A plea agreement expected from five Makah whalers this afternoon fell apart when the whalers realized that the U.S. government planned to restrict...

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TACOMA — A plea agreement expected from five Makah whalers this afternoon fell apart when the whalers realized that the U.S. government planned to restrict their future whale hunts.

Federal authorities expected the five tribal members who killed a gray whale during an unlicensed hunt last September to sign off on the plea — which would have kept the whalers from serving jail time.

Because they declined to take the plea deal, the whalers still face up to one year in custody, a $100,000 fine, up to five years of probation and possible community service. The five men will return to court Thursday with either a new plea agreement worked out or to make plans for the case to go to trial.

U.S. Attorney Jeff Sullivan said today that his office will continue working with the whalers in the hopes of reaching a resolution.

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But Jack Fiander, attorney for the whalers, said a future plea would be difficult to reach.

“It’s going to be difficult to get them back to the table,” Fiander said. “It’s going to be difficult for them to trust the government again, given what they’ve been through.”

Fiander said the men have been waiting since 1999 for the federal government to sign off on a whaling permit. He said frustration at Neah Bay “is going to reach critical mass.”

The tribal members — Frankie Gonzales, Wayne Johnson, Andrew Noel, Theron Parker and William Secor Sr. — were expected to plead guilty to one count of violating the Marine Mammal Protection Act, a misdemeanor, in return for two years of probation.

But they did not because the government had the option of preventing them from whaling while they were on probation.

“That’s a deal-killer,” Johnson said.

Sullivan later said he’d be willing to take the potential whaling-rights restriction off the table as the sides continue negotiations.

Gonzales, Johnson, Noel, Parker and Secor were scheduled to go on trial next month on misdemeanor charges of conspiracy, unauthorized whaling and unlawful taking of a marine mammal. Last month, U.S. Magistrate Judge Kelley Arnold dismissed another charge stemming from the Whaling Convention Act, saying the act did not apply to criminal cases.

The tribe has a treaty right to kill gray whales and legally did so in 1999, when it secured a permit.

But the five whalers did not have a permit for the hunt on Sept. 8, when they harpooned and shot a whale in the Strait of Juan de Fuca near Neah Bay, Clallam County. The whale died slowly before sinking.

The whalers had pleaded not guilty to the federal charges, arguing that treaty rights are the supreme law of the land. The men also faced charges in tribal court, but those proceedings had yet to get started.

After the rogue hunt, both the tribe and the U.S. attorney’s office vowed prosecution to the fullest extent of the law. If convicted of all tribal charges, the defendants face a sentence of a year in the Neah Bay jail, $5,000 fines, and temporary suspension of their treaty right to hunt and fish.

Animal rights activists were outraged when the plea deal was offered as part of a global settlement involving the U.S. Attorney’s Office and the Makah Tribe.

The Tribe would have dismissed all charges against the whalers in exchange for them pleading guilty to one count of violating the Marine Mammals Protection Act.

That was adequate punishment, the tribal council said in a statement released this afternoon.

But animal rights activists disagreed.

“That’s it? That is not adequate, I don’t see a deterrent,” said Kitty Block, vice president of the Human Society of the United States in Washington, D.C. “We were hoping there would be strong action, and swift action, and there is neither.”

She said the animal rights group will step up its opposition to the federal waiver.

“It means we have to fight harder on not letting the Makah Tribe have a waiver. It means they aren’t taking this seriously, they can’t manage their own people and they can’t enforce their own laws.”

If found guilty under the federal charges, the men face up to a year in prison and up to $100,000 in fines.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com.

Information from The Associated Press is included in this report.

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