Two Makah appeal their whaling convictions
By Jim Casey, Peninsula Daily News
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Andy Noel and Wayne Johnson, both of Neah Bay, were sentenced to federal prison for their parts in the killing of a gray whale in the Strait of Juan de Fuca on Sept. 8.
Three other Makah men — Frankie Gonzales, Theron Parker and William Secor — pleaded guilty to one misdemeanor count each of violating the marine mammal act had one charge against them dropped and were placed on two years' probation.
Jack Fiander, a Yakima attorney who represented Noel, has dropped out of the proceedings because of the expense of trips to Tacoma.
Fiander said Noel will be represented on appeal by the Federal Public Defender's office in Tacoma, which defended Johnson.
He said both men remained in the federal detention facility at Seatac in lieu of bail.
Noel, 29, was sentenced to 90 days, while Johnson, 55, was sentenced to serve five months.
Both sentences by U.S. Magistrate Judge J. Kelley Arnold exceeded the 60-day prison terms Assistant U.S. Attorney James Oesterle had recommended.
All five men were sentenced June 30.
Noel and Johnson filed their notice of appeal two days later.
Aug. 29 hearing
District Court Judge Ronald B. Leighton will hear oral arguments that are scheduled for Aug. 29.
Meanwhile, Noel and Johnson's appeals briefs must be filed by July 30, with U.S. Attorney Jeffrey Sullivan's response due by Aug. 13 and the appellants' optional reply due by Aug. 20.
Linda Sullivan, Johnson's public defender, told Peninsula Daily News on Wednesday that she still was awaiting transcripts of pretrial hearings and of the brief bench trial in which the men were convicted on April 7.
In the hearings, Arnold blocked Fiander's attempts to defend Noel on the bases of the Makah's 1855 Treaty of Neah Bay that guaranteed them the right to hunt whales, on tribal culture and on religious freedom.
At the time, Fiander said the decisions might form the grounds for an appeal, but Sullivan said Wednesday she had not prepared written arguments in the case.
The Makah have been ordered to secure an exemption from the marine mammal act if they want to resume legal whaling.
The National Marine Fisheries Service is taking comments on its draft environmental impact statement on the tribe's request.
Copies of the statement can be viewed at www.nwr.noaa.gov and at branches of the North Olympic Library System in Port Angeles, Clallam Bay, Forks and Sequim.
Comments can be e-mailed through Aug. 15 to makahdeis.nwr@noaa.gov.
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Reporter Jim Casey can be reached at 360-417-3538 or at jim.casey@peninsuladailynews.com.
Last modified: July 16. 2008 9:00PM