[Federal Register Volume 70, Number 164 (Thursday, August 25, 2005)]
[Notices]
[Pages 49911-49914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16940]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 081905B]


Notice of Intent to Conduct Public Scoping Meetings and to 
Prepare an Environmental Impact Statement Related to the Makah Tribe's 
Continuation of Treaty Right Hunting of Gray Whales

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

[[Page 49912]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; scoping meetings.

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SUMMARY: We intend to conduct public scoping meetings to gather 
information to prepare an Environmental Impact Statement (EIS) pursuant 
to the National Environmental Policy Act (NEPA), related to the Makah 
Tribe's request that NMFS waive the take moratorium of the Marine 
Mammal Protection Act (MMPA) to allow for treaty right hunting of 
eastern North Pacific gray whales in usual and accustomed grounds off 
the coast of Washington State. This notice briefly describes the 
background of the Makah's request for waiver; gives dates, times, and 
locations of public scoping meetings; identifies a set of preliminary 
alternatives to serve as a starting point for discussions; and 
terminates the prior notice of intent to prepare an EIS on a similar 
action.

DATES: Three public scoping meetings are scheduled:
    1. October 5, 2005, Neah Bay, WA.
    2. October 6, 2005, Port Angeles, WA.
    3. October 11, 2005, Seattle, WA.
    See SUPPLEMENTARY INFORMATION for specific times and locations of 
the public meetings.
    In addition to the meetings, written or electronic comments from 
all interested parties are encouraged and must be received no later 
than 5 p.m. PDT October 24, 2005.

ADDRESSES: All comments concerning preparation of the EIS and NEPA 
process should be addressed to: Kassandra Brown, NMFS Northwest Region, 
Building 1, 7600 Sand Point Way NE, Seattle, WA 98115. Comments may 
also be submitted via fax (206)526-6426, Attn: Makah Tribe Whale Hunt 
EIS, or by electronic mail to [email protected] with a subject line 
containing the document identifier: Makah Whale EIS.

FOR FURTHER INFORMATION CONTACT: Kassandra Brown, NMFS Northwest 
Region, (206)526-4348.

SUPPLEMENTARY INFORMATION:

Public Scoping Meetings

Specific Times and Locations

    Public scoping meetings will be held at the following addresses and 
times:
    1. October 5, 2005, 6:30 p.m. - 9:30 p.m., Makah Tribal Council 
Community Hall, 81 3\rd\ Avenue (Makah Passage), Neah Bay, WA.
    2. October 6, 2005, 6:30 p.m. - 9:30 p.m., Vern Burton Memorial 
Community Center, 308 East 4\th\ Street (corner of 4\th\ Street and 
Peabody Street), Port Angeles, WA.
    3. October 11, 2005, 6:30 p.m. - 10 p.m., South Lake Union Park, 
860 Terry Avenue North (The Naval Reserve Building), Seattle, WA.
    The meeting format has been designed so that the public can 
constructively assist NMFS in development of the draft EIS, and will 
generally include presentations and small group work sessions. More 
details regarding meeting format will be posted under the ``gray 
whale'' link at http://www.nwr.noaa.gov by mid-September 2005.

Reasonable Accommodation

    Persons needing reasonable accommodations to attend and participate 
in the public meetings should contact Kassandra Brown (see FOR FURTHER 
INFORMATION CONTACT). To allow sufficient time to process requests, 
please call at least 10 business days prior to the relevant meeting(s). 
Information regarding the Makah's request is available in alternative 
formats upon request.

Background

    The Makah Indian Tribe of Washington State (Makah) seeks to 
continue its subsistence hunt(s) of eastern North Pacific (ENP) gray 
whales, a tradition dating back at least 1,500 years. The Makah's right 
to hunt whales at usual and accustomed grounds and stations off the 
coast of Washington was secured in Article 4 of the 1855 Treaty of Neah 
Bay in exchange for most of the land in the Olympic Peninsula. The 
Treaty of Neah Bay is the primary instrument defining the legal 
relationship between the United States Government and the Makah.
    The Makah hunted whales until the 1920s when commercial whaling had 
drastically reduced the numbers of ENP gray whales available to the 
Makah hunters for harvest. Prior to enactment of the Endangered Species 
Act (of 1973 16 U.S.C. 1351 et seq.), the U.S. Fish and Wildlife 
Service included gray whales (among several genera of baleen whales) on 
its 1970 list of endangered species (35 FR 8491, June 2, 1970). The ENP 
distinct population segment was subsequently delisted on June 16, 1994 
(59 FR 31094). In 1999, Makah hunters killed one ENP gray whale 
pursuant to an aboriginal subsistence harvest quota granted for 1998 
through 2002 by the International Whaling Commission (IWC) and 
domestically implemented by NMFS under the Whaling Convention Act 
(WCA)(16 U.S.C. 916 et seq.). Due to a series of lawsuits, no whales 
were hunted by the Makah for the remainder of the 1998 through 2002 
quota.
    In May 2002, the IWC approved another aboriginal subsistence 
harvest quota of 620 gray whales for 2003 through 2007, on the basis of 
a joint request by the Russian Federation (approved for 600 whales) and 
the United States (approved for 20 whales). The United States' request 
was made on behalf of the Makah. On March 6, 2003 NMFS initiated an EIS 
to assess the environmental impacts of allocating the 2003 through 2007 
quota to the Makah by soliciting comments and information to facilitate 
the environmental analysis (68 FR 10703). Due to litigation (described 
below), NMFS did not complete the EIS and did not allocate the quota 
under the WCA. The Makah have not conducted subsistence hunts to date 
under the 2003 through 2007 IWC quota.
    On June 7, 2004, the Ninth Circuit Court of Appeals in the second 
amended version of Anderson v. Evans, 371 F.3d 475, held that the 
Tribe, to pursue any treaty rights for whaling, must comply with the 
process prescribed in the MMPA (16 U.S.C. 1361 et seq.) for authorizing 
``take'' of marine mammals otherwise prohibited by a moratorium in 
section 101(a)(16 U.S.C. 1371(a)). The term take 
means to harass, hunt, capture, or kill, or attempt to harass, hunt, 
capture, or kill any marine mammal (16 U.S.C. 1362(13)). Subsequent to 
the Anderson v. Evans ruling, the Makah submitted a request for a 
limited waiver of the moratorium on taking marine mammals, which we 
received on February 14, 2005. We published notice of availability of 
the waiver request for public inspection on March 3, 2005 (70 FR 
10369), available online at http://www.nmfs.noaa.gov/pr/international/makah (soon to be available on the NMFS Northwest Region website under 
the ``gray whale'' link at http://www.nwr.noaa.gov).
    To exercise subsistence hunting treaty rights of gray whales, the 
Makah Tribe must undergo three separate but related processes: (1) The 
United States must obtain an aboriginal subsistence quota from the IWC 
on the Makah Tribe's behalf, (2) NMFS must decide whether to waive the 
MMPA take moratorium for the Makah Tribe, including conducting a NEPA 
review and issuing possible regulations and permits (see Proposed 
Action for more details), and (3) NMFS must allocate the IWC quota 
under the WCA. More information regarding these processes will soon be 
available to the public under the NMFS Northwest Region website ``gray 
whale'' link at http://www.nwr.noaa.gov. The NEPA review initiated by 
this notice of intent is to comply with process number (2) described 
above, which requires preparation of a site-specific EIS related

[[Page 49913]]

to the Makah Tribe's request for a waiver of the MMPA take moratorium.

Proposed Action

    The Makah's proposed action is to hunt up to 20 ENP gray whales 
during a 5-year period, subject to a maximum of five gray whales in any 
calendar year, within its adjudicated usual and accustomed grounds 
(See, United States v. Washington, 626 F.Supp. 1405, 1467 (W.D. Wash 
1985)), subject to quotas granted by the IWC. The Makah proposes to 
hunt up to seven gray whales per year. The Makah's proposal to continue 
subsistence hunting of gray whales includes other standards for 
hunting, such as: (1) time and area restrictions designed to avoid any 
intentional harvest of gray whales comprising the Pacific Coast Feeding 
Aggregation (PCFA), (2) monitoring and adaptive management measures to 
ensure that any incidental harvest of gray whales from the PCFA remains 
at or below the annual strike limit, (3) measures to ensure that 
hunting is conducted in the most humane manner practicable, consistent 
with continued use of traditional hunting methods, and (4) measures to 
protect public safety. The full waiver request is posted online at 
http://www.nmfs.noaa.gov/pr/international/makah, and will soon be 
available at NMFS Northwest Region's website at http://www.nwr.noaa.gov 
under the ``gray whale'' link.
    Based on the Makah's waiver request, the Federal action consists of 
three parts: (1) Waiving the moratorium on take of marine mammals under 
section 101(a)(3)(A)(16 U.S.C. 1371(3)(A)) of the MMPA, and 
subsequently (2) promulgating hunting regulations implementing the 
waiver in accordance with section 103 (16 U.S.C. 1373) of the MMPA, and 
(3) issuing any necessary permit(s) to the Makah for whale hunting.
    If NMFS waives the MMPA take moratorium and issues the necessary 
regulations and permit(s), the Makah would be allowed to continue 
subsistence hunting of ENP gray whales, subject to IWC quotas and 
allocation of those quotas under the WCA. The NEPA review initiated by 
this notice of intent, therefore, involves preparation of a site-
specific EIS related to the Makah Tribe's proposed action of continuing 
treaty right subsistence ENP whale hunting (i.e., request for a waiver 
of the MMPA take moratorium), and alternatives to the waiver request.

Alternatives

    Pursuant to NEPA, which requires Federal agencies to conduct an 
environmental analysis of proposed actions to determine if the actions 
may affect the human environment, and in recognition of the Ninth 
Circuit Court of Appeals ruling in Anderson v. Evans, we intend to 
conduct public scoping meetings and to prepare an EIS. Under NEPA, a 
reasonable range of alternatives to a proposed action must be developed 
and considered in our environmental review. Alternatives considered for 
analysis in this EIS may include: variations in the scope of the 
hunting activities, variations in the hunting location, or a 
combination of these elements. In addition, the EIS will identify 
potentially significant direct, indirect, and cumulative impacts on 
geology and soils, air quality, water quality, other fish and wildlife 
species and their habitat, vegetation, socioeconomics/tourism, treaty 
rights and Federal trust responsibilities, environmental justice, 
cultural resources, noise, aesthetics, transportation, public services, 
and human health and safety, and other environmental issues that could 
occur with the implementation of the Makah's proposed action and 
alternatives. For all potentially significant impacts, the EIS will 
identify avoidance, minimization, and mitigation measures to reduce 
these impacts, where feasible, to a level below significance.
    We have identified the following preliminary alternatives for 
public comment during the public scoping period, and encourage 
information on additional alternatives to consider:
    Alternative 1: No Action - Under the No Action Alternative, we 
would not approve the requested whale hunting, would not grant the 
waiver of the moratorium on take under the MMPA, nor issue the 
necessary regulations and permits.
    Alternative 2: The Proposed Action - Under the proposed action, the 
Makah Tribe would be allowed to continue treaty right subsistence 
hunting of gray whales imposing time and area restrictions designed to 
target migrating whales and to avoid any intentional harvest of whales 
from the PCFA. We would grant the waiver of the moratorium on take 
under the MMPA and issue the necessary regulations and permits.
    Alternative 3: The proposed action would be modified to allow 
limited take of gray whales from the PCFA during hunts.
    Alternative 4: The proposed action would be modified to remove time 
and area restrictions from the hunts.
    Alternative 5: The proposed action would be modified to allow 
hunting to target migrating whales, imposing time and area restrictions 
different than those contained in the proposed action that would 
maximize the likelihood of taking a migrating whale (and minimize the 
likelihood of taking a PCFA whale).

Request for Comments

    We provide this notice to: (1) Advise other agencies and the public 
of our intentions, (2) obtain suggestions and information on the scope 
of issues to include in the EIS, (3) terminate the prior notice of 
intent to prepare an EIS on allocation of the 2003 through 2007 quota 
(68 FR 10703) published on March 6, 2003. Comments and suggestions 
received during the prior public comment period for the 2003 through 
2007 quota allocation (March 6 through April 21, 2003), will be 
considered in developing the current EIS. Other comments and 
suggestions are invited from all interested parties to ensure that the 
full range of issues related to the Makah's waiver request and all 
significant issues are identified. We request that comments be as 
specific as possible. We seek public input on the scope of the required 
NEPA analysis, including the range of reasonable alternatives; 
associated impacts of any alternatives on the human environment, 
including geology and soils, air quality, water quality, other fish and 
wildlife species and their habitat, vegetation, socioeconomics/tourism, 
treaty rights and Federal trust responsibilities, environmental 
justice, cultural resources, noise, aesthetics, transportation, public 
services, and human health and safety; and suitable mitigation 
measures.
    Comments concerning this environmental review process should be 
directed to NMFS (see ADDRESSES). See FOR FURTHER INFORMATION CONTACT 
for questions. All comments and material received, including names and 
addresses, will become part of the administrative record and may be 
released to the public.

Authority

    The environmental review of continuation of the Makah subsistence 
gray whale hunting will be conducted under the authority and in 
accordance with the requirements of NEPA, Council on Environmental 
Quality Regulations (40 CFR 1500-1508), other applicable Federal laws 
and regulations, and policies and procedures of NMFS for compliance 
with those regulations. This notice is being furnished in accordance 
with 40 CFR 1501.7 to obtain suggestions and information from other 
agencies and the public on the scope of issues and alternatives to be 
addressed in the EIS.


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    Dated: August 19, 2005.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 05-16940 Filed 8-24-05; 8:45 am]
BILLING CODE 3510-22-S