Chapter II — Species of Special Concern 



tion Act, and the Convention on International Trade 

 in Endangered Species of Wild Fauna and Flora. 



In light of the Makah Tribe's interest in the matter, 

 the tribe filed a motion on 13 November 1997 seeking 

 authority to intervene in the case. The tribe also filed 

 a motion seeking to have the case transferred from the 

 U.S. district court in the District of Columbia, where 

 the case was filed, to the district court for the Western 

 District of Washington, where the tribe and most of 

 the plaintiffs reside. Both motions were granted. 



The district court for the Western District of 

 Washington issued its ruling in the case on 21 Sep- 

 tember 1998, granting the federal defendants' motion 

 for summary judgment, thereby clearing the way for 

 whaling by the Makah to begin. The court believed 

 the question of the timing for preparing the environ- 

 mental assessment to be a close one. The judge noted 

 that an environmental assessment is supposed to be a 

 tool to aid in the decision-making process and not 

 simply provide a justification as to why a choice that 

 has already been made is permissible. Nevertheless, 

 the court thought that, because of the special trust 

 relationship between the federal government and the 

 tribe, it was equally arguable that the defendants had 

 no realistic choice but to explore the possibility of 

 Makah whaling first and to consider alternatives only 

 when determining whether to allow whaling by the 

 tribe after a quota had been approved by the IWC. 



The court also examined the adequacy of the 

 environmental assessment prepared by the National 

 Marine Fisheries Service. The key question consid- 

 ered by the court was whether the Service had ade- 

 quately considered the impact of whaling by the 

 Makah on "summer residents," those gray whales that 

 reside during the summer in waters near the Olympic 

 Peninsula, rather than migrating past on their way to 

 or from the wintering grounds in Mexico. The court 

 found that, although the discussion of this issue in the 

 environmental assessment was somewhat conclusory 

 in nature, sufficient evidence had been considered to 

 indicate that the likely effect on whales in the area 

 was insignificant because, even if some resident 

 whales are taken, new whales are likely to take their 

 place in subsequent seasons. 



The court ruled that preparation of an environmen- 

 tal impact statement, which is required if the proposed 

 action will significantly affect the environment, was 

 not required in this instance. The court, although 

 somewhat concerned that whaling by the Makah may 

 have a significant effect by setting a precedent under 

 which other tribes in the Pacific Northwest would 

 seek authority to hunt whales, ultimately found the 

 number of tribes situated to take advantage of any 

 such precedent to be small. Citing the finding of the 

 IWC's Scientific Committee that up to 407 gray 

 whales can be taken annually on a sustainable basis, 

 the court found that the defendants were not unreason- 

 able in concluding that, even if other tribes are 

 encouraged by the Makah example to resume whaling, 

 the effect on the stock is likely to be minimal. 



As discussed above, the gray whale quota adopted 

 by the IWC in 1997 is, by its terms, applicable only 

 to "aborigines whose traditional subsistence and 

 cultural needs have been recognized." The plaintiffs 

 contended that the Makah Tribe is not covered by the 

 quota because its cultural or subsistence need for 

 whales was not recognized by the IWC. In consider- 

 ing this question, the court turned first to the National 

 Marine Fisheries Service's regulations that implement 

 the Whaling Convention Act (50 C.F.R. Part 230). 

 The court disagreed with the plaintiffs that those 

 regulations limited whaling to "aboriginal groups 

 'previously recognized' by the IWC as having a 

 cultural or subsistence need for whaling." The court 

 also considered the language of the gray whale quota 

 in the context of the International Convention for the 

 Regulation of Whaling and action at the IWC's 1997 

 meeting that led to the quota's adoption. The court 

 observed that under the Convention, the IWC is not 

 authorized to allocate quotas for specific aboriginal 

 groups or countries. In addition, the ruling noted that 

 the IWC had specifically disapproved an amendment 

 that would have limited aboriginal subsistence whaling 

 of gray whales to groups whose traditional subsistence 

 and cultural needs "have been recognized by the 

 International Whaling Commission." Inasmuch as the 

 court believed that there was an adequate basis for 

 finding that the Makah Tribe has a cultural and 

 subsistence need for whaling, it could not see that the 

 approval of the quota by the Secretary of Commerce 

 violates the International Convention for the Regula- 



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