In response to
Federal Register Doc. 03-5285
To: Chief,
Marine Mammal Division (F/PR2)
Office of
Protected Resources
National
Marine Fisheries Service
13th
Floor, 1315 East-West Highway
Silver Spring,
MD 20910
Prepared by
Dan Spomer
Washington Citizens’ Coastal Alliance
PO Box 123, Sekiu, Washington 98381
Postmarked: April 21, 2003
The Washington Citizens’ Coastal Alliance submits 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 March 5, 2003 in the Federal Register (FR Doc. 03-5285)
We insist that these comments be included in the permanent
record of the pending Environmental Impact Statement (EIS) in which NMFS will
assess the impacts of whether or not to award another self-proclaimed whaling
“quota” for the Makah Tribe of Washington state for the years 2003-2007. Further, we insist that NMFS investigate and
respond to the comments within this letter before submitting a final
recommendation in this matter. We
firmly believe that a final recommendation in this matter can only be issued if
the responsible agencies (NOAA and NMFS) take into account all available data and
information pertinent to this issue. Errors and misinformation shown in
previous assessments must be acknowledged and corrected before NMFS proceeds
further in the decision-making process.
The American public expects and demands no less than the
absolute best efforts of NMFS and NOAA to finally conduct an open, honest and unbiased review in
this matter.
It should be noted, incidentally, that NMFS has been ordered
to do just that by the Ninth Circuit Court of Appeals- not once, mind you, but TWICE.
In fact, the second time, the Court demanded that NMFS conduct an EIS. It is
our opinion that the only reason NMFS is proceeding with this EIS is because of
the court order, not because of any independent decision made by the
agency to fulfill its legal obligations. In other words, concerned American
citizens have dragged NMFS into complying with basic principles of federal law.
With the overwhelming number of Americans opposed to the killing of whales, and with the resounding outcry and protest generated by the Makah tribe’s whale killing efforts, it is incumbent on NMFS to do everything possible to ensure that ALL factors are considered before coming to any further decision in this matter.
One underlying factor that must be considered is whether the
proposed EIS for the years 2003-2007 will have as much “pro-whaling bias” as
have the original and subsequent Environmental Assessments (EA) issued in 1997
and 2001, or whether the U.S. government will finally take the “clear-eyed hard
look” so ordered by the Ninth Circuit Court of Appeals.
Regrettably, we see no indication that NMFS will follow the
path ordered by the court. NMFS has twice now opted for a predisposed and
politically influenced finding of “no significant impact,” even as the agency
has now lost twice in federal court in justifying their (obviously)
flawed position. NMFS and NOAA have acted shamefully and have betrayed the
trust of the American people for well over seven years now on this matter. It
remains quite remarkable that the only reason the agency has now begun
to comply 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.
As stated in our previous comment letter, we fervently hope
that just ONE employee, ONE consultant, ONE reviewer in the pending EIS process
will take note of ONE very important fact:
During the Makah whaling EA process of 2001, six hundred and forty
(640) comments were submitted to NMFS on the issue of Makah whaling. Of that
total, six hundred and twenty (620) were adamantly against any whaling activity
by the Makah tribe. Fully 97% of comment letters were opposed to any whaling
activity. NMFS needs to acknowledge
that there is far more controversy involved here than they have been willing to
admit.
To that, we add only one thought: Democracy- government
by the people, for the people and by the people- is a grand idea. We highly
recommend that NMFS give it a try at some point in the near future.
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.[1]
·
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.[2] [3]
If this pending EIS 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 pending EIS (covering the period 2003-2007) will also be challenged in the U.S. courts, and NMFS’ record is none to good in federal court lately.
Two assessments, two
lawsuits, two convincing losses by the federal government? Is this the
perception that NMFS chooses to present to the American people? An agency so
stubborn and bent toward a predisposed result that they will waste the
resources of the American people in myopically 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, “our position is
obviously flawed, and in order to fulfill our agency’s obligations to the
American people, 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! [4]
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.[5]
While numbers like that will get you fired in private
business and professional sports, apparently it is “business as usual” for a
federal agency. We think these numbers indicate an agency-wide management
problem, which should be at least discussed in the pending EIS.
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."[6]
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.”[7]
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.”[8]
(Emphasis ours) We are left wondering
just how the NOS came to this conclusion before the Final EA was even released!
Now NMFS has the gall to ask the American people to trust
them again as the agency prepares an EIS?
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.” [9]
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.’”[10]
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.”[11]
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.”[12] This “statement of reasons is crucial to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project.”
We wish 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.”[13]
(Emphasis ours)
In our
previous comment letter in response to the previous EA, 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. “ We suggest you actually comply
with the law this time.
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 ruling, it is quite
obvious that this issue "threatens a violation of Federal . . . law or
requirements imposed for the protection of the environment."
We now wish to comment in advance on what will no doubt be
the keystone of NMFS strategy in the pending EIS, repeatedly (and wrongly)
championed in previous assessments, 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[14]."
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.”[15]
There is a term that comes to mind in describing the
above paragraph: “deceptive.”
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..."[16]
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 proper legal authority
in this matter.
Typical of this subterfuge is the following e-mail:
"Dr. Baker, after leaving you in Tokyo, Bob Brownell
and I travelled 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."[17]
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."[18]
(THREE AND A HALF PAGES COMPLETELY
REDACTED)
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 its’ 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 the
entire 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[19]
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 nor 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.“[20]
(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
assessment.
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 EIS.
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 keep secret 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.” [21]
(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.”[22]
(Emphasis ours)
Even Dr. Ray Gambell, then Secretary of the IWC, wrote in
1997[23];
“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:[24]
“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."[25]
(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.”[26] (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. delegation
leader, Will Martin, stated at a press conference in Monaco that the Makah hunt
had been approved. He has since been
forced to back away from this statement. (Emphasis ours) This is
another example of a misleading statement of fact by the U.S. delegation in
Monaco.
Throughout this process,
they have relied on strong-arm pressure tactics, misleading information and
clever propaganda to distort this issue. The Makah just have not demonstrated
and aboriginal subsistence need, which is what the IWC regulations have always
required.
The Australians have
stated that their amendment, which was added to the United States - Russian
proposal was added to prevent the Makah allocation, due to a lack of
demonstrated subsistence need. The Makah have claimed a cultural need as
subsistence.
If accepted, this will now
open the door for more quota increases around the world. Japan has already
stated the desire to allow four villages on the Taiji peninsula with no
subsistence need to be granted a cultural quota. Iceland, Ireland, Norway,
China, where will it end?”[27]
In summary, NMFS can
proceed no further in either approving or disapproving whale killing by the
Makah Tribe before undeniable documentation of an IWC-approved quota for such
activity is released to the public and included in this process. NMFS is
presently acting illegally and in violation of its obligations as a member
nation of the International Whaling Commission. Indeed, NMFS has acted
capriciously and with much sleight-of-hand on this issue, and we insist that
the issue be addressed honestly, fully
and directly.
We are pleased to
remind NMFS that the U.S. government may not assign its domestic aboriginal
tribes the right to hunt whales unilaterally without the recognition of the
IWC. The U.S. Whaling Convention Act of 1949 explicitly requires IWC
recognition of subsistence need for any U.S. tribe that intends to kill whales.
We add this reference to assist NOAA and NMFS in their search for further
information while addressing this issue in an open, honest and unbiased manner.
If NMFS cannot provide proper documentation
of IWC recognition in the pending EA, then their actions on behalf of the Makah
Tribe must be considered illegal.
It appears to us that the entire issue could be settled by simply presenting the Makah request to the IWC as a “stand alone” proposal, allowing the member nations to vote “yea” or “nay” on the proposal. This would settle the question once and for all. Why is NMFS so fearful of presenting the Makah request to the IWC in this manner? What has motivated NMFS to do an “end run” around nearly every legal requirement associated with the Makah hunt?
Given NMFS’ extensive
and continuing record of deception, political chicanery and sleight-of-hand
on this issue, we regrettably anticipate further trickery at upcoming IWC
meetings. It can not be stated enough times that NMFS is duty-bound to the
American people (and ordered by the Ninth Circuit Court of Appeals) to address
this issue openly, honestly and in an
unbiased manner.
We also would like to bring your attention to the assertion
made in Section 2.2 of the 2001 Makah whaling draft EA, and subsequently
endorsed in the Final EA; "The ICRW
specifically states that the IWC may not allocate specific quotas to any
particular nationality or group of whalers." We respectfully disagree.
We challenge the accuracy of this statement and protest its’
anticipated use in the pending EA. We insist that NMFS provide proper reference
to this statement- very general references were made to this point, but not in
any helpful detail.
The ICRW does state that; " (The Commission) shall not
involve restrictions on the number or nationality of factory ships or land
stations, nor allocate specific quotas to any factory or ship or land station
or to any group of factory ships or land stations."[28]
Nowhere does the ICRW refer to "specific quotas to any
particular nationality or group of whalers," but only to factories, ships
or land stations." The 2001 Final EA is incorrect on this matter. Such
generic quotes serve only to mislead the public, and deny citizens the chance
to properly research and respond to such assertions.
Regardless, we are pleased to share with
you the fact that the IWC does, in fact, specify quotas based on nationality.
We refer to an easily accessed page on the IWC web site[29]
entitled; "Catch limits for aboriginal subsistence whaling," whereby
the IWC "reviewed catch limits of stocks subject to aboriginal subsistence
whaling."
The following
limits have been agreed:
"Bering-Chukchi-Beaufort
Seas stock of bowhead whales (taken by Alaskan Eskimos and native peoples of
Chukotka) - The total number of
landed whales for the years 1998, 1999, 2000, 2001 and 2002 shall not exceed
280 whales, with no more than 67 whales struck in any year (up to 15 unused
strikes may be carried over each year)."
"West
Greenland fin whales (taken by Greenlanders)
- An annual catch of 19 whales is allowed for the years 1998, 1999, 2000, 2001
and 2002."
"West
Greenland minke whales (taken by Greenlanders) - The annual number of whales struck for the years 1998,
1999, 2000, 2001 and 2002, shall not exceed 175 (up to 15 unused strikes may be
carried over each year)."
"Humpback
whales taken by St Vincent and The Grenadines
- for the seasons 2000 to 2002, the annual catch shall not exceed two
whales."
It should also be noted that none other than the State of
Washington officially reports; “The IWC aboriginal subsistence whaling category
currently allows whaling by indigenous people in Russia, The United States
(Alaska), Denmark (Greenland), and St. Vincent and the Grenadines.”[30]
We note with interest the minutes of the 1997 IWC meeting,
which indicate; “The USA renewed its request for a quota of up to five gray
whales for the Makah tribe.”[31]
This begs the obvious question: If a specific quota was not required, why was it sought?
These specific examples clearly negate the U.S. government's
assertion (Section 2.3) that a joint quota "is the only mechanism by which the Commission recognizes the needs of
an aboriginal group…" This assertion is misleading and utterly false.
Apparently, NMFS would have the American people believe that
the IWC may not issue quotas to any particular group or nationality, yet the
record indicates the U.S. government sought exactly that at the 1997 IWC meeting.
The U.S. abandoned
this effort in favor of subterfuge only when it realized that it would fail. We
again state that we are still investigating the circumstances surrounding the
"Russian deal" and, based on the small amount of information made
available by the U.S. government so far, are convinced that the truth of the
"Russian deal" will reveal a willful and deliberate attempt on the
part of the U.S. government to circumvent proper legal authority in this
matter.
The record also indicates that quotas based on nationality
are not only allowed, they are commonplace. They are also commonly referred to
by any number of governmental bodies and authorities.
Further documentation reveals the true nature of the US
government’s activity in obtaining a specific quota for the Makah Tribe. Again,
the U.S. government’s argument carries no weight and raises the glaring, obvious
question: If a specific quota was not required, why was it sought?
We direct your attention to the following documents, which
clearly indicate that a specific quota was not only sought by the U.S.
government, such a quota was considered vital:
“…Notwithstanding these points, we are willing to seek IWC
approval for our interim ceremonial and subsistence whaling proposal…”[32]
“Shall we seek IWC approval of a U.S. gray whale hunt? …the
IWC has never given the U.S. a gray whale quota… the United States told the IWC
in 1990 that it had no further interest in taking gray whales.”[33]
“NOAA, through the U.S. Commissioner to the IWC, will make a
formal proposal to the IWC for a quota of gray whales for subsistence and
ceremonial use by the Makah Tribe.”[34]
“NMFS is promulgating a proposed rule to revise 50 CFR part
230… it proposes to broaden the current mechanism for regulating whaling
authorized by the International Whaling Commission (IWC) to allow for the
future possibility that the IWC would
grant quotas to the United States for Native American groups other than the
currently authorized Alaska Eskimo Whaling Commission.”[35]
(Emphasis ours)
Are we to believe that the pending EIS will speak truthfully
on this matter when, in fact, the actions of the U.S. government indicate that
it is knowingly being less than
truthful? And are we to believe that NMFS’ assertion in the 2001 Final EA that
“The U.S. delegation has never discouraged other countries from raising the
(Makah) issue” is truthful, when, in fact, a number of first-hand accounts
indicate otherwise?
The wholly unresolved question of any IWC-approved quota
spotlights the most glaring and fatal defect underlying the actions and history
of the U.S. government on this issue. The question of IWC approval and
recognition of the Makah whale hunt MUST
be clarified and documented
before the U.S. government proceeds further on this issue.
In summary, NMFS’ previous assertions that the IWC may not
allocate specific quotas to any “particular nationality” or “group of whalers”
are entirely and utterly false. We have shown that such quotas are not only
allowed, but are routine enough to be displayed prominently on the IWC web
site. We have also shown that the U.S.
government sought exactly just this kind of quota at the 1997 IWC meeting. The
current position of NMFS on the matter is incorrect.
The pending EIS must do a far better job of addressing the
impact of the Makah whale hunt on the people of Clallam County, the economy of
the area, and the shocking impact it has had on the lifestyle of the citizens
of Washington state.
Indeed, in the 2001 “Public Comments to Draft EA”
attachment, NMFS fails to spell the word “Clallam” correctly even one time.
The 2001 Final EA states that the Makah Tribe has a treaty
right to "continue whaling at its
usual and accustomed grounds."
We disagree, and challenge the use of this kind of misleading statements
in the pending assessment. The court ruling in ‘Anderson v. Evans’
clearly shows the statement is untrue. NMFS must not continue to state such opinions
as fact in the pending EIS. Trust us: we will be reading every sentence.
The Makah Tribe had abandoned all whale killing at its
"usual and accustomed grounds" by the early 20th century,
a hiatus of some seventy-three years before they killed a three-year old
juvenile gray whale in 1999. The courts of the United States have consistently
held that such abandonment of practices by Indian tribes can be the basis for
extinguishment of treaty rights.
POTENTIAL COMMERCIAL WHALING
We also point out that the Makah leadership has repeatedly stated that they assert a right to kill whales for commercial purposes. Having been given the opportunity to retract or abandon that position, they have steadfastly refused to do so, and the public record indicates that this is still the Makah Tribe's official position.
The
possibility of commercial whaling by the Makah Tribe must be thoroughly dealt
with before the U.S. government proceeds further.
NMFS states in the 2001 Final EA that “The (Makah) Tribe has renounced
any interest in commercial use of the products of any subsistence hunt through
the year 2002.” We are not comforted with the wording of that terse (and now
expired) line.
For example, an e-mail from a NMFS employee states: "We
never spoke again about the problems of Washington State indians wanting to
take gray whales. Yesterday, Doug DeMaster told me that it is his understanding
that the indians want to sell the meat to the Japanese. Do you have any information
on the Japanese sales?"[36]
Another one states; "Joe Scordino informed me this am
that, some while ago, Rollie Schmitten had signed a letter setting policy
regarding the NW Treaty Tribes' rights to take marine mammals for ceremonial
and subsistence purposes. I believe that this would establish the basis for
working with the Makahs on an IWC aboriginal subsistence whaling proposal for
use at a future Commission meeting. I am told, however, that Rollie's letter
does not address the commercial use of marine mammals and that this issue remains open."[37]
(Emphasis ours)
The Makah Tribe has publicly stated; "It should be
emphasized, however, that we continue to strongly believe that we have a right
under the Treaty of Neah Bay to harvest whales not only for ceremonial and subsistence but also for commercial
purposes. Our decision to seek IWC approval for an interim ceremonial and
subsistence harvest only should not be construed in any way as a waiver or
relinquishment of our treaty-secured whaling rights."[38]
Currently, the Makah Whaling Management Plant states;
"It is the Tribe's intent to provide for the gradual development of
ceremonial and subsistence whale hunts over the five-year period so as to allow
for the development of Tribal management capabilities, refinement of hunting
methods, and assessment of the Tribe's cultural and subsistence needs. The
Tribe intends to utilize the experience and information collected during the
five-year term of this plan to develop a second
multi-year plan, pending IWC review of the current ICRW Schedule. The
conservative management approach provided for in this management plan is not
intended to limit, waive or modify any of the Tribe's whaling rights under the
Treaty of Neah Bay and any such construction of this plan is improper and
unauthorized."[39]
The pending assessment must address the issue of any future proposal that might be presented to the IWC. The future whaling ambitions of the Makah tribe- and whatever form they might take- must be considered and accounted for in this assessment. That must included a detailed analysis of any commercial ambitions by the Makah Tribe.
One indication of future Makah whaling ambitions is indicated in the following e-mail: "The time period for the quota would possibly be the fall hunt in 1996 plus all of 1997. The Makahs don't want to get "locked in" to a three-year block, because they might soon want more than five a year."[40] (Emphasis ours)
But most telling of all is this report: "The Makah
contemplate a year-round hunt and do not wish or intend to whale only during
the spring or fall migration period. In particular, they wished to take at
least one whale in August for their "Makah Day" celebration. This
implies that the Makah could kill resident whales what are the basis of whale
watching operations in the Seattle area."
“The Tribe agreed that it would
not sell the whale meat for the duration of the cooperative agreement. This
includes agreement that the meat would not be sold in restaurants. It was clear, however, that it wished to
keep this option open for the future."[41]
(Emphasis ours)
Were the Makah Tribe to kill whales for commercial purposes,
it would be in direct violation of the 1855 Treaty of Neah Bay, where the Tribe
is forbidden to trade outside of the United States. As the commercial use of
whale products is forbidden in the United States, that would leave the Makah
Tribe only the option of trading with foreign countries. This practice would be
in violation of any number of international, federal and state laws. One
federal law that comes to mind immediately is the Marine Mammal Protection Act
(MMPA).
Such practices would also be in violation of the
international moratorium on commercial whaling, of which the United States is a
party through the IWC. If the Makah are allowed to kill whales for commercial
reasons, it would also gravely jeopardize the United States' position within
the IWC.
Certainly, NMFS should require that the Makah tribe promise
in a contract- one then made accessible to the American public- that the Makah
tribe will not engage in any commercial whaling before the agency pursues this issue further on their behalf.
It is difficult to believe that NMFS continues to advocate for the killing of whales by the Makah tribe on one hand while promising to the American people that no commercial whaling will be done on the other hand, even as NMFS refuses to ascertain whether that is, in fact, the position of the Makah tribe.
Of significant importance is whether such a contract would
bar commercial whaling activity only through the time period addressed in the
pending assessment, or if it would, in fact, bar commercial whaling for an
extended period of time.
To summarize, it is entirely implausible for NMFS to
continue to maintain that the Makah would kill whales only for cultural and
subsistence purposes, when in fact, the Makah continue to state that they have
the right to commercially kill whales, and fully intend to do so. This must be
resolved openly, honestly and in an
unbiased manner in the pending EIS.
HUNTING ON
OTHER WHALE SPECIES BY MAKAH TRIBE
NMFS must fully address a newly raised issue, namely that of
an expanded hunt by the Makah tribe on other whales species.
Makah official Dave Sones recently submitted a funding request
to Rolland Schmitten. In this letter, Sones wrote:
“The Makah Tribe submits this request to purchase a Marine
Research and Enforcement Vessel… This research boat will contribute to existing
and additional studies that provide important information on the status of gray
whales other whales and marine mammals to maintain the Tribes (sic)
scientific and cultural relationship with these species.
These scientific studies are needed for the Tribe’s
preparation of actual litigation threatened by non-governmental organizations
against the Tribe’s exercise of its treaty right. “[42]
We questioned why the Makah Tribe was in need of an
ocean-going vessel capable of operating in “rough seas 40 miles off the Pacific
coast, along the continental shelf, rich in many species of whales and other
marine mammals…” We questioned exactly
with which species the Tribe wishes to enable a “cultural relationship” at that
distance from the coast, and to NMFS’ credit, this request was denied, with the
exception of some relatively smaller funding for “other” purposes. These kinds
of funding requests (and responses) must be included in the pending EIS.
Other questions to be answered are if the Makah Tribe
continues to request funding for whaling-related salaries, when NMFS itself
promises in the 2001 Final EA that “NOAA regulations and the Makah management
plan stipulate that no person may receive money for participating in whaling.
The Tribe has given assurances that it will not make payments to the crew for
whaling or associated activities in the future.”[43]
(Emphasis ours)
TAXPAYER BURDEN OF
ILLEGAL WHALING BY MAKAH TRIBE
Given that the American public has spent over $5 million[44]
in direct and indirect costs on the Makah whale hunt thus far, we demand that
NMFS more fully account for the expenditures of federal, state and local funds that have supported this hunt
since at least 1995. How much has the Coast Guard spent? How much has local law
enforcement spent? How much has the several legal actions cost the federal
government? In other words, how much
has this whale hunt cost the American taxpayer from it’s inception until
present? This very basic questions must be addressed fully in the
pending EIS.
In the original and subsequent Needs Statements, authored by
Ann Renker, are many claims and promises. We would like NMFS to thoroughly
discuss and review the legitimacy and accuracy of these Needs Statements before
throwing more taxpayer money into ANOTHER Needs Statement. In other words, do the
facts bear out Ann Renker’s claims and conclusions in these Needs Statements?
Given that NMFS and the Makah Tribe will depend heavily on a
Needs Statement at upcoming IWC meetings, we demand to see just how accurate
these Needs Statements have been. And we vigorously disagree with NMFS’
assertion in the 2001 Final EA that “The IWC granted the gray whale quota on
the basis of this needs statement.”
Primarily, it must be noted that the IWC did not grant a
quota. Secondly, the majority of member nations at the 1997 IWC meeting soundly
rejected the needs statement.
We challenge NMFS’ continuing position, detailed in the 2001
EA; "Although gray whales are also
protected under the MMPA, Section 113 of the MMPA specifically states the
provisions of the MMPA are in addition to, and not in contravention of,
existing international treaties, conventions or agreements."
Further, "The
Makah Tribe believes that the whaling provisions of the Treaty of Neah Bay have
never been abrogated and that the U.S. obligation to the Tribe takes precedence
over U.S. obligations under the ICRW."
This topic must be more fully addressed in the pending EA.
It was difficult to respond to these assertions when the 2001 EA made no
reference to the source for them. It
appears that NMFS is continuing to insert very generalized statements in an
effort to mislead and confuse the American public.
Generalizations made by NMFS in support of a questionable legal position are not acceptable. We demand a detailed, honest and unbiased analysis of why NMFS continues to insist that the MMPA has no legal bearing on the Makah Tribe and the 1855 Treaty of Neah Bay.
We are also troubled by the fact that the U.S. government
still feels compelled to support whale killing by the Makah Tribe based on what
the Tribe "believes." Surely there must be some documentation to
support the US government's position other than what the Makah Tribe
"believes."
The Makah Tribe is not exempt from MMPA.
Perhaps the most glaring problem (and associated convoluted
logic) for NMFS in its continuing efforts on behalf of the Makah tribe is the
Marine Mammal Protection Act (MMPA).
The MMPA represents Congress's most expansive explication of
the nation's commitment to the "protection and conservation" of
whales and other marine mammals.
The MMPA imposes a moratorium on the taking and importation
of marine mammals and marine mammal products. The MMPA did, however, provide a
limited number of exceptions to the moratorium, a waiver procedure, and a
conditional exemption for native Alaskan subsistence takers.
Neither the moratorium nor the waiver process apply or have
been used by NMFS to justify the Makah hunt.
The native Alaskan exemption is inapplicable to the Makah
hunt because this provision only covers taking by "any Indian, Aleut, or
Eskimo who resides in Alaska and who dwells on the coast of the Northern
Pacific Ocean or the Arctic Ocean."[45]
Neither NMFS nor the Makah Tribe has successfully explained
why whaling activities by the Washington state-based Makah Tribe might be
included within this exemption.
To the contrary, NMFS has failed a number of times to
explain whether or not the MMPA abrogates the whaling rights claimed by the
Makah under the Treaty of Neah Bay. Indeed,
NMFS cannot explain this even to themselves, as the following e-mail to D.
James Baker, former NOAA administrator, states:
"The Tribe has a treaty with the United States
giving it rights to whaling. It is not
clear whether the domestic treaty or the later international treaty
establishing the IWC takes precedence." [46]
(Emphasis ours)
(THE NEXT
FIVE PAGES ARE COMPLETELY REDACTED)
Given NMFS’ continuing penchant for redaction, how, then, does the
American public determine the truth in this matter?
However, at least one NMFS employee has a very clear
understanding of the relationship of the MMPA to Native Americans, as the
following testimony indicates:
"Section 119 (of the MMPA) states that cooperative
agreements may be entered into with ANOs (Alaskan Native Organizations) to
conserve marine mammals and provide for the co-management of subsistence use by
Alaskan Natives."[49]
We ask NMFS to note the singular emphasis on the term
“Alaskan Natives” in the context of cooperative agreements.
We also encourage NMFS to refrain from such indefensible
positions as stated in the 2001 “Public Comments to Draft EA”, specifically:
“The Marine Mammal Commission is on record as not taking
issue with the conclusion that the treaty rights of the Makah may not have been
abrogated by the MMPA (letter from John Twiss to D. James Baker, September 4,
1997)
It must be made clear (and acknowledged in the pending EIS)
that Congress, and Congress alone, has the power to abrogate treaties. Whether
or not NMFS, NOAA or the Marine Mammal Commission thinks that Makah treaty
rights “may not have” been abrogated is of no consequence. One need only
investigate the intent of Congress to obtain a definitive answer. We
find it incredible that we must remind NMFS of this basic fact.
The standard of Congressional abrogation is found in United States
v. Dion.[50] The court
ruled that Congress enacted a "sweepingly framed" prohibition on the
hunting of eagles except for limited native American religious purposes
enumerated under the Bald and Golden Eagle Protection Act (BEPA).
The Court reasoned
that "the provision allowing taking of eagles under permit for religious
purposes of Indian tribes is difficult to explain except as a reflection of an
understanding that the statute otherwise bans the taking of eagles by
Indians…" The Court concluded that the BEPA had in fact abrogated Indian
treaty rights.
The relationship between the MMPA and the Makah treaty is
identical. The MMPA provides an absolute ban on the taking of marine mammals
except by "…any Indian, Aleut, or Eskimo who resides in Alaska and
who dwells on the coast of the Northern Pacific Ocean or the Arctic
Ocean," conditions the Makah Tribe clearly does not meet.
Hence, under MMPA, and like the BEPA, "Congress…
considered the special cultural and religious interests of Indians, balanced
those needs against the conservation purpose of the statute, and provided a
specific, narrow exception that delineates the extent to which Indians would be
permitted to hunt…[51]"
The Makah Tribe's legal representative has stated; "In
sum, the Court concluded that the Bald Eagle Protection Act represented an
"unmistakable and explicit legislative policy choice that Indian hunting
of the bald or golden eagle, except pursuant to permit, is inconsistent with
the need to preserve those species," and therefore abrogated Indian treaty
hunting rights."[52]
Accordingly, the claimed whaling rights by the Makah Tribe
were abrogated by the MMPA just as the Sioux Tribe's hunting rights were
abrogated by the BEPA.
None other than the Solicitor General of the United States
has stated; “The BEPA and ESA are general statutes which, by their terms, do
not exclude Indians from their coverage. Indeed, by creating certain
exceptions… Congress indicated its intention that the restrictions of both Acts
apply to Indians. To hold otherwise would render these carefully limited
exemptions meaningless.”[53]
In footnotes to the same brief, the Solicitor General also
adds; “As we explain in our opening brief (at 30), the Alaskan native exception
was enacted in response to the Alaskan natives’ unique dependence on
species, such as the bowhead whale, likely to be regulated under the ESA. See
119 Cong. Rec. 25677 (1973); see also Cong. Rec. 8400-8401 (1972) (describing a
similar exception for Alaskan natives under the Marine Mammal Protection
Act, 16 U.S.C. 1371(b).” (Emphasis ours)
The Makah tribe has put forth a rather feeble defense of the
alleged Makah whaling treaty right based on several salmon and fishery-related
issues.[54]
But we find no instance in which either NMFS or the Makah Tribe has responded
in a meaningful way to queries regarding the legal quandary posed by the MMPA,
and there is no substantive dealing with this issue in the 2001 Final EA.
Even the Ninth Circuit Court of Appeals weighed in on this
issue in the December 20, 2002 opinion in ‘Anderson v. Evans’:
“We do not believe that Congress subordinated its goal of
conservation in United States waters to the decisions of unknown future foreign
delegates to an international commission.”
Then, any questions that NMFS may have on whether the MMPA
supercedes any claimed preference by the Makah Tribe was laid firmly to rest
once and for all with a string of very clear statements:
“ The federal defendant’s view so clearly offends the
express, unambiguous language of [the MMPA] (emphasis ours) that the
statutory interpretation offered by NOAA and the federal defendants cannot
properly be afforded deference…”
“…it must be assumed that Congress intended to effectuate
policies for the United States and its residents, including the Makah Tribe,
(emphasis ours) that transcend the decisions of any subordinate group.”
“To effectuate the purpose of the MMPA… we conclude that
the MMPA must apply to the Tribe, (emphasis ours) just as it would apply to
any other person within the jurisdiction of the United States.”
Still not satisfied? This one will clear up all doubt:
“The Tribe has no unrestricted treaty right to pursue whaling
in the face of the MMPA.” (emphasis ours)
In short, NMFS has failed to explain how the Makah Tribe's
treaty rights can possibly supercede the MMPA, which clearly demonstrates
Congress’ “narrowly written exceptions for Alaskan Indians.”
NMFS has also failed to explain how Makah whaling is
permitted under the MMPA even while U.S. courts have held that nearly identical
statutes “virtually requires the conclusion that Congress intended the Act to
cover Indian activities.”[55]
NMFS has never adequately explained their position that the
Treaty of Neah Bay was not abrogated by Congress's "specific, narrow
exception" to the MMPA, which quite obviously does not include the Makah
Tribe. NMFS must either fully defend their position- or abandon it- in the pending
assessment. Regardless of their choice, NMFS must do so openly, honestly and in an unbiased manner within the pending assessment. We look forward to continuing this
dialogue, especially in light of the ruling in ‘Anderson v. Evans.’
OLYMPIC COAST
NATIONAL MARINE SANCTUARY
Killing gray whales within the boundaries of the Olympic Coast National Marine Sanctuary (OCNMS) is inconsistent with the public acceptance of the term “Sanctuary.” No authority exists that would allow OCNMS personnel to permit hunting of ANY marine mammal species within the borders of the Sanctuary. The hunting of marine wildlife in Sanctuary waters by any parties must not be permitted.
Additionally, whale killing
using modern methods was not identified as an acceptable activity in the
development of OCNMS policies nor during the inception of the OCNMS.
Further, in light of the Anderson v. Evans opinion, the OCNMS must re-evaluate its present position on hunting activity within the borders of the Sanctuary by the Makah Tribe or any other party. It is our opinion that OCNMS regulations ban the illegal hunting of marine mammals, and the recent court opinion (re: the MMPA and the Makah Treaty) obviously clarifies the fact that any hunting within the Sanctuary is illegal. OCNMS Regulations[56] state:
“Taking any marine
mammal, sea turtle or seabird in or above the Sanctuary, except as authorized
by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et
seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq.,
and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. § 703 et seq.,
or pursuant to any Indian treaty with an Indian tribe to which the United
States is a party, provided that the Indian treaty right is exercised in
accordance with the MMPA, ESA and MBTA, to the extent that they apply.”
(emphasis ours)
“Possessing within the
Sanctuary (regardless of where taken, moved or removed from) any historical
resource, or any marine mammal, sea turtle, or seabird taken in violation of
the MMPA, ESA or MBTA, to the extent that they apply.”
In this case, it is very
obvious that the MMPA DOES apply.
The entire relationship of claimed treaty hunting rights and Sanctuary policy
must be fully addressed.
LACK OF
COOPERATION BY THE MAKAH TRIBE
The 2001 Final EA stated in relation to the Metcalf v.
Daley decision and subsequent order to rescind its cooperative agreement
with the Makah Tribe; "The Makah
Tribe responded on August 31, 2000, that it does not accept NOAA's rescission
of the agreement."
The Makah
Tribe did not accept an action that was ordered by the United States Ninth
Circuit Court of Appeals?
It is beyond our comprehension how a U.S. government agency
can continue to be involved in any way with a party that refuses to honor the
laws of the United States. Bound by an order of the Ninth Circuit Court of
Appeals in July, 2000, NMFS did, indeed, rescind the cooperative agreement.
However, the Makah Tribe simply refused to abide by the ruling of the Ninth
Circuit Court of Appeals.
The failure of the Makah Tribe to abide by the decision of
the court, flaunting the laws of the United States, is troubling enough.
However it is beyond comprehension that here
NMFS proceeds yet again on their behalf. This demonstrates a continuous and
repetitive institutional bias of NMFS toward the pro-whaling agenda of the
Makah Tribe.
How can the American people trust NMFS in what should be an
unbiased process, when NMFS has done everything within its power to yet again
achieve a goal that has reeks of bias and predisposition? The willingness of
NMFS to yet again advocate for the wishes of the Makah Tribe, even as that Tribe has previously defied
the agency, the United States courts, and a lawful order of the court, is
beyond belief.
The continuing bias inherent in this issue- and the
nonchalant attitude of the Makah Tribe to the legalities thereof- is best
summed up in a statement from Makah attorney John Arum, who stated; “The Makahs
are participating in the [EA] process “primarily for PR.”[57]
(Emphasis ours)
In regard to IWC regulations, one other matter that needs
serious discussion is NMFS’ statement in the 2001 “Public Comments on Draft EA”
where the agency states:
“NOAA agrees that it is not possible to ensure that a humane
death occurs during a hunt.”
In regard to the Makah Tribe’s Whaling Management Plan, NMFS
must ensure that any changes made said plan must be made public, preferably in
the Federal Register. We noted a large number of changes to the Plan over the
past several years, most of which passed without attention, without comment and
with no questions asked.
At no time in the past or in the present has NMFS seriously
considered the situation of Washington resident whales. At various times in the
past decade, both NMFS and Makah officials have denied even the existence of
Washington resident whales, even as well-known gray whale experts continue to
express concern over this sub-population.
We insist that the word "resident" be used when
discussing these whales in the pending EIS, as the vast majority of concerned
citizens refer to these gray whales as such. It is notable that the Makah tribe
has never shown an ability to differentiate between a migratory gray whale and
a resident gray whale.
The Makah Tribe has been aware of the existence of a
resident gray whale population for many years, and this 1996 e-mail certainly
points out that they were concerned about the impact they might have on the
resident population:
"We request that NMFS-Northwest Region implement this
(gray whale) research program cooperatively with the Tribe so that mutual needs
can be addressed. In particular, we would like to gain information to allow us
to avoid harvesting the non-migrating whales."[58]
The record is replete with news items and documentation of
other tribes (both U.S. and Canadian) who may wish to pursue whale killing in
the future. This must be addressed fully, openly and honestly in the pending
assessment.
NMFS continues to mislead the American people in claiming that Makah whaling will not lead to similar precedents in other tribes. This assertion has been proven wrong by continuing reports in the Canadian media that the Nuu-chah-nulth Tribe of British Columbia has initiated plans to emulate the Makah hunt, and that they would begin potlatch ceremonies to assist the Makah tribe in trading whale products outside of the United States. The World Council of Whalers is certainly eager to begin hunting up to one thousands whales per year, according to spokesman Tom “Happynook” Mexsis. Interestingly, the World Council of Whalers has had previous (and enduring) contact with the Makah Tribe.
Indeed, one intriguing item begging for further research appears prominently on the World Council of Whalers website:
"In this spirit of community and cultural need, the Alaska Eskimo Whaling Commission (AEWC), a co-management/support organization for Eskimo whalers, assisted the Makah nation in acquiring its gray whale quota from the International Whaling Commission (IWC). This was made possible through the generosity of the Alaskan Eskimo whalers, who agreed to share their bowhead quota with the Chukotkan whalers, who in turn provided the Makah gray whale quota from their own.” [59] (emphasis ours)
That is truly a remarkable claim, one never before addressed by NMFS in ANY EA or public process. In fact, NMFS has denied (and continues to deny) that there was a “trade” of any kind, between any party, for any species. What exactly happened up in Barrow during those meetings? NMFS needs to release a great number of redacted documents to shed light on the facts surrounding these events.
The Ninth Circuit Court of
Appeals ALSO addressed this issue in ‘Anderson v. Evans’:
“…we cannot agree with the agencies’ assessment that because the Makah Tribe is the only tribe that has an explicit treaty –based whaling right , the approval of their whaling is unlikely to lead to an increase in whaling by other domestic groups. And the agencies’ failure to consider the precedential impact of our government’s support for the Makah Tribe’s whaling in future IWC deliberations remains a troubling vacuum. “ (emphasis ours)
These issues certainly should be further investigated before the U.S. government proceeds further on behalf of the Makah Tribe. The possibility of the Makah actions weakening international whale protection laws and trade regulations should be of paramount importance to NMFS.
The 2001 Final EA does not fully address the impact on
humans (pun not intended) of the use of a .50 caliber anti-armor rifle by the
Makah Tribe in their whale-killing activities.
Of all the issues neglected in the past, the use of a .50
caliber rifle by improperly trained persons with known histories of substance
abuse and domestic violence aboard a pitching, rolling small boat seems to rank
right at the top.[60]
The dangers presented to persons both aboard vessels and on shore need to be
substantively addressed in the pending assessment.
The U.S. government has long maintained that the .50 caliber
weapon would not adversely affect anyone outside of a 500-yard circle (hence
the U.S. Coast Guard's RNA). However, documentation has recently come to light
that disproves that notion.
The Royal Canadian Mounted Police mentioned concerns about
the weapon as early as 1998, when it stated that; "It's a powerful weapon,
and its bullets can travel quite a distance."[61]
In a recent letter, noted ballistics expert Ray Kline
states:
"As this SDZ shows, NO firings should be conducted
within 6100 meters of the shoreline or any surface vessel. Restricting firing
away from the shoreline is NOT a solution since a ricochet can travel almost
1700 meters off the line of fire and, carelessness and inattention could easily
result in a bullet being fired in the general direction of the Peninsula."[62]
A local anti-whaling group responded immediately:
"After being made aware of the very real dangers
involved with the firing of a .50 caliber weapon (and other large caliber and
experimental weapons and ammunition) on inside waters, local and state
governments have a duty to protect their citizens…. At a minimum, the local and
state governments of Washington State and the Canadian Government should demand
that the United States Federal Government prepare an Environmental Impact
Statement (EIS) to address this very serious issue of public safety. It could
be a matter of life and death to citizens of Washington and Canada."[63]
We agree whole-heartedly. The use of an anti-armor weapon
(and ammunition) by whale-killers in such close contact with persons aboard
vessels and on land is a topic that
must be dealt with in the pending EIS.
News clippings and videotape from previous Makah hunts
clearly show that the Makah many
times were hunting very close to shore. Videotape from the May 1999 hunt
clearly shows at least one .50 caliber projectile ricocheting off of the water.
We find it unconscionable that the U.S. government would act in a manner to
potentially place in grave danger many thousands of residents, visitors,
boaters, campers, hikers and children within the "danger zone" of the
.50 caliber weapon.
We do not agree with NMFS’ previous assertion that
"almost all edible portions of the meat and blubber were removed from the
whale by tribal members. Videotape (available widely) indicated that, in fact,
there were times where NO Makah tribal members were present, leaving NMFS
employees the duty of overseeing and performing the removal. We also do not
agree that "[T]he meat and blubber were consumed by Makah Tribal members
and during tribal ceremonies."
In fact, much of the meat and blubber was thrown away during
an alleged freezer failure in the summer of 1999. No mention is made of this in
the 2001 EA, even though some tribal members allege that the act of throwing
the meat away was done on purpose, in order to create the illusion that the
tribe "needed" to kill more whales. We are aware of at least one
Makah individual who witnessed this staged “freezer failure.” If we are
able to learn of this, it seems reasonable that the far vaster resources of
NMFS and the federal government should be able to find the truth about this
matter. NMFS needs to investigate this item in a full, open and honest manner.
Further, eyewitness accounts indicate that at least some
meat and blubber was consumed off-reservation, in towns such as Forks, Port
Townsend and Sekiu. We personally know a handful of non-native Washington
residents that not only sampled whale meat in 1999, but BOUGHT whale
meat from Makah tribal members. Newspaper articles from 1999 indicate that meat
and blubber were consumed in a Port Townsend public school by unwitting
schoolchildren, forcing the school principal to issue an apology to outraged
parents.
The mere fact that whale meat and blubber has been so easily
and nonchalantly distributed throughout a wide geographic area does not
reassure us in light of Makah and U.S. government "promises" that the
meat and blubber will be consumed only on the Makah reservation. It also raises
grave doubts about the U.S. government's ability to prevent any meat or blubber
from making its way out of the country. This shortcoming is not addressed at
all in the 2001 EA, but is of the highest priority.
INACCURATE REPORTING TO IWC
We are extremely concerned that NOAA/NMFS acknowledges a physical
contact strike upon a gray whale during the 2000 spring hunt, but this strike
is not counted as an official “strike.” This example of inconsistency suggests
that the agency does not yet have an accurate definition of the term
"strike" and leads to concern that the agency is not reporting
information accurately to the IWC. A strike should be a strike. In short, NMFS
needs to stop quietly changing the rules each and every time they or the Makah
Tribe encounter some perceived “difficulty” that threatens to undo this
house-of-cards they call a whale hunt.
Whaling regulations should NOT be written in pencil with plenty
of erasers nearby for handy changes. This practice must be halted.
Alternative 1 is
illegal. Alternative 1 must NOT be supported by NMFS.
Alternative 2 is illegal.
Alternative 2 must NOT be supported by NMFS.
Alternative 3 is illegal.
Alternative 3 must NOT be supported
by NMFS.
Even Alternative 4 is illegal. Alternative 4
is not a legal option, because NMFS has NO “quota” to grant anyone, let
alone the Makah Tribe. NMFS also does not have the authority to
unilaterally grant a domestic quota without explicit approval of the
IWC.
Therefore, Alternative 4 is nothing more than a sneaky,
feeble attempt by NMFS to somehow justify its actions and offer some sort of
credibility to its claim that it can somehow issue a quota, when in fact, it
can NOT, since no quota exists.
The only legal option for NMFS at this point is to abandon
all agency support for what is clearly an illegal whaling program, and step
away from the business of whale-killing, completely, fully and finally. We will
refer to the abandonment option as “Alternative 5.”
Alternative 5: ABANDONMENT,
is the only legal option available to NMFS, now or in the future.
·
We have one brief
comment to add here:
Over the past year, we have met and spoken with several
charter boat operators in the Sekiu/Neah Bay/Forks area, and not a single one
has ever been contacted by NMFS on whether or not the whale hunts have affected
them, including the author of this comment letter, Dan Spomer, who is a
U.S.C.G. licensed Merchant Marine officer and charter boat operator. Mr. Spomer takes the gravest offense at the incredible
notion (written into the 2001 Final EA) that he somehow does not exist,
and that NMFS denies his presence on the north Washington coast. It seems quite
obvious that NMFS has not properly researched this segment of the charter
industry, both present and potential operations. In fact, Mr. Spomer would be
very pleased to take any NMFS employee on a charter fishing trip to prove his
existence. It should be noted that, in fact, that Mr. Spomer HAS taken
NMFS employees on charter fishing trips over the past year, and they would very
likely be able to vouch for his existence.
Respectfully
submitted,
________________________________________________
Dan Spomer
P.O. Box 123,
Sekiu WA 98381
April 20, 2003
[1] Metcalf v. Daley, opinion by 9th Circuit Court of of Appeals, July 9, 2000
[2] Anderson v. Evans, filed in District Court, January 10, 2002
[3] Anderson v. Evans, opinion by 9th Circuit Court of Appeals on December 20, 2002.
[5] “Courts, Congress, and Constituencies,” National Academy of Public Administration, July 2002
[6] Seattle Post-Intelligencer, February 1, 2001
[7] Paul Shukovsky, Seattle Post-Intelligencer, February 2, 2001
[8]
National Ocean Service (NOS/NOAA) Weekly Report, July 2, 2001
[9] Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1990)
[10] Northwestern Environmental Defense Center v. BPA, 117 F.3d 1520, 1541(9th Cir. 1997) quoting 40 C.F.R. § 1500.1(b).
[11] 40 C.F.R. §§ 1502.5; 1506.1(a); see also Save the Yaak Committee v. Block, 840 F.2d 714, 718 (9th Cir. 1988).
[12] Blue Mountains, 161 F.3d at 1212.
[13] Blue Mountains, 161 F.3d at 1212 (emphasis added), quoting Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998).
[14] Makah whaling final Environmental Assessment, 2001
[15] Federal Register Doc. 03-5285, March 5, 2003
[16] Letter from Ben Johnson, Jr. published in the "Forks (WA.) Forum," August 4, 1999
[17] E-mail from Michael Tillman to numerous recipients, April 7, 1997
[18] Options Paper: US Requests for Aboriginal Subsistence Quotas for Gray and Bowhead Whales, August 23, 1997 (Transmit date)
[19] Press Release issued by US IWC Delegation, October 23, 1997
[20] Letter from Samuel D. Rauch III, Dept. of Justice to Meyer & Glitzenstein, April 17, 1998
[21] Australian Statement on Aboriginal Subsistence Whaling, October 23, 1997
[22] UK Minister of Agriculture, Fisheries and Food, October 28, 1997
[23] E-mail from Dr. Gambell to Seattle attorney Eric Dickman, October 5, 1998
[24] Report of the Aboriginal Subsistence Whaling Sub-committee, Section 10.3.2: North Pacific Eastern stock of gray whales
[25] Marine Mammal Commission, Annual Report to Congress, 1997
[26] Amicus Brief, Metcalf v. Daley, WDCS
[27] Rep. Jack
Metcalf, Congressional Record: October 23, 1997 [Page H9476]
[28] ICRW, Article V, Section 2c, December 2, 1946
[29] http://ourworld.compuserve.com/homepages/iwcoffice/Catches.htm#Aboriginal
[30] Washington State Status Report for the Gray Whale, Dept. of Fish & Wildlife, July 1997
[31] IWC minutes, Section 10.3.2 North Pacific Eastern stock of gray whales
[32] Makah Tribe's Whaling Proposal to Will Martin, NMFS and David Cohen, Department of State, May 5, 1995
[33] Draft Paper, Michael Tillman to James Baker, NOAA (Undated)
[34] Agreement between NOAA and the Makah Tribal Council, December 5, 1995
[35] Public memo: Donna Wieting, Director, Ecology and Conservation Office, March 29, 1996
[36] E-mail from Robert Brownell: Recipient unidentified, April 1, 1995
[37] E-mail from
Michael Tillman to Will Martin, Kevin Chu, Kimberly
Blankenbeker, Margaret Hayes, Robert Brownell, Joe Scordino, Steven Swartz,
Elizabeth Edwards, April 28, 1995
[38] Makah
Tribe's Whaling Proposal to Will Martin, NMFS and David Cohen, Dept
of State, May 5, 1995
[39] Makah Whaling Management Plan, NWIFC (Online February 6, 2001)
[40] E-mail from
Margaret Hayes to Will Martin, Michael Tillman, William Fox,
September 13, 1995
[41] Report of
NMFS meeting with Makah Tribal Council Representatives, October 4, 1995
[42] Letter from Dave Sones to Rolland Schmitten, obtained through FOIA on January 9, 2002
[43] Final EA, 2001 “Public Comments on Draft EA”
[44] Citizens Against Government Waste “Waste Watcher” 2000, www.cagw.org
[45] Id. at §1371
[46] Memorandum from Rolland Schmitten to D. James Baker, February 22, 1996
[47] NMFS Web site, December 8, 2001
[48] OCNMS Final Rule, May 11, 1994
[49] Testimony of Penelope Dalton before US Congress, April 6, 2000
[50] 476 U.S. 734, 90 L. Ed. 2d 767, 106 S. Ct. 2216 (1986)
[51] Dion, 90 L. Ed. 2d at 776-777
[52] Letter from Markishtum/John Arum to Vice-President Al Gore, October 7, 1997
[53] Reply Brief, U.S. v. Dion, Charles Fried, March 1986
[54] Markishtum/Arum letter to Al Gore, October 7, 1997, pp. 9-11
[55] Coggins & Modrcin, Nat. Amer. Indians and Fed. W.L. Law, 31 Stan. L. Rev. 375, 405 (1979)
[56] 15 FR Part 922.152 (5) & (7)
[57] Seattle Times, February 2, 2001
[58] Letter from
Hubert Markishtum, Makah Tribal Chair to William Martin, NMFS, May 2, 1996
[59] www.worldcouncilofwhalers.com
[60] ‘A Whale Hunt,’ Robert Sullivan, Scribner 2000, Peninsula Daily News, 1997-2000
[61] Capt. Ray Champagne, Peninsula Daily News, October 2, 1998
[62] Roy Kline, Kline Engineering, letter to C. Owens, Feb. 5, 2001
[63] Letter from Peninsula Citizens for the Protection of Whales, Feb. 11, 2001