Sea Shepherd Legal (SSL) is opposed to hunting for whales under any and all circumstances. A whale’s right to exist trumps any competing claim. Its right to swim, breed, and exist in the wild is certainly not governed by alleged human “cultural” imperatives, even those ensconced in treaty “rights” or justified by claimed “traditions” spanning centuries. We have not tolerated such abominations as slavery on the basis of these empty justifications. Nor should we tolerate the killing of these highly intelligent beings. SSL will continue to pursue legal avenues to combat the slaughter of any cetaceans wherever they may occur — whether in the Faroe Islands or in U.S. waters.
With this in mind, SSL has not hesitated to push back against the Makah Tribe’s request to hunt Eastern North Pacific (ENP) gray whales off the coast of Washington State. In addition to needless slaughter, such a hunt would fly in the face of the Marine Mammal Protection Act (MMPA) and the International Convention for the Regulation of Whaling (ICRW) and would be in significant tension with the Endangered Species (ESA) and the National Environmental Policy Act (NEPA).
In comments submitted to the National Marine Fisheries Service (NMFS), the agency in charge of evaluating the permit request, SSL made the case for denial. NMFS had prepared a Draft Environmental Impact Statement (DEIS) to evaluate the request; NMFS’ analysis was littered with errors and characterized by a cavalier approach to federal and international conservation law.
SSL made the following observations (among many others):
- Conservation Takes Highest Priority under the MMPA: Absent a permit from NMFS, the MMPA prohibits “takes” of marine mammals. The statute, legislative history, and decisional law make it abundantly clear that these permits are not to be granted lightly. The burden of proof is borne by any party proposing to take marine mammals, or take actions contrary to the MMPA. This “is by no means a light burden.” The intent behind the MMPA’s “set of requirements is to insist that the management of the animal populations be carried out with the interests of the animals as the prime consideration.” Yet, in its DEIS, NMFS gave this intent short shrift.
- The Makah Do Not Have a Valid Subsistence Right to Hunt Whales: In 1982, the International Whaling Commission (IWC) issued a moratorium on commercial whaling. A recognized exception to the moratorium is “Aboriginal Subsistence Whaling” (ASW), which allows qualifying indigenous peoples to hunt a small number of whales for legitimate aboriginal subsistence needs. NMFS claims that the Makah qualify for this exception. They do not. The IWC — the only entity authorized to officially recognize subsistence rights in support of a whaling quota allotment — denied the request for a Makah quota. And for good reason: The Makah do not meet the ASW criteria. The Makah possess neither a nutritional nor subsistence need to whale. Likewise, the Makah do not possess a “continuing traditional dependence on whaling and on the use of whales.” While whaling may have been a regular part of the Makah culture over 150 years ago, any “dependence” on whaling had nearly completely died out by 1860.
- There Are Alternatives that Would Simultaneously Honor Makah Cultural Traditions and Protect Whales: A purely ceremonial hunt — without the bloodshed, without the risk of extirpation of whole whale populations, and without the certain ensuing public outcry against the Makah — could readily supplant and restore the associated traditional practices. NMFS did not seriously consider this alternative. Other tribes, such as the Quileute Tribe in Washington and groups making up the First Nations Environmental Network in Canada, are opposed to the hunt and have taken different approaches to revering these extraordinary creatures.
- If Permitted, the Hunt Would Set a Dangerous Precedent: If NMFS were to approve the Makah hunt, it would in effect be creating a brand-new and broad-ranging exception for whaling based on “cultural need.” As held by the Ninth Circuit, any expansion of the carefully limited ASW exception could be used by other nations to expand whaling rights for indigenous communities within their borders who claim a right to whale on the basis of alleged longstanding “tradition.” Indeed, efforts to this effect are already in the works. In fact, to bolster the claims of these communities, nations such as Japan have been lobbying Pacific Coast tribes for years in an effort to encourage the development of the “cultural whaling” exception.
- If Permitted, the Hunt Would Doom the Pacific Coast Feeding Group (PCFG) to Certain Extinction: In its DEIS, NMFS repeatedly (but dismissively) acknowledges the risks to a small population of resident Eastern Pacific gray whales — known as the Pacific Coast Feeding Group (PCFG) — occasioned by any degree of whale hunting and admits that a great deal of uncertainty remains as to whether PCFG whales are within their optimal sustainable population range, which is the bellwether of cetacean protection under the MMPA. Despite this uncertainty, NMFS appears all too ready to authorize hunts of PCFG whales. This error is compounded by NFMS’ decision to proceed with this DEIS without first determining whether the PCFG should be designated as a stock under the MMPA. Throughout the DEIS, the agency repeatedly notes that it “does not recognize the PCFG as a ‘population stock’ as [it] interpret[s] that term under the MMPA, but [it] [has] stated that the PCFG seems to be a distinct feeding aggregation and may warrant consideration as a distinct stock in the future.” U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Services, Northwest Region, Draft Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales (2015), at 5 -1, 3-36, 3-130, & 5-36 By its own admission, NMFS’ analysis of the Makah permit is flawed.
- NMFS’ Analysis of Western North Pacific (WNP) Gray Whales is Fatally Deficient: The population of the WNP gray whale stock is extremely small – numbering no more (and likely less) than 140 animals. The WNP stock is also listed as “endangered” under the ESA and as “depleted” under the MMPA. Despite these dire circumstances, NMFS provides very little analysis in the DEIS of the potential effects of hunt alternatives on the WNP stock. NMFS’ abject failure to meaningfully address WNP whales is especially troubling given its admissions that the WNP stock is present in the Makah area and will likely be negatively affected by the proposed hunt. Moreover, NMFS has acknowledged that Makah hunters would likely mistakenly pursue a WNP whale, and further admitted that “[t]he loss of a single whale, particularly if it were a reproductive female, would be a conservation concern for this small stock.” What additional evidence does NMFS need to take the next logical step to conclude that, in light of the WNP stock’s precarious biological status and the high likelihood of, at the very least, extremely stressful encounters with the Makah hunters, absolutely no hunting should be permitted? The answer is of course that the agency has preordained that tribal whaling, in one form or another, will take place. This amounts to unlawful agency action.
- NMFS Discounted and Overlooked Cumulative Impacts: Under NEPA, it is not enough for NMFS to simply consider the impacts of the proposed hunt. Rather, NMFS must also consider the “impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” NMFS failed to consider a multitude of cumulative impacts, including, for example, (1) military exercises, (2) marine energy and coastal development (e.g., a proposed phosphate mine near a critical nursery off Baja California), and (3) climate change. When the impacts of these activities and phenomena are added to the baseline – as they must be under NEPA – the impacts of the Makah hunt become much more serious.
For these reasons and more, SSL strongly urged NMFS to reverse its apparent course and to approve the “No Action Alternative” (i.e. deny the request to hunt). If the No Action Alternative receives approval, the WNP and PCFG gray whales will be permitted to continue feeding, playing and rearing their young in their ancestral waters without being chased, harpooned and shot. These small populations of magnificent, social and highly intelligent beings will be given the gift, sought by all sentient life on the planet, to live out their lives in peace. SSL cannot conceive of a better outcome.
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