Whaling trial judge dismisses hunters' religion defense
A BRIDGE GROWS IN PORT ANGELES:This aerial view taken by Tom Roorda of Northwestern Territories Inc. of Port Angeles -- which handles the surveying for the replacement of the Tumwater and Valley Creek bridges over Eighth Street in Port Angeles -- shows the Tumwater Creek bridge taking shape, foreground, with 170,000-pound concrete girders settled between concrete piers. Another five girders will be delivered today, followed by five each on Monday and Wednesday. Tumwater Truck Route will remain closed to through traffic through Wednesday. -- Photo courtesy of Tom Roorda/Northwestern Territories Inc. _______________________________
By Jim Casey, Peninsula Daily News
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The attorney, Jack Fiander of Yakima, represents Andy Noel, who along with Wayne Johnson turned down a plea bargain that their three co-defendants accepted late last month.
Pending a final pretrial hearing scheduled for 3 p.m. Monday, the trial will start at 9 a.m. Tuesday with selection of 12 jurors and two alternates from a pool of 44 to 60 people.
Fiander had moved for dismissal of the misdemeanor charges for lack of federal jurisdiction, and for infringing on the defendants' freedom of religion and violating the Religious Freedom Restoration Act of 1993.
He argued that the hunt of a gray whale last Sept. 8 — in violation of the federal Marine Mammal Protection Act — had started in Makah tribal waters outside federal jurisdiction.
The whale was harpooned at least four times and shot at least 16 times off Seal Rock in the Strait of Juan de Fuca near Neah Bay.
It died in the Strait more than nine hours after it was wounded.
All five men also face charges in Makah Tribal Court that together could give them one-year jail sentences and $5,000 fines.
Judge: Law applies to tribe
Magistrate Judge J. Kelley Arnold denied Fiander's motions on Wednesday and Thursday, citing the Ninth U.S. Circuit Court of Appeals ruling that the marine mammal act applies to Makah whaling despite the 1855 Treaty of Neah Bay.
That treaty preserves for the Makah — alone among tribes in the Lower 48 states — the right to hunt and kill whales.
The tribe last legally killed a whale in 1999.
Since 2004, it has sought a waiver from the marine mammal act to resume whaling, and an environmental impact statement on the request could come as early as May.
Meanwhile, Arnold ruled that defendants had not laid a foundation of evidence that they planned and carried out killing the whale as a religious exercise, nor had they proved that the marine mammal act burdened their religious activities.
'No right to violate law'
"The defendants had no right to violate a constitutional law in the name of religious freedom," Arnold wrote.
Fiander had argued that a similar restriction "upon . . . other faiths would not be tolerated."
He also had described whaling as an activity imbued with religious significance to the Makah, and cited dismissals of charges against other Native Americans for taking eagles and moose for religious or ceremonial uses.
Nevertheless, Arnold not only denied Fiander's motion, he ruled that Fiander could not argue religion or Makah culture to the jury.
Asked for his reaction to Arnold's ruling, Fiander told Peninsula Daily News, "It certainly gives us something to appeal."
Denies prosecution motion
Arnold also denied a prosecution motion to reconsider dismissing charges against all five defendants for conspiring to violate and of violating the U.S. Whaling Convention Act.
He had ruled Feb. 19 that the convention was a civil law that couldn't apply to a criminal case, but Assistant U.S. Attorney James Oesterle asked Arnold to reconsider the matter.
If the trial goes on as scheduled, Noel and Johnson will face charges of conspiring to violate and of violating the marine mammal act.
Each misdemeanor count carries a potential fine of up to $100,000 and a year in prison.
Their former co-defendants — Frankie Gonzales, Theron Parker and William Secor Sr. — pleaded guilty to the second charge on March 27.
In return, Oesterle dropped the conspiracy charge and said he would not seek a prison sentence, electronic home monitoring or a ban on the three men's right to whale legally, if the tribe received a waiver and permitted the men to hunt, during their five years of probation.
Probation sentences June 6
However, Arnold need not follow Oesterle's agreement, and the amount of their fines has yet to be determined.
They face sentencing on June 6.
Noel and Johnson rejected the plea bargain because of "principle and mistrust [of the government]," Johnson said.
Arnold has expressed concern that many potential jurors in the trial may have made up their minds due to extensive news coverage of the hunt and its aftermath.
About 15 witnesses are expected to testify, and the trial is scheduled to last four to five days, although it could be shorter if both sides stipulate to substantial facts in the case.
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Reporter Jim Casey can be reached at 360-417-3538 or at jim.casey@peninsuladailynews.com.
Last modified: April 03. 2008 9:00PM