Of Gray Whales”

 

To: Kassandra Brown

National Marine Fisheries Service Northwest Region

Building 1, 7600 Sand Point Way

Seattle, Washington 98115

 

Prepared by

Dan Spomer

PO Box 123, Sekiu, Washington 98381 

Submitted: October 24, 2005

 

 

 

 

 

 

 

I submit these comments in response to the notice posted by the National Marine Fisheries Service (NMFS), an agency of the National Oceanic and Atmospheric Administration (NOAA), on August 25, 2005 in the Federal Register (FR Doc. 081905B)

 

These comments should be included in the permanent record of the pending Draft Environmental Impact Statement (DEIS) in which NMFS will assess the impacts of whether or not to award a waiver of the moratorium on take under the Marine Mammal Protection Act (MMPA) to the Makah Tribe.   

 

This issue seems to have more in common with a Class B horror movie than with official government policy. In a class B movie, just when you think it is safe to relax, the zombie leaps back from the dead to terrorize the principles. Also like a poorly made horror movie, the zombie can (and will) come back just as often as the director can get away with it in the script. If he so desires, the director can have the zombie killed twenty times, but make it arise from the dead yet again and scare the audience twenty one times. It is the nature of low-brow, low-quality films to get the most bang for the buck, which usually leads to illogical, implausible plot twists to keep the audience from leaving the theater.

 

And that’s really what we’re dealing with here: The Makah whaling issue is the zombie, NMFS is directing a very poorly made horror film, and the American public is being forced to “look in the basement” one more time, even though everyone watching this pathetic movie knows exactly what is going to happen when we do get down to the basement.

 

In this particular half-witted production, the only way the public is going to get anything acceptable is for another director to step in.

 

NMFS is incapable of producing anything even remotely unbiased on this issue and should step down from any involvement with this DEIS. A documented history of bias, lying, redacted documents, moronic public quotes and blatant institutional bias leave NMFS no other choice but to step aside. However, If NMFS does continue as the lead agency in the production of this DEIS, I am convinced it will have as much “pro-whaling bias” as the original and subsequent Environmental Assessments (EA) issued in 1997 and 2001, because NMFS has never shown a willingness to take the “hard eyed look” at this issue that logic, common sense (not to mention the Ninth Circuit Court of Appeals) demands.

 

NMFS has twice now opted for a predisposed and politically influenced finding of “no significant impact,” even as the agency has lost twice in federal court in trying to justify their obviously flawed position. NMFS and NOAA have acted shamefully and have betrayed the trust of the American people for well over nine years now on this matter. It remains quite remarkable that the only reason the agency is now complying with the National Environmental Protection Act (NEPA) and the Marine Mammal Protection Act (MMPA) is because of legal action brought by concerned citizens. Said another way, ordinary citizens had to force the agency to do its job.

 

We protest in the strongest possible manner the behavior of NMFS and NOAA to date on this issue. While paying lip service to the concept of “public involvement,” NMFS and NOAA have shown a blatant and callous disregard for any opinion, comment or question that dares to cross over the “company line,” namely, both agencies’ biased and predisposed attitude on this issue. If you don’t believe us, simply read the rulings of the Ninth Circuit Court of Appeals in the two previous court decisions, or listen to the audio recording of oral arguments in front of that same court on October 28, 2002. There, the justices noted that:

 

"They [NMFS] switched gears because the TRIBE switched gears.”[1] (Emphasis ours)

  

NMFS’ record on the Makah whaling issue is nothing short of embarrassing:

 

·        The original EA, issued in 1997, was challenged in court shortly thereafter, and was convincingly struck down by the Ninth Circuit Court of Appeals in June of 2000.[2]

 

·        The second EA, issued in 2001, was challenged in court shortly thereafter (again), and was convincingly struck down (again) by the Ninth Circuit Court of Appeals in December of 2002.[3] [4]

 

 If this DEIS is as defective in process or content as previous assessments, or displays anything other than an “objective evaluation free of the previous taint,” as ordered by the Ninth Circuit Court of Appeals, we are certain that this DEIS will also be challenged in the U.S. courts, a venue where NMFS’ record is not very impressive lately.

 

Two assessments, two lawsuits, followed by two convincing losses by the federal government? Is this the perception that NMFS chooses to present to the American people? Is NMFS so stubborn and bent toward a predisposed result that they will waste the resources of the American people in blindly pursuing a course of action that makes a mockery of the public’s involvement? When will NMFS get the hint that the very basic premise of their position just might be wrong, illegal and unjustifiable? What will it take for NMFS to come out and say, “Look, our position is obviously flawed, and in order to fulfill our agency’s obligations to the American people and uphold federal law, we’re going to take another look and see if we just plain made a mistake in promoting this whale hunt?”

 

Interestingly, it should be noted that NMFS has found itself on the wrong end of the law on a growing number of occasions. One report concludes that ten percent of NMFS staff is involved defending the agency from lawsuits! TEN PERCENT! [5] Also of note, NMFS is experiencing an increasing number of losses in court, as detailed in a report issued by the National Academy of Public Administration. Whereas NMFS was winning 83 percent of its cases prior to 1997, from 1998 to 2001, their record is 19 wins and 23 losses.[6]

 

While numbers like that will get you fired in private business and professional sports, apparently it is “business as usual” for NMFS. We think these numbers indicate an agency-wide management problem, which should be at least discussed in the DEIS.

 

The Academy concluded that “appropriate alternatives must be studied, developed and described when preparing EAs and EISs.” The Academy report also noted the following:

 

“In recent years, NMFS’ record under NEPA has not been good. Courts have become increasingly adamant that the agency must conduct adequate EAs that consider reasonable alternatives and cannot use EISs dating back fifteen to twenty years. The cumulative effects of the many federal actions impacting fisheries must be considered.”

 

NMFS representatives have certainly done nothing to clear the “previous taint” or “pro-whaling bias” from previous assessments, either in 1997 or 2001. On February 1, 2001, NMFS spokesman Brian Gorman stated: “One unalterable fact exists that the anti-whaling groups can't stomach. The Makahs have an absolute treaty right to whale. We can't ignore their treaty. We can't say that a large portion of the population doesn't want you to go whaling, so we are going to ignore the contract we signed with you 150 years ago."[7]

 

Further media reports indicate the completely expected predisposition and bias of previous assessments:

 

  “Although one of the alternatives under consideration rejects the hunt completely, there is virtually no chance the Fisheries Service will go that route.”[8]

 

The following memo shows yet another example of institutional bias regarding the Makah whaling issue. It should be noted that this memo was written before the 2001 Final EA was released:

 

“National Ocean Service (NOS) Olympic Coast Sanctuary staff is finalizing the consultation process for the Makah whaling Environmental Assessment. Whaling is anticipated to resume sometime this summer.”[9] (Emphasis ours)  We are left wondering just how the NOS came to this conclusion before the Final EA was even released!

 

On August 25, 2005, Brian Gorman again indicated the outrageous pro-whaling bias of NMFS by stating “that it might be months more to grant a waiver (after

the EIS) from the MMPA”[10] as if it were a done deal, and "the bottom line is, we support the tribe's treaty right to hunt whales.[11]" And after the Ninth Circuit Court’s decision in Anderson v.  Evans, Gorman was quoted as saying; “Clearly, we're disappointed."[12] Disappointed? Why? Is NMFS disappointed because the Court upheld federal law? What kind of statement is that coming from the official NMFS spokesman? Could Gorman possibly be any more blatant in confirming the institutional bias in NMFS inherent to this issue?

 

Now NMFS has the gall to ask the American people to trust them as the agency prepares a DEIS?

 

The responsible agencies are bound here by court mandate and federal law to comply with the National Environmental Protection Act (NEPA). NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1.

 

The fundamen­tal objective of NEPA is to ensure that an “agency will not act on incom­plete infor­mation only to regret its decision after it is too late to cor­rect.” [13]

 Accordingly, agencies are obligated to “make relevant environmental information -- including ‘[a]ccurate scientific analysis’ and ‘expert agency comments’ -- ‘available to public officials and citizens before decisions are made and before actions are taken.’”[14]

 

The purpose of these requirements is to ensure that agencies do not use the NEPA process to “rationalize or justify decisions already made,” or take action prior to the NEPA process that “limit[s] the choice of reasonable alternatives.”[15]

 

Among the critical purposes of the statute are to "insure that environmental information is available to public officials and citizens before decisions are made and actions are taken," and to "help public officials make decisions that are based on understanding of environmental consequences."  Id. at § 1500.1(b)-(c)

 

In determining whether an Environmental Impact Statement (EIS) is required, the agency must analyze both the "context" and "intensity" of the impacts of the proposed action. Id. at § 1508.27.

 

As to "context," the agency must consider such factors as whether the action has impacts on "society as a whole, the affected region, the affected interests, and the locality." Id. at § 1508.27(a).

 

As to "intensity," the agency must consider whether the action involves "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands [and] ecologically critical areas," Id. at § 1508.27(b)(3);

 

"[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial," Id. at §1508.27(b)(4);

 

"[t]he 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," Id. at §1508.27(b)(6);

"the degree to which the action is related to other actions with . . . cumulatively significant impacts," Id. at § 1508.27(b)(7);

 

and whether "the action threatens a violation of Federal . . . law or requirements imposed for the protection of the environment." Id. at § 1508.27(b)(10)

 

The presence of one or more of these factors should result in an agency decision to prepare an EIS. (Public Service Co. of Colorado v. Andrus, 825 F.Supp. 1483, 1495 (D. Idaho 1993)).

 

If, after fully evaluating these factors, an agency decides not to prepare an EIS, “it must supply a convincing statement of reasons to explain why a project’s impacts are insignificant.”[16] This “statement of reasons is crucial to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project.”

 

We are pleased to make NMFS aware of the CEQ regulations at §1508.13, which defines a "Finding of No Significant Impact (FONSI) as a document "presenting the reasons why an action . . . will not otherwise have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared.”

 

We wish NMFS in general, and NMFS spokesman Brian Gorman in particular, to take note of the highlighted term “human” and the context in which it is used.

 

[T]o prevail on a claim that [a federal agency] violated its statutory duty to prepare an EIS, a ‘plaintiff need not show that significant effects will in fact occur.’  It is enough for the plaintiff to raise “substantial questions whether a project may have [a] significant effect’ on the environment.”[17] (Emphasis ours)

 

In our previous comment letters in response to previous EAs, we stated that  “an Environmental Assessment alone does not properly address the issue of Makah whaling; an Environmental Impact Statement is not only necessary from a logical point of view, it is required by law. “ At least NMFS is finally, if not begrudgingly, complying with at least one federal law- NEPA. It only took two orders from Ninth Circuit Court of Appeals to make that happen.

 

It is an undeniable fact that this issue has had a major impact on "society as a whole, the affected region, the affected interests, and the locality." It is an undeniable fact that the effects of this issue "on the quality of the human environment are likely to be highly controversial." Based on two separate court rulings, it is quite obvious that this issue "threatens a violation of Federal . . . law or requirements imposed for the protection of the environment."

 

 

 

INTERNATIONAL WHALING COMMISSION

 

 

We now wish to comment in advance on what will no doubt be a cornerstone of NMFS strategy in the pending DEIS, repeatedly (and wrongly) championed in previous assessments, and stated thusly in the 2001 Final EA:

 

 "In 1997, the International Whaling Commission (IWC) approved a quota of 620 gray whales for an aboriginal subsistence harvest during the years 1998 through 2002[18]."

 

 This statement was misleading, is misleading and continues to be misleading. If NMFS continues to use this line in their efforts to confuse and befuddle the American people, we will continue to strongly oppose that deceptive practice.

 

Now NMFS is stating that: “At its 2002 annual meeting, the International Whaling Commission (IWC) approved a quota of 620 gray whales for an aboriginal subsistence harvest for the years 2003 through 2007. The basis for the quota was a joint request by the Russian Federation (for a total of 600 whales) and the United States (for a total of 20 whales). The subsistence and ceremonial needs of the Makah Indian Tribe were the foundation of the United States' request to the IWC.”[19]

 In a low-brow horror film, this is where the door starts creaking and the sound of menacing footsteps approach.

 

 The casual reader of the above paragraph could perhaps ascertain that there was a quota for NMFS to “give” to the Makah, when it fact, that is untrue. We will document this quite thoroughly (below), but stated quite simply here, NMFS will need to do a far better (and more thorough) analysis of this crucial point in the pending EIS than it has done in the past. We suggest a good starting point for NMFS would be to tell the truth for once.

 

It is well established that the U.S. government, at the behest of the Makah Tribe, submitted requests to the IWC in 1996 and 1997, requesting a quota of gray whales for the Makah Tribe. It is also well established that the U.S. government was forced to abandon this request at the 1996 meeting due to strong opposition from the member nations of the IWC, the Congress of the United States, and a large number of citizens, both from the U.S. and abroad.

 

 The U.S. delegation, forced to abandon its 1996 and 1997 efforts on a “stand-alone” Makah quota, was forced to resort to “back-door” dealings with the Russian delegation. The details surrounding this "Russian deal" are gradually coming to light, but it should be noted that the U.S. government has been less than enthusiastic in releasing the full story, preferring instead to parcel out various memos and notes, many of them redacted. In fact, the responsible agencies have been rather stubborn in sharing any factual evidence on this “Russian deal” whatsoever.

 

None other than former Makah Tribal Chairman Ben Johnson, Jr. wrote:

 

"To go to the length of negotiating with the Russian government to obtain an agreement to share the gray whale quota was remarkable..."[20]

 

Remarkable, indeed. Other adjectives that come to mind are “illegal” and “unethical.” We are convinced, based on the small amount of information made available by the U.S. government so far, that the truth of the "Russian deal" will eventually reveal a willful and deliberate attempt on the part of the U.S. government to circumvent federal law. It’s only a matter of time before the truth will come out.

 

Typical of this subterfuge is the following e-mail:

 

"Dr. Baker, after leaving you in Tokyo, Bob Brownell and I traveled to Barrow for what we thought were going to be fairly routine meeting with the AEWC and with representatives from Russian Native groups and the Russian Government.”


(PAGE AND A HALF REDACTED)


”The following plan has been discussed with the IWC team and all agree that it is a promising approach. If you agree, then we will take action as noted below under implementation. The U.S. proposal: In 1997, the U.S. and Russia would jointly seek bowhead and gray whale quotas which meet the combined needs of our respective Native groups for each species;” (REDACTED)

 

“These quotas would begin in 1998 and last for as long as possible- AEWC suggested 10 years!"


(TWO PAGES REDACTED)


"If all U.S. parties agree, then the IWC team needs to flesh out the proposal in preparation for a bilateral meeting in Russia to develop the joint proposal to IWC and agree on its bilateral aspects. In Barrow, we tentatively spoke of meeting in Moscow in July to do this."[21]

 

Here is another example of how the U.S. government is keeping details of the “joint quota” strategy away from the public:

 

"The Makahs are aware that the U.S. can work with Russia and present a "combined" request with the Russian Federation at this year's IWC meeting. The Makahs are very receptive to a sharing arrangement in which they are on an equal footing with the Russian natives."[22]


(THREE AND A HALF PAGES COMPLETELY REDACTED)
           

On a side note, I contend that NMFS has produced more redacted documents on the Makah issue then the entire federal government has produced on any number of classified or controversial issues!

 

NMFS claims that a joint quota was given to the Chukotka and Makah tribes, but after repeated requests by conservation and anti-whaling groups, the U.S. has still not released any documentation that corroborates this claim, even though such documentation would go far in strengthening their position.

 

The Ninth Circuit Court of Appeals addressed this issue three separate times in the December 20, 2002 opinion in ‘Anderson v. Evans’:

 

·        “…it appears that the IWC quota language concerning the aboriginal subsistence exception was left purposely vague. The quota issued jointly to Russia and the United States was limited to whaling by aboriginal groups “whose traditional aboriginal subsistence needs have been recognised.” Conspicuously absent from this phrase is any delineation of who must do the recognizing or how.”

 

·        “We cannot tell whether the IWC intended a quota specifically to benefit the Tribe. (emphasis ours) Even if timing and specificity were no problem, the surrounding circumstances of the adoption of the Schedule cast doubt on the intent of the IWC to approve a quota for the Tribe.”

 

·        “Because the IWC adopted the “has been recognised” language in response to opposition to the Tribe’s whaling, and because it was not a foregone conclusion that the Tribe would satisfy the definition of aboriginal subsistence whaling, the IWC’s intent to approve a whaling quota for the Tribe has not been demonstrated. (emphasis ours) The “expressly provided for” requirement of § 1372(a)(2) is not satisfied.”

 

It must be noted that at this point, there exists not ONE SINGLE DOCUMENT to corroborate the U.S. government’s claim of an IWC-approved "quota" for the Makah Tribe. We invite NMFS to prove us (and the 9th Circuit Court of Appeals) wrong on this matter, as much of the government’s legal justification of the Makah whale hunt rests on this vital point. However, the onus is on NMFS to prove such authorization exists, NOT on the public to prove it does not.

 

Obviously, personal opinions and vague interpretations by various individuals have been floating around for some time on this issue. However, the American public demands that the evidentiary lack must be filled from the text of IWC resolutions and the debate of record.

 

Instead of proof, NMFS offers instead a press release crafted by the U.S. IWC delegation[23] during the 1997 IWC meeting in which they unilaterally claim IWC approval for whale-hunting activity by the Makah Tribe.

 

The press release states, in part; “The International Whaling Commission today adopted a quota that allows a five-year aboriginal subsistence hunt of an average of four non-endangered gray whales a year for the Makah Indian Tribe.”

 

 This press release is an entirely inaccurate interpretation of what actually transpired at the 1997 IWC meeting. Not only do we reject this document as misleading and utterly false; we claim that NMFS issued this press release as part of well-orchestrated campaign to mislead and confuse the American people.

 

The U.S. claim of a "quota" via this press release is further undercut by comments in a letter from the Department of Justice regarding that document:

 

 “[The press release] is not an official document of either the federal government or the IWC. The “press release” does not represent the final official action of the IWC. This document is no more relevant to the federal decisions in this case than a newspaper article reporting on the events at the IWC.“[24] (Emphasis ours)

 

To date, NMFS has refused to address a very specific question regarding this matter: We ask that question again here:

 

If the one and only existing document offering “proof” of an IWC-approved quota for the Makah tribe is not recognized as an official document by the U.S. Department of Justice, nor as official action of the IWC, why does NMFS continue to insist that such a quota was given?

 

We demand that NMFS properly address this question in the pending EA, and put a halt to the trickery and confusing misinterpretations previously (and currently) put forth to the American people.

 

We contend that the U.S. government has absolutely no documentation to back their claim of an IWC-approved quota that could possibly apply to the Makah Tribe and challenge NMFS to produce such documentation.  We further demand that such documentation be submitted, included and discussed IN DETAIL within the pending DEIS.

 

Further, if NMFS wishes to gain the trust of the American people on this matter, they must make available the redacted documents mentioned above, as well as any other relevant redacted documents.  We demand that NMFS do just that, and do so immediately. These documents MUST be made available in the pending DEIS.

 

Why does NMFS continue to claim that their behavior and decision-making in the Makah whaling issue has been above-board and honest, yet the agency still feels compelled to redact a great number of documents associated with that issue?

 

             We would like to add that a number of member nations of the IWC have gone on record stating that they recognize a quota given in 1997 to the Chukotka people of Russia, but that they explicitly do NOT recognize any such quota given to the Makah Tribe.

 

The Australian IWC delegation issued a statement in response to the US delegation’s press release, declaring that; 

 

“The Australian delegation made it clear that it accepted the Chukotka Natives’ request and claim clearly met the requirements of the… amendment in relation to the recognition of both traditional subsistence and cultural needs; whereas the request and claim of the Makah people did not.” [25] (Emphasis ours)

 

Further in the statement, the Australian delegation questions the accuracy and, indeed, the integrity of the US delegation, especially as it applies to the U.S. delegation’s 1997 press release;

 

“The Australian delegation has noted a News Release issued by the United States delegation which claims, inter alia, that the Commission has:

 “Adopted a quota that allows a five year aboriginal subsistence hunt” by the Makah people;

 

Indicated “its acceptance of the United States’ position that the Makah Tribe’s cultural and subsistence needs are consistent with hose historically recognized by the IWC”, and

 

“Recognised the cultural and subsistence need of the Makah Tribe.”

 

“The Australian delegation explicitly rejects each of these claims as false (Emphasis ours) and as giving an entirely erroneous interpretation of both the schedule amendment as passed (with the Australian further amendment) and the decision of the Commission itself.”

 

Further comments from the Australian delegation:

 

“Claims that the passage of the schedule amendment (as further amended by the Australian initiative) constitute an acceptance or recognition by the Commission of the validity of the Makah claims are false.” (Emphasis ours)

 

“Clearly the Commission, as the only competent authority in the matter, has recognised the claims of the Chukotka Natives but not those of the Makah people.” (Emphasis ours)

 

We note also that the Australian delegation was not alone in contesting the US delegation’s falsehood. The IWC delegation from the United Kingdom stated that in agreeing to the referenced quota, it “made it clear that our agreement did not imply that we accepted the validity of the case made on behalf of the Makah.”[26] (Emphasis ours)

 

Even Dr. Ray Gambell, then Secretary of the IWC, wrote in 1997[27]; “The IWC has specifically not passed a judgment on recognising or otherwise the claim by the Makah Tribe, since the member nations were clearly unable to agree.” (Emphasis ours)

 

We further note that other countries expressed grave doubt and concern over the Makah issue at the 1997 IWC meeting. Herewith are a number of comments from the minutes of that meeting:[28]

 

“Many delegations… referred to previous debates on this issue concerning the lack of continuation and the inability of the Makah to show that the nutritional need met the criteria required under aboriginal subsistence. They were sympathetic to the efforts of the indigenous people… but still felt that the aboriginal subsistence criteria had not been met. The strict requirements for aboriginal subsistence had not been shown.”

 

“Spain queried the legal aspects of the domestic treaty and USA international obligations under the ICRW.”

 

“A number of delegations expressed the view that the domestic obligations of the US Government were not to be considered by the IWC and should in no way affect the USA’s obligations under this and other international treaties.”

 

“Many delegations drew a distinction between the (Chukotka and Makah) requests.”

 

“(Australia) called on the USA to prevent a resumption of whaling by its citizens.”

 

The Netherlands, Switzerland, Spain, Chile, Brazil, South Africa and the Solomon Islands indicated that they would not break a consensus, reservations were expressed on the Makah need.”

 

“New Zealand also supported the Chukotka request but a personal visit by the Commissioner failed to find the Makah need and was disappointed with the link between the two requests.”

 

Further, the Marine Mammal Commission has verified that a serious discrepancy exists in the U.S. claim. In reference to the 1997 IWC meeting, the Commission states that; “Other delegations at the meeting, however, were less sure that the IWC had acted to recognize the subsistence and cultural needs of the Makah and contended that the tribe was not entitled to take gray whales."[29] (Emphasis ours)

 

We also direct your attention to an Amicus Brief filed in the Metcalf v. Daley case, in which Chris Stroud of the Whale and Dolphin Conservation Society states:

 

“…As a signatory to the ICRW, the USA has recognized that the IWC is the only competent body to issue quotas for aboriginal subsistence hunts, and that only the IWC can authorize an aboriginal subsistence claim through its recognition of a " needs " claim.  Hence, the addition of the phrase " whose traditional aboriginal subsistence and cultural needs have been recognized "-- even without the extra words " by the IWC "--should be sufficient to establish that the IWC must specifically recognize each group's aboriginal subsistence needs before it can be authorized to hunt whales.”[30] (Emphasis ours)

 

Ex-congressman Jack Metcalf (R-WA) stated on the floor of the United States Congress: 

 

“The United States intends to take four gray whales from the Russian quota and allocate them for harvest by the Makah tribe in Washington State. However, many delegates to the IWC are now saying that they did not approve the controversial Makah proposal.” (Emphasis ours)

“Evidently, as I stated on the floor, on the House floor last night, the United States has tried to go through the back door by cutting a deal with the Russians and their quota, because they were facing almost certain defeat if the Makah issue were dealt with on its own merits.

 

The U.S. delegat