[Congressional Record Volume 144, Number 144 (Monday, October 12, 1998)]
[Extensions of Remarks]
[Pages E2102-E2104]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          MAKAH WHALING EFFORT

                                 ______
                                 

                           HON. JACK METCALF

                             of washington

                    in the house of representatives

                        Monday, October 12, 1998

  Mr. METCALF. Mr. Speaker, I rise today to briefly discuss the ongoing 
Makah whaling effort. As you may know, the Makah tribe have begun their 
efforts to hunt gray whales inside the Marine Sanctuary off the coast 
of Washington State. I continue to stand opposed to the slaughter of 
these whales, and have grave concerns about the effects that this hunt 
will have on the whale watching industry in my region and the precedent 
it sets world wide.
  I ask unanimous consent to include this letter in the section for 
Extension of Remarks, written to NOAA by Mr. Will Anderson of the 
Progressive Animal Welfare Society (PAWS), an organization in 
Washington State. The letter brings forward some very interesting and 
provocative points against the whale hunt, and I would like to submit 
the text for consideration by the Members of the House and the public.

                                                         PAWS,

                                 Lynnwood, WA, September 29, 1998.
     D. James Baker,
     Under Secretary for Oceans and Atmosphere, Washington, DC.
       Dear Dr. Baker: As you know, the Makah have declared in the 
     media that they will hunt gray whales anytime after October 
     1, 1998. This letter is a petition and notification on behalf 
     of the members and supporters of the Progressive Animal 
     Welfare Society (PAWS), a nonprofit organization based in 
     Lynnwood, Washington. The subject of this letter concerns 
     three documents created by agencies within the Department of 
     Commerce.
       However, before I describe our concerns regarding those 
     documents, I need to first bring up the question of the Makah 
     whaling season and their agreement, in the Makah Management 
     Plan, to not kill resident whales.
       I have read your letter to Mr. Ben Johnson, Chairman of the 
     Makah Tribal Council, dated March 6, 1998. In that letter, 
     with one reservation, you approved the Management Plan For 
     Makah Treaty Gray Whale Hunting For The Years 1998-2002 (the 
     Plan) and indicated that the Plan was understood by your 
     agency to mean that only migrating gray whales would be 
     targeted by Makah hunters. PAWS concurs with your finding 
     that migrating gray whales are unlikely (we believe there is 
     zero chance) to be in the area of Neah Bay until November. 
     However, we are also aware of ample research data from both 
     the United States and Canada that states the southward 
     migration of gray whales will not arrive in Washington waters 
     until December. Until that time, resident whales predominate. 
     I recently confirmed this with Dr. Jim Darling, whose data 
     the U.S. attorneys used in Metcalf versus Daley recently.
       Unfortunately, the Makah seem intent on breaking the 
     Agreement Between NOAA and the Makah Tribal Council (the 
     Agreement). They have given clear signals to the media that 
     they intend to kill whales on October 1, or shortly 
     thereafter. Only ``resident'' whales will be there at that 
     time.
       So, we have two immediate problems: The first is that the 
     Makah appear prepared to break the Agreement, perhaps within 
     48 hours, with Commerce's pre-knowledge. The second is the 
     March 16 letter that asserts that the migration will be 
     passing through Washington in November. Additionally, to my 
     knowledge, as of today, the Makah have neither consulted with 
     Commerce/NMFS that they believe a migration is under way, as 
     is provided by the Whaling Plan and your March 16 letter, nor 
     does NMFS have any idea of what that consultation would 
     consist of or who would make that decision (personal 
     communication with NMFS Seattle, this date).
       Dr. Baker, I respectfully request that you immediately 
     inform the Makah Whaling Commission and the Makah Tribal 
     Council that it is a violation of the Agreement to kill 
     the resident gray whales who transit between SE Washington 
     harbors, to Neah Bay waters and Vancouver Island, Canada. 
     More appropriately, the Makah hunt should not be done in 
     the fall, even December, since the first of the migrating 
     southbound whales are characteristically pregnant females.
       Because the Makah are going back on their stated intent to 
     only kill migratory gray whales and they appear to be 
     violating the understanding as expressed in your March 6 
     letter, resident whales will be killed. (It should be noted 
     that it will be impossible to tell the difference between 
     migrants and residents during the migration because the two 
     categories intermingle at those times. Only the odds of 
     killing a resident change.)
       PAWS urges you to rectify these matters by stating that, at 
     the least, whaling will not be allowed to commence until 
     December and that no whaling permits should be issued until 
     that time. Furthermore, PAWS requests that you notify NMFS 
     Seattle and instruct them to not declare a migration is in 
     progress. It is scientifically untenable to do so.
       The second overriding problem is that it appears Commerce 
     has approved a Plan and entered into an Agreement which are 
     both materially insufficient, at the least. There is a direct 
     linkage beginning with 50CFR, Part 230 that describes what 
     each document is to accomplish and what it is to contain. 
     What follows is a review of three key documents that are the 
     foundation of the Commerce Department's pro-Makah whaling 
     program. The documents are. Federal Register/Vol. 61, No. 
     113/Tuesday, June 11, 1998/Rules and Regulations which is the 
     publication of 50 CFR, Part 230, the revised domestic whaling 
     regulations enabling the Inuit and Makah to hunt; the 
     Agreement Between The National Oceanic And Atmospheric 
     Administration And The Makah Tribal Council (the 
     ``Agreement''); and the Management Plan For Mikah Treaty Gray 
     Whale Hunting For The Years 1998-2002 (the Plan).


          Federal Register (``FR''), 6/11/98: 50 CFR, Part 230

       There are a number of ``promises'' made by the Department 
     of Commerce/NMFS in both the preamble discussion and the 
     final Rule. Both Toni Frohoff, representing the Humane 
     Society of the United States (HSUS) and I, representing the 
     Progressive Animal Welfare Society (PAWS) submitted comments 
     on the revised regulations. Quotes from the Federal Register 
     are in quotation marks and italicized.
       (A) FR, page 29630, bottom half of second column, 
     ``Nevertheless, NMFS will initiate research this summer on 
     gray whales in the Makah area and in Puget Sound. This 
     research is intended to help differentiate resident whales 
     which may swim near Seattle and other local whale watching 
     areas, from whales that are migrating past Neah Bay.'' 
     Comment: Aside from the known fact that any whales killed in 
     October will not be migrants, and the fact that we know John 
     Calamokidis has an on-going research program of Washington's 
     gray whales funded by NMFS, has the research been completed? 
     Does this research cited in Commerce's response really give 
     us the ability to differentiate between residents and 
     migrants?
       (B) FR, page 29630, bottom of second column to top of third 
     column, ``If the IWC authorizes whaling by the Makah Tribe, 
     NMFS will re-assess its obligations under the National 
     Environmental Policy Act.'' Comment: Was there a formal re-
     assessment for this action?
       (C) It should be noted that historically, IWC requirements 
     for aboriginal whaling were stated in terms of cultural and 
     subsistence need. Previous to the revision, that is how US 
     regulations stated the requirements. In this 50 CFR, Part 230 
     revision, Commerce began stating that it was cultural and/or 
     subsistence need. My comment in the FR, page 29629, third 
     column, half-way down ````Comment`` the definition of whaling 
     village should be changed to read `any U.S. village having a 
     cultural and subsistence need for whaling' instead of having 
     a cultural and/or subsistence need for whaling: Their 
     ``Response: NMFS believes that the current language more 
     accurately reflects the interpretation of the IWC of the 
     requirements for aboriginal whaling.'' Comment: This is an 
     arbitrary decision that has had an important effect on US 
     conservation strategy and actions, domestically and 
     internationally. The Commerce change of the word ``and'' to 
     ``and/or'' was essential to the overall strategy to get the 
     Makah approved as cultural whalers. The and/or decree appears 
     to be a major administrative rule change that has the effect 
     of law, yet there appears to be no formal administrative 
     procedure(s) nor NEPA process.
       (D) FR, page 29629, bottom of third column top of next 
     page, 29630. Here is a discussion of Penalties. A commenter 
     stated that penalties should be in CFR 50, Part 230. The 
     Commerce response was that the ``Cooperative Agreement may 
     delegate some enforcement functions to the Native American 
     whaling organizations.'' They also state that, ultimately, 
     the whalers are subject to the Whaling Convention Act (WCA) 
     and the MMPA, and that Commerce has specific responsibilities 
     under the law that would be enforced after failure of tribal 
     efforts and consultation with tribes. However, in the 
     Agreement and Plan, all penalties are tribal and no mention 
     is made of any other provision. The Makah, operating under a 
     treaty right, are exempt from the MMPA--or so it appears. The 
     WCA may be the only enforcement mechanism, but this

[[Page E2103]]

     and its provisions are not discussed in the FR posting. We 
     question the sufficiency of this arrangement and the change 
     from delegating ``some'' to delegating totally.
       (E) FR, page 29631, top of first column, is the state, 
     ``This final Rule does not change the regulations that allow 
     whaling only for subsistence and cultural use.'' Commerce 
     uses ``and'' here. Do I not understand that ``and'' means 
     both criteria apply as was the original practice? Or is this 
     just a FR slip of the tongue? Please comment.
       (F) FR, page 29631, ``If the IWC authorizes whaling by the 
     Makah Tribe, NMFS will re-assess its obligations under the 
     National Environmental Policy Act.'' This is the second time 
     this was ``promised.'' See item ``B'' above. Was it ever 
     acted upon? If not, we request NMFS do so before the hunt.
       (G) FR, page 29631, two-thirds down the first column, ``. . 
     . whaling activities conducted under this rule will have no 
     adverse effects on marine mammals beyond what is authorized 
     by the IWC,'' This increases our concerns about the current 
     stuck and lost criteria (see FR page 29628). Commerce states 
     that a harpoon that falls out of a whale (see later 
     discussion) does not count as a strike. This can does affect 
     several whales beyond the 13 who are already above the quota 
     of 20 which is ``what is authorized by the IWC.''
       (H) FR, page 29631, bottom of third column, whaling village 
     is defined as having a cultural and/or subsistence need for 
     whaling. See items ``C'' and ``E'' above. Also take note of 
     the definition assigned to ``strike'' as I will refer to it 
     when discussing the Plan.
       (I) FR, page 29631, Definitions. ``Aboriginal subsistence 
     whaling means whaling authorized by paragraph 13 of the 
     Schedule annexed to and constituting part of the 
     Convention.''. Does this paragraph 13 include the enabling 
     language the US Government is claiming as the quota given at 
     Monaco, 1997? If so, it includes the phrase, ``. . . whose 
     subsistence and cultural needs have been recognized.'' It has 
     historically been the IWC that does the ``recognizing.''
       (J) FR, page 29632, part 230.4, two-thirds down the first 
     colum. Item ``(e) No person may receive money for 
     participation in aboriginal subsistence whaling.'' I was told 
     by one Makah person that Makah Whaling Commission Members 
     were paid for each meeting and for each canoe/whaling 
     practice. Is this true?


     The Agreement Between NOAA and the Makah Tribal Council (the 
                             ``Agreement'')

       (A) First page, Introduction. In this first paragraph there 
     are references to the Treaty, the Whaling Convention Act 
     (WCA) and ``other Federal law.'' I find it hard to believe 
     that this agreement makes no mention of 50 CFR, Part 230 as 
     well as the ESA and MMPA which are in the Federal Register 
     notice describing the requirement for the Agreement (FR, page 
     29629). This needs to be added to the Agreement.
       (B) First page, Introduction, second paragraph, item (a) 
     note that this stated the old language ``for subsistence and 
     ceremonial purposes.'' I believe in its first appearance, 
     this Agreement preceded the revised 50 CFR, Part 230 as 
     published in the Federal Register (FR) which suddenly stated 
     the and/or definition. Examples abound. Also note in item (b) 
     the reference ``under a quota approved by the IWC.'' It 
     brings up (as repetition) the amendment which read in part, 
     ``whose subsistence and cultural need is recognized'' but 
     this 1997 JWC language in not included in the Agreement which 
     should be updated.
       (C) Page 2, Request For Quota, 1.1(a) Again in pre-revised 
     50 CFR, Part 230, Commerce calls the Makah request 
     subsistence. The referred-to statement was highly criticized. 
     In part (b) of this section, the supplemental statement of 
     need essentially said whale meat would replace junk food and 
     become a meaningful part of their diet that would in turn 
     improve their health. In part (c) I am unaware that NOAA/NMFS 
     used any specific criteria for determining the adequacy of a 
     needs statement. What are the criteria for objectively 
     determining whether a needs statement meets a non-arbitrary 
     threshold.
       (D) Page 4, Item 2(d). ``An explanation of the 
     circumstances associated with the striking of any whale not 
     landed, and an estimate of whether the animal suffered a 
     wound that might be fatal to the animal.'' This is an 
     important and arguable aspect that consists of two parts. The 
     first, as I will describe when evaluating the Makah Whaling 
     Plan, is that the definition of strike in the Plan does not 
     appear to agree with the definition in the Federal Register, 
     revised 50 CFR, Part 230. The second has to do with defining 
     and estimating what might be fatal. Though not directed 
     primarily at whaling activities, NOAA Technical Memorandum 
     NMFS-OPR-13, Differentiating Serious and Non-Serious Injury 
     of Marine Mammals Taken Incidental to Commercial Fishing 
     Operations: Report of the Serious Injury Workshop 1-2 April 
     1997, Silver Spring, Maryland, January, 1998 by Robyn P. 
     Angliss and Douglas P. DeMaster sheds some important light as 
     it does discuss whales injured by fisheries activities. 
     Physiological responses appear to vary but can lead to death 
     due to prolonged stress. There are several lengthy quotes 
     that include physical injury to whales that did not appear to 
     heal and afterward said whales were found dead on a beach. In 
     short, NOAA/NMFS cannot tell with any accuracy (much less a 
     Makah whaler), what constitutes a serious injury, especially 
     with a .50 caliber projectile traveling into the water column 
     some distance, out of human sight.
       (E) Page 4, Management, item 3(b). The Makah Whaling Plan 
     fails to declare an opening a closing date. Refer to this 
     item when I bring it up in the Makah Whaling Plan.
       (F) Page 5, item 3(e). Here it is stated that the hunting 
     activities will take place outside of the Tatoosh-Bonilla 
     Line. I have contacted a resource who is a cartographer who 
     in turn called the Coast Guard. The Tatoosh-Bonilla line runs 
     from Tatoosh Island near Neah Bay to Bonilla Point which is 
     on Vancouver Island. Bonilla Point Latitude is 48 degrees, 
     35.7 minutes; Longitude is 124 degrees, 43 minutes. The Coast 
     Guard's proposed regulatory zone extends eastward from this 
     line where whaling is not supposed to take place. So whaling 
     is not supposed to take place anywhere near Neah Bay, nor in 
     most of the Strait of Juan de Fuca. Furthermore, ``whaling'' 
     is defined in the Makah Whaling Management Plan as ``the 
     scouting for, hunting, striking, killing or landing of a 
     whale.'' Please note: we do not have, at this date, a copy of 
     the Final Rule issued by the Coast Guard, so we can only 
     assume what is known. I requested twice this morning a copy 
     of the Final Rule and was told it would be published October 
     1, perhaps less than twenty-fours hours before the Makah 
     hunt. If this is the case, it is intolerable to PAWS that the 
     scheduling of the administrative Rule is set so close to a 
     hunt. It deprives us of the information we and our 
     representatives need to understand the Rule.
       (G) Page 5, item 4(a) Enforcement. There is no mention 
     regarding waste. In the Federal Register, in response to my 
     comment on the revision of 50 CFR, Part 230, ``The term 
     `wasteful manner' should include the use and waste of whale 
     products after landing.'' Keep in mind that landing means 
     bringing any whale products on shore. NOAA/NMFS stated, 
     ``NMFS agrees. The term has the same meaning as Sec. 216.3: 
     ``Wasteful manner means any taking or method of taking which 
     is likely to result in the killing of marine mammals beyond 
     those needed for subsistence or the making of authentic 
     native articles of handicrafts and clothing or which results 
     in the waste of a substantial portion of the marine mammal . 
     . .'' Yet, the Agreement makes no mention of waste 
     whatsoever. Please add a discussion and prohibition of waste 
     to the Agreement.


                The Makah Management Plan (the ``Plan'')

       I believe the Makah Management Plan, already approved by D. 
     James Baker (letter, March 16, 1998) with one exception (hunt 
     in November, not October) is materially insufficient in not 
     meeting the Federal Register published 50 CFR, Part 230 
     criteria and the Agreement.
       (A) Page one, third paragraph. Note Commerce is now using 
     ``ceremonial and subsistence'' language though the Department 
     never proved a subsistence/nutritional need at the IWC, and 
     arguably, nor in their needs statement domestically. What are 
     the NOAA/NMFS criteria for approving/not approving cultural 
     and subsistence needs? I have not seen any Rule or other 
     promulgation to that effect.
       (B) Page Two, Definitions, item ``G.'' Strike is defined in 
     the Plan far differently than is defined in 50 CFR, Part 230. 
     The language in the Plan requires the strike to ``result or 
     is likely to result in death'' in order to be counted as a 
     strike. The Plan additionally requires the harpoon to remain 
     embedded in the whale to count as a strike! Five harpoons 
     could conceivably fall out of a single whale and not be 
     counted as a strike. Commerce appears to have no basis for 
     making this determination. The 50 CFR, Part 230 reads, 
     ``Strike means hitting a whale with a harpoon, lance or 
     explosive device.'' That's it. See my citation on wounded 
     whales incidental to fishing operations for a wealth of 
     quotes that indicate the Plan's definition is simply 
     insupportable. It does not follow the precautionary 
     principal. Please make the Plan consistent with 50 CFR, Part 
     230. Every weapon striking the skin, perhaps breaking the 
     skin, of a whale should count as a strike.
       (C) Page 2, Definitions, item ``A.'' Calf. I'm going back 
     to this because I've always been bothered with the response 
     of NOAA to our comments regarding the definition of calf. 
     Commerce took the position of determining whether or not a 
     whale was a calf by seeing if there was milk in his stomach 
     after--the infraction when the whale calf is dead. It is 
     interesting that in the old CFR regulations, a Bowhead whale 
     was called a calf if she was under 25 feet in length. We 
     protest the new definition in that it weakens and fails 
     efforts to protect calves.
       (D) Page four, item ``D.'' The Council shall provide at 
     least 24 hours advance notice to the NMFS prior to approving 
     a whaling permit. That advance notice is not required if an 
     NMFS agent is on the Makah Reservation. The time frame does 
     not allow enough administrative oversight (one field 
     biologist given information and sole authority) and ensures 
     the public will be excluded from notice.
       (E) Page 4, item ``F.'' ``The Commission (here referring to 
     the Makah Whaling Commissions, in other documents The 
     International Whaling Commission) may issue a whaling permit 
     only after determining there is an unmet subsistence or 
     cultural need for whale products in the tribal community.'' 
     Here is the same pattern, mixing ``and'' with ``and/or'' and 
     now ``or.'' Which is it?
       (F) Page 5, item ``V.'' Training/Qualifications. This 
     paragraph says that Makah whaling team members will be 
     trained and certified for their roles under certification 
     guidelines established by the Commission. I'd like to see 
     those guidelines. We should be

[[Page E2104]]

     able to because this certification is required by 50 CFR 
     (Part 230.4(d)) ``No whaling captain shall engage in whaling 
     without an adequate crew or without adequate supplies and 
     equipment.'' There is a clear link between the CFR and this 
     Plan. Page 3, top, of the Agreement requires the Plan. The 
     Agreement is required by 50 CFR in Part 230.2 Definitions, 
     Cooperative Agreement. Are we not allowed access to them, as 
     they are required by CFR?
       (G) Item VII, Area Restrictions, ``A.'' Whaling is only 
     permitted westward on the open ocean outside the Tatoosh-
     Bonilla Line. As described in my item ``F'' under the 
     critique of the Agreement, this line is far different from 
     the Coast Guard's regulatory/exclusion zone (note, since the 
     Final Rule is not out at this date, I and the public are 
     clueless as to the content and application of the Rule).
       (H) Enforcements and Penalties Sections on pages 8 and 9. 
     As discussed earlier, in the 50 CFR negotiations, it was 
     published in the FR that some enforcement/penalties 
     responsibilities may be transferred to tribal authorities. 
     See my comments under the 50 CFR critique, my item (D).
       (I) There are no opening and closing dates for each year's 
     hunts in the whaling in the Plan. This is succinctly required 
     in the Agreement on page 4, item 3(b). They would have to do 
     this for the Spring hunt as well.
       Secretary Baker, since this matter is of urgent importance, 
     we respectfully request a timely response to our concerns, 
     before the Makah are allowed to conduct their hunt.
           Sincerely,
                                                    Will Anderson,
                                                Wildlife Advocate.