NOAA issues Final Environmental Impact Statement, the last legal obstacle between gray whales & Makah harpoons & bullets
SEATTLE, Washington––An early 2024 resumption of gray whale killing by the Makah tribe of Neah Bay, Washington, seems all but assured after the November 17, 2023 publication of a 2,364-page Final Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales by the National Oceanic & Atmospheric Administration [NOAA].
NOAA released the final impact statement late on a Friday afternoon, as federal agencies often do when publishing potentially controversial material, and in this instance only three working days ahead of the four-day Thanksgiving holiday.
Makah reserved whaling rights in 1855 treaty
The NOAA environmental impact statement was produced, more than eight years after a draft version was published on March 7, 2005, in response to a 2004 ruling by the U.S. Court of Appeals for the Ninth Circuit.
The Ninth Circuit held that the Marine Mammal Protection Act requires such a study to be completed before the Makah can legally exercise the right to kill whales that the tribe claims under the 1855 Treaty of Neah Bay, which brought the Makah into the United States.
Ruling becomes final on December 18, 2023
The 2004 verdict upheld a December 2002 ruling by a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit that the National Marine Fisheries Service failed to comply with the National Environmental Policy Act in permitting the Makah to kill a gray whale in 1999.
With no more evident legal hurdles ahead, the Final Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales will become a final ruling 30 days after publication, on December 18, 2023.
Seven proposed alternatives
The Final Environmental Impact Statement reviewed seven proposed alternative responses that NOAA might make to the Makah application to kill gray whales.
Alternative #1, called by NOAA the “No Action Alternative,” would not authorize the Makah gray whale hunt, a politically unrealistic alternative which would also run afoul of the previous rulings by the U.S. Court of Appeals for the Ninth Circuit.
These previous rulings could only be overturned by the U.S. Supreme Court. There is so far no indication that any entity with potential legal standing to seek to overturn the Ninth Circuit verdicts intends to try to do so, and also no evident cause for appeal that might trump the Treaty of Neah Bay.
Six “alternatives” kill gray whales
The other six alternatives allow the Makah to kill gray whales under a waiver from the prohibition of killing whales stipulated in the Marine Mammal Protection Act, differing somewhat in the numbers of whales allowed to be killed, when and where.
Alternative #2, identified by the Final Environmental Impact Statement as the “Tribe’s Proposed Action Alternative,” would allow the Makah to kill four Eastern North Pacific gray whales per year on average, with a maximum of five in any one year, and up to 24 whales in any six-year period.
“The number of whales who could be struck would be limited to no more than seven in any calendar year,” according to the Final Environmental Impact Statement, “and no more than 42 over the 6-year period, while the number of whales struck and lost would be limited to three annually and 18 over the 6-year period.
Alternative #7, the “Preferred Alternative” identified by NOAA, would institute “An alternating winter/spring, summer/fall hunt season,” to reduce risk to both the Pacific Coast feeding group” of gray whales and the still endangered Western North Pacific gray whale population.
The Pacific Coast feeding group are the gray whales seen most often in the Salish Sea, including Puget Sound in U.S. waters and the Georgia Strait north of the Canadian border.
These whales are a major regional tourist attraction, though not nearly as popular with whale-watchers as the Salish Sea resident orca population.
25 whales over 10 years
“The [Marine Mammal Protection Act] waiver would expire after 10 years. Regulations governing the hunt would limit the initial permit period to no more than three years,” the Final Environmental Impact Statement says, “with subsequent permits lasting no more than five years. No more than 25 whales may be struck during the course of the waiver period, with a maximum of three strikes in any given winter/spring hunt and a maximum of two strikes and one landed whale in summer/fall hunts.
“A limit of 16 Pacific Coast feeding group whales may be struck under Alternative 7, up to eight of whom may be females,” the Final Environmental Impact Statement stipulates.
“All struck and lost whales who could not be positively identified in winter/spring hunt years would count against the Pacific Coast feeding group strike limit in proportion to their presence in the action are in that season based on recent abundance estimates. All struck whales in summer/fall hunt seasons are presumed to be Pacific Coast feeding group whales.”
Quota shared with Chukotka of Siberia
The International Whaling Commission in 2019 set a total allowable indigenous catch limit for gray whales of 980 through 2027. Up to four gray whales per year may be killed by Makah whalers, under the International Whaling Commission quota, while the rest are reserved to Chukotka tribal whalers, who live in the northernmost part of Siberia, along the northern coast of the Bering Sea and the southern shore of the Arctic Ocean.
Any part of the indigenous gray whale quota not used by the Makah is transferred to the Chukotka, meaning that the total number of gray whales killed if the Makah kill some may not change, depending on whether the Chukotka kill their whole quota.
The Chukotka in recent years have reportedly killed about 120 gray whales per year, close to their full quota.
Makah proposed commercial whaling
Announcing intent to resume whaling in 1995, after a lapse of 73 years, soon after gray whales were in 1994 removed from U.S. Endangered Species Act protection, Makah tribal whalers legally killed one gray whale in 1999, and illegally killed another in 2007.
Until 1994, gray whales had been federally protected in U.S. waters since 1936, 30 years before the U.S. had any blanket form of endangered species law, but were deemed to have recovered to their historical numbers when the estimated population reached 20,000.
The gray whale population is now believed to be about 27,000.
The original Makah proposal to resume whaling spoke bluntly of reviving the one-time Makah commercial whaling industry, more than seven decades after Makah tribe members had last killed a whale, and about nine decades since whaling was last a viable tribal industry.
Hoped to sell whale meat to Japan
NOAA in 1997 authorized the Makah to kill as many as five whales a year through 2002, under a annual quota of 140 shared among Russian and U.S. aboriginal tribes.
The Makah were allowed to resume killing gray whales on condition that none of the meat or byproducts could be sold, though potlatch trade with other tribes was allowed.
But frequent statements by Makah Tribal Whaling Commission spokespersons left no doubt that the tribe hoped to eventually export whale meat to Japan.
Japanese delegations to the annual meetings of the International Whaling Commission, meanwhile, repeatedly sought––unsuccessfully––to exploit the whaling quota allocating to the Makah as a precedent for the IWC to authorize “cultural” whaling by coastal Japanese communities.
After making desultory attempts to kill a gray whale in October and November 1998, Makah whaling resumed in earnest in May 1999/
Sea Shepherds vs. Makah
The Sea Shepherd Conservation Society, the first animal-and/or-habitat protection organization to respond to the Makah whaling proposal in 1995, relocated their global headquarters from California to Friday Harbor, Washington, to be closer to the scene.
The Sea Shepherds were then headed by Paul Watson, who founded the organization in 1978, but was ousted in 2022.
Watson now heads the Captain Paul Watson Foundation, whose one vessel is currently in Bremen, Germany. More than 24 hours after the 2,364-page Final Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales was released, Watson had yet to comment.
Watson and the Sea Shepherds maintained an on-the-water vigil at Neah Bay almost continuously, beginning in September 1998, but on May 17, 1999, explained a Sea Shepherd media release, “The Sea Shepherd patrol boat Sirenian had gone to the San Juan Islands to refuel and pick up three more small vessels [to replace three the U.S. Coast Guard had confiscated to protect the Makah whalers]. To evade activists, the Makah went out on an early tide,” instead of later in the day, as they did previously.
First whale down
At 6:55 that morning, a gray whale spy-hopped beside the Makah whaling canoe and looked directly at the killers. As documented by a KING-TV/Northwest Cable News helicopter, Makah harpooner Theron Parker stabbed the whale before she had any evident sense of danger.
Putting up no fight, trying to duck under the bow of the canoe, the gray whale was then stabbed by a second Makah, Donny Swan, 23, and was shot with a .50-caliber machine gun from the speed boat used to tow the canoe. She took about 10 minutes to die.
“It was easy,” boasted Makah whaling chaplain Darrell Markishtum to Lynda V. Mapes of the Seattle Times.
J.J. the friendly gray whale?
The age and conduct of the whale brought speculation that she was J.J., a gray whale who was rescued and rehabilitated by SeaWorld San Diego after stranding nearby in January 1997.
About three days old then, she became quite trusting of humans. She was returned to the ocean on March 31, 1998, outfitted with two radio transponders–but she lost them both within days.
After sinking once in 25 feet of water, due to inept carcass retrieval, the dead whale was pulled back to the surface by a fishing boat and dragged to shore at Neah Bay, as the whalers blasted air horns and the Makah schools shut for an impromptu holiday.
Danced on remains
Makah tribe members were videotaped dancing on her remains at an all-night party, while a hired Aleut butcher hacked off strips of her flesh.
“Hey, we need some Makah over here!” the Aleut reportedly called at one point when left to work almost alone.
During the Bill Clinton/Albert Gore U.S. presidential administration the National Marine Fisheries Service and other federal agencies spent lavishly in support of Makah whaling, reflecting the Clinton/Gore alliance with Native American casino gambling interests.
Those interests poured money into the 2000 Gore campaign to succeed Clinton. When Republican candidate George W. Bush narrowly defeated Gore, Makah clout in the White House was interrupted.
But as the eight-year Bush administration appeared likely to be succeeded by another Democratic administration favorable toward Makah whaling, Makah tribal whaling captain Wayne Johnson and four other Makah––Theron Parker, Andy Noel, Billy Secor and Frank Gonzales Jr.––on September 8, 2007 killed a whale without a permit and without tribal authorization or awareness.
“Crew members plunged at least five stainless steel whaling harpoons into the animal. Then they shot it,” wrote Seattle Times staff reporter Lynda V. Mapes.
“The Coast Guard, alerted to the hunt by onlookers, was on the scene within hours. Johnson and the others quickly found themselves in handcuffs,” recounted Mapes.
“The Coast Guard confiscated the gun and their boats, and cut the whale, harpoons and all, loose to drift on the current. By evening, the whale was dead, and sank out of sight. After questioning, the Coast Guard turned the whalers over to tribal police.”
Sentenced to go whale-watching
The U.S. District Court in Tacoma in June 2008 sentenced Johnson to serve five months in prison. Noel, his nephew, was sentenced to serve three months. Gonzales, Parker and Secor each received two years on probation.
All five were also ordered to perform community service by helping the Makah tribal marine biologist to conduct a marine mammal survey.
“The penalty essentially is to go whale watching,” commented Animal Welfare Institute biologist D.J. Shubert.
The Makah campaign to resume whaling regained momentum later in 2008, when NOAA released a draft impact report that was withdrawn in 2012, after four years of debate.
The 2012 draft impact report was superseded by the 2015 draft impact report, and now by the Final Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales.