Marsha S. Berzon

“ The government, in contrast, posits that the whales in the Marine Sanctuary area and the Strait of Juan de Fuca are not a distinct group but rather a rotating one changing from year to year, albeit with some repeat visitors. See Environmental Assessment on Issuing a Quota to the Makah Indian Tribe for a Subsistence Hunt on Gray Whales for the Years 2001 and 2002, at 22-29 (July 12, 2001) ["Final EA"] . The government points to several studies that suggest that if there is any identifiable whale subgroup, it is a much larger one than the plaintiffs suppose. ”

“ We agree that because Canada is not a member of the IWC, it will not be heavily swayed one way or the other by approval of the Makah Tribe's whaling quota. But we cannot agree with the agencies' assessment that because the Makah Tribe is the only tribe that has an explicit treaty-based whaling right, the approval of their whaling is unlikely to lead to an increase in whaling by other domestic groups. ”

“ The 1997 IWC gray whale quota, as implemented domestically by the United States, could be used as a precedent for other countries to declare the subsistence need of their own aboriginal groups, thereby making it easier for such groups to gain approval for whaling. [17] If such an increase in whaling occurs, there will obviously be a significant impact on the environment. ”

“ Some of the scientists relied upon by the government worry that takes from the local resident whale population may deplete the number of local whales in the area off the coast of Washington State and in and around the Strait of Juan de Fuca. ”

“ There is nonetheless sufficient merit to plaintiffs' concerns to lend support to the conclusion that there are substantial questions concerning whether the Makah Tribe's hunt will adversely affect the environment. As noted, it appears that the IWC quota language concerning the aboriginal subsistence exception was left purposely vague. The quota issued jointly to Russia and the United States was limited to whaling by aboriginal groups "whose traditional aboriginal subsistence needs have been recognised." ”

“ Beattie went on to conclude that the proposed whale hunt will be far less dangerous than deer hunting, in which there is a risk of injury from ricocheted bullets of approximately one in four million. See Beattie, supra, at 5.
The plaintiffs argue that the government cannot rely on Beattie because he is not an independent expert. Their contention [p489] is wrong. The government may rely on experts hired by other parties so long as the agency objectively evaluates the qualifications and analysis of the expert. ”

“ An EIS weighs any significant negative impacts of the proposed action against the positive objectives of the project. Preparation of an EIS thus ensures that decision-makers know that there is a risk of significant environmental impact and take that impact into consideration. As such, an EIS is more likely to attract the time and attention of both policymakers and the public. ”

“ According to this analysis, although some whales in the PCFA show a tendency to return to the same area along the Pacific Coast, most of them move around among different areas along the West Coast rather than staying in a particular area. Some frequent different locations throughout the summer, and others visit different places each year. ”

“ See Makah Management Plan for Makah Treaty Gray Whale Hunting for the Years 1998-2002, as amended by Council Resolution No. 57-01 on May 30, 2001 ["Makah Management Plan"] , at 2.↑ A "strike" is defined in the Makah Management Plan as "any blow or blows delivered to a whale by a harpoon, lance, rifle, explosive device or other weapon. When used as a verb, "strike" means the act of delivering such a blow or blows to a whale. A harpoon blow is a strike only if the harpoon is embedded in the whale. Any rifle shot which hits a whale is a strike." ”

“ We therefore have no need to resolve the dispute regarding the scope of the administrative record in the summary judgment appeal and do not do so.↑ It might be argued that our review may be less deferential than usual, given the specific directive in Metcalf that we give any later EA "additional scrutiny" and place the burden of demonstrating objective evaluation on the government. ”

“ Similarly, Darling states that "the recruitment mechanism that influences or maintains the resident group of gray whales found in Washington is not known. As a result, it is difficult to predict at this time how the harvesting of resident whales could affect the resident population." Darling Decl. P 10. See also Calambokidis [p492] et al., Range and Movements, supra, at 4 ("It is unclear how loyal these [seasonal resident] animals are to the feeding grounds, how they adopt this alternate feeding strategy, and their range of movements.") ”