Appeal suggested by lawyer of one of two whalers convicted in federal 'bench trial'
Wayne Johnson, one of two Makah tribal members who led an unauthorized gray whale hunt last September, leaves the Tacoma Federal Courthouse with his attorney, Linda Sullivan, on Monday. -- Photo by Ted S. Warren/The Associated Press
By Jim Casey, Peninsula Daily News
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The action taken by Wayne Johnson and Andy Noel amounted to a "no contest" plea when they waived a jury trial and agreed with the prosecution's account of how they conspired to hunt and eventually kill a gray whale Sept. 8 in the Strait of Juan de Fuca.
Three other defendants pleaded guilty March 27 to the charge of killing the whale.
As part of that plea bargain, Assistant U.S. Attorney James Oesterle dropped the conspiracy count and agreed not to recommend that they serve prison terms.
The charges are misdemeanor violations of the Marine Mammal Protection Act, each of which carries a fine up to $100,000 and a year in prison.
Not the same sentences
After Tuesday's "bench trial" before U.S. Magistrate Judge J. Kelley Arnold, Oesterle said he thought it would not be fair for Johnson and Noel to receive the same sentences as the other defendants, Frankie Gonzales, Theron Parker and William Secor Sr.
The three also agreed to perform 100 hours of community service in the first of their five years on probation.
Sentencing for all five is set for June 20. Until then, they are free on their own recognizance.
"My mom's going to kill me," Johnson joked as the hearing ended.
The action leaves unresolved the men's trial in Makah Tribal Court, where the five face charges with combined panalties of $5,000 and a year in jail.
The charges had been dropped against Gonzales, Parker and Secor as part of their original guilty plea.
When the deal was changed to remove in-home monitoring and a ban on whaling during their five-year probation, the tribal case was reinstated, said Makah Tribal Prosecutor Ruth Hahn, who attended Tuesday's trial.
No date has been set for the Tribal Court proceeding.
Right to appeal
Although they may receive stiffer sentences, Johnson and Noel preserved the right to appeal that Gonzales, Parker and Secor forfeited in their plea bargain.
Jack Fiander of Yakima, Noel's attorney, had hinted last week that his client and Johnson might seek a bench trial.
He called Tuesday's trial "a polite way of saying, 'Just declare us guilty so we can go on with filing an appeal.'"
The appeal almost certainly would be of Arnold's rulings that the Makah's treaty right to whale, the tribe's ancient whaling culture and whaling as a religious practice could not be argued to a jury that would have been impaneled today.
"There was nothing else we could do," Johnson said.
"We couldn't bring up the treaty [that gave the Makah, alone among tribes in the Lower 48 states, the right to kill whales].
"We couldn't bring up the culture, and we couldn't bring up religion.
"That's what Indians are about."
Fiander added:
"I could see this going on for many more months.
"There was no reason to go through a several-day jury trial when the jury wasn't going to be able to hear their defense."
Pre-empted testimony
The bench trial also pre-empted what anti-whaling activists had hoped would show the Sept. 8 events as a brutal attack on the whale and a painful, lingering death.
The five men harpooned the whale at least four times and tied the harpoons to buoys that prevented it from diving.
They also shot it at least 16 times without killing it.
The whale died and sank more than nine hours after the attack and never resurfaced.
After whaling for centuries and reserving the right to whale in the 1855 Treaty of Neah Bay, the Makah ceased hunting in the 1920s after commercial whaling left nearly no gray whales left to hunt in the Eastern Pacific Ocean.
They did not hunt when Congress passed the Marine Mammal Protection Act in 1972 or listed gray whales in the Eastern Pacific Ocean under the Endangered Species Act of 1972,
After gray whales flourished in protection and were removed from the endangered list, the Makah resumed hunting in 1998 amid heavy anti-whaling protests.
They successfully killed a 30-ton female gray whale in 1999.
Anti-whalers blocked hunts with lawsuits, and triumphed in 2004 when the Ninth U.S. Circuit Court of Appeals ruled the tribe must seek a waiver of the Marine Mammal Protection Act
The National Marine Fisheries Service, which enforces the law, began processing an environmental impact statement with hearings in the fall 2005 in Neah Bay, Port Angeles, Seattle and Silver Spring, Md.
An impact statement was expected by late 2006, but the fisheries service only recently said it may be ready in draft form next month.
Many Makah — especially members of families who led whaling journeys before 1920 — have grown impatient with the process.
Johnson has called the Sept. 8 hunt an act of frustration with the slow pace of a process that tribal leaders say is specious on its face, given the treaty's guarantee that whaling could continue.
Had the case gone to trial, it might have lasted four to five days. At least 44 potential jurors had been summoned to hear it.
The case has attracted international attention, especially among Native Americans and other nations that either engage in whaling or hope to see it discontinued.
In Washington, anti-whalers have promised to seek state animal cruelty charges if they feel the Makah whalers have been punished too leniently.
________
Associated Press writer Gene Johnson contributed to this report.
Reporter Jim Casey can be contacted at 360-417-3538 or at jim.casey@peninsuladailynews.com.
Last modified: April 07. 2008 9:00PM