More than two decades ago, Makah tribal members killed a 30-foot gray whale in the waters off the Olympic Peninsula amid bitter protests from animal-welfare activists.
The tribal hunt in May 1999 touched off a protracted legal battle that on Thursday took center stage inside a Seattle federal building.
The proceedings over the tribe’s treaty right to hunt gray whales are expected to last more than a week in the courtroom-like setting.
Opponents have raised concerns about the impacts of climate change on the eastern North Pacific gray population, while the tribe hopes Administrative Law Judge George Jordan will recommend a waiver to the Marine Mammal Protection Act.
The Makah, whose lands are on the northwest tip of Washington, have the right to hunt whales through their 1855 treaty with the U.S. government. Tribal whaling advocates hailed the 1999 hunt as an important renewal of a tradition that helps define the Makah. But opponents have so far blocked, through court and regulatory challenges, the tribe from conducting more federally approved hunts.
“This has been a long time coming. Twenty years,” said Patrick DePoe, treasurer of the Makah tribe, before the hearing. Whaling again “would mean fulfilling something that has been missing all these years. It would mean finally seeing parts of our treaty coming together.”
The waiver proposed by the National Marine Fisheries Service, a division of the National Oceanic and Atmospheric Administration (NOAA), would allow the tribe to harvest up to 20 whales over a decade for subsistence and cultural use.
Opponents of the hunt include Peninsula Citizens for the Protection of Whales, Sea Shepherd Conservation Society and the Animal Welfare Institute. The gray whales they seek to protect have rebounded from being hunted nearly to extinction by western commercial whalers to a robust population in the north Pacific of nearly 27,000 whales.
In their filings, the hunt opponents argue that the gray whales now face new stresses as important food sources in their Bering Strait summer feeding grounds — such as the shrimplike creatures known as amphipods — decline amid warming sea temperatures.
They cite an unusual number of gray whale carcasses found earlier this year during the annual migration that takes most of them from winter waters off Mexico back to the Bering Strait.
Donald Schubert, a biologist with the Animal Welfare Institute, argues in testimony filed before the hearing that NOAA failed to take into account the changes occurring in the Arctic, and that “it would be reckless and anti-ethical to the precautionary principle” of the Marine Mammal Preservation Act to approve the hunt.
Chris Yates, an assistant regional administrator for the National Marine Fisheries Service, acknowledged during testimony Thursday that some 214 gray whales have been stranded this year in what he called an unusual mortality event. He also noted that a statistical analysis indicates the strandings could have been part of a broader die-off of 1,700 to 5,500 gray whales.
NOAA has found the eastern North Pacific gray whales to be a healthy population “at or approaching its carry capacity,” according to an agency assessment. The federal agency has conducted an extensive, yearslong environmental review that includes the submission of nearly 200 exhibits in the hearing docket, most of which are peer-reviewed articles.
Yates said that the numbers of gray whales that could be killed through a decade of Makah hunting “would have no detectable impact” on the population.
NOAA officials say that the proposed permit includes restrictions, such as seasonal closures, to reduce the risk that a population of western Pacific grays — listed under the Endangered Species Act — would be taken by the whalers. These whales inhabit the waters off northeast Asia, but researchers have found they also occasionally make forays across the Pacific to areas off Washington’s coast.
There would also be restrictions to reduce the chance of hunters targeting whales from a group of eastern Pacific gray whales that reside in Northwest waters.
During the 20 years since the last federally permitted Makah gray whale hunt, there has been one other Makah hunt — in 2007, without federal permission, a crew struck but failed to harvest a gray. Two crew members served time in a federal detention center.
In Alaska, native hunters gained an amendment that allowed them to continue whale hunting when the Marine Mammal Protection Act passed. Each year, they conduct bowhead whaling hunts that remain a key part of their subsistence culture.
Across the Bering Strait in Russia, native villagers in the Chukotka region hunt gray whales. Between 2001 and 2017, the Chukotka hunters struck on average 124 gray whales each year, with an average of 35 of those whales lost and not brought into harvest, according to the International Whaling Commission.
The Seattle hearings over the resumption of the Makah whaling are expected to continue into next week.
The administrative law judge will make a recommendation to Chris Oliver, the assistant administrator of NOAA Fisheries, who will then decide whether to approve the waiver.
Then, the tribe must apply for a permit before hunting, which will go through another review that will be open to public comment.
After the permit is granted, it could still be challenged in federal court, and that appears likely to happen.
“This forum is really a kangaroo court,” said Catherine Pruett, the executive director of Sea Shepherd Legal, an organization that has long opposed the whaling. “The place it will ultimately be decided, appropriately, will be in federal court.”