Ronald M. Gould

“ If Congress wanted to exempt subsequent amendments, then Congress could have done so explicitly. But Congress did not do so. That Congress did not intend to exempt subsequent amendments is clear when § 1372 (a) (2) is considered alongside the mandates of § 1378 (a) (4) . Section 1378 (a) (4) requires "the amendment of any existing international treaty for the protection and conservation of any species of marine mammal to which the United States is a party in order to make such treaty consistent with the purposes and policies of this [Act] ." ”

“ When the United States presented its request for a quota for the Makah Tribe to the IWC, the United States, in response to issues raised by the IWC during subcommittee, represented that the IWC had adopted the following definition of aboriginal subsistence whaling:
whaling, for purposes of local aboriginal consumption carried out by or on behalf of aboriginal, indigenous, or native peoples who share strong community, familial, social, and cultural ties related to a continuing traditional dependence on whaling and on the use of whales. ”

“ The treaty language, when considered on its face, supports our conclusion that the conservation purpose of the MMPA requires it be applied to the Tribe. The Treaty of Neah Bay provides the Tribe with a right to fish and hunt whales "in common with all citizens of the United States." 12 Stat. 939, 940 (1855) . We have recognized that the "in common with" language creates a relationship between Indians and non-Indians similar to a cotenancy, in which neither party may "permit the subject matter of [the treaty] to be destroyed." ”

“ And, when certain permits are issued, the permit may be suspended if the taking results in "more than a negligible impact on the species or stock concerned." 16 U.S.C. § 1371 (a) (5) (B) (ii) . One need only review Congress's carefully selected language to realize that Congress's concern was not merely with survival of marine mammals, though that is of inestimable importance, but more broadly with ensuring that these mammals maintain an "optimum sustainable population" and remain "significant functioning elements in the ecosystem." ”

“ The EA prepared by the federal defendants notes that other Pacific Coast tribes that once hunted whales have reserved traditional "hunting and fishing" rights in their treaties. These less specific "hunting and fishing" rights might be urged to cover a hunt for marine mammals. Although such mammals might not be the subject of "fishing," there is little doubt they are "hunted."
Defendants argue that the conservation necessity test under Fryberg is not triggered until species preservation emerges as an issue. ”

“ The "fair share" formula, however, does not provide a ready answer in this case, which involves now-protected marine mammals rather than salmon and other fish available, within limits, for fishing. The question presented to us is not how whaling rights can be fairly apportioned between Indians and non-Indians. Rather, the Tribe asserts a treaty right that would give the Tribe the exclusive ability to hunt whales free from the regulatory scheme of the MMPA. Just as treaty fisherman are not permitted to "totally frustrate . ”

“ The NMFS might authorize prescribed whaling to proceed under the MMPA, albeit with conditions designed to ensure the perpetuation of the resident whale population. Unlike other persons applying for a permit or waiver under the MMPA, the Tribe may urge a treaty right to be considered in the NMFS's review of an application submitted by the Tribe under the MMPA.↑ In connection with petitions for rehearing en banc, the Appellees urged that this case is moot because the whaling quota expired before we filed our opinion. We disagree. ”

“ Indeed, because the states do not have the power held by Congress to regulate affairs with Indian nations, state regulation of treaty hunting or fishing rights may be more limited in scope than federal regulation. See Eberhardt, 789 F.2d at 1362. We express no opinion as to whether and, if so, the extent to which our decision has relevance to assessment of state conservation regulation that touches on treaty rights. ↑ Fryberg addressed whether the Eagle Protection Act, 16 U.S.C. § 668 et seq., abrogated treaty hunting rights by prohibiting the taking and killing of bald eagles. ”

“ Fifth, even if the only basis for ongoing controversy were the Cooperative Agreement, which expired after we filed our opinion, we have concluded that we should not exercise our discretion to vacate the opinion. See U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 29, 130 L. Ed. 2d 233, 115 S.C.t. 386 (1994) .
Our opinion is not moot and we decline to vacate it. ”