By Jim Casey, Peninsula Daily News
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The remaining two, identified by the judge as the leaders of the illegal hunt last Sept. 8, left in the hands of federal marshals to take them to prison.
Andy Noel will spend 90 days in a federal detention facility — probably the one at Seatac.
Wayne Johnson will serve a five-month sentence.
Both also will serve a year's probation after their release from custody, during which Noel must put in 150 hours of community service, and Johnson 175 hours
The other three defendants — Frankie Gonzales, Theron Parker and William Secor — were placed on two years' probation and won't serve any incarceration.
Gonzales and Secor will serve 100 hours of community service. Parker will put in 150 hours.
All were charged with misdemeanor violations of the Marine Mammal Protection Act when they shot and harpooned a gray whale in the Strait of Juan de Fuca just northeast of Neah Bay.
After floating for about 10 hours, the whale died and sank. The carcass never resurfaced.
Harder on the leaders
U.S. Magistrate Judge J. Kelley Arnold emphasized Monday that his sentences were harder on Noel and Johnson for their leadership of the hunt, not because they spurned a plea bargain that the other three accepted in exchange for a guilty plea.
Noel — Johnson's nephew — took "overt and obvious steps" for the hunt, reserving the tribe's boat and gathering equipment that included the Makah's high-powered rifle, Arnold said.
To suggest that Noel and Johnson were not leaders would be "disingenuous," Arnold said, and the three others had spun a "conspiracy of silence" to avoid identifying Noel and Johnson as the men who led the hunt.
Arnold's sentences for the pair exceeded the 60-day prison terms Assistant U.S. Attorney James Oesterle had recommended.
He ordered Noel and Johnson remanded immediately into custody — Johnson in the new suit he had bought for his appearance at Monday's sentencing.
The men were expressionless, and there was only muted reaction from the two-dozen spectators in the courtroom.
Johnson has said publicly and repeatedly that he was frustrated with the slow process in which the tribe seeks a waiver from the marine mammal act.
The Makah started their effort in 2005, and it only last month was the plan presented in a draft environmental-impact statement for public review.
The five men were "fully aware of the international effort being made by the Makah tribe" to resume whaling legally, Arnold said.
The Ninth U.S. Circuit Court of Appeals ruled in 2002 that the Makah must follow the marine mammal act, and the jurists reaffirmed it in 2004.
"The law in this case was well settled," Arnold said, "and these defendants well knew it."
Rather than protesting with signs or letters to newspapers, he continued, "they chose the ultimate defiance."
"The process doesn't work when people take the law into their own hands," the judge said, "and that's what happened in this case."
'Thumbing his nose'
Linda Sullivan, Johnson's attorney, noted her client had apologized to the tribe for the problems the hunt had caused and offered that as a mitigating factor.
Arnold, however, turned the suggestion around and said Johnson "was thumbing his nose by having nothing to say to this court" when invited to do so.
"I don't believe there is an ounce of remorse [in Johnson] and I don't doubt for a moment that he won't do it again," Arnold said.
Johnson won't, however, at least for another year and five months. A condition of all five men's probation is that they cannot participate in any whaling activities — even should the whaling be ruled legal — while they are on probation.
All defendants have 10 days to appeal.
Father to seek appeal
Fiander said he might not take that step, even though he called the sentences "harsher than we expected."
But Andy Noel's father, Ted Noel, said he would appeal his son's conviction.
"I've always been proud of him," the elder Noel said in a courthouse corridor after his son was led away.
"I will continue to be proud of him."
Ted Noel said Arnold and the federal prosecutors had chosen to focus on the events of Sept. 8, not those of 1855 when the tribe and federal officials signed the Treaty of Neah Bay.
That treaty gives the Makah alone among tribes in the Lower 48 states the right to hunt and kill marine mammals.
The tribe whaled for countless generations, stopping around 1920 when gray whales were nearly extirpated, and resumed in 1998 when Pacific gray whales were removed from the endangered species list.
The 1998 hunt failed, but in 1999 the Makah killed a 30-ton female gray whale off Cape Flattery.
A hunt in 2000 was fruitless, and anti-whaling activists prevented further hunts with lawsuits.
Jim Casey can be reached at 360-417-3538 or firstname.lastname@example.org.