MARINE MAMMAL COMMISSION - Annual Report for 1998 



the status of the eastern Pacific stock and no measur- 

 able effect on seabirds or other marine organisms in 

 the Olympic Coast National Marine Sanctuary, where 

 the whaling would occur. 



The Commission's comments on the draft assess- 

 ment are discussed fully in the previous annual report. 

 In general, the Commission believed that the assess- 

 ment did a good job of discussing several possible 

 effects of resumption of whaling by the Makah Tribe. 

 It noted, however, that the assessment suffered from 

 incomplete analyses of some key issues, such as 

 whether Makah treaty rights to take whales had been 

 abrogated since the treaty was signed in 1855 and 

 whether other tribes might be encouraged to resume 

 whaling if Makah whaling were sanctioned by the 

 IWC. 



The National Marine Fisheries Service issued a 

 final environmental assessment on 17 October 1997. 

 The assessment concluded that U.S. support for the 

 taking of gray whales by the Makah would not signifi- 

 cantly affect the quality of the human environment, 

 provided that the whaling is conducted in accordance 

 with the IWC Schedule, applicable regulations, and a 

 cooperative agreement entered into between the 

 National Oceanic and Atmospheric Administration and 

 the Makah Tribal Council, 



As discussed in the previous annual report, the 

 IWC considered the U.S. request for a gray whale 

 quota for the Makah Tribe at its 1997 annual meeting. 

 The IWC approved a joint proposal submitted by the 

 United States and Russia for a five-year quota of 620 

 gray whales beginning in 1998, with no more than 

 140 whales available in any one year. The U.S. -Rus- 

 sian proposal, adopted by consensus, included a 

 statement that the "meat and products of such whales 

 are to be used exclusively for local consumption by 

 the aborigines whose traditional subsistence and 

 cultural needs have been recognized." The United 

 States interpreted the resolution as an acceptance by 

 the IWC that the Makah's cultural and subsistence 

 needs are consistent with those historically recognized 

 by the IWC and indicated its intent to authorize the 

 taking of up to five gray whales per year, with an 

 average of four per year, subject to the development 

 of an acceptable management plan. Some delegations 

 at the meeting, however, questioned whether 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. Despite this differ- 

 ence of views, no resolution opposing the U.S. 

 interpretation that the quota applied to the Makah 

 Tribe was introduced at the IWC's 1998 meeting. 



On 17 October 1997 a lawsuit challenging the 

 Department of Commerce's actions to promote and 

 authorize whaling by the Makah was filed by Rep. 

 Jack Metcalf of Washington state, several environ- 

 mental organizations, and others opposed to whaling 

 {Metcalf V. Daley). The action alleged that the 

 defendants, who had yet to issue a final environmental 

 assessment, had failed to meet their obligations under 

 the National Environmental Policy Act and other 

 laws. On the same day that lawsuit was filed, howev- 

 er, the National Marine Fisheries Service published a 

 final environmental assessment of the harvest of up to 

 five gray whales per year by the Makah Tribe. 



On 26 November 1997, after the IWC had taken 

 action on the U.S. -Russian gray whale proposal, the 

 plaintiffs in this case filed an amended complaint to 

 reflect the changed circumstances. The complaint 

 alleged that the agency had violated the National 

 Environmental Policy Act by (1) failing to conduct an 

 environmental review of its decision to enter into 

 cooperative agreements with the Makah Tribal Coun- 

 cil with respect to whaling by the tribe, (2) failing to 

 consider all relevant issues in the environmental 

 assessment, (3) deciding not to prepare an environ- 

 mental impact statement, and (4) deciding to seek a 

 gray whale quota from the IWC before completion of 

 the environmental review process. Plaintiffs also 

 alleged that the National Marine Fisheries Service had 

 violated the Marine Sanctuaries Act by failing to 

 consult on the impacts to resources within the Olym- 

 pic Coast National Marine Sanctuary before deciding 

 to authorize and promote whaling by the Makah. In 

 addition, the complaint alleged that defendants had 

 violated the Whaling Convention Act by declaring that 

 the Makah may engage in subsistence whaling despite 

 no definitive ruling from the IWC that the tribe 

 qualifies for such whaling. Further, the plaintiffs 

 claimed that the agency's actions in authorizing and 

 promoting Makah whaling were arbitrary and capri- 

 cious in that they contravened the purposes of the 

 Endangered Species Act, the Marine Mammal Protec- 



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