Makah whaling hearing scheduled

Tribe asks for Mammal Protection Act waiver

SEATTLE — A hearing before a federal administrative law judge that could lead to a resumption of Makah whaling has been postponed to Nov. 14.

The hearing was originally scheduled for Aug. 12. Parties to the ongoing hearing process include the tribe, Joyce-based Peninsula Citizens for the Protection of Whales, the Sea Shepherd Conservation Society and the National Oceanic and Atmospheric Administration.

NOAA, a Department of Commerce agency, recommended in April that the tribe be allowed to hunt Eastern North Pacific gray whales.

The agency said a moratorium on the practice that exists under the federal Marine Mammal Protection Act should be waived for the tribe.

Parties have until Aug. 30 to file their final response to evidence put forward in the application process.

After Aug. 30, additional replies will be allowed “only on a showing of good cause,” according to the notice in the federal register.

The hearing before Judge George J. Jordan of Seattle will begin at 1 p.m. Thursday, Nov. 14 in the Henry M. Jackson Federal Building, 915 Second Ave. in Seattle, and could last through the following day.

“Our people are ‘guesstimating’ a few days, like maybe two or three days, but it’s kind of anyone’s guess,” NOAA spokesman Michael Milstein said Wednesday in an interview.

Groups that have filed as parties to the hearing can call and cross-examine witnesses, Milstein said.

“All that is fair game,” he said.

“It’s similar to a typical courtroom trial.”

Jordan postponed the hearing in a July 8 ruling to allow witnesses for whaling opponents who had scheduling conflicts to attend the proceedings.

The Makah Tribe, whose last sanctioned whale hunt was in 1999, applied in 2005 for a waiver to hunt 20 Eastern North Pacific Gray Whales every five years.

NOAA estimates there are about 27,000 such whales, which ply waters north of Alaska to Baja California, Mexico.

The 1999 hunt drew nationwide media attention, including a cover feature in The New York Times Magazine, and split members of Native and non-Native communities, drawing protesters to near the Makah reservation at Neah Bay.

Under the waiver, three whales could be killed in even-year hunts and one whale in odd-year hunts beginning in 2020 and lasting 10 years.

Sixteen strikes would be allowed over that period, after which the waiver would expire and a new waiver considered.

“The proposed regulations would include a cumulative limit of 16 strikes on [Pacific Coast Feeding Group] whales over the 10 years of the regulations (for an average of 1.6 whales per year), of which no more than 8 could be females,” according to the proposal (

The tribe, recognized as an aboriginal subsistence whaling group, would not need permission from the International Whaling commission if NOAA approves the waiver.

The tribe is asserting a right to whale under the 1855 Treaty of Neah Bay, a pact that led to the tribe ceding thousands of acres to the U.S. government.

“The Makah Tribe is strongly opposed to any delay,” Jordan said in his decision.

His ruling is in a compendium of documents on the permit including rulings, exhibits and personal declarations of the parties involved at

“I find [Animal Welfare Institute] and Sea Shepherd have shown good cause why the original hearing schedule should be continued to a later date,” Jordan said.

“If I hold the hearing as scheduled, several parties will be adversely impacted in their ability to conduct cross-examination.”

Jordan will make a recommendation on NOAA’s proposal to Chris Oliver, assistant administrator of NOAA’s National Marine Fisheries Service.

“The regulations that govern the hearing do not have a specific deadline by which a decision must be made, but it does say the decision must be made ‘promptly,’” Milstein said Wednesday in an email.

“Note that the [administrative law judge] makes a ‘recommended decision’ to the assistant administrator of NOAA, who is the head of NOAA Fisheries.

“Then there is a public comment period before the assistant administrator makes a final decision.”

Milstein said NOAA has budgeted $99,000 for the hearing process under an interagency agreement with the Coast Guard, whose administrative law judge the agency is using for the hearing.

“This was a rough estimate because it depends on how long the hearing lasts, how many parties participate, how many days are required for the hearing, and so on,” Milstein said in the email.


Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected].

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