Judge beaches Makahs' whaling trip
Temporary restraining order blocks hunting of gray whales

Associated Press

SEATTLE _ A federal judge granted a temporary restraining order Friday barring Makah Indians from hunting gray whales, thwarting the tribe's plans to continue an ancient tradition that has sparked fierce opposition in recent years.

U.S. District Court Judge Franklin D. Burgess in Tacoma issued the 10-day order two days after whaling opponents filed their request.

"Plaintiffs have made a sufficient showing that serious questions are raised and that the balance of hardship tips in their favor," Burgess wrote. "There is a public interest in determining that an (environmental assessment) adequately addresses all of the ways the whale hunting proposal could adversely affect the human environment."

Anti-whaling activists applauded the ruling.

"We're absolutely thrilled," said Michael Markarian, vice president of the New York-based Fund for Animals.

Reached by phone at the reservation in Neah Bay, Tribal Council President Gordon Smith said he had no comment.

"It's something we feel strongly about, but a comment's not going to do us any good," Smith said, noting that the council has not yet issued a whaling permit this year.

The tribe's Seattle-based lawyer, John Arum, called the restraining order a bitter disappointment, criticizing the judge's failure to mention the treaty rights that give legal backing to the Makah's centuries-old whaling tradition.

"It's evident from the judge's ruling that this is very preliminary, and he hasn't even considered the merits of the case," Arum said, "so I don't think anyone should take this decision as an indication of how he will ultimately rule."

The judge also scheduled a May 15 hearing on The Fund for Animals' recent request for a preliminary injunction, which would last longer than a temporary restraining order.

The preliminary injunction seeks to prevent the Makah from hunting whales while a lawsuit challenging the tribe's right to whale makes its way through the courts.

The Makahs' right to whale is outlined in their 1855 treaty. The tribe moved to resume the hunt when the whales were taken off the Endangered Species List in 1994.

After making their case to the International Whaling Commission, Makah whalers were allocated 20 whales through 2002, but no more than five per year. They killed one, on May 17, 1999, their first in more than 70 years.

They tried again in the spring of 2000, but were unsuccessful. There was no whaling last year, while a court-ordered environmental study was under way.

That study cleared the hunts to resume, as well as expanding whaling territory.

Whaling opponents accuse the National Marine Fisheries Service and the National Oceanic and Atmospheric Association of violating two laws: the National Environmental Policy Act and the Marine Mammal Protection Act, which allows only Alaska tribes to hunt whales.

The fisheries service has defended the study, saying it showed that allowing the Makah to hunt no more than five gray whales per year would not harm a population of 26,000 whales.

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