Federal appeals court overturns Makah whaling ruling

SAN FRANCISCO - A federal appeals court Friday overturned a ruling that had allowed Washington state's Makah Indians to resume whaling for the first time in more than 70 years.

A panel of the 9th U.S. Circuit of Appeals ruled 2-1 that the environmental impact had not been adequately considered.

The case now goes back to federal court in Tacoma, Wash., for additional proceedings, including a new environmental assessment to be done by the government.

Keith Johnson, head of the Makah Tribal Whaling Commission, told KIRO-AM in Seattle that the decision was a disappointment, but it appeared very narrow and concerned mainly with the timeliness of environmental studies on whaling.

The tribe will not hunt whales until cleared by the courts, Johnson said. Hunting families were meeting with representatives of the International Whaling Commission this weekend and were to meet with federal officials next week.

Indian whalers have been out this spring in the waters off Washington's Olympic Peninsula, but have not been successful.

The Makah had hunted whales for generations until the 1920s, when commercial whaling decimated the whale population. Gray whales were removed from the Endangered Species List in 1994, and the Makah moved to resume hunting, claiming whaling rights under an 1855 treaty with the U.S. government.

In 1997, the International Whaling Commission ruled that the 2,000-member tribe could take up to five whales a year from 1998 through 2002.

In 1999, the Makah finally hunted and killed a gray whale after U.S. District Judge Franklin Burgess in Tacoma rejected an attempt by environmentalists and Rep. Jack Metcalf, R-Wash., to block any whaling.

In its ruling Friday, the appeals court said the government's assessment of the environmental impact was biased. The court said the government promised to support the Makah even before it had done the environmental impact study.

The court ordered that the government set aside its finding that the whaling would have no significant impact on the environment.

''I felt that we were right all the time,'' Metcalf said Friday.

''It's a gigantic relief,'' said Margaret Owens, co-founder of Peninsula Citizens for the Protection of Whales. ''We've fought so hard to keep the whales safe this year, and thank heavens that no whales were killed.''

One appellate judge dissented. Judge Andrew J. Kleinfeld said the majority had ''no warrant'' for setting aside the environmental impact report.

''Obviously the agency did not prepare the environmental assessment until its officials had already decided that they wanted to let the Makah Indians hunt whales. Why else would they have gone to the trouble of preparing an environmental assessment?'' he wrote.

Although the majority said the environmental assessment was performed under suspicious circumstances, Kleinfeld complained that the other judges never identified anything specific within the report that was inaccurate or inappropriate.

Brian Gorman, a spokesman for the National Marine Fisheries Service, said the government had not decided whether to appeal.

He said that if his agency, which implements whaling quotas, does another environmental assessment, regulators would make ''extremely sure that we are extremely careful and forthright.''

''Of course, we'll do it objectively and in good faith,'' he said by telephone from Seattle.

The appeals court said that, because the Makah's whaling was suspended for 70 years, the delay in redoing the environmental reports is not an undue hardship.

Biologists estimate 26,000 gray whales migrate each year between the waters off Alaska and Mexico.

In another development, a whaling protester arrested while trying to disrupt a Makah hunt in April pleaded guilty Friday to negligently operating her personal watercraft.

Erin Abbott, 23, faces a maximum penalty of a year in jail and a $100,000 fine when she is sentenced Sept. 1.