DRAFT

ENVIRONMENTAL ASSESSMENT

on

ISSUING A QUOTA TO THE MAKAH INDIAN

TRIBE FOR A SUBSISTENCE HUNT ON GRAY

WHALES FOR THE YEARS 2001 AND 2002

Prepared by

U.S. Department of Commerce

National Oceanic and Atmospheric Administration

National Marine Fisheries Service

January 12, 2001
TABLE OF CONTENTS

1. PURPOSE AND NEED FOR ACTION .......................................... 1

2. BACKGROUND ........................................................... 1

2.1. Makah Tradition of Whaling ........................................... 1

2.2. IWC and Governance of Aboriginal Whaling .............................. 2

2.3. IWC Action on Quota Requests ......................................... 2

2.4. Makah Hunt under IWC Quota ......................................... 3

2.5. Explanation of Legal Issues ............................................ 3

2.5.1. Federal Trust Responsibility .................................... 3

2.5.2. Treaty of Neah Bay ........................................... 4

2.5.3. International Convention for the Regulation of Whaling .............. 5

2.5.4. Marine Mammal Protection Act and Endangered Species Act .......... 5

2.6. Other Environmental Assessments and Environmental Impact Statements ....... 6

2.7. Federal Licenses Necessary to Implement the Proposed Action ................ 7

3. ALTERNATIVES, INCLUDING THE PROPOSED ACTION ........................ 7

3.1. Alternative 1 - Grant Makah Tribe the IWC Quota With Restrictions to Target Hunt

on Migrating Whales (similar to the 1999 regime) ........................ 7

3.2. Alternative 2 - Grant Makah Tribe the IWC Quota With Restrictions That Allow a

Limited Hunt on the Pacific Coast Feeding Aggregation ................... 8

3.3. Alternative 3 - Grant Makah Tribe the IWC Quota Without Time-Area Restrictions

................................................................ 8

3.4. Alternative 4 - (No Action) - Do Not Grant Makah Tribe the IWC Quota ........ 8

4. AFFECTED ENVIRONMENT ................................................ 8

4.1. Geographic Location ................................................. 9

4.1.1. Makah Tribe’s Usual and Accustomed (U&A) Grounds .............. 9

4.1.2. Olympic Coast National Marine Sanctuary ........................ 9

4.1.3. Wildlife Refuge ............................................. 11

4.1.4. Coast Guard’s Restricted Navigation Area ........................ 11

4.2. Eastern North Pacific Gray whale ...................................... 12

4.2.1. Current Abundance, Trends and Status ........................... 14

4.2.2. Migration .................................................. 15

4.2.3. Pacific Coast Feeding Aggregation .............................. 18

4.2.4. Whaling ................................................... 23

4.2.5. Natural Mortality ............................................ 28

4.2.6. Fishery Interactions .......................................... 29

4.2.7. Offshore Activities and Ship Strikes ............................. 29

4.2.8. Contaminants .............................................. 30

4.2.9. Activities in the Wintering Areas ............................... 31

4.2.10. Stranding Events in 1999 and 2000 ............................ 32

4.3. Other Wildlife (marine mammals, seabirds, sea-turtles) ..................... 32

4.4. Makah Tribe ....................................................... 37
4.5. Other Tribes ....................................................... 37

4.6. Whale Watching Industry ............................................ 38

5. ENVIRONMENTAL CONSEQUENCES ....................................... 40

5.1. Alternative 1 - Grant Makah Tribe the IWC Quota With Restrictions to Target Hunt

on Migrating Whales (similar to the 1999 regime) ....................... 40

5.2. Alternative 2 - Grant Makah Tribe the IWC Quota With Restrictions That Allow a

Limited Hunt on the Pacific Coast Feeding Aggregation .................. 46

5.3. Alternative 3 - Grant Makah Tribe the IWC Quota Without Time/Area Restrictions.

............................................................... 49

5.4. Alternative 4 - No Action - Do Not Grant Makah Tribe the IWC Quota ........ 50

6. COORDINATION AND CONSULTATION ..................................... 53

7. LIST OF PREPARERS ...................................................... 53

8. REFERENCES ............................................................ 54
1

1. PURPOSE AND NEED FOR ACTION

In 1997, the International Whaling Commission (IWC) approved a quota of 620 gray whales for an

aboriginal subsistence harvest during the years 1998 through 2002. The basis for the quota was a

joint request by the Russian Federation (for a total of 600 whales) and the United States (for a total

of 20 whales). The National Oceanic and Atmospheric Administration (NOAA) in 1998 and 1999

granted an allocation of up to five whales a year to the Makah Indian Tribe, whose subsistence and

ceremonial needs had been the foundation of the U.S. request to the IWC. In May 1999, Makah

hunters killed one gray whale.

Now, as the result of an opinion by the U.S. Court of Appeals for the Ninth Circuit (See Section 2.5

of this EA), NOAA must examine the environmental consequences of allocating any gray whales

to the Makah Tribe for the years 2001 and 2002. NOAA’s objective is to accommodate Federal trust

responsibilities and treaty whaling rights to the fullest extent possible, by fulfilling the Tribe’s

cultural and subsistence needs, while ensuring that any tribal whaling activity does not threaten the

Eastern North Pacific gray whale population.

This Environmental Assessment (EA) considers four alternatives for issuance of the IWC quota to

the Makah Tribe, including a no-action alternative that would not grant the Makah Tribe a quota.

2. BACKGROUND

2.1. Makah Tradition of Whaling

The Makah Tribe’s tradition of whale hunting extends at least 1500 years into the past. In addition

to subsistence benefits, whale hunting and its associated components fulfilled important ceremonial

and social functions for the Makah. Whaling was so important to the Tribe that it explicitly secured

its rights to continue whaling in the 1855 Treaty of Neah Bay, entered into with the U.S.

Government. That Treaty is still the primary legal instrument defining the legal relationship between

the U.S. Government and the Tribe.

The Tribe continued to whale until the 1920s, when a number of external factors led to the decline

of tribal whaling. The U.S. Government, in an attempt to instill western values and practices,

undermined Makah whaling traditions and failed to provide the assistance for whaling it had

promised the Tribe in the Treaty of Neah Bay. Epidemics that reduced the Tribe’s numbers by some

75% killed many whalers before they could pass on their traditions to the next generation. In

addition, commercial whaling by non-Indians led to a drastic decline in the Eastern North Pacific

gray whale population available to the Makah hunters, forcing the Tribe to rely on other sources of

food.

Tribal members learned other ways of making a living as contact with western civilizations

increased, but the Tribe never forgot its history of whaling. The Makah Tribe managed to “store

away” its cultural whaling traditions in anticipation of a time when these traditions could be revived.
2

On May 5, 1995, after the Eastern North Pacific gray whale had been removed from the list of

endangered species, the Makah Tribe informed NOAA that it wanted to resume ceremonial and

subsistence whaling. According to the Tribe, its cultural and subsistence needs include a harvest of

up to five whales a year, the ability to hunt whales safely using traditional methods, and the ability

to practice the ceremonial aspects of whaling.

More information about the Makah Tribe’s tradition of whaling can be found in Renker (1997) and

in Section 4.2.4.a. of this EA.

2.2. IWC and Governance of Aboriginal Whaling

In 1946, the United States signed the International Convention for the Regulation of Whaling

(ICRW). Each Contracting Government to the ICRW is represented on the IWC. The IWC

recognizes aboriginal whaling as a category distinct from commercial whaling and exempt from the

current moratorium on commercial whaling. The ICRW specifically states that the IWC may not

allocate specific quotas to any particular nationality or group of whalers. Because of this prohibition,

the IWC sets an overall aboriginal subsistence harvest for the relevant stock, based on the request

of Contracting Governments on behalf of aboriginal hunters.

Quotas for aboriginal subsistence whaling are set based on cultural and subsistence need, provided

that the quotas are either sustainable or else low enough to allow stocks to recover if they had

previously been depleted by commercial whaling. There is no formal IWC definition of aboriginal

subsistence whaling, only working group guidelines that have never been formally adopted.

2.3. IWC Action on Quota Requests

In 1996, NOAA and the Makah Tribal Council signed an agreement, in which the Makah Tribe

undertook to prepare a needs statement for submission to the IWC, and NOAA agreed to present to

the IWC an adequate needs statement as the foundation for a quota request. During the 1996 IWC

annual meeting, NOAA and the Makah Tribe decided to withdraw the request and resubmit it in

1997.

Before signing a second agreement with the Makah Tribal Council and submitting another request

to the IWC the following year, NOAA prepared an EA (see section 2.5). At the 1997 annual

meeting, the IWC set a quota for aboriginal subsistence use of gray whales from the eastern stock

in the North Pacific. The gray whale quota was based upon a joint presentation by the Russian

delegation on behalf of the Chukotka people, and the U.S. delegation on behalf of the Makah Tribe.

This joint request delineated the subsistence needs for gray whales by the Chukotka and the Makah

Tribe. The total requested quota of 620 gray whales over a five-year period assumed an average

annual harvest of 120 whales by the Chukotka people and an average annual harvest of four whales

(not to exceed five in any year) by the Makah Tribe. The IWC approved the joint request for the

aboriginal subsistence use of gray whales by consensus, without objection. Approval of the quota,

in accordance with IWC procedure, is the only mechanism by which the Commission recognizes the
3

needs of an aboriginal group and determines that a particular use of whales is consistent with the

aboriginal subsistence whaling guidelines.

2.4. Makah Hunt under IWC Quota

NOAA granted the Makah Tribe a quota of up to five gray whales in 1998, but the Tribe did not take

any whales that year. In 1999, NOAA again granted a quota of up to five whales. On the morning

of May 17, 1999, in the Pacific Ocean south of Cape Flattery, Washington, the tribal crew struck and

killed a gray whale. The whale was towed to the beach in Neah Bay, where, after tribal ceremonies,

it was butchered by tribal members. The meat and blubber were consumed by members of the

Makah Tribe and during tribal ceremonies. Details of this take are described in Section 4.2.4.a.2 of

this EA. No whales were taken during the rest of 1999 or during the spring season in 2000.

The United States reported the Makah take at the 1999 and 2000 annual meetings of the IWC. The

IWC made no change to the gray whale quota nor took any other action as a result of these reports.

2.5. Explanation of Legal Issues

Through domestic measures and international treaties, Congress and the Executive Branch have

sought to ensure conservation of wildlife while recognizing the essential rights of Indians to hunt and

fish to maintain their culture. At the forefront of this issue lies the trust responsibility toward

American Indian tribes that requires the U.S. Government to fulfill certain fiduciary responsibilities,

including the protection of tribal rights to natural resources. The United States is party to two

treaties that are relevant to Makah whaling: the 1855 Treaty of Neah Bay and the 1946 ICRW. Like

any statute enacted by Congress, both of these treaties have the force of law. Brief discussion of the

Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA) has also been

included in this section.

2.5.1. Federal Trust Responsibility

The concept of “trust responsibility” is derived from the special relationship between the Federal

Government and Indians, first delineated by Supreme Court Chief Justice John Marshall in Cherokee

Nation v. Georgia, 30 U.S. 1 (5 Pet.) (1831). Later, in Seminole Nation v. United States, 316 U.S.

286 (1942), the Court noted that the United States “has charged itself with moral obligations of the

highest responsibility and trust” toward Indian Tribes. The scope of the Federal trust relationship

is broad and incumbent upon all Federal agencies. The U.S. Government has an obligation to protect

tribal land, assets, and resources, as well as a duty to carry out the mandates of Federal law with

respect to American Indian and Alaska Native tribes. This unique relationship provides the

Constitutional basis for legislation, treaties, and Executive Orders that grant unique rights or

privileges to Native Americans to protect their property and their way of life.

In furtherance of this trust responsibility and to demonstrate respect for sovereign tribal

governments, the principles described above were incorporated into Secretarial Order No. 3206,
4

dated June 5, 1997, and signed by the Secretaries of Commerce and Interior. This Order, entitled

“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species

Act,” directs both Departments to carry out their responsibilities under the ESA in a manner that

harmonizes the Federal trust responsibility to tribes, tribal sovereignty, and statutory missions of the

Departments, so as to avoid or minimize the potential for conflict and confrontation.

On May 14, 1998, President Clinton issued Executive Order (EO) 13084 requiring each Federal

agency to establish meaningful consultation and collaboration with Indian tribal governments in

formulating policies that significantly or uniquely affect their communities. Entitled “Consultation

and Coordination with Indian Tribal Governments,” the order requires agency policy making to be

guided by principles of respect for tribal treaty rights and responsibilities that arise from the unique

legal relationship between the Federal Government and Indian tribal governments. Furthermore, on

issues relating to treaty rights, EO 13084 directs each agency to explore, and, where appropriate, use

consensual mechanisms for developing regulations.

President Clinton, on November 6, 2000, signed EO 13175, which replaced EO 13084. The order

carries the same title and strengthensthe government-to-government relationship between the United

States and Indian tribes. It ensures that all Executive departments and agencies consult with Indian

tribes and respect tribal sovereignty as they develop policy on issues that impact Indian communities.

2.5.2. Treaty of Neah Bay

In 1855, the United States entered into the Treaty of Neah Bay with the Makah Tribe. This treaty

explicitly secures the Tribe’s right to continue whaling at its usual and accustomed grounds. The

Treaty of Neah Bay is the only treaty between the United States and an Indian tribe that expressly

provides for a tribe’s right to whale.

Under the Constitution, Congress has the power to abrogate Indian treaties. However, the U.S.

Supreme Court has stated that Congressional abrogation must be clear, either expressly in the

legislation, orthrough unambiguous expression in the accompanying record that Congress examined

the conflict with the Indian treaty and actively chose to resolve the conflict by abrogating the Indian

treaty. (See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-203 (1999). No

act of Congress (including the Whaling Convention Act (WCA) and the MMPA) has explicitly

abrogated the Treaty of Neah Bay or the Makah right to conduct whaling as reserved in that treaty.

Nothing in the WCA or MMPA, nor their legislative histories, even mentions the Treaty of Neah

Bay. Congress does not appear to have considered that any conflict might exist between those laws

and the whaling right in the Makah treaty.

In dealing with whaling activity conducted under the Treaty of Neah Bay, Federal and state

governments are constrained by a large body of law addressing the regulation of fishing and hunting

under that and similar treaties. Government agencies must show that a regulation of the exercise of

treaty fishing rights is “necessary for the conservation of fish.” Tulee v. Washington, 315 U.S. 681,

684-85 (1942). This holding has become known as the “conservation necessity” standard.
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“Conservation necessity” has been interpreted narrowly in the cases following Tulee, limited to

measures essential to the perpetuation of a particular run or species of fish. (See United States v.

Washington, 384 F.Supp. 312, 342 (W.D. Wash. 1974), aff’d, 502 F.2d 676, 685 (9th Cir. 1975), cert.

denied, 423 U.S. 1086 (1976). Subsequent decisions have allowed a reasonable margin of safety

against extinction, but have clarified that only the least restrictive means of achieving a conservation

purpose are acceptable. Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F.Supp. 1362,

1382 (D. Minn. 1997), aff’d, 124 F.3d 904 (8th Cir. 1997), aff'd, 526 U.S. 172 (1999); United States

v. Washington, 384 F.Supp. at 342. Preventing the depletion of deer in local areas has been rejected

as a justification for harvest regulation, where there was an overall quota and an acknowledgment

that deer would reoccupy any depleted area. Mille Lacs, 952 F. Supp. at 1382.

2.5.3. International Convention for the Regulation of Whaling

The ICRW has as its objective the proper conservation of world whale stocks, thus making possible

the orderly development of the whaling industry. The ICRW established the IWC to provide for a

continuing status review of whale stocks and for such additions or modifications of the agreed

conservation measures as might be desirable. The ICRW is implemented domestically through the

WCA, which governs U.S. participation in the IWC and management of whaling activities under

U.S. jurisdiction. Although gray whales are also protected under the MMPA (See 2.5.4), Section 113

of the MMPA specifically states that the provisions of the MMPA are in addition to, and not in

contravention of, existing international treaties, conventions, or agreements (e.g., the ICRW). 

To ensure consistency between its domestic and international obligations, the U.S. Government has

taken the position that the United States should obtain IWC approval of an appropriate harvest quota

before authorizing aboriginal subsistence whaling. (See 50 CFR 230.) The Makah Tribe believes

that the whaling provisions of the Treaty of Neah Bay have never been abrogated and that the U.S.

obligation to the Tribe takes precedence over U.S. obligations under the ICRW. Although the Tribe

does not believe that a Makah subsistence harvest requires IWC approval, the Tribe has worked

cooperatively with NOAA to obtain that approval in order to provide its members with the certainty

that they can take whales on a limited basis without legal impediment. Other groups have taken the

position that the ICRW takes precedence, in part because it is the later treaty. These groups believe

the Tribe’s right to take whales has been superseded and, therefore, that the United States is under

no obligation to allocate a quota to the Tribe for the harvest of gray whales.

NOAA has noted that it is possible to honor obligations contained in both the Treaty of Neah Bay

and in the ICRW by granting the Makah a gray whale quota for ceremonial and subsistence within

the range of the quota obtained from the IWC. 

2.5.4. Marine Mammal Protection Act and Endangered Species Act

After careful analysis, the Departments of Commerce and Interior concluded that the MMPA does

not abrogate Indian treaty rights to harvest marine mammals. Where there is no conservation

obstacle to the harvest, the National Marine Fisheries Service (NMFS) has not objected to the taking
6

of marine mammals by Indian tribes with reserved rights. For example, the Makah Tribe harvests

Pacific harbor seals and California sea lions with the acquiescence of NMFS.

On June 16, 1994, the Eastern North Pacific gray whale was removed from the ESA’s list of

Endangered and Threatened Wildlife and Plants. As required under section 4(g) of the ESA, NMFS

drafted a “5-year Plan for Research and Monitoring of the Eastern North Pacific Population of Gray

Whales” to monitor the status of the stock for a period of at least five years following delisting.

NMFS’ Plan provided that the Gray Whale Monitoring Task Group would conduct the

comprehensive status review. Completed in August 1999, this review recommended that the stock’s

classification continue as non-threatened.

2.6. Other Environmental Assessments and Environmental Impact Statements

The Makah hunt is likely to occur in and/or adjacent to the Olympic Coast National Marine

Sanctuary (Sanctuary). An Environmental Impact Statement (EIS) was prepared prior to designation

of the Sanctuary (NOAA 1993). The EIS includes discussion of the Makah Tribe, treaty rights, and

the inter-relationship between the Tribe and the Sanctuary in more detail than are contained herein.

In preparation for the 1996 IWC meeting, NOAA revised its regulations pertaining to whaling (61

FR 29628, June 11, 1996). The revised regulations established the mechanism for managing

aboriginal subsistence whaling in the United States and broadened the existing regulations to

encompass the possibility of Makah whaling if the IWC were to grant the Makah a quota. The

regulations did not authorize whaling of any kind nor did it address the specifics of the Makah

interest in whaling. The purpose of the revision to the whaling regulations was solely to set up a

mechanism to implement IWC decisions.

Prior to the 1997 IWC Annual Meeting, NMFS formally analyzed the environmental impacts of a

decision to support or not support whaling, and to determine whether an annual subsistence quota

of up to five Eastern North Pacific gray whales would significantly affect the quality of the human

environment. A draft EA was distributed for public comment on August 22, 1997. After reviewing

and addressing the comments received, NMFS issued a final EA and Finding of No Significant

Impact on October 17, 1997.

U.S. Congressman Jack Metcalf, Breach Marine Protection, and several other plaintiffs brought a

lawsuit, Metcalf v. Daley, in October 1997, alleging that the U.S. Government had violated the

National Environmental Policy Act (NEPA), the WCA, and other statutes. In September 1998, the

U.S. District Court for the Western District of Washington ruled in favor of the U.S. Government

on all issues.

On June 9, 2000, the Ninth Circuit Court of Appeals overturned one aspect of that decision, ruling

that the 1997 EA should have been completed before the U.S. and the Makah Tribe entered into a

cooperative agreement. That agreement had provided that, if the Tribe prepared an adequate needs

statement documenting a cultural and subsistence need to harvest gray whales, NOAA would request
7

a quota of gray whales from the IWC. Two judges on a three-judge panel held that the timing of the

EA, which was completed after the 1996 agreement was signed and before the 1997 annual meeting

of the IWC, may have predisposed the preparers to find that the whaling proposal would not

significantly affect the environment. The Court ordered NOAA to set aside that finding and comply

with NEPA under circumstances that would ensure an objective evaluation of the environmental

consequences of the gray whale harvest.

Following the Court action, NOAA rescinded its cooperative agreement with the Makah Tribe on

August 11, 2000. The Makah Tribe responded on August 31, 2000, that it does not accept NOAA’s

rescission of the agreement. NOAA subsequently set the gray whale quota for 2000 at zero (65 FR

75186, December 1, 2000) and is setting the 2001 gray whale quota for 2001 at zero, pending

completion of its NEPA analysis. 

2.7. Federal Licenses Necessary to Implement the Proposed Action

A license is issued to whaling captains through the procedures set out in NOAA regulations (50 CFR

230.5), for aboriginal subsistence whaling allowed by the IWC. These procedures require that

whaling may only be conducted in accordance with a cooperative agreement between the relevant

Native American whaling organization and NOAA. NOAA must also publish aboriginalsubsistence

whaling quotas and any other limitations on such whaling in the Federal Register (50 CFR 230.6).

3. ALTERNATIVES, INCLUDING THE PROPOSED ACTION

3.1. Alternative 1 - Grant Makah Tribe the IWC Quota With Restrictions to Target

Hunt on Migrating Whales (similar to the 1999 regime)

Under this alternative, NOAA would grant the Makah Tribe the IWC quota of up to five whales a

year for ceremonial and subsistence purposes, with restrictions on the time, place, and/or manner of

the hunt similar to those in place during the Tribal hunts in 1999. The hunt would be structured with

the intent of targeting migrating whales by limiting the area of the hunt to the ocean area of the

Tribe’s usual and accustomed grounds (U&A) (outside the Straits of Juan de Fuca westward of a line

from Bonilla Point in Canada to Tatoosh Island off northern Washington), and by limiting the timing

of the hunt to occur only when the northward or southward gray whale migrations are underway.

This alternative would allow the Makah Tribe to determine when it conducts a hunt within a

prescribed migration season in the ocean area of its U&A. It is expected that the Makah Tribe would

use the methods utilized in 1999, which included pursuit and harpooning from a canoe, followed by

immediate dispatch of a harpooned whale with a large caliber rifle discharged from a motorized

vessel. The hunt would be restricted to either five gray whales landed or seven whales struck, and

the hunt would be terminated either when five gray whales are landed or seven whales are struck,

whichever occurs first in a given year. (Seven strikes is the limit for 2001 and 2002 set in the 1997

agreement between NOAA and the Makah Tribal Council.)
8

Under any of the quota alternatives (1, 2, and 3), utilization of the whale would be limited to

ceremonial and subsistence use. Commercial use would be forbidden, consistent with the purpose

and intent of the IWC subsistence quota. In accordance with IWC and NOAA regulations, takes of

a calf or of a female accompanied by a calf (referred to as ‘mother-calf pairs’) would be prohibited.

3.2. Alternative 2 - Grant Makah Tribe the IWC Quota With Restrictions That Allow

a Limited Hunt on the Pacific Coast Feeding Aggregation 

Under this alternative, NOAA would grant the Makah Tribe the IWC quota of up to five whales a

year for ceremonial and subsistence purposes, with restrictions that allow a limited hunt on the

Pacific coast feeding aggregation. Under this alternative, the Tribe would not be entirely restricted

to targeting migrating whales (as in Alternative 1). It would have the flexibility to determine when

and where the hunt occurs in the U&A, so long as the hunt does not adversely impact the Pacific

coast feeding aggregation of gray whales off the West Coast. This alternative would acknowledge

the Makah Tribe’s request to conduct a limited hunt in the summer in the Straits and to hunt in the

ocean in September and October when weather conditions are more tolerable. The overall annual

quota of five whales landed or seven whales struck described in Alternative 1 would be retained, and

restrictions would be established for the number of strikes/landings permitted outside the migration

period and/or inside the Tatoosh-Bonilla line to ensure that the Pacific coast feeding aggregation

is not adversely impacted. This alternative would allow the Makah Tribe to determine how it wants

to conduct a hunt and to set hunting seasons in its entire U&A, so long as the IWC quota is not

exceeded, restrictions regarding takes from the Pacific coast feeding aggregation are followed, and

the hunt is humane. It is expected that the Makah Tribe would use the methods utilized in 1999,

which included pursuit and harpooning from a canoe and immediate dispatch of a harpooned whale

with a large caliber rifle discharged from a motorized vessel. 

3.3. Alternative 3 - Grant Makah Tribe the IWC Quota Without Time-Area

Restrictions

Under this alternative, NOAA would grant the Makah a quota of up to five whales a year for

ceremonial and subsistence purposes, without any Federal restrictions on the time or place of the

hunt. This alternative would allow the Makah Tribe to determine when and where to hunt gray

whales in its U&A. The overall annual quota of five whales landed or seven whales struck described

in Alternative 1 would be retained.

3.4. Alternative 4 - (No Action) - Do Not Grant Makah Tribe the IWC Quota

Under this alternative, NOAA would deny the Makah Tribe a whaling quota for cultural and

subsistence purposes. Several scenarios are conceivable under this option: 1) the Makah Tribe might

litigate to force the government to honor its treaty rights; 2) NOAA could encourage and assist the

Tribe in non-lethal whaling ventures such as whale watching or ecotourism; 3) NOAA could

compensate the Tribe for its loss; and 4) the Makah Tribe could proceed to hunt gray whales under

its treaty right without issuance of a quota.
9

4. AFFECTED ENVIRONMENT

4.1. Geographic Location

4.1.1. Makah Tribe’s Usual and Accustomed (U&A) Grounds

The Treaty of Neah Bay reserves the Makah’s “right of taking fish and of whaling or sealing at usual

and accustomed grounds and stations.” The Makah Tribe is the only tribe in the United States with

this specific whaling provision in a treaty. Makah whaling would occur in the Makah Tribe’s U&A

located off northern Washington in U.S. waters north of 48°02'15" N. latitude (at the Norwegian

Memorial), east of 125°44'00" W. longitude, and west of 123°42'30" W. longitude (at Tongue Point

just east of Crescent Bay in the Straits of Juan de Fuca). The Makah U&A is within the Olympic

Coast National Marine Sanctuary in coastal waters (note the Sanctuary extends further south than

the Makah U&A, but does not extend as far into the Straits of Juan de Fuca as the Makah U&A; it

ends at Koitlah Point just inside the Straits). The Makah U&A overlaps two of the National Wildlife

Refuges (Flattery Rocks and Quillauyte Needles) in northern Washington. 

4.1.2. Olympic Coast National Marine Sanctuary

NOAA designated the Olympic Coast National Marine Sanctuary (Sanctuary) in 1994 under the

National Marine Sanctuaries Act, on the basis that the site possesses a unique and nationally

significant collection of flora and fauna and cultural/historical resources. It adjoins lands in the

Olympic National Park and U.S. Fish and Wildlife Refuges. The area is managed as part of a

network of 13 marine sanctuaries throughout the United States.

The Sanctuary encompasses approximately 2,500 square nautical miles of coastal and ocean waters,

and the submerged lands thereunder, off the central and northern coast of the State of Washington.

The Sanctuary boundary extends from Koitlah Point due north to the United States/Canada boundary

seaward to the 100-fathom isobath. The seaward boundary of the Sanctuary approximates the 100-

fathom isobath in a southerly direction from the U.S./Canada boundary to a point due west of the

Copalis River, transecting the heads of Juan de Fuca and Quinault Canyons and touching the edge

of Nitinat Canyon. The shoreward boundary of the Sanctuary is the mean low water line when

adjacent to Indian reservations and state and county lands. When adjacent to Federally managed

lands, the coastal boundary extends to the mean high water line. The coastal boundary cuts across

the mouths of all rivers and streams.

The Sanctuary is a highly productive, nearly pristine ocean and coastal environment that is important

to the continued survival of several ecologically and commercially important species of fish,

shellfish, and marine birds and mammals. Its rugged and undeveloped coastline makes the region

one of the more dramatic natural wonders of the coastal United States, paralleling the majestic

splendor of such terrestrial counterparts as Yosemite National Park and the Grand Tetons. The

region's high biological productivity is fueled by seasonal enhanced upwelling along the edge of the
10

continental shelf, especially at submarine canyons, during periods of high solar radiation and

northwesterly winds.

The diversity of habitats that make up the Sanctuary supports a great variety of biological

communities. The unusually large range of habitat types include: offshore islands and rocks (most

within the three National Wildlife Refuges: Flattery Rocks, Quillayute Needles, and Copalis); some

of the most diverse kelp beds in the world; intertidal communities; erosional features such as rocky

headlands, seastacks, and arches; interspersed exposed beaches and protected bays; submarine

canyons; the continental shelf, including a broad shallow plateau extending from the mouth of the

Juan de Fuca canyon; and continental slope environments. The numerous seastacks and rocky

outcrops along the Sanctuary’s high energy coastline, coupled with a large tidal range and wave

splash zone, support some of the most diverse and complex intertidal and subtidal zones in the

United States.

In addition to the Sanctuary's value with respect to its biological resources, the region encompasses

significant historical and cultural resources including Indian village sites, ancient canoe runs,

petroglyphs, Indian artifacts, and numerous shipwrecks. An important feature of the Sanctuary is

its proximity to four Native American reservations and the U&A’s of the Makah, Quileute, Hoh, and

Quinault Indian Tribes.

The management goal of the Sanctuary is to protect the marine environment and other resources and

qualities of the Sanctuary while allowing for compatible and sustainable resource uses. The

Sanctuary accomplishes this mandate through a combination of regulations, research, education, and

resourceprotection programs. Within the Sanctuary, regulations prevent or reduce the most common

and potentially devastating threats to populations of marine mammals and birds, critical habitats, and

fundamental ecological processes. Bans on offshore oil and mineral exploration, drilling, seabed

disturbance, pollution discharge, and restrictions on low flying aircraft provide critical protection to

the marine environment of the Olympic Coast. These protections would be diminished or simply

not exist without marine sanctuary designation.

While some activities are prohibited, sanctuaries do not impose a total prohibition on human use.

Activities such as fishing, shipping, and recreational use are allowed as long as they are compatible

with the primary objective of protecting marine resources. The nature and extent of allowed

activities are defined through regulation and in a detailed management plan based on the unique

qualities of each sanctuary. Research and monitoring evaluate the effectiveness of sanctuary

programs and regulations. Each sanctuary’s management plan is periodically updated to reflect new

information and in consideration of program effectiveness. As a result of this review, changes in

regulations can be proposed.

Through its regulations, the Sanctuary recognizes the pre-existing Treaty rights of the Native

American tribes that share the Sanctuary’s coastal border, including the Makah Tribe along the

northern portion of the Sanctuary. Throughout the designation process for the Sanctuary, NOAA

consistently affirmed that the Sanctuary would operate with full recognition of treaties and the legal
11

opinions, including U.S. v. Washington, which upheld those treaty rights.

Sanctuary regulations prohibit the taking of marine mammals and birds in or above the Sanctuary,

except as authorized by NMFS or the U.S. Fish and Wildlife Service (USFWS) under the authority

of the MMPA and the Migratory Bird Treaty Act, or pursuant to any treaty with an Indian tribe to

which the United States is a party, provided that the treaty right is exercised in compliance with

applicable U.S. law. In this case, the Makah Tribe has a pre-existing treaty right to take whales as

defined in the Treaty of Neah Bay.

4.1.3. Wildlife Refuge

The two National Wildlife Refuges within the Makah Tribe U&A off the coast of northern

Washington, Flattery Rocks and Quillauyte Needles, are part of a complex of 870 islands, rocks, and

reefs extending for more than 100 miles along Washington's Pacific coast from Cape Flattery to

Copalis Beach. These islands are protected from human disturbance and predators, yet are close to

abundant ocean food sources. They are a vital refuge where 14 species of seabirds nest and raise

their young. The total population of seabirds, waterfowl, and shorebirds may exceed a million birds.

Sea lions, harbor seals, sea otters, porpoise and whales are common around the islands. Most of the

coastal islands are designated as wilderness. These islands are closed to the public in order to protect

seabird nesting sites, but can be viewed from the coastal highway or ocean beaches.

The refuges on the Washington coast are managed under the USFWS National Wildlife Refuge

System to preserve and protect habitat for seabirds and other wildlife. Collectively the refuges total

over 430 acres. Surveys and monitoring are a significant part of the biological program. The refuges

are within the boundaries of the Sanctuary and the Olympic National Park.

4.1.4. Coast Guard’s Restricted Navigation Area

On November 10, 1999 (64 FR 61209), the Coast Guard issued final regulations at 33 CFR 165.1310

that establish a permanent regulated navigation area (RNA) along the northwest Washington coast

and in a portion of the entrance of the Strait of Juan de Fuca. The establishment of a RNA allows

the Coast Guard to impose restrictions on vessel activities in a specified area for specified purposes.

In this case, the RNA was established to reduce the danger of loss of life and property in the vicinity

of Makah whale hunting activities. Within this RNA, a moving exclusionary zone (MEZ) around

the Makah hunting vessel is created for the duration of each hunt.

The Coast Guard first published a notice of proposed rulemaking on this RNA on July 22, 1998 (63

FR 39256), and requested public comments. On October 1, 1998 (63 FR 52603), the Coast Guard

published an interim final rule entitled “Regulated Navigation Area, Strait of Juan de Fuca and

Adjacent Coastal Waters of Washington; Makah Whale Hunting” and allowed for further public

comments.

The RNA extends out 12 nautical miles from shore along the Washington coast from the southward
12

end of the Makah Tribe’s U&A at 48/02'25"N latitude, then north to Cape Flattery, and then east to

124/34'W longitude. The regulation does not affect normal transit or navigation in the RNA except

during, and in the immediate vicinity of, a hunt. Within the RNA, an MEZ will surround one Makah

whale hunt vessel engaged in whale hunting. For the duration of each hunt, vessels and persons are

excluded from the column of water from the surface to the seabed within a radius of 500 yards

centered on a Makah whale hunt vessel. Except for Makah whaling vessels, a media pool vessel,

and vessels with Coast Guard authority to navigate within the MEZ, vessels operating in the RNA

during a Makah whale hunt may not enter, and must avoid being overtaken by, the MEZ. The

regulation imposes no other restrictions on navigation.

The activation of the MEZ is signaled by the flying of the international numeral pennant 5 from a

Makah whale hunt vessel. Only one Makah vessel actually engaged in whale hunt operations is

authorized to fly the international numeral pennant 5 within the RNA at any one time. The MEZ is

only active while whaling operations are ongoing and the international numeral pennant 5 is flown.

The Coast Guard, in implementing this rule, acknowledged that the Makah's intended use of

harpoons and a .50 caliber rifle, the unpredictable actions of a whale once struck, and the unforgiving

nature of a cold ocean environment called for carefully tailored safety measures. The RNA was

implemented in order to reduce dangers to nearby vessels and persons during Makah whale hunting

operations by minimizing the risks from the uncertain movements of a pursued, wounded, or towed

whale and from the dangers of high powered rifle fire.

The Coast Guard recognized that there is a public interest in the media’s recording and documenting

this event. The rule allows a single press pool vessel within the MEZ subject to certain restrictions.

Requiring other members of the public, including potential protesters, to remain 500 yards away

from the hunt was deemed by the Coast Guard to be a reasonable restriction, considering the serious

safety concerns presented by a whale hunt.

4.2. Eastern North Pacific Gray whale

There are two populations of gray whales (Eschrichtius robustus) in the North Pacific: the eastern

North Pacific population that migrates along the west coast of North America between Mexico and

Alaska, and the western North Pacific (or “Korean”) population that migrates along the coast of

eastern Asia (Rice et al. 1984). Gray whales were historically found in the North Atlantic Ocean,

but are currently found only in the North Pacific (Rice et al. 1984). The most recent summary of

population structure in gray whales, prepared for the 52nd meeting of the IWC in June/July 2000,

found strong evidence, including significantly different genetic diversity (i.e., haplotypic diversity),

that the eastern and western North Pacific populations of gray whales should continue to be managed

as separate stocks (Swartz et al. 2000).

The gray whale is readily recognized by a mottled gray color and lack of a dorsal fin. Instead of a

dorsal fin, it has a low hump, followed by a series of 10 or 12 knobs along the dorsal ridge of the tail

stock, which are easily seen when the animal arches to dive. The adult gray whale is 36 to 50 feet
13

long and weighs between 16 and 45 tons. Both male and female gray whales reach sexual maturity

when they are between five and 11 years old, with the average being eight years (Rice 1986).

Female gray whales usually breed once every two years. The gray whale breeding season is limited

primarily to a three-week period in late November and early December near the start of their

southward migrations. However, if no conception occurs at that time, a second oestrus cycle can

occur within 40 days (Rice and Wolman 1971), such that a few females may breed as late as the end

of January on the winter grounds (Jones and Swartz 1984). During the following summer, the

pregnant females put on 25% more weight than the non-pregnant females. Females ready to give

birth often, but not always, resort to certain shallow, protected lagoons in Baja California. Gray

whale calves are born in the winter after a gestation period of about 13.5 months. At birth, the calves

are 15 feet long and weigh close to 1,000 pounds. The mothers’ rich milk, containing more than

50% fat, nourishes the calves for several weeks on the winter grounds and during the long migration

to the summer grounds. The calves grow rapidly and, by August, when they are weaned, they are

approximately 28 feet long. During the remaining two or three months on the summer grounds,

calves feed heavily, and by the time they head south in late autumn, they are approximately 30 feet

long (Rice 1986). Additional information on the life history of gray whales can be found in Rugh

et al. (1999a), Jones et al. (1984), Rice (1986), Rice et al. (1984), and Rice and Wolman (1971). 

The eastern North Pacific gray whale population has made a remarkable recovery since its depletion

in the early 1900s caused by commercial whaling. This population originally received protection

from commercial whaling in 1937 with the International Agreement for the Regulation of Whaling.

Protection continued under the 1946 ICRW (Reeves 1984).

Gray whales were listed as endangered under the ESA on June 2, 1970 (35 FR 8495). Then,

following a comprehensive evaluation of their status (Breiwick andBraham1984),NMFS concluded

on November 9, 1984 (49 FR 44774), that this population should be listed as threatened, instead of

endangered, under the ESA. However, no further action was taken until 1991 when a subsequent

review was completed and made available to the public on June 27, 1991 (56 FR 29471). The latter

review showed the best available abundance estimate (in 1987/88) was 21,296 whales with an

average annual rate of increase of 3.29% (Buckland et al. 1993). Calculations indicated that this

population was approaching carrying capacity (Reilly 1992). Therefore, NMFS proposed, on

November 22, 1991 (56 FR 58869), that this population be removed from the list of endangered and

threatened wildlife under the ESA. After an extensive review period, NMFS published a final notice

of determination (58 FR 3121, January 7, 1993) that this population should be removed from the list

because the population had recovered to near its estimated original population size and was neither

in danger of extinction throughout all or a significant portion of its range, nor likely to again become

endangered within the foreseeable future. On June 16, 1994 (59 FR 31094), the eastern North

Pacific gray whale population was formally removed from the list of endangered and threatened

wildlife under the ESA.

As required under section 4(g) of the ESA, NMFS drafted a five-year plan to monitor the status of

the stock for a period of at least five years following the delisting. In accordance with this draft plan,
14

a workshop was convened by NMFS on March 16-17, 1999, in Seattle, Washington, to review the

status of the stock based on research conducted during the five-year period following delisting.

Results of the workshop indicated that there was no apparent reason to reverse the previous decision

to delist this stock and that it was currently neither endangered nor threatened (Rugh et al. 1999a).

4.2.1. Current Abundance, Trends and Status

Recent estimates of the size of the entire population come from the analyses of systematic shore

counts of southward migrating gray whales initiated in 1967/68 at Yankee Point near Monterey,

California, where the majority of the population pass within two to three kilometers of shore. These

shore counts moved to Granite Canyon (seven kilometers south of Yankee Point) in 1974/75 and

continued there for most years up to 1997/98. Analysis of these shore-based counts indicate that in

1997/98 the eastern North Pacific gray whale population was 26,635 whales (95% CI = 21,878 to

32,427) (Hobbs and Rugh 1999).

An analysis of abundance estimates from shore-based counts indicate that the population increased

by approximately 2.5% per year (SE=0.3%) between 1967/68 and 1995/96 (Buckland and Breiwick

In press). A Bayesian analysis of gray whale population dynamics for the same period suggested the

rate of increase of the population could have been 3.4% (95% CI=2.5-4.2%), if the Russian natives

had not conducted a harvest (Wade and DeMaster 1996).

Shore-based sighting surveys were conducted to estimate the number of northward migrating gray

whale calves passing Piedras Blancas, California, for seven consecutive years (1994-2000).

Additional research included: (1) aerial surveys to determine offshore distribution in 1994 and 1995;

(2) the use of thermal sensors in 1994-1996 to measure day/night migration rates; and (3) concurrent

replicate watches near the peak of each migration to estimate sightings missed by the standard watch

team. During good conditions, calf counts were 325 in 1994, 194 in 1995, 407 in 1996, 501 in 1997,

442 in 1998, 141 in 1999, and 96 in 2000. Correcting these counts for periods not on watch and for

calves missed produced final estimates of 927 calves (SE = 88.85) for 1994, 614 calves (SE =65.72)

for 1995, 1132 calves (SE = 65.98) for 1996, 1520 calves (SE = 83.07) for 1997, 1323 calves (SE

= 77.84) for 1998, 428 calves (SE = 55.53) for 1999, and a preliminary estimate of 282 calves (SE

= 28.93) for 2000. Calf production indices (calf estimate/total population estimate) are 4.0%, 2.7%,

5.1%, 6.8%, 5.0%, 1.6% and 1.0% for the years 1994-2000 respectively. Fluctuations in calf

production over this time period were positively correlated with the length of time that primary

feeding habitat was free of pack ice during the previous year.

Wade (1994) reported that, based on a Bayesian analysis of the census data between 1967/68 and

1993/94, the eastern North Pacific stock of gray whales was between 0.51 and 0.97 of its carrying

capacity, and that the rate of net production at the maximum net productivity level was 0.033 (95%

CI: 0.023-0.044). However, this conclusion was regarded as questionable at the 1994 IWC Scientific

Committee meetings, because the analysis may have been unduly influenced by the 1992 census and

because the variance of the abundance estimate was likely underestimated (i.e., negative biased).

When incorporating the 1995/96 abundance estimate, Wade and DeMaster (1996) estimated the
15

maximum net productivity rate (RMAX) from the period between 1967/68 and 1995/96 at 0.053 (95%

CI: 0.031-0.113). This estimate is not significantly different from the default rate for RMAX of 0.04

for cetaceans (Wade and Angliss 1997).

Under the MMPA, all human-caused mortalities are evaluated relative to the species’ Potential

Biological Removal level (PBR), which is the NMFS management strategy for achieving the primary

goal of the MMPA to prevent any marine mammal stock from being reduced below its optimum

sustainable population level (OSP), and to restore stocks that have been reduced below that level.

The PBR is defined as the product of the minimum population estimate, one-half the maximum

theoretical net productivity rate, and a recovery factor: PBR = NMIN x 0.5RMAX x FR

. The NMIN for

the eastern North Pacific gray whale stock was estimated as the 20th percentile from the log-normal

distribution for the estimates of abundance (i.e., 24,477), based on the most recent survey to

determine abundance. Based on recommendationsfromtheAlaska Scientific Review Group, NMFS

used a RMAX value of 0.053 in calculating a PBR for this stock in 2000 (Ferrero et al. In prep.).

Lastly, NMFS used 1.0 as the recovery factor (FR) for this stock, which is the upper limit of the range

of values for non-listed stocks that are increasing while undergoing removals due to subsistence

hunters (Wade and Angliss 1997). Thus, for the eastern North Pacific stock of gray whales, the PBR

is 649 animals (24,477 x 0.5 x 0.053 x 1.0) (Ferrero et al. In prep.).

PBR calculations (Wade and Angliss 1997) and performance simulations (Wade 1998) have been

based on the concept of averaging mortality over a given time period. In the simulations by Wade

(1998), true mortality was allowed to vary annually around the PBR with a coefficient of variation

as high as 0.8. The performance of the management scheme was deemed adequate under these

circumstances. In many fisheries, estimates of mortality are subject to error and are often not

conducted annually; these estimates are typically averaged over several years (Wade and Angliss

1997). Therefore, in assessment of impacts on the population, NMFS does not restrict its

assessments of quotas to annual values. As long as the average over the three-year period is less than

the PBR, the take should be considered sustainable within the framework of the PBR management

strategy (Wade and Angliss 1997). 

The eastern North Pacific stock of gray whales has been increasing in recent years despite known

harvests. Based on currently available data, the estimated annual level of human-caused mortality

and serious injury (83), which includes mortalities from commercial fisheries(6),subsistence harvest

(76), and ship strikes (1), does not exceed the PBR (649) for the eastern North Pacific stock of gray

whales (Ferrero et al. In prep.).

4.2.2. Migration

Gray whales migrate south out of the Bering Sea through Unimak Pass, Alaska, from late October

to early January, with peak numbers of whales (when 50% of the sightings have been recorded at a

shore station) going through Unimak Pass on or about December 12 (Rugh 1984, Rugh et al. 1999a).

The peak of the southward migration observed in the 1970s was the last two weeks of November and

first three weeks of December, but a one-week shift in migration dates has occurred since the 1970s
16

(Rugh et al. 1999a). The estimated time of migration through Unimak Pass in recent years is

consistent with observations made in central California at Granite Canyon, where NMFS has a

counting station that operated in 1993/94, 1995/96 and 1997/98 (Hobbs and Rugh 1999). Using an

estimated travel speed of 144 km/day (Swartz et al. 1987), southbound gray whales should be able

to travel the estimated 5,000 km from Unimak Pass to Granite Canyon in 35 days (Rugh et al.

1999a). Sighting rates are very low in mid-December at Granite Canyon, peaking on January 15

(plus or minus three days), and ending in mid-February. The southward migration generally ends

in mid-February just as the northward migration begins. This migration timing appears to be

consistent from Oregon to Mexico and through all the years for which data are available (Rugh et

al. 1999a). In California, the last of the southbound animals sometimes overlap with the first

northbound migrants. This overlap suggests that only a portion of the migrating population is in the

waters of Mexico during the winter, while the remainder is distributed in the coastal waters of

southern and central California (Swartz 1986).

The southward migration is segregated by age, sex, and reproductive status (Rice and Wolman

1971); the vanguard is led by near-term pregnant females, followed by oestrus females and mature

males. The last phase includes immature animals of both sexes. Gray whales begin to arrive in the

coastal lagoons of Guerrero Negro, Ojo de Liebre (Scammon’s Lagoon), San Ignacio, and Bahia

Magdalena in late December and early January, and reach maximum densities there by mid-February

(Jones and Swartz 1984). While the majority of the calves are believed to be born within or near

these coastal lagoons, sightings of newborn calves migrating south past central and southern

California in January and February have increased over the recent past (Shelden et al. 1995).

Assuming calving dates have been consistent over the years, the change in observations of calves

well north of Mexican waters may be related to the delayed onset of the migration (Buckland and

Breiwick In press), resulting in females not migrating as far south as Mexico by the time parturition

occurs. Delays in the migration may be a function of increased competition for food among this

stock, which results in more extensive foraging for food in northern latitudes and requires whales

to travel farther when they start to migrate south (Rugh et al. 1999a).

The northward migration from the southern range occurs in two distinct phases segregated according

to age, sex, and reproductive condition (Poole 1984, Swartz 1986). In central California, the first

phase begins in mid- to late-February and includes newly pregnant females. They are followed by

adult males, anestrous females and immature whales of both sexes. These northbound migrants pass

central California and Oregon in February and March and are observed entering the Bering Sea

through Unimak Pass from late March through May each year (Braham 1984). The northward

migration is slower than the southward migration (Pike 1962). The last group of whales to leave the

wintering grounds are the females with calves of the year, departing one to one-and-a-half months

after the others. Their protracted departure from the winter range begins in late March and continues

until May in some years. Females with calves migrate more slowly than whales without calves,

presumably to accommodate nursing and the slow swimming speed of calves. Females with calves

are observed passing through central California to Oregon from late March through June (Herzing

and Mate 1984, Perryman et al. 1999) and are seen entering the Bering Sea from May through June

(Braham 1984).
17

There has been relatively little effort off Washington to document the timing of the migration

because: 1) during their southward migration, gray whales travel well offshore through this area

(Pike 1962; Green et al. 1995); 2) access to strategic observation sites is poor, and there is a lack of

appropriate facilities; and 3) winter weather in the Pacific Northwest is typified by strong winds,

high seas, rain, and fog, making it unlikely that the entire migration could be documented annually.

In 1998, NMFS attempted to document the southward migration off northern Washington by placing

an observer in the Tatoosh Island lighthouse (Jones 1999). During 12 days of observation from

November 30 to December 16, gray whales were sighted on only three occasions (December 2, 4,

and 14). The low number of sightings was attributed by Jones (1999) to the possibility that whales

were migrating farther offshore out of sighting range or that the study period possibly represented

the early stages of migration, thus few whales were in the vicinity. NMFS also conducted six aerial

surveys off northern Washington in November and December 1998 and in January 1999 to assess

migration timing and distance from shore (Shelden et al. 1999). Only six pods of gray whales were

sighted during aerial surveys: none during two surveys in November; three pods during two surveys

in December; and three pods during two surveys in January. The pods sighted ranged from 5.5 to

47 km offshore during these surveys. Because of the low number of sightings and limited survey

effort (due to poor surveying conditions from inclement weather), Shelden et al. (1999) drew no

conclusions on migratory timing.

Pike (1962) reported that the southward migration off Washington and British Columbia began in

late September and October, peaked in late December, and ended in late January, based on

observations by lighthouse and light-ship operators in the late 1950s. He noted, however, that few

southbound migrants are seen off Washington and British Columbia because of reduced visibility

in winter months. Studies just north of Washington, along Vancouver Island from November 15 to

May 1 from 1972 to 1977 found that the southward migration in this area occurred from November

to mid-January with a peak in the last two weeks in December (Darling 1984). This study showed

northward migration in this area begins in February, peaks in late March and early April, and

continues through May or early June. Studies to the south of Washington, off central Oregon from

1978-1981, found the southward migration in this area was from early December to mid-February

with a peak in the first week of January (Herzing and Mate 1984).

NMFS funded a more recent study on southward migration timing off Oregon from December 5,

1998, to February 15, 1999, which showed the start of the migration was three weeks later and the

peak was six days later than the 1978-91 study (Mate and Poff 1999). However, there has been a

one-week delay in the migration since the 1970s, so the timing of the migration in 1998/99 was on

schedule relative to dates observed in California through the 1980s and 1990s (Rugh et al. 1999a).

There are anecdotal reports of southbound gray whales as early as mid-November in central

California, but these and Pike’s (1962) report of gray whales in September in Washington may

represent movements of whales in summer feeding aggregations rather than migrants from the

northern feeding grounds in western Alaska.

Some studies suggest that gray whales migrate farther offshore of Washington during the southward
18

migration. Pike (1962) observed many gray whales migrating off Washington between 8-28 km

offshore, with a single sighting of three gray whales 37 km west of Cape Flattery. Green et al.

(1995) reported that gray whales occur significantly farther offshore in Washington during the

southward migration versus the northward migration. The mean distance offshore for southbound

migrants off Washington was 25.2 km compared to 11.8 km offshore during the northward migration

(Green et al. 1995). Shelden et al. (2000) reported southward migrating gray whales as far as 47 km

offshore of Washington.

Although past scientific literature (Pike 1962, Darling 1984, Herzing and Mate 1984) indicates the

southward migration can occur off Washington in November, an analysis of recorded travel speeds,

estimated distances, and known dates from recent studies at Unimak Pass and Granite Canyon (Rugh

et al. 1999b) indicates southward migrating gray whales would be expected to begin occurring off

Washington in early December, peaking on or about January 5, and ending in the first week of

February. Most of the southward migration (between the 10th and 90th percentile sighting dates)

occurs across a period of 43 days, but the entire migration may take more than 70 days to pass

through an area (Rugh et al. 1999a). The northward migration would be expected to occur from late

February to the end of June, with adult females and calves passing through the area after mid-March.

4.2.3. Pacific Coast Feeding Aggregation

Most eastern North Pacific gray whales spend the summer in the shallow waters of the northern and

western Bering Sea and in the adjacent waters of the Arctic Ocean; however, some remain

throughout the summer and fall along the Pacific coast as far south as southern California.

Observations of gray whales in summer months in locations well south of Alaska are not recent

occurrences; they have been documented during periods of low and high population abundance

(Gilmore 1960, Pike 1962, Rice 1963, Gilmore 1976, Patten and Samaras 1977, Nerini 1984,

Mallonee 1991, Avery and Hawkinson 1992, Clapham et al. 1997, Sanchez-Pacheco et al. In press).

These animals have been referred to as “summer residents,” a term first used by Pike (1962) to

describe gray whales that occurred off British Columbia during June through September. However,

photo-identification studies show that these whales 1) move widely within and between areas on the

Pacific coast to feed in the summer and fall, 2) are not always observed in the same area each year,

and 3) may have several year gaps between resightings in studied areas (Calambokidis and Quan

1999, Quan 2000), so the term “summer resident” or “seasonal resident” is a misnomer. This EA

uses the term “Pacific Coast Feeding Aggregation” to distinguish these gray whales from those that

feed in the northern and western Bering Sea/adjacent waters of the Arctic Ocean.

Gray whales have distinctive natural markings (pigmentation and scars) on their dorsal area that can

be used to distinguish individual animals. Researchers began taking photographs of the dorsal area

of gray whales in the 1970s off Vancouver Island. They found that individual gray whales could be

distinguished by comparing photographs, and the movements and occurrence of individual animals

within and between years could be monitored (Darling 1984).

Studies on the behavior and movements of gray whales along the Vancouver Island coast during the
19

summer (Darling 1984) found that most of the gray whales were within one kilometer of the coast,

and that their most common behavior was feeding. Darling (1984) used photo-identification to

identify individual whales. He found that many gray whales traveled throughout the summer to

various feeding sites separated by as much as 77 km, while other whales spent the entire summer in

a single bay. He also documented whales using different feeding sites (separated by as much as 150

km) in different years. Not every whale was seen each year, suggesting that some whales spent the

summer outside of his study area. Variation in prey availability and foraging success by whales is

likely to complicate any pattern of habitat usage and the length of fidelity to a particular area. In

discussing the variation in annual turnover patterns of gray whales (i.e., frequency and pattern of

sightings), Darling (1984) proposed two plausible explanations: 1) a single “northwest coast” group

of whales that mixed and was not completely observed between years because of varying effort and

a limited spatial scale for observation; and 2) a Vancouver Island group of whales, some of which

return annually for a series of years (from two to at least eight) and then go elsewhere, probably on

full migration, while others spend only one summer in the area. Both of these explanations are

plausible, but they are not necessarily mutually exclusive; both may be true to some degree. The

interpretation of movement patterns and fidelity of gray whales during the summer and fall depends

on the spatial and temporal scales of the observations.

Photo-identification of individual gray whales in Washington began in 1984 by Cascadia Research

Collective (CRC) (Calambokidis et al. 1994). Calambokidis et al. (1994) developed a catalog of

these individual whales and had 76 individual whales in the catalog by 1993. Resights of these

whales indicated that some whales returned over several years to the same areas to feed in the

summer, while others were seen only once or twice and during only one year. Of the 76 whales

referred to in the 1993 CRC catalog, only 17 (22.3%) had been observed during more than one year

from 1984-1993 (Calambokidis et al. 1994). Only eight of the 17 whales (10.5%) were seen in the

same area during a subsequent year, indicating that overall site fidelity may have been low.

Calambokidis et al. (1994) also discussed seasonal residency or tenure of individual whales and

defined this parameter as the “minimum estimate of time present between the first and last sighting.”

The longest tenure recorded was 112 days for one whale; the average tenure was 47 days. This

method, however, assumes that whales were in the area during the full extent between sightings,

even during periods of long gaps between sightings when they could have traveled out of the region.

In 1996, NMFS began annual vessel surveys for gray whales in the summer and fall in northwestern

Washington waters and off southern Vancouver Island. Gosho et al. (1999) documented within-year

movements between the northwest Washington outer coast and both sides of the Strait of Juan de

Fuca (southern Vancouver Island and Washington), and a between-year shift in whale concentration

from northern Washington in 1996 to the Strait of Juan de Fuca in 1997. In 1997 and 1998, the

whales occurred more frequently off the southern Vancouver Island than in Washington waters.

Although a relatively large number of whale sightings were made, the photo-identification of the

whales showed that only 18 individuals were present in 1996 and 28 individuals in 1997. Most of

the whales identified in 1996 and 1997 had been sighted in previous years: 78% (14 of 18 whales)

of the individuals in 1996 had been observed in previous years, and 82% (23 of 28) of the whales

in 1997 (Gosho et al. 1999). The percentage of whales in this area observed in previous years
20

dropped in 1998 to 56% (32 of 57) -- 44% were newly identified whales (Calambokidis et al. 1999).

The gray whales moved between areas along the Washington coast, in the Strait of Juan de Fuca, and

off the coast of Vancouver Island. Despite intensive survey effort, the absence of identified animals

suggests that they had moved out of the study area during the season and later returned. Of the 28

whales identified in 1997, 62% were observed in 1996. Of the whales identified in 1996, 65% were

re-sighted in 1997 (Gosho et al. 1999).

In 1998, photo-identification studies were expanded to survey suitable habitat (at varying levels of

effort) from northern California to southeast Alaska. By expanding the spatial coverage, the

observed range of within-season movements likewise expanded, and a better understanding of

between-year movements was achieved. Within-year movements of 57 whales were documented

between various regions along the coast, with the most frequent movements between northern

Washington, the Strait of Juan de Fuca, and southern and central Vancouver Island (Calambokidis

et al. 2000a). Larger scale movements were also documented from northern California and Oregon

to southern and central Vancouver Island.

Of the whales identified in all areas in 1998, 55% had previously been seen in another year in

Washington and were already part of the CRC photo-catalog (Calambokidis et al. 2000a). Gray

whales that have been seen in northern Washington and the Strait of Juan de Fuca have also been

seen in other years in all other regions along the coast (Calambokidis et al. 2000a). Although it is

not possible to quantify the amount of movement between regions without several more years of

range-wide surveys, the following examples illustrate the range of movements. A whale (CRC #68)

that was seen in 1996 and 1997 by Gosho et al. (1999) in the Strait of Juan de Fuca was not seen in

that same area in 1998 but was seen in southeast Alaska. Likewise, another whale (CRC #127) that

had been seen in the Strait of Juan de Fuca in 1997 was only seen in northern California in 1998.

A third whale (CRC #145), with a tenure of 99 days near southern Vancouver Island and northern

Washington in 1996, was seen only in the central Vancouver Island and Oregon regions during 1998.

Such occurrences may be the result of range expansion in an increasing population, or reflect the

gray whales’ predilection to forage widely for suitable prey species.

Photo-identification studies off northern Washington, Vancouver Island, Oregon and California

continued in 1999. Calambokidis et al. (2000b) reported 216 different gray whales in these study

areas. Only 39% (84) were known from previous years. Very few gray whales were observed off

the coast of Washington in 1999, but there were unusually high numbers of gray whales in Puget

Sound with only 18% (6 of 33 different whales) identified from prior years in any area.

Calambokidis (2000b) also reported 45 different whales observed by CRC on one day (May 20,

1999) in coastal waters just north of La Push of which 6 (13%) were identified in prior years. Since

this observation occurred 3 days after and about 10 miles south of the site of the Makah hunt,

Calambokidis et al. (2000b) note that the findings indicate that seasonal resident whales are present

during the time and area of the Makah whale hunt, but are a relatively small proportion of the

animals. Calambokidis (2000b) noted that these results should be treated cautiously since 1999

appeared to have been an anomalous year for gray whale sightings, and also noted that there does

not appear to be any clear way to distinguish between whales that remain in Washington and those
21

that move out of the area. 

Some of the identifiable individual gray whales in the Pacific coast feeding aggregation returned to

the same areas of the Pacific Northwest coast over multiple years (Darling 1984, Darling et al. 1998,

Calambokidis et al. 1994). Studies off the west coast of Vancouver Island, British Columbia

(Darling et al. 1998), revealed that some gray whales exhibited seasonal site fidelity in response to

seasonal abundance of a variety of prey types. Recent photographic re-identifications suggest,

however, that these whales also range widely within other coastal areas as far south as northern

California and as far north as southeast Alaska from spring to fall (Calambokidis and Quan 1999).

This could account for gaps in year-to-year resightings at specific locations, but the whales could

also have migrated into the Bering Sea to feed in the intervening years. There have been no photoidentification studies in the northern feeding areas (northern and western Bering Sea and adjacent

waters of Arctic Ocean) to determine if any of these whales occur in northern waters between and

within years that they are sighted in study areas on the west coast. The wide ranging movements and

lack of annual continuity in sightings argues against views that a significant number of these whales

show localized site fidelity (Calambokidis et al. 1999). However, several gray whales that have been

identified in northern Puget Sound near Everett, Washington for several consecutive years in the

spring do appear to show a strong site fidelity to this area; but, it is only for the early part of the

feeding season, after which they move to other areas yet to be determined (Calambokidis and Quan

1999).

Site fidelity (i.e., returning to the same site year after year to feed) does not appear to be strong in

the Pacific coast feeding aggregation; repeat occurrences of whales at certain sites appears to be

more related to availability of food (Darling 1998). Individual whales have been observed at

particular sites over multiple years, but they have also had within-year and between-year gaps in

presence that prevent predicting an animal’s duration of stay per season or probability of returning

to a site in future years for most areas. Site fidelity does appear to occur with several whales that

feed near Whidbey Island in Washington; studies through 1999 indicate they have occurred at this

site, and no others, each year from March to May since 1991 (Calambokidis et al. 1999). In other

areas, though, considerable interannual variation occurs in the presence of individual whales, as

shown from studies in the northern Washington coast area that has been surveyed consistently from

1996-1999. For example, of the 28 individual whales identified in 1997 in northern Washington and

southern Vancouver Island, only 16 (57%) were observed the following year in 1998 (Calambokidis

et al. 1999). These data indicate that many whales (35-43%) do not return to the same foraging sites

in successive years. In 1998, 57 unique whales were identified in the northern Washington/southern

Vancouver Island region. Only 32 (56%) of these whales were identified in a previous year, thus

indicating that immigration or recruitment of new whales into this local feeding area may be high.

Our knowledge about the whales in the Pacific coast feeding aggregation is complicated by the

overlap between the migration period and the period of “summer” feeding. Although the primary

migration period is well-defined, discriminating between late northbound migrants and early

southbound migrants that pass through this area is difficult, especially since whales are known to

feed during the migration. As an example, 17 whales were identified in the Strait of Juan de Fuca
22

in 1998. Of those, seven whales were first seen before September 1. They had all been seen in a

previous year, and they had all been seen in other regions. Of the remaining 10 whales seen for the

first time after September 1, none had been seen in a previous year, and only one had been seen in

another region during 1998. These 10 whales were either early migrants or part of the west coast

Pacific coast feeding aggregation occurring in areas that have not been surveyed.

The total number of gray whales that feed along the Pacific Northwest coast during the summer has

not been well documented until recently. During the summer of 1998, the first range-wide

photographic identification survey of this feeding aggregation was conducted from northern

California to northern Vancouver Island. One hundred and fifty-five unique whales were identified,

of which 134 were seen after June 1 in areas other than Puget Sound (Calambokidis et al. 2000a).

The number of whales photographed represents a minimum size for the aggregation because it does

not incorporate whales in the area that were missed, nor does it include whales that are part of the

aggregation that may have spent the summer outside the area that was surveyed. Calambokidis et

al. (2000a) developed an estimate for the size of the Pacific coast feeding aggregation (seen after

June 1 on the outer coast) using a mark-recapture Petersen estimator, with 1996 and 1997 as initial

capture samples and the 1998 survey as a recapture survey. Their estimates were 169 (CV=0.09) and

175 (CV=0.09) whales. Using a log-based confidence interval, this yields Nmin values (minimum

abundance estimates) of 157 and 162 for the purpose of calculating PBRs (Wade and Angliss 1997)

for the Pacific coast feeding aggregation. Calambokidis et al. (2000a) considered possible violations

of the mark-recapture assumptions and concluded that the estimates were most likely to be biased

low.

An abundance estimate for the feeding aggregation by Calambokidis et al. (2000b) using the 1998

and 1999 results yielded higher estimates than using previous years. The mark-recapture estimate

of abundance based on 1998 and 1999 samples was 269 whales (CV=0.06). Calambokidis et al.

(2000b) also had a separate estimate of 222 whales by excluding the California samples because

they appeared different.

The best available scientific information does not indicate that this feeding aggregation constitutes

a separate sub-group of the eastern North Pacific population similar to genetically distinct groups

of humpback whales that return to specific feeding areas in the North Atlantic (Clapham and Palsboll

1999, Palsboll et al. 1995). In North Atlantic humpback whales, strong maternally directed fidelity

to specific feeding areas has been shown to persist on an evolutionary time scale, as reflected in the

distribution of mtDNA haplotypes (Palsboll et al. 1995, Larsen et al. 1996). However, such a study

cannot be conducted on the gray whale population until tissue samples have been obtained from the

full summer range. A preliminary study examined a small number of samples and compared animals

from Clayoquot Sound to the larger eastern North Pacific population (Steeves 1998). No significant

genetic differences were found, but the study noted the limitation of its small sample size.

Both NMFS and the IWC currently consider the eastern North Pacific gray whale to be a single

stock; to date, there has been no evidence to suggest that the Pacific coast feeding aggregation should

be treated as a separate stock. Swartz et al. (2000) reported that genetic analyses of biopsy samples
23

collected from gray whales feeding in the Pacific Northwest by Steeves (1998) indicated that these

animals do not form a separate, genetically distinct population from other portions of the eastern

North Pacific population. However, it was noted that the sample size used in the analysis was small

(18 samples from British Columbia) and may not be representative of animals that typically feed in

the Pacific Northwest. Nonetheless, the whales in this Pacific coast feeding aggregation are not a

random assortment of the total population and the whales do show some fidelity to feeding off the

west coast rather than northern Alaska.

As noted in the report of the IWC Scientific Committee to the Commission (IWC 2000): 1) there are

two clearly separate stocks, in the eastern and western North Pacific, with a large distribution gap

and no reason to expect significant interchange nowadays; 2) the gray whale’s promiscuous breeding

behavior leaves little opportunity for evolutionary differences, but there is nevertheless detectable

site fidelity at various times of year; 3) some of these animals [Pacific-coast-summering whales] are

‘residents’ that return annually to the same areas, with some ‘residents’ using several areas within

a single year and others staying in one area; 4) appropriate photo ID data has only been collected

from a few areas to date, so the ratio of ‘transient’ to ‘resident’ animals is unknown; 5) a smallsample-size genetic study from a single summering area found no evidence of genetic differentiation

between local residents and transients; 6) the [Scientific] Committee agreed that there are important

issues of management objectives to be addressed, concerning the size of the unit to be conserved and

the appropriate level of precaution; and 7) the Committee agreed that there is a need for a better

understanding of site fidelity and potential stock substructure in eastern gray whales, to improve

advice on management.

4.2.4. Whaling

Eskimos hunted gray whales near the shores of the northern Bering and Chukchi Seas for thousands

of years. Natives of the Chukotka Peninsula selected young gray whales and killed them by using

toggle-headed harpoons attached to seal and walrus skin floats (Krupnick 1984). Up until 1928,

several Indian tribes between the Aleutian Islands and California hunted gray whales as a part of

their cultural and religious traditions. These included the Aleuts, Koniag, Chugash, Tlingit, Haida,

Tsimshian, Nootka, Makah, Ozette, Quileute, Klallam, and Chumash (O’Leary 1984). They hunted

from boats made of skin or wood and used hand-held harpoons, often with poison-enhanced tips.

Stranded whales were also utilized by some of these tribes. 

In northeastern Asia, aboriginal whaling diminished early in the mid-nineteenth century. This

resulted from a decline in the aboriginal populations as well as from changes in cultural traditions

following contact with westerners, particularly Yankee whalers. Commercial shore whaling took

gray whales along the coast of the California from the mid-1850s to the early 1900s (Sayers 1984).

Shore whaling was defined by Scammon (1874) as the pursuit of a whale from a boat launched from

the shore. When the whale was captured, it was towed back to shore where it was flensed and its

oil and other byproducts were processed for market. The first station was established in Monterey

Bay in 1854 and, over the next 45 years, 15 stations were operated at various times from Crescent

City, California, to Punta Eugenia, Baja California. The industry was profitable for approximately
24

40 years but, by the turn of the century, whales had become scarce along the coast, and shore whaling

became obsolete.

From 1845 to about 1900, American whalers hunted gray whales on their winter grounds in Baja

California, as well as along their coastal migration routes and on their summer grounds in the

subarctic (Scammon 1874, Henderson 1984). After whalers discovered the wintering areas in

lagoons along the Pacific coast of Baja California, they took whales by the hundreds outside the

entrances and within the lagoon interiors (Henderson 1984). The gray whale earned the names of

“devil fish” and “hard head” from its habit of attacking whaling skiffs when harpooned. Skiffs were

frequently overturned and stoved in, with loss of human life. Thus, the whalers preferred hunting

gray whales from shallow waters along the edges of the lagoon channels where they were relatively

safe from attacks by injured whales. Because females congregated within the lagoon interiors in

winter to rear their calves, these catches comprised mostly females and their calves. This whaling

strategy drastically reduced the reproductive capacity of the population. By the turn of the century,

whaling for gray whales was no longer commercially viable. Henderson (1984) estimated that

between 1845 and 1874 approximately 11,300 gray whales were harvested throughout the eastern

North Pacific, including approximately 3,200 from the lagoons and bays of Baja California.

Modern whaling for eastern North Pacific gray whales began around 1914 and was pursued by the

United States, Japan, Norway, and the Soviet Union (Reeves 1984). Modern whaling refers to the

catching of whales through the use of deck-mounted cannons, explosive grenades, direct fastening

to the whales, and diesel-, gas-, or steam-powered boats and ships (Mitchell and Reeves 1983).

From 1914-46, an estimated 940 gray whales were taken by factory ships and/or fleet whalers

working from the North Pacific to Baja California (Reeves 1984). The catch of gray whales off the

Chukotka Peninsula increased in the 1930s after commercial overharvesting caused the decline of

the bowhead whale and whalers shifted to gray whales (Yablokov and Bogoslovskaya 1984). From

1933-46, the Soviet whaling fleet took a total of 623 gray whales in the Bering and Chukchi seas

(Blokhin 1997b). In 1940, the Japanese factory ship Tonan Maru took 58 gray whales in the North

Pacific. After 1937, gray whales were protected from commercial whaling by Norway and the

United States and, after 1938, they were protected from commercial whaling by Canada.

Commercial whaling for gray whales was banned by the 1946 ICRW. That agreement included

provisions for aboriginal harvests and scientific investigations, provisions which continue under

IWC management. Between 1948 and 1954, Chukchi subsistence hunters took a total of 182 whales,

and from 1956-68, the catches increased to more than 100 animals annually (Zimushko and Ivashin

1980). Between 1959 and 1969, 316 gray whales were killed under Special Permits off central

California during the fall southward and spring northward migrations. This take was for scientific

investigations to establish the status of the population (Rice and Wolman 1971). From 1967-97,

aboriginals harvested an average of 150 gray whales annually for subsistence, during which time the

population size increased (Table 1). Almost all of the subsistence hunts were by Russian natives;

the only reported take by subsistence hunters elsewhere during the last decade occurred in 1995

when two gray whales were taken by Alaska natives (IWC 1997).
25

Table 1. Gray whale abundance and harvests

Year Population

Estimate

Year Harvest

1967/68 13,012 1967 250

1968/69 12,244 1968 201

1969/70 12,777 1969 214

1970/71 11,170 1970 151

1971/72 9,841 1971 153

1972/73 16,962 1972 182

1973/74 14,817 1973 178

1974/75 13,134 1974 184

1975/76 14,811 1975 171

1976/77 15,950 1976 165

1977/78 17,127 1977 187

1978/79 13,300 1978 184

1979/80 16,581 1979 183

1980/81 1980 181

1981/82 1981 136

1982/83 1982 168

1983/84 1983 171

1984/85 21,942 1984 169

1985/86 20,450 1985 170

1986/87 1986 171

1987/88 21,113 1987 159

1988/89 1988 151

1989/90 1989 180

1990/91 1990 163

1991/92 1991 170

1992/93 17,674 1992 0

1993/94 23,109 1993 0

1994/95 1994 44

1995/96 22,571 1995 85

1996/97 1996 43

1997/98 26,635 1997 79

In 1997, the IWC approved a five-year (1998-2002) aboriginal subsistence quota of 620 gray whales,

with an annual cap of 140, based on the aboriginal needs statements from the Russian Federation and
26

the United States (IWC 1998). The United States and Russia agreed that the quota would be shared,

with an average annual harvest of 120 whales by the Russian Chukotka people and four whales by

the Makah Tribe (not to exceed 135 whales per year by the Russians and five per year by the Makah

Tribe). In 1998, Russian aboriginals harvested 122 gray whales; none was harvested by the Makah

Tribe. In 1999, Russian subsistence hunters landed 121 gray whales and struck and lost two whales,

while Makah subsistence hunters landed one whale (IWC 2000).

4.2.4.a. Makah Whaling

The Makah Tribal members were well knownwhalers of the northern Washington coast (Swan 1870,

Singh 1966, Taylor 1974, Taylor and Bosch 1979, Reagan 1925, Waterman 1920). Gray whales

were undoubtedly one of the primary whales hunted by Makah whalers due to their close proximity

to villages and local abundance (Fisken 1980). Humpback whales, though not as readily available,

also were heavily hunted by the Makah, as evidenced by the number of faunal remains recovered

from the Ozette Village site. Gray whale and humpback whale bones were almost equally

represented from Ozette, indicating that humpback whales may have been selected by whalers for

their large oil reserves (O'Leary 1984). Some sources suggest that gray whales were not pursued by

Makah whalers in the fall during the southward migration due to generally stormy and risky weather,

but were taken primarily during the spring when gray whales are moving north (O'Leary 1984). The

remains of six young gray whale calves in the faunal remains at Ozette also indicate that these

whales were taken when the young were going north for the first time (O'Leary 1984). Other sources

indicate that gray whales were taken during the spring, summer, and fall (Renker 1997).

Prior to European contact, the Makah traded whale oil and parts to other tribes along the coast, and

subsequently engaged in commercial whalingwith both Yankee whalers and Europeans (Swan 1870,

Singh 1966, Taylor and Bosch 1979). Swan estimated that, by 1850, the Makah were producing

30,000 gallons of whale oil annually, most of it sold to European vessels. The onslaught of the

Yankee whalers and the discovery of the Baja breeding lagoons quickly depleted the gray whale

population. The Makah took their last gray whale in the pre-modern era in 1928, according to Rice

and Wolman (1971).

In 1995, after the gray whale population had recovered and was delisted under the ESA, the Makah

Tribe approached the U.S. Government and expressed an interest in seeking to continue its 1,500

year tradition of hunting gray whales. An account of the joint effort by the Tribe and the U.S.

government to obtain a quota at the IWC appears at section 2.3. After issuance of the IWC quota

in 1997, the Makah Tribe developed a "Management Plan for Makah Treaty Gray Whale Hunting

for the years 1998-2002" (Plan) that stipulated how tribal members would conduct ceremonial and

subsistence whaling activities. In accordance with the 1997 agreement between NOAA and the

Makah Tribal Council, the Plan contained requirements regarding harvest and strike limits, targeting

on migrating whales, inspection and reporting, management, utilization of whale products, and

enforcement. In addition, the Plan included requirements regarding issuance of whaling permits,

training of whalers, whaling equipment and hunting methods, and penaltiesfor non-compliance. The

Plan required use of a canoe, paddlers, and a harpooner to approach and take gray whales to maintain
27

tribal tradition in hunting gray whales. In accordance with the ICRW, NOAA regulations, and the

1997 agreement between NOAA and the Makah Tribal Council, the Plan strictly prohibited the

commercial sale of whale products except for traditional handicraft (including artwork) made from

non-edible parts of the whale. The Plan also followed U.S. law by prohibiting international trade

of whale products.

To ensure a humane taking of whales, the Plan required that any whale that was harpooned was to

be immediately shot with a large caliber rifle. The Tribe decided to use .50 and .577 caliber rifles,

based on testing that showed these rifles could be effective in quickly dispatching a gray whale

(Ingling 1997, Ingling 1999).

4.2.4.a.1. 1998 Makah Tribe Hunt

Makah tribal whalers conducted a number of practice exercises during 1998. In the fall of 1998,

several whaling permits were issued by the Makah Tribal Council, but no actual whaling occurred.

4.2.4.a.2. 1999 Makah Tribe Spring Hunt

The Makah Tribal Council issued the first whaling permit of 1999 on May 10, 1999, based on the

recommendation of the Makah Whaling Commission in accordance with the Makah Tribe's

Management Plan. This permit was issued during the spring northward migration of gray whales

off Washington State. On May 17, the crew struck and landed one gray whale under this permit; no

further whaling permits were issued. All whaling was conducted in the ocean area off the

Washington coast south of Cape Flattery. The tribal whale hunts occurred on May 10, 11, 15, and

17, all monitored by a NMFS observer and a tribal observer. The whaling canoe approached gray

whales on May 10, 15 and 17. Three attempted strikes (harpoon attempt missed) occurred as

follows: May 10 at 15:55 Pacific Daylight Time (PDT), when a harpoon attempt missed; May 15 at

11:19 PDT, when a harpoon throw appeared to come into contact with a gray whale, but did not

attach since the harpoon line and float came back to the surface immediately with the harpoon head

intact; and May 15 at 12:21 PDT, when another harpoon attempt missed. Protest vessels were

present during the hunt and disrupted hunting activities on the first day of the hunt.

On May 17, 1999, the fourth day of whaling activity, the crew successfully struck and landed a gray

whale. At 06:55 PDT, the gray whale was struck with the harpoon, which remained affixed to the

whale as it pulled the harpoon line and floats into the water. The whaling crew in the canoe held

onto the harpoon line, while the chaser boat approached the whale to dispatch it with a .577 caliber

gun. A total of four shots were fired with the first two shots missing the whale, and the second two

shots hitting it in the head area. The last shot left the whale motionless underwater at 07:03 PDT.

Two additional harpoons with float lines were also affixed to the whale. Total time from the initial

harpoon strike to the last shot that dispatched the whale was eight minutes. After dispatch, the whale

was towed to the beach in Neah Bay, and butchering began shortly after tribal ceremonies.

Examination of the whale by NMFS Biologists. The whale taken on May 17, 1999, was a non-
28

lactating female that measured 30 feet 5 inches (9.27 meters) total length. Fluke width was 7 feet

4 inches (2.2 m). The whale could not be weighed, but based on gray whales taken in the Russian

harvest of similar length and condition, it was estimated to be about five to seven metric tons. Age

also could not be determined, but based on similar lengths of whales taken in the Russian harvest,

it was estimated to be over two years old. An examination of the skull during butchering revealed

that the third shot struck the ridge of the skull, shattering it, and proceeded back into the muscle near

the left flipper where whalers found the bullet (bullet was intact with no deformation). The fourth

shot struck the skull above the occipital condyle and entered the braincase; it likely caused

instantaneous loss of consciousness and death due to massive brain trauma.

Utilization of meat. Almost all edible portions of the meat and blubber were removed from the

whale by tribal members on May 17, 1999. NMFS biologists collected samples from internal organs

after tribal members had removed the meat and brought it home or to the community freezer. Tribal

members flensed small portions of meat the next day to prepare the skeleton for a museum display.

The meat and blubber were consumed by Makah Tribal members and during tribal ceremonies.

4.2.4.a.3. 1999 Makah Tribe Fall/Winter Hunt

No whaling permits were issued by the Makah Tribal Council during the southward migration in

1999. Tribal whaling families intended to hunt whales during the southward migration in November

and December, but weather conditions were not suitable.

4.2.4.a.4. 2000 Makah Tribe Spring Hunt

The 2000 spring hunt commenced on April 17, 2000, and continued through May 29, 2000 (Gearin

and Gosho 2000). The Makah Tribal whalers actively hunted gray whales on a total of six days,

during which no whales were struck or landed. During the first two days of hunting, activists

disrupted the hunting activity. The following five days of hunting were relatively uneventful with

respect to protest activity. All whaling occurred in the ocean area south of Cape Flattery. Except

for a few approaches near Makah Bay, the vast majority of hunting occurred south of Point of Arches

near Father and Son Rocks. Whalers threw harpoons on three occasions, but the harpoons did not

attach to a gray whale on any of these attempts. The first two throws appeared to be complete

misses. The third throw may have grazed the whale; however, the harpoon did not implant or detach.

Most of the whales in the area during the hunt were large single individuals. The whales appeared

to be migrating in that the average dive time was about eight minutes, which is four or five minutes

longer than for whales that are seen feeding or resting locally. None of the whales exhibited the

characteristics of whales in local feeding aggregations (e.g., remaining in the same general area for

long periods of time and milling or feeding. The gray whales observed during the hunts were farther

offshore than the summer feeding whales and in deeper water (80-100 feet) as compared to summer

feeding whales, which are generally in water 30-60 feet deep.

4.2.5. Natural Mortality
29

Gray whales are heavily infested with ectoparasites and epizoites including the host-specific

barnacle, Cryptolepas rhachianecti, and three species of whale louse - Cyamus scammoni, C. ceti

and C. kessleri. These infestations are favored by the gray whales’ habit of swimming slowly

through shallow coastal waters rich in nutrients. In contrast, Rice and Wolman (1971) found

infrequent infestations of endoparasites and attributed this to the whales’ long period of fasting each

year.

The most dramatic and perhaps most significant cause of natural mortality among gray whales is

predation by killer whales. Although it is difficult to quantify the proportion of the gray whale stock

that is killed or approached by killer whales each year, there are many anecdotal reports of such

events (Rice and Wolman 1971, Jones and Swartz 1984, Poole 1984, Goley and Straley 1994,

George and Suydam 1998). In fact, Corkeron and Connor (1999) suggest that killer whale predation

may be the primary motivation for the annual migration of gray whales. This migration covers 8,000

- 10,000 km each way (Rugh et al. 1999a), perhaps the longest migration of any mammalian species.

Although humans have had a large impact on the abundance of eastern North Pacific stock of gray

whales in the past, it has been severe only in the last two centuries. In contrast, killer whales have

likely had a consistent presence throughout much of the evolution of gray whales and may have

played a significant role in the evolution of their behavior and biology.

4.2.6. Fishery Interactions

Ferrero et al. (In prep.) report on eight different commercial fisheries within the range of the eastern

North Pacific gray whale stock that were monitored for incidental take by NMFS observers during

the 1990s: Bering Sea (and Aleutian Islands) groundfish trawl, longline and pot fisheries; Gulf of

Alaska groundfish trawl, longline and pot fisheries; California/Oregon thresher shark/swordfishdrift

gillnet fishery; and the Makah Tribal set-net fishery. No gray whale mortalities were observed for

any of the Alaska fisheries. One gray whale mortality was observed in the thresher shark/swordfish

fishery between 1993 and 1998. Two gray whale mortalities were observed in the Makah Tribal setnet fishery between 1990 and 1998, one in 1990 and one in 1995. One gray whale was entangled

in this fishery and released alive in 1996. The mean annual mortality rate from these monitored

fisheries was 1.2 (CV=0.85) gray whales per year. Ferrero et al. (In prep.) also reported annual

fishery mortality data from fisher logbooks (0.5) and from stranding reports (4.2) for a total

estimated minimum annual mortality rate in commercial fisheries of 6.0. Although there may be

other unreported mortalities in commercial fisheries, Ferrero et al. (In prep.) concluded that fishery

mortalities are likely below 10% of the PBR for this stock and therefore can be considered to be

insignificant and approaching zero mortality and serious injury rate.

4.2.7. Offshore Activities and Ship Strikes

Gray whale reactions to offshore activities have been relatively well studied compared to those of

other whales. Studies of short-term behavioral responses to underwater noise associated with

aircraft, ships, and seismic explorations indicate a 0.5 probability that whales will respond to

continuous broadband noise when sound levels exceed ca. 120dB2 and to intermittent noise when
30

levels exceed ca. 170dB, usually by changing their swimming course to avoid the source. Gray

whales “startled” at the sudden onset of noise during playback studies, but demonstrated a flexibility

in swimming and calling behavior that may allow them to circumvent increased noise levels. Whales

may be “harassed” by noise from large commercial vessels, especially in shipping lanes or near busy

ports. Gray whales sometimes change course and alter their swimming speed and respiratory

patterns when followed by whale watching boats. Conversely, some whales swim toward small

skiffs deployed from whale watching boats in breeding lagoons, seemingly attracted by the noise of

idling outboard engines. Reported gray whale reactions to aircraft are varied and seem related to

ongoing whale behavior and aircraft altitude. Whale response to research involving tagging and

biopsy sampling appears to be short term. Gray whales were seen swimming through surface oil from

the Exxon Valdez oil spill along the Alaskan coast and showed only partial avoidance to natural oil

seeps off the California coast. Laboratory tests suggest that gray whale baleen, and possibly skin,

may be resistant to damage by oil, but spilled oil or oil dispersant in a primary feeding area could

negatively affect gray whales by contaminating benthic prey. Concern about the cumulative longterm impact of offshore human activities is particularly acute in the Southern California Bight, where

many activities are often concurrent.

The nearshore migration route used by gray whales makes ship strikes a potential source of mortality.

Ferrero et al. (In prep.) reported five gray whale mortalities off California from ship strikes from

1993 to 1995, and one ship strike mortality off Alaska in 1997. Additional mortality from ship

strikes probably goes unreported because the carcasses sink at sea or the beached carcasses do not

show obvious signs of ship strikes. Therefore, it is not possible to quantify the actual mortality of

gray whales from this source, and the annual mortality rate of one to two gray whales per year due

to collisions with vessels represents a minimum estimate from this source.

4.2.8. Contaminants

Gray whales are a coastal migratory species that are benthic feeders and have a long period of fasting

(or low amount of intake) during their migrations and the winter. The prolonged fasting may alter

the disposition of toxic chemicals within the animals. In addition, gray whales have been observed

feeding in coastal waters, which may present a risk of exposure to toxic chemicals in some regions.

Tilbury et al. (1999) measured concentrations of organochlorines (OCs) and trace elements in tissues

and stomach contents of juvenile gray whales taken during a Russian subsistence harvest in the

western Bering Sea. Blubber biopsies taken from gray whales off the California and Washington

coasts were also analyzed for OCs. Previous measurements of these contaminants were from

stranded gray whales. There were no differences in the concentrations (based on wet weight of

tissue) of contaminants between female and male animals taken in the subsistence hunt. The lipid

content [48 (5) %] of blubber for animals from the Arctic feeding grounds was higher than that in

the biopsy samples [9.4 (0.8) %] from free-ranging, apparently healthy whales. Concentrations on

a lipid basis of the sum of polychlorinated biphenyls (3PCBs) in the juvenile stranded whales and

the juvenile whales taken in the subsistence hunt were significantly different [19,000 and 680 ng/g

lipid weight, respectively]. The mean concentration of the 3PCBs for the biopsy samples was 2,000

ng/g lipid weight. The authors hypothesized that the higher concentration of 3PCBs in the stranded
31

animals may be due to the retention of OCs in blubber during fasting rather than to increased

exposure to these contaminants. The concentrations of certain trace elements (e.g., cadmium) in

some tissues, such as kidneys, were also elevated in the stranded animals. Moreover, aluminum in

stomach contents and tissues of the subsistence whales was high compared to other marine mammal

species, which is consistent with the ingestion of sediment during feeding.

Krahn et al. (2000) provided an assessment of lipid and organochlorine contaminant profiles of

eastern North Pacific gray whales. They reported that the age- and sex-specific pattern of

contaminants indicates that reproductive females transfer their contaminant burdens to their calves.

A similar phenomenon has been reported for other marine mammal species. The effect of observed

contaminant levels on fetal development and the overall health of the calf has yet to be determined.

Blubber samples were compared from four distinct samples: 1) animals from the 1994 subsistence

harvest on the feeding grounds in the Russian Arctic (presumably healthy animals); 2) biopsy

samples from live animals off the Washington coast in late summer and fall (presumably healthy

animals); 3) animals that stranded during the northward migration between 1988 - 1991 (presumably

unhealthy animals); and 4) animals that stranded during the northward migration between 1998 -

1999 (presumably unhealthy animals). As expected, reported mean levels of contaminants were

higher in samples from the stranded animals compared to samples from the biopsied or harvested

animals. Krahn et al. (2000) also noted that higher concentration of contaminants in the stranded

animals may be due to the retention of OCs in the blubber as lipid stores are mobilized for energy

and total lipid levels decrease.

The samples of blubber (n=38) analyzed from gray whales biopsied off the Washington coast during

the late summer and fall had mean lipid values of 10% (Krahn et al. 2000). These whales, which

would be considered summer feeding whales in Washington, had lipid levels considerably lower than

the 48% mean reported for gray whales sampled during the Russian subsistence harvest, even though

the collections occurred during the same general time of year.

Krahn et al. (2000) also determined an index of allowable daily intake (ADI) of whale blubber by

human consumers based on wet weight concentrations of contaminants in gray whale blubber from

the samples. Based on these calculations, the “safest” samples were the biopsy samples, which had

lower concentrations of DDT’s, PCB’s and hexachlorobenzene (HCB). The ADI of blubber from

the biopsy sampled animals was therefore greater than for the stranded whales or from the harvested

whales (Krahn et al. 2000).

Tissues were tested from a gray whale caught in a gillnet at Neah Bay in 1995 and from the whale

harvested by the Makah Tribe in May 1999 (Ylitalo et al. 1999). The lipid level of the whale

harvested by the Makah was 25%; the lipid level of the whale incidentally caught in the gillnet was

6.3%. Total PCB and DDT concentrations were measured for three types of tissue from the two

whales: blubber, muscle, and liver. The highest OC concentrations were found in the blubber of the

harvested whale and were 1,200 ng/g and 520 ng/g for PCB and DDT respectively (Ylitalo et al.

1999). Much lower concentrations of OC’s were found in the liver and muscle tissues. None of the

tissues examined had contaminant concentrations that exceeded the U.S. Food and Drug
32

Administration (FDA) regulatorytolerance limits for human consumption based on fish and shellfish

guidelines (Ylitalo et al. 1999).

4.2.9. Activities in the Wintering Areas

At the 52nd meeting of the IWC, Urban (2000) reported the results of a study on the proposed

saltworks project in San Ignacio Lagoon, Mexico. In particular, the study evaluated potential

impacts on the gray whales that utilize this wintering area for breeding, calving, and calf rearing.

According to this study, the salt facility in San Ignacio would not harm gray whales. Nonetheless,

the Government of Mexico has decided to leave the San Ignacio landscape unaltered and has

suspended the saltworks project.

The growth of gray whale tourism in the North Zone of Bahía Magdalena has led to a proposed

Japanese-owned and -financed tourist resort development at Bahía Magdalena (Dedina and Young

1995). Although this represents a potential threat to the whales and their habitat, at this time there

are no plans to proceed with this development (Rugh et al. 1999a). Whale watching is allowed in

every lagoon in Baja California Sur except in the southern part of Bahía Magdalena.

Since 1997, the Mexican Government has applied whale watching regulations to commercial

operators. There are currently four specific whale watching areas in the lagoons where the numbers

of boats and methods of approach are regulated. There are no minimum approach distances, but

whales cannot be chased.

4.2.10. Stranding Events in 1999 and 2000

A summary of information regarding gray whale strandings in 1999 was reported by Norman et al.

(2000) to the IWC in June 2000. They reported that 273 gray whales stranded in 1999 along the west

coast of North America from Baja California, Mexico, to Alaska. The IWC Scientific Committee

(IWC 2000) noted that “this number is 5-13 times higher than annual counts from 1995-1998. Most

stranded whales were reported along remote shorelines of Mexico (n=118; 43%) and Alaska (n=73;

27%) and so were difficult to reach for examination.” Further, it was reported to the IWC at the June

2000 meeting that from January 1 to June 10, 2000, 84 gray whales were reported stranded in the

United States, while 207 gray whales stranded in the Mexican State of Baja California Sur between

December 1999 and March 2000. Finally, the IWC Scientific Committee concluded that “the

combination of increases in the number of stranded animals reported in 1999 and 2000, which may

indicate an increase in the per capita mortality rate, and decreases in calf production in 1999 and

2000, could have caused an overall decrease in the abundance of this population (IWC 2000).

However, without new survey data to directly assess abundance, it is not possible to make

conclusions regarding any changes in the status of this stock relative to the last assessment.”

4.3. Other Wildlife (marine mammals, seabirds, sea-turtles)

A wide variety of marine mammals, birds, and other marine organisms (including marine turtles and
33

diverse populations of invertebrates and fish) occur in the Makah U&A. Twenty-nine species of

marine mammals are reported to breed, rest within, or migrate offshore of the Olympic Peninsula.

Steller sea lions (which are included on the ESA threatened species list) are common in the area.

Right, fin, sei, blue, humpback and sperm whales are observed occasionally. Northern sea otters

were re-introduced in 1969 and 1970, and have expanded their population and range to include the

entire north coast of Washington and into the Straits.

The seabird colonies of Washington's outer coast, mostly breeding on the seastacks and islands of

the National Wildlife Refuges, are among the largest in the continental United States. Common

murre populations in Washington are of particular concern. A precipitous decline in colony

attendance throughout Washington occurred during the 1983 El Nino, principally at the southern

colonies around Pt. Grenville, and at Split and Willoughby Rocks, and attendance remained

depressed through at least the 1996-breeding season. During this same time period, two major oil

spills occurred off the coast of Washington, causing significant mortality in common murres.

Common murre colonies on Tatoosh Island, the only stable colony in Washington, have been further

impacted by bald eagles and predation by gulls (Parrish 1997). Birds found in the Makah U&A that

are listed under the ESA are brown pelican, Aleutian Canada goose, marbled murrelet, and bald

eagle.

The high biological productivity of the coastal and offshore waters of northern Washington support

a diverse and rich plankton and marine fish populations. These populations attract foraging marine

wildlife and valuable fisheries that contribute significantly to the state and tribal economies. The

commercially important species of fish include groundfish, shellfish, and five species of salmon.

Several salmonid populations are listed under the ESA.

A list of most of the marine wildlife species (marine mammals, birds, turtles) found in this area are

in the tables below. The tables include the Federal and state protected status of each species.

Detailed descriptions of these species are in NOAA (1993), Barlow et al. (In press), Nysewander et

al. (1994), Pacific Seabird Group (1993), Speich and Wahl (1989), Speich et al. (1992), and Wahl

et al. (1981).

TABLE 1. MARINE MAMMAL SPECIES OFF NORTHERN WASHINGTON

Group Common Name Species Occurrence Protective Status

Carnivores Northern sea otter Enhyd ra lutris C MMPA, WSE

California sea lion Zalophus californianus C MMPA

Steller sea lion Eumetopias jubatus C MMPA, FT, WST

Pinnipeds Northern fur seal Callorhinus ursinus C MMPA

Pacific harbor seal Phoca vitulina C MMPA

Northern elephant seal Miroun ga ang ustirostris R MMPA

Eastern N orth Pacific g ray whale Eschrichtius robustus C MMPA, WSS

Northern right whale Euba laena g lacialis A MMPA, FE, WSE

Minke w hale Balaen optera a cutorostra ta R MMPA

Fin whale Balaenoptera physalus A MMPA, FE, WSE

Sei whale Balaen optera b orealis A MMPA, FE, WSE

Blue wha le Balaenoptera musculus A MMPA, FE, WSE
34

Hump back wha le Megaptera novaeangliae R MMPA, FE, WSE

Sperm w hale Physeter macrocephalus R MMPA, FE, WSE

Pygmy spe rm whale Kogia breviceps A MMPA

Cetaceans Stejneger’s b eaked wh ale Mesoplod on stejnegeri A MMPA

Hubb ’s beaked w hale Mesoplod on carlhub bsi A MMPA

Cuvier’s be aked wha le Ziphius c avirostris A MMPA

Baird’s b eaked wh ale Beradiu s bairdii A MMPA

Short-finned pilot whale Globicephala macrorhynchus A MMPA

Risso’s do lphin Grampus griseus A MMPA

Killer whale Orcinus orca R MMPA, WSC

False killer wha le Pseudorca crassidens A MMPA

Common dolp hin Delphin us delph is A MMPA

Northern right whale do lphin Lissodelp his borea lis A MMPA

Striped d olphin Stenella coeruleoalba A MMPA

Pacific white-sid ed dolp hin Lagenorhynchus obliquidens A MMPA

Dall’s porpoise Phoco enoides dalli R MMPA

Harbor po rpoise Phocoena phocoena C MMPA, WSC

TABLE 2. MARINE BIRDS OCCURRING OFF NORTHERN WASHINGTON

Common Name Scientific Name Protective Status

LOONS AND GREBES GAVIIDAE and PODICIPEDIDAE

 Common loon Gavia immer MBTA, WSS 

 Pacific loon Gavia pacifica MBTA

 Red-throated loon Gavia ste llata MBTA

 Horned grebe Podiceps auritus MBTA

 Red-necked grebe Podiceps grisegena MBTA

 Western grebe Aechm ophoru s occiden talis MBTA

TUBENOSES PROCELLARIIFORMES

(Diomedeidae, Procellariidae and

Hydrobatidae)

 Black-footed albatross Diomedea nigripes MBTA

 Laysan albatross Diom edea im mutab ilis MBTA

 Buller’s shearwater Puffinus bulleri MBTA

 Flesh-footed shearwater Puffinus carneipes MBTA

 Pink-footed shearwater Puffinus creatopus MBTA

 Short-tailed shearwater Puffinus te nuirostris MBTA, FPE, WSC

 Sooty shearwater Puffinus griseus MBTA

 Northern fulmar Fulma ris glacialis MBTA

 Fork-tailed storm petrel Ocean odrom a furcata MBTA

 Leach’s storm petrel Oceanodroma leucorhoa MBTA

PELICANS and CORMORANTS PELECANIDAE and

PHALOCROCORACIDAE

 Brown pelican Pelecan us occide ntalis MBTA, FE, WSE

 Brandt’s cormorant Phalacrocorax penicillatus MBTA, WSC

 Double-crested cormorant Phalac rocorax auritis MBTA

 Pelagic cormorant Phalacrocorax pelagicus MBTA

GEESE and DUCKS ANATIDAE

 Aleutian Canada goose Branta canad ensis leuco pareia MBTA, FT, WST
35

 Brant Branta bernicla MBTA

 Black scoter Melanitta nigra MBTA

 Surf scoter Melan itta perspicilla ta MBTA

 White-winged scoter Melanitta fusca MBTA

 Harlequin duck Histrionicus histrionicus MBTA

 Oldsquaw Clangu la hyem alis MBTA

 Bufflehead Bucep hala alb eola MBTA

 Commo n goldene ye Bucep hala clan gula MBTA

 Greater scaup Aythya marila MBTA

 Red-breasted merganser Mergus serrator MBTA

 Common merganser Mergus merganser MBTA

EAGLES, OSPREYS AND FALCONS FALCONIFORMES

 Bald eag le Haliaeetus leucocephalus MBTA, FT, WST

 Osprey Pandion haliaetus MBTA

 Peregrine falcon Falco peregrinus MBTA, FC, WSE

OYSTERCATCHERS HAEMATOPODIDAE

 Black oystercatcher Haematopus bachmani MBTA

PLOVERS CHARADRIIDAE

 Killdeer Charadrius vociferus MBTA

 Semipalmated plover Charadrius semipalmatus MBTA

 Snowy plover Charadrius alexandrinus MBTA, FT, WSE

 American golden plover Pluvialis dominicus MBTA

 Black-bellied plover Pluvialis sq uatarola MBTA

SANDPIPERS, TURNSTO NES,

SURFBIRDS AND PHALAROPES

SCOLOPACIDAE

 Black turnstone Arenaria melan oceph ala MBTA

 Ruddy turnstone Arenaria interpres MBTA

 Surfbird Aphriza virgata MBTA

 Marble d godwit Limosa fedoa MBTA

 Greater yellowlegs Tringa melanoleuca MBTA

 Lesser yellowlegs Tringa flavipes MBTA

 Spotted sandpiper Actitis mac ularia MBTA

 Whimbrel Numenius phaeopus MBTA

 Wandering tattler Heteroscelus incanus MBTA

 Long-billed dowitcher Limnodromus scolopaceus MBTA

 Short-billed dowitcher Limnodromus griseus MBTA

 Rock sandpiper Calidris ptilo cnemis MBTA

 Baird’s sandpiper Calidris ba irdii MBTA

 Dunlin Calidris alpina MBTA

 Least sandpiper Calidris m inutilla MBTA

 Sanderling Calidris alba MBTA

 Western sandpiper Calidris mauri MBTA

 Red phalarope Phalar opus fulica ria MBTA

 Northern phalarope Lobipes lobatus MBTA

JAEGERS and SKUAS STERCORARIINAE

 Long-tailed jaeger Stercorarius longicaudus MBTA

 Parasitic jaeger Stercorarius parasiticus MBTA

 Pomarine jaeger Stercorarius pomarinus MBTA
36

 South polar skua Catharacta mccormicki MBTA

GULLS AND TERNS LARIDAE

 Bonap arte’s gull Larus ph iladelphia MBTA

 California gull Larus californicus MBTA

 Glaucou s-winged gull Larus glaucescens MBTA

 Heerma n’s gull Larus heermanni MBTA

 Herring gull Larus argentatus MBTA

 Mew gu ll Larus brachyrhynchos MBTA

 Ring-billed gu ll Larus de lawaren sis MBTA

 Sabine’s gull Xema sabini MBTA

 Thayer’s gu ll Larus thayeri MBTA

 Western gull Larus oc cidentalis MBTA

 Black-legged kittiwake Rissa trida ctyla MBTA

 Caspian tern Sterna ca spia MBTA

 Common tern Sterna hirundo MBTA

 Forster’s tern Sterna forsteri MBTA

 Arctic tern Sterna paradisaea MBTA

ALCIDS ALCIDAE

 Ancient murrelet Synthliboramphus antiquum MBTA

 Cassin’s auklet Ptychoramphus aleutica MBTA, FC, WSC

 Common murre Uria aalge MBTA, WSC 

 Marbled murrelet Brachyramphus marmoratum MBTA, FT, WST

 Pigeon guillemot Cepphus columba MBTA

 Rhinoceros auklet Cerorhin ca mon ocerata MBTA

 Tufted pu ffin Lunda cirrhata MBTA, FC, WSC

KINGFISHERS and HERONS ALCEDINIDAE and ARDEIDAE

 Belted kingfisher Ceryle alcyon MBTA

 Great blue heron Ardea herodias MBTA

TABLE 3. SEA TURTLES THAT MAY OCCUR OFF NORTHERN WASHINGTON

Common Name Species Occurrence Protective Status

Leatherb ack Sea T urtle Dermochelys coriacea R FE, WSE

Green S ea Turtle Chelonia mydas R FT, WST

Loggerh ead Sea Turtle Caretta ca retta R FT, WST

Pacific Oliv e Ridley Se a Turtle Lepidochelys olivacea A FE

Occurrence: Protective Status:

C = Common FE - Federally Endangered under the U.S. Endangered Species Act

R = Rare FT - Federally Threatened under the U.S. Endangered Species Act

A = Accidental FC - Fede ral Candid ate

FPE - Federal Proposed Endangered, under the Endangered Species Act

FPT - Federal Proposed Threatened, under the Endangered Species Act

MBTA - M igratory Bird Treaty Act

MMPA - U.S. Marine Mammal Protection Act

WSE - Washington State Endangered Species

WST - W ashington State Threatened Species

WSS - Washington State Sensitive Species

WSC - Washington State Candidate Species

 
37

4.4. Makah Tribe

The Makah Tribe’s whaling tradition is summarized in section 2.1. The Tribe’s renewed interest in

its cultural heritage stemmed in part from a remarkable archeological excavation. During the 1970s,

Ozette, a whaling village that had been covered 400 years ago by a mud slide, was uncovered. The

artifacts from Ozette testify to the central role of whaling in the Tribe before contact with westerners.

The excavation of the village re-awakened the Tribe’s interest in, and appreciation for, its heritage,

especially for the role that whaling played in its society (Renker 1997).

The gray whale was listed under the ESA at the time the village of Ozette was uncovered. The

Makah Tribe waited for the gray whale population to be removed from the list of endangered and

threatened wildlife under the ESA before seeking a quota from the U.S. Government to resume

ceremonial and subsistence whaling. The Makah request to take up to five gray whales per year was

based on the number of traditional whaling villages. The Tribe believes that continuing its whaling

tradition will provide important subsistence and ceremonial benefits to the Makah community and

will help the Tribe to reaffirm its traditions and cultural identity. The large tribal ceremonies and

celebrations involving most members of the Tribe after the successful hunt on May 17, 1999, are

indicative of the benefits of whaling to the Makah Tribe.

4.5. Other Tribes

The Makah Tribe is one of four tribes located on the outer coast of Washington State. The other

tribes are the Quileute, located at La Push; the Hoh, located at the mouth of the Hoh River; and the

Quinault, located between Queets and Moclips. All four tribes are Federally recognized Indian tribes

and appear on the Secretary of Interior’s List of Indian Entities Recognized and Eligible to Receive

Services from the U.S. Bureau of Indian Affairs (65 FR 13299, March 13, 2000), the annual

publication that is mandated by Congress in the Federally Recognized Indian Tribe List Act of 1994.

In addition, these tribes are signatories to the Stevens treaties, which include the Treaty of Neah Bay

and the Treaty of Olympia. All four tribes have reserved treaty rights for hunting and fishing, but

only the Makah Tribe has explicit treaty language reserving the right to sealing and whaling.

4.6. Whale Watching Industry

In the Northwest, more than 130 commercial operators advertise whale watching or marine wildlife

viewing tours in Oregon, Washington, and British Columbia on the Internet. Whale watching

activities are roughly divided into two major areas and target species. In the coastal waters of

Washington and Oregon, the primary focus is on seasonally migrating gray whales, while killer

whales are the principal target of whale watchers during summer months in the inland waters of

Washington and British Columbia, Canada. The most popular and well-known whale watching

industry is focused on killer whales in the area of the San Juan Islands in northern Puget Sound.

Many charterboat operators also actively promote wildlife and bird watching as “added attractions.”

In Washington, gray whale watching trips begin in March during the northward migration and taper
38

off in May, as many of the charterboat operators shift their offerings to sport fishing during the

summer months. Most of the operators that offer gray whale watching trips are concentrated in the

port of Westport on the central Washington coast. Some operators advertise trips from the ports of

Nahcotta and Sekiu/Neah Bay. Whale watching vessels depart daily in Westport in the spring,

whereas in Neah Bay sightseeing and whale watch/wildlife charters are available only by reservation

in the summer.

In Neah Bay, several attempts have been made in past years to establish scheduled whale watching

excursions on salmon and halibut charter vessels during the spring gray whale migration, but they

were not successful. Wildlife or whale watching trips can be arranged directly with charterboat

operators in Neah Bay. But, because of the remote location of Neah Bay and unpredictable whale

sighting conditions, few whale watching trips occur in northern coastal Washington and the western

Strait of Juan de Fuca. For 2000, the charterboat bookings office and the marina operators advised

that as many as a dozen charter vessels may have been involved with whale watching and/or nature

tours, but no specific records were kept. One employee believed that each vessel may have

conducted about one or two such tours during 2000. The charterboat booking office records from

May through September indicated that eight whale watching trips were booked, including four in

July and four in August, on five different vessels. However, several operators that spent portions

of the season at Neah Bay did their own bookings and could have had more trips. Of about 12

charter boats that operated at Neah Bay during 2000, about half were there only during May and June

during the halibut season (Big Salmon Charters, pers. comm., Sept. 2000). When the halibut season

ended, the vessels returned either to Westport, or at least three vessels traveled to Alaska to conduct

fishing charters. 

At least 34 companies advertise killer whale watching/wildlife tours in the inland waters of

Washington, primarily in the Haro Strait near San Juan Island. Many operators offer tours aboard

multi-passenger charter vessels, while a number of operators specialize in guided tours for groups

of individuals in single or double kayaks. There are also private charters available aboard sailing

yachts and luxury cruisers. Wildlife/sightseeing tours are offered year around, but the main viewing

season for killer whales is from May through September. During the summer months, killer whales

return to traditional feeding areas with some degree of regularity; operators have established an

elaborate whale tracking network that allows them to locate whales along their travel routes and to

improve sighting success for whale watching clients. This level of sighting success enables

operators to offer several trip options daily throughout the summer. Killer whale tours originate

from San Juan and Orcas Islands as well as mainland ports (Port Townsend, Everett, LaConner,

Anacortes, Bellingham).

In Oregon, gray whale watching trips begin in early March during the spring or northward migration

and continue until May, when recreational fishing charters begin. A few charterboats in central

Oregon continue whale watching trips through the summer months and into September, targeting

on local feeding gray whales. At least 27 operators advertise whale watching tours originating from

ports all along the coast from Brookings to Astoria. Nearly half of these companies are concentrated

along the central coast in the ports of Depoe Bay and Newport. Eight flying services in Oregon offer
39

whale watching sightseeing flights, but the majority of the whale watching operators offer tours

aboard multi-passenger charter vessels.

In British Columbia, commercial whale watching is divided between the outer coast of Vancouver

Island, where gray whales dominate the offerings, and inside waters where killer whales are the

primary attraction. The inside waters are further subdivided into northern and southern areas. The

southern area includes the boundary waters between Vancouver Island and the San Juan archipelago.

More than 50 companies advertise whale watching/wildlife tours in British Columbia, with a full

range of whale watching platforms offered. The dominant whale watching platforms in British

Columbia are multi-passenger vessels, including high-speed inflatables and larger charter vessels

with enclosed seating, while some companies offer guided kayak tours as well. 

On the outer coast of Vancouver Island, whale watching is concentrated in the protected waters of

Barkley Sound and Clayoquot Sound, with most operators offering trips originating in the ports of

Ucluelet and Tofino. At least 13 companies are advertising trips in these coastal bays. Gray whale

watching begins in March with the arrival of the first spring migrants and continues through

November with the departure of the southern migrants. During the summer, trips focus on feeding

whales that remain in the coastal bays. Transient killer whales are also present in the area during the

summer.

About 12 companies advertise killer whale excursions in the inside waters north of Nanaimo, British

Columbia. Trips originate from a number of ports including Alert Bay, Cambell River, Prince

Rupert and Sayward. The area includes the Robson Bight, where underwater acoustic monitoring

of killer whale calls is conducted by the Vancouver Aquarium and the sounds are broadcast to

listeners via a local FM radio station. Approximately 20 companies advertise killer whale watching

and wildlife tours in the southern inside waters. Most of the operators are based in and around

Victoria with access to the Haro Strait and eastern Strait of Juan de Fuca. Some trips are offered

from Nanaimo to the north and from mainland Vancouver.

5. ENVIRONMENTAL CONSEQUENCES

5.1. Alternative 1 - Grant Makah Tribe the IWC Quota With Restrictions to Target

Hunt on Migrating Whales (similar to the 1999 regime)

Under this alternative, NOAA would grant the Makah Tribe the IWC quota of up to five whales a

year for ceremonial and subsistence purposes, with restrictions on the time, place, and/or manner of

the hunt similar to those in place during the tribal hunt in 1999. The hunt would be structured with

the intent of targeting migrating whales by limiting the area of the hunt to the ocean area of its U&A

(outside the Straits of Juan de Fuca westward of a line from Bonilla Point in Canada to Tatoosh

Island off northern Washington) and by limiting the timing of the hunt to occur when the northward

or southward gray whale migrations are underway.
40

It is expected that the Makah Tribe would use the methods utilized in 1999, which included pursuit

and harpooning from a canoe and immediate dispatch of a harpooned whale with a large caliber rifle

discharged from a motorized vessel. The hunt would be restricted to either five gray whales landed

or seven whales struck, and the hunt would be terminated either when five gray whales are landed

or seven whales are struck, whichever occurs first in a given year. A strike is when the harpoon is

thrust into a whale and imbeds in the whale causing serious trauma that can result in death, or when

the whale is shot and the bullet enters the body cavity. The utilization of the whale would be limited

to ceremonial and subsistence use, not for commercial purposes. In accordance with IWC

regulations, takes of a calf or of a female accompanied by a calf (referred to as ‘mother-calf pairs’)

would be prohibited.

The issuance of a quota of five gray whales landed or seven strikes with the restrictions described

above would have no adverse effect on the overall gray whale population, which is estimated at more

than 26,600 whales. The PBR for the entire stock of eastern North Pacific gray whales is 649 whales

for 2000 (Ferrero et al. In prep.). A total level of human-caused mortality that is less than PBR is

considered sustainable. As described in Section 4.2.1, there are an estimated 83 human-caused

mortalities of gray whales per year from the entire eastern North Pacific stock of gray whales

(Ferrero et al. In prep). Given a PBR of 649 gray whales, an additional take of 566 gray whales per

year could occur without the PBR for this stock being exceeded. With the restriction of the quota

of five gray whales per year with a maximum of seven strikes per year, the PBR would not be

exceeded. Thus, this alternative would have no negative impacts on the gray whale population. This

is consistent with advice from the IWC Scientific Committee that there is “no reason to change the

advice given previously that a take of up to 482 eastern North Pacific gray whales per year [based

on the 1999 PBR] is sustainable, and is likely to allow the population to stabilize above the

maximum sustainable yield level” (IWC 2000).

As discussed in Section 4.2.3, both NMFS and the IWC currently consider the eastern North Pacific

gray whale to be a single stock. The best available scientific information does not indicate that the

Pacific coast feeding aggregation is a biologically distinct group of animals. However, in order to

evaluate the potential affects of Makah whaling on the Pacific coast feeding aggregation, this EA

takes a very conservative approach and treats the Pacific coast feeding aggregation as a separate

management unit so that the effects of takes can be evaluated using the PBR framework. This

approach is consistent with that used by Quan (2000). An alternate approach would be to analyze

recruitment into the feeding aggregation; but, with the recent information on the expanded range of

the Pacific coast feeding aggregation from California to Alaska in areas that have not been routinely

surveyed, such analysis would require assumptions on non-surveyed areas resulting in high levels

of error; therefore, this approach was not used in this EA. The PBR is defined as the product of the

minimum population estimate, one-half the maximum theoretical net productivity rate, and a

recovery factor: PBR = NMIN x 0.5RMAX x FR (Wade and Angliss 1997). As described in 4.2.3. of

this EA, there are two different abundance estimates for the Pacific coast feeding aggregation: a

mark-recapture estimate based on 1988 resights and a more recent estimate based on 1999 resights.

There is also a range of recover factors that could be applied. Thus, a range of PBRs for the Pacific

coast feeding aggregation was calculated. The low end of the PBR range is an average of 2.08
41

whales per year calculated based on 1) a conservative approach using the lower range of minimum

population estimate (157) described in Section 4.2.3. of this EA; 2) a RMAX of 0.053 for the gray

whale population from Ferrero et al. (In prep.), and 3) a recovery factor of 0.5 based on conservative

approach of treating the feeding aggregation as a separate management unit (Wade and Angliss

1997). The high end of the PBR range is an average of 6.78 whales per year calculated based on 1)

a minimum population estimate (269) based on the 1999 resights described in Section 4.2.3. of this

EA; 2) a RMAX of 0.053 for the gray whale population from Ferrero et al. (In prep.), and 3) a recovery

factor of 1.0 based on the feeding aggregation having the same population dynamics as the larger

stock.

This analysisassumes that conducting the hunt during the migration effectively removes whales from

the entire stock. If whales are taken outside of the primary migration period, they can be presumed

to be from the Pacific coast feeding aggregation. Based on an analysis of the timing of migrations

past central California and offset to account for travel to and from Washington, the expected period

for the migration off Washington is the beginning of December to the beginning of June. This does

not mean that migrating whales are never present in October or November off Washington, as they

have been reported in some studies (Pike 1962, Darling 1984), but it does mean that whales taken

prior to December 1 have a higher probability of being part of the Pacific coast feeding aggregation

than those taken later. Thus, if the hunt occurs outside the primary migration period (e.g., in

November or June), additional restrictions on the quota and strikes would be necessary to ensure that

the PBR for the Pacific coast feeding aggregation is not exceeded. One option for addressing this

issue would be to allow a fall hunt to occur only after December 1.

As described in section 4.2.2. of this EA, migrating whales off Washington in June are primarily

females with calves that cannot be harvested; thus, those that are not mother-calf pairs have a higher

probability of being part of the Pacific coast feeding aggregation. As a result, additional restrictions

on the quota and strikes would be necessary to ensure that the PBR for the Pacific coast feeding

aggregation is not exceeded. One option for addressing this issue would be to require that the spring

hunting season end by May 31. 

This analysis assumes the hunt would be limited to the ocean area of its U&A (outside the Straits

of Juan de Fuca westward of a line from Bonilla Point in Canada to Tatoosh Island off northern

Washington). Restricting the hunt to areas further offshore may increase the likelihood of targeting

migrating whales; however, this restriction would present severe safety risks for the Tribe as

discussed later in this section.

Segregation by age and sex during the migration suggests that harvesting could have a bias towards

certain age and/or sex classes, if removals occurred at specific times and/or within specific areas.

The segregation between the first and second phases of northward migrating gray whales indicates

that females alternate between two migration timetables, depending on whether they have a calf or

were recently impregnated. The consequences of this migratory segregation suggest that, if gray

whales were harvested during the early southbound and early northbound portions of the migration,

the catches could be composed predominantly of females with near-term fetuses and those that are
42

were newly pregnant. Such removals could selectively remove the mature breeding females from

the population. The preferential killing of breeding females by 19th century whalers within the

lagoons was cited as a possible factor in the rapid depletion of this population (Henderson 1984).

However, the Makah hunt of only five whales per year, with as many as seven strikes, is not likely

to affect the reproductive capacity of the gray whale population.

The potential effects on wildlife of Makah whaling activity, other than on the gray whales targeted

for harvest, are limited to the disturbance caused by the Makah whaling vessels, the dispatch of the

firearm, and secondary effects from protest, media and other vessels present during the hunt. The

rifle is fired downwards into the water, and in very close vicinity to the target gray whale, so no other

wildlife species is likely to be affected by the .50 caliber projectile. The noise of the firearm or

vessels may disturb wildlife in the immediate vicinity of the whaling activity, possibly causing a

startle-fleeing reaction. This is a common reaction of wildlife exposed to vessel noise, fog horns,

and other noises that occur in the marine environment and may result in temporary displacement of

the birds. The discharge of the rifle will only occur after a gray whale is harpooned and is unlikely

to be repeated more than four times in one day (based on the Makah hunt as conducted in 1999) nor

more than five days in the year (based on a quota of five), so any effects from startle-fleeing reaction

by wildlife is limited both in space (within immediate area of a harpooned whale) and time.

Temporary displacement of wildlife due to vessel activity associated with the Makah hunt is not

likely to significantly disrupt normal wildlife feeding behavior because the affected wildlife can

readily move short distances away from vessels to less disturbed areas and continue feeding. Such

temporary displacement in marine waters, especially by feeding seabirds, is a common occurrence

wherever vessel activity occurs. Also, since the tribal hunt will occur in a relatively very small areas

off the coast and only for short periods of time, the frequency of wildlife disturbances and numbers

of animals temporarily displaced by the vessels involved with the whaling activity is expected to be

minimal.

Secondary effects of the Makah whaling activity on wildlife also include potential disturbance from

media or protest overflights. Sanctuary regulations include a 2000 foot ceiling for aircraft over the

Sanctuary which would prevent disturbance from aircraft except when such regulations are violated.

Experience from the hunt in 1999 indicates that media craft can and do operate at distances more

than 2000 feet above the water and the only problem with aircraft occurred on one day when a

seaplane operated by protest groups made several passes over the area of the hunt at less than 2000

feet. Operators of the aircraft were subsequently contacted by the Coast Guard and the activity did

not occur again in 1999.

If whaling is conducted in close proximity to rocky outcrops or islands where birds nest, it could

have effects on the involved birds. The common murre is a seabird that nests on Tatoosh Island,

which is located just offshore of the tip of the coast (Cape Flattery). Common murres also nest on

White Rock, located at 48/08'N latitude, which is the at the southern end of the Makah U&A.

Although common murre numbers in Washington have declined, the species (which ranges from

California to Alaska) is not listed or proposed for listing under the ESA. Makah whaling activities

conducted in 1999 and 2000 occurred well offshore and south of Tatoosh Island and north of White
43

Rock and therefore had no effect on the common murre rookeries. Most vessels avoid close

approach to rocky outcrops to ensure vessel safety. During the common murre nesting period (May

through September), the Makah whaling activity (other than normal transit through the navigation

corridor near Tatoosh Island) should occur no closer than 200 yards of Tatoosh Island and White

Rock to avoid any effects on nesting seabirds.

The marbled murrelet is the only seabird off northern Washington that is listed under the ESA; it is

listed as a threatened species. The marbled murrelet nests inland in old growth forest as far as 50

miles inland (Hamer and Cummins 1991). The marbled murrelet occupies the nearshore coastal

waters and inland bays and feeds in shallow areas (Pacific Seabird Group 1993). The Makah

whaling activity is unlikely to affect marbled murrelets because, similar to other wildlife as described

above, temporary displacement of marbled murrelets due to vessel activity associated with the

Makah hunt is not likely to significantly disrupt normal feeding or resting behavior because

murrelets can readily move short distances away from vessels to less disturbed areas and continue

feeding.

Other ESA-listed birds that occur off northern Washington are the bald eagle, brown pelican,

Aleutian Canada goose, and snowy plover. The snowy plover is a shorebird and the Aleutian Canada

goose occurs inland and along the shore; they would not be affected by the whaling activity. The

brown pelican may occur off northern Washington coastal waters in the summer, and may be

temporarily displaced if it occurs in the area of whaling activity (as described above), but otherwise

are not affected. The bald eagle would not be affected by the whaling activity because it forages

primarily over land and islands, and are unlikely to be foraging offshore in the area of the whaling

activity. Other non-listed birds that may occur in the immediate vicinity of the whaling activity may

be temporarily displaced as a result of the noise from the whaling activity (as described above), but

would not otherwise be affected.

ESA-listed marine mammals off northern Washington include the large whales and the Steller sea

lion. Makah whaling will not affect any ESA-listed whales or non-listed whales (e.g., minke whales)

other than gray whales; the hunt will target on gray whales and no other whales will be approached

or pursued. Gray whales can be easily identified at the close approach distances necessary for

harvest, negating any possibility that another whale species might be accidentally taken. Steller sea

lions, California sea lions, and harbor seals hauled-out on nearshore rocky outcrops are unlikely to

be affected other than normal startle/fleeing behavior described for wildlife above if the whaling

activity occurs in close proximity to rocky outcrops (which is unlikely based on observations of the

1999 Makah hunt). Pinnipeds that may occur in the water in the area of the whaling activity are

likely to avoid the immediate area of the hunt. ESA-listed salmonids, which occur below the water’s

surface, would not be affected by whaling activities.

Whaling within or adjacent to the Sanctuary may adversely affect the public perception of the intent

and purposes of this and other federally protected marine sanctuaries, especially if such activities

occur in a manner that impacts other Sanctuary resources. Sanctuaries are managed under multiple

objectives, including maintaining natural biological communities, enhancing public awareness, and
44

the wise and sustainable use of the marine environment but the primary objective is resource

protection. At the time the Sanctuary was designated, an EIS documented the present and potential

uses of the area, including commercial and recreational fishing, research and education, subsistence

uses and other commercial, governmental, or recreational uses. The range of allowed and prohibited

activities is guided by regulations. The EIS and Sanctuary regulations specifically acknowledged

the treaty rights of those tribes whose usual and accustomed areas adjoin the Sanctuary, and in no

way sought to interfere with the exercise of those rights as long as they were conducted in

compliance with Federal laws. Activities authorized by Federal treaty, including hunting of whales

and seals, are allowed. Sanctuary regulations do not prevent the Makah Tribe from whaling within

the Sanctuary, but require that conservation objectives for the species and impacts to other Sanctuary

resources be addressed.

This alternative would be strongly opposed by the many members of the public and nongovernmental organizations who are against the Makah whale hunt. As discussed in Section 4.1.4.

of this EA, the Coast Guard has established an RNA to address this issue and to ensure public safety

in the vicinity of the Makah whale hunt.

The Makah Tribe is committed to having its whaling crews well prepared prior to issuing a whaling

permit; a well-trained whaling crew ensures a safer whaling operation. Restricting the Tribe to

whaling in the open ocean and only during the gray whale migration would increase safety risks to

tribal whalers and make access to whales more difficult. Tribal efforts to harvest a whale during the

fall/winter southward migration would expose tribal whalers to the adverse weather conditions that

are common during the fall/winter period off the northern Washington coast. Because of this, this

alternative is not the most favorable to the Tribe. The Makah Tribe has expressed concerns that

previous season and area restrictions on the hunt made it difficult to conduct subsistence whaling

and, in fact, resulted in the inability of the Tribe to conduct subsistence whaling during the fall

season. The Tribe now considers any restriction designed to prevent the taking of whales from the

Pacific coast feeding aggregation to be inconsistent with the “conservation necessity” standard

described in Section 2.5.2, and thus violative of the Treaty of Neah Bay.

NMFS has considered the potential that gray whale tissues might have higher levels of pollutants

than would be allowable under standards set by the U.S. Department of Agriculture (USDA) or the

FDA. However, biopsy samples from gray whales off Washington have not shown high levels of

PCBs and DDTs. This does not eliminate the potential danger to tribal members’ health from

pollutants due to long-term exposure. Nonetheless, the Tribe is aware of the risks, and information

on pollutants has been made available to the Tribe for its use in assessing risks to tribal members.

Makah whaling is unlikely to lead to whaling by other tribes in the United States and Canada. The

Makah Tribe is the only U.S. tribe with a treaty that expressly refers to whaling. U.S. support for

the Treaty of Neah Bay in no way implies that it would support whaling by other tribes that do not

have such a reference in a treaty. No other U.S. tribe has expressed to NMFS any interest in

resuming whaling in the five years since the United States first supported the Makah Tribe’s interest

in resuming whaling. Further, the United States considers that all whaling must be done under the
45

auspices of the IWC and in accordance with the provisions of that organization. Canada is not a

member of the IWC, and the United States opposes any whaling by Canadian natives unless Canada

seeks and receives authorization from the IWC.

Makah whaling is unlikely to affect the whale watchers, the whale watching industry or the numbers

of gray whales available to be watched. Most whale watching operations in Washington State focus

on killer whales in Puget Sound and the eastern portion of the Strait of Juan de Fuca, thus the tribal

hunt for gray whales off Neah Bay would have no effect on killer whale watching trips. When gray

whales are observed in the area of killer whale watching trips, they are typically individual animals

that are in the area for only short periods of time and unlikely to be affected by whaling off the

northern coast of Washington. The gray whale watching operations out of Westport, which is on the

Pacific coast, are also not likely to be affected. This operation takes place during spring migration,

chiefly in March and April. The gray whales are moving northward at the time and will go past

Westport before reaching the area of the Makah hunt in northern Washington. Gray whale watching

off the northern coast of Washington, near where the whaling would take place, is limited. There

are no regularly scheduled whale watching operations, and NOAA is unaware that any are actively

being organized. Nonetheless, given the limited geographic area of a hunt and an annual quota of

only five whales, it is unlikely that gray whale movements through the area where whale watching

may occur would be affected. In regard to whether Makah whaling may affect public participation

in whale watching in general, it is unlikely that whaling activity would reduce public participation,

in fact it may increase it as it raises public awareness of whales.

It is unlikely that the Makah hunt, which is limited to seven strikes annually, would change the

behavior of gray whales, making them more wary of boats or less approachable. While the behavior

of individual whales near boats might be affected if they are wounded but not killed by Makah

hunting, it is unlikely that this would change the behavior of other gray whales. This population is

already hunted by Russian natives each summer in the Bering Sea. The ongoing Russian hunt has

not translated into a general avoidance of boats by gray whales. NMFS is unaware of any reason

why the much lower level hunt by the Makah Tribe should cause a broader impact on the general

behavior of the population than the Russian hunt has caused. Gray whale approach and attempted

strikes by Makah whalers also is unlikely to adversely affect gray whales. These whales migrate

through waters occupied by vessels and the few instances of approach by the Makah whaling canoe

would have no effect on whale behavior. Potential glancing blows from a Makah harpoon (without

striking the whale) could occur although unfrequently and are not likely to injure the whales as the

harpoon would need to penetrate deep into the skin to cause injury. Attempted harpoon strikes

resulting in glancing blows also are unlikely to affect whale behavior based on biopsy darting

research whereby most of the darted whales will react to the dart penetrating their skin, but will

immediately thereafter proceed with normal swimming and behavior patterns.

It is acknowledged that wounded whales could be dangerous; this is true for any large animal in pain.

However, there is no obvious reason why a whale wounded during the Makah hunt would approach

or damage uninvolved vessels. The Coast Guard’s RNA, which acknowledges the dangers of a

struck whale, requires vessels to stay 500 yards away from the Makah whaling operation. In any
46

case, gray whales are large, wild animals, and persons should exercise caution in approaching any

whale, regardless of its condition.

This alternative would send the signal that it is possible to carry on traditional whaling that it is

sanctioned by the IWC. While this would be considered a positive aspect by Native American

groups, it would be perceived as a strong negative aspect by those who oppose Makah whaling. On

a broader scale, official recognition that traditional activities such as whaling are culturally valuable,

despite their controversial nature, would be reassuring to Native Americans in general.

5.2. Alternative 2 - Grant Makah Tribe the IWC Quota With Restrictions That Allow

a Limited Hunt on the Pacific Coast Feeding Aggregation 

Under this alternative, the Tribe would not be restricted to targeting migrating whales (as in

Alternative 1). The Tribe would have the flexibility to determine when and where the hunt occurs

in the tribal U&A, so long as the hunt does not adversely impact the feeding aggregation of gray

whales off Washington. Although the overall annual quota of five whales landed or seven whales

struck described in Alternative 1 would be retained, additional restrictions would be established for

hunts occurring between June 1 and November 30 or in inside waters to ensure that the PBR for the

Pacific coast feeding aggregation is not exceeded. This alternative would allow the Makah Tribe to

determine how it wants to conduct a hunt and set hunting seasons in its entire U&A, so long as the

overall IWC quota and the PBR for the Pacific coast feeding aggregation are not exceeded and the

hunt is humane.

As discussed in Section 4.2.3. of this EA, both NMFS and the IWC consider the eastern North

Pacific gray whale to be a single stock. However, as discussed in Section 5.1. of this EA, in order

to evaluate the potential affects of Makah whaling on the Pacific coast feeding aggregation, this EA

takes a very conservative approach and treats the Pacific coast feeding aggregation as a separate

management unit for purposes of analysis with an average PBR ranging from 2.08 to 6.78 whales

per year. Thus, removals by Makah whaling would not affect the Pacific coast feeding aggregation

if the total take (harvest plus struck and lost) does not exceed the PBR range of 10.40 to 33.9 whales

over the five-year period of the IWC quota (an annual average of 2.08 to 6.78 whales). 

This alternative is more favorable to the Makah Tribe than Alternative 1 because it provides the

Tribe flexibility in determining seasons and allows avoidance of hunting during the southward

migration in the winter when personal safety of whalers is at risk. This alternative also

acknowledges the Makah Tribe’s request to conduct a limited hunt in the summer in the Straits,

when weather conditions are not adverse and whales can be accessed nearby. In contrast to

Alternative 1, under this alternative, the Tribe would not be restricted in geographic areas, except

for the boundaries of its U&A, for harvest of whales from the Pacific coast feeding aggregation. As

mentioned under Alternative 1, however, the Tribe considers any restriction on the take of whales

from the Pacific coast feeding aggregation to be inconsistent with the “conservation necessity”

standard.
47

In contrast to Alternative 1, this alternative would allow the Makah Tribe to hunt in its entire U&A

during any month of the year when gray whales are present. It is likely that the Tribe would conduct

limited whaling in the Straits, possibly during its Makah Days celebration in August. However, with

the unpredictability of when and where whales may occur during the summer in any given year, it

is possible that a summer hunt would occur in the ocean. In some years, the Pacific coast feeding

aggregation is primarily off southern Vancouver Island in Canadian waters. In such years, there

would be no summer hunt due to inaccessibility to the whales, and the hunt therefore would have

to occur during the migration period. In other years, the feeding aggregation is primarily in the

ocean, so in these years all whaling would occur in the ocean either during the summer or during the

migration period. The Tribe could also hunt on migrating whales in the ocean during the spring, as

it has in the past two years. This alternative would also provide the opportunity for the Tribe to hunt

in the ocean in September and October, which may be its preference for a fall hunt. In summary,

under this alternative, it cannot be assumed that removing the area and season restriction will

definitely result in all whaling occurring in the summer or in the Straits. 

The potential effects on wildlife of Makah whaling activity, other than on the gray whales targeted

for harvest, are limited to the disturbance caused by the Makah whaling vessels, the dispatch of the

firearm, and secondary effects from protest, media and other vessels present during the hunt. The

rifle is fired downwards into the water, and in very close vicinity to the target gray whale, so no other

wildlife species is likely to be affected by the .50 caliber projectile. The noise of the firearm or

vessels may disturb wildlife in the immediate vicinity of the whaling activity, possibly causing a

startle-fleeing reaction. This is a common reaction of wildlife exposed to vessel noise, fog horns,

and other noises that occur in the marine environment and may result in temporary displacement of

the birds. The discharge of the rifle will only occur after a gray whale is harpooned and is unlikely

to be repeated more than four times in one day (based on the Makah hunt as conducted in 1999) nor

more than five days in the year (based on a quota of five), so any effects from startle-fleeing reaction

by wildlife is limited both in space (within immediate area of a harpooned whale) and time.

Temporary displacement of wildlife due to vessel activity associated with the Makah hunt is not

likely to significantly disrupt normal wildlife feeding behavior because the affected wildlife can

readily move short distances away from vessels to less disturbed areas and continue feeding. Such

temporary displacement in marine waters, especially by feeding seabirds, is a common occurrence

wherever vessel activity occurs. Also, since the tribal hunt will occur in a relatively very small areas

off the coast and only for short periods of time, the frequency of wildlife disturbances and numbers

of animals temporarily displaced by the vessels involved with the whaling activity is expected to be

minimal.

Secondary effects of the Makah whaling activity on wildlife also include potential disturbance from

media or protest overflights. Sanctuary regulations include a 2000 foot ceiling for aircraft over the

Sanctuary which would prevent disturbance from aircraft except when such regulations are violated.

Experience from the hunt in 1999 indicates that media craft can and do operate at distances more

than 2000 feet above the water and the only problem with aircraft occurred on one day when a

seaplane operated by protest groups made several passes over the area of the hunt at less than 2000

feet. Operators of the aircraft were subsequently contacted by the Coast Guard and the activity did
48

not occur again in 1999.

If whaling is conducted in close proximity to rocky outcrops or islands where birds nest, it could

have effects on the involved birds. The common murre is a seabird that nests on Tatoosh Island,

which is located just offshore of the tip of the coast (Cape Flattery). Common murres also nest on

White Rock, located at 48/08'N latitude, which is the at the southern end of the Makah U&A.

Although common murre numbers in Washington have declined, the species (which ranges from

California to Alaska) is not listed or proposed for listing under the ESA. Makah whaling activities

conducted in 1999 and 2000 occurred well offshore and south of Tatoosh Island and north of White

Rock and therefore had no affect on the common murre rookeries. Most vessels avoid close

approach to rocky outcrops to ensure vessel safety. During the common murre nesting period (May

through September), the Makah whaling activity (other than normal transit through the navigation

corridor near Tatoosh Island) should occur no closer than 200 yards of Tatoosh Island and White

Rock to avoid any effects on nesting seabirds.

The marbled murrelet is the only seabird off northern Washington that is listed under the ESA; it is

listed as a threatened species. The marbled murrelet nests inland in old growth forest as far as 50

miles inland (Hamer and Cummins 1991). The marbled murrelet occupies the nearshore coastal

waters and inland bays and feeds in shallow areas (Pacific Seabird Group 1993). The Makah

whaling activity is unlikely to affect marbled murrelets because, similar to other wildlife as described

above, temporary displacement of marbled murrelets due to vessel activity associated with the

Makah hunt is not likely to significantly disrupt normal feeding or resting behavior because

murrelets can readily move short distances away from vessels to less disturbed areas and continue

feeding.

Other ESA-listed birds that occur off northern Washington are the bald eagle, brown pelican,

Aleutian Canada goose, and snowy plover. The snowy plover is a shorebird and the Aleutian Canada

goose occurs inland and along the shore; they would not be affected by the whaling activity. The

brown pelican may occur off northern Washington coastal waters in the summer, and may be

temporarily displaced if they occur in the area of whaling activity (as described above), but otherwise

are not affected. The bald eagle would not be affected by the whaling activity because it forages

primarily over land and islands, and are unlikely to be foraging offshore in the area of the whaling

activity. Other non-listed birds that may occur in the immediate vicinity of the whaling activity may

be temporarily displaced as a result of the noise from the whaling activity (as described above), but

would not otherwise be affected.

ESA-listed marine mammals off northern Washington include the large whales and the Steller sea

lion. Makah whaling will not affect any ESA-listed whales or non-listed whales (e.g., minke whales)

other than gray whales; the hunt will target on gray whales and no other whales will be approached

or pursued. Gray whales can be easily identified at the close approach distances necessary for

harvest, negating any possibility that another whale species might be accidentally taken. The effects

of this alternative on gray whales is the same as those described in Alternative 1. Steller sea lions,

California sea lions, and harbor seals hauled-out on nearshore rocky outcrops are unlikely to be
49

affected other than normal startle/fleeing behavior described forwildlife above if the whaling activity

occurs in close proximity to rocky outcrops (which is unlikely based on observations of the 1999

Makah hunt). Pinnipeds that may occur in the water in the area of the whaling activity are likely to

avoid the immediate area of the hunt. ESA-listed salmonids, which occur below the water’s surface,

would not be affected by whaling activities.

Under this alternative, whaling could occur within or outside of the Sanctuary. Effects of whaling

on the Sanctuary are described in Alternative 1. The environmental consequences on the Sanctuary

could be less than those described under Alternative 1 since it may result in increased hunting effort

in the Straits, outside the Sanctuary.

A tribal hunt in the Straits is likely to be more accessible for protest vessels than hunting in the ocean

under Alternative 1. The Coast Guard would most likely face greater challenges in enforcing the

RNA because of easier public access to the areas where the Makah whale hunt would be occurring

and increased public concern over the take of individuals from the Pacific coast feeding aggregation.

The Coast Guard’s RNA currently extends just east of Neah Bay in the Straits and would need to be

modified to extend eastward to the eastern extent of the Makah U&A (Tongue Point) to provide the

500-yard exclusionary zone designed to avoid public safety issues.

Public opposition may be greater to this alternative than Alternative 1 because it allows hunting on

the Pacific coast feeding aggregation, which frequent nearshore waters and are more approachable

by vessels. Greater opposition could result in more protest involvement with the Makah hunt,

especially if the hunt occurs in the Straits during favorable weather (when the hunt is more easily

accessed and observed). The Makah hunt could possibly be observed from shore at several sites if

it occurs in the Straits.

This alternative would send the signal that it is possible to carry on traditional whaling that is

sanctioned by the IWC. Official recognition that traditional activities such as whaling are culturally

valuable, despite their controversial nature, will be reassuring to Native Americans in general. It also

gives more flexibility to the tribal harvest, while protecting the Pacific coast feeding aggregation

from localized depletion.

5.3. Alternative 3 - Grant Makah Tribe the IWC Quota Without Time/Area

Restrictions.

Under this alternative, NOAA would grant the Makah Tribe the IWC quota of up to five whales a

year for ceremonial and subsistence purposes, as was approved by the IWC, without any Federal

restrictions on the time or place of the hunt. This alternative would allow the Makah Tribe to

determine when and where to hunt gray whales in its U&A. The hunt would be restricted to either

five gray whales landed or seven whales struck, and the hunt would be terminated either when five

gray whales are landed or seven whales are struck, whichever occurs first in a given year. The

utilization of the whale would be limited to ceremonial and subsistence use, not for commercial

purposes.
50

Under this alternative, the Makah Tribe would be allowed to take up to five whales per year,

including animals from the Pacific coast feeding aggregation. There would be no effects on the gray

whale population as described in Alternative 1. However, if the Pacific coast feeding aggregation

is treated as a separate management unit, then without some type of temporal or further quota

restriction, this alternative might exceed the annual average PBR range of 2.08 to 6.78 for the Pacific

coast feeding aggregation.

The environmental consequences of this alternative on gray whales and other wildlife are similar to

those described in Alternative 2. The environmental consequences of this alternative on the

Sanctuary could be less than those described under Alternative 2 since it may result in increased

hunting effort in the Straits, outside the Sanctuary.

This alternative would not be acceptable to the many citizens who are opposed to the Makah whale

hunt. Since granting the Makah Tribe a quota without restrictions on the area or time of the hunt is

more likely to result in the taking of gray whales from the Pacific coast feeding aggregation, this

alternative will be especially intolerable to those citizens who are concerned about taking gray

whales from the Pacific coast feeding aggregation. This may result in increased protest activity in

the area of the Makah hunt, particularly because the hunting area would now be more easily

accessible by land.

The Coast Guard’s 1999 regulation for an RNA was based on the parameters of the Makah whale

hunt at that time. Under this alternative, the Coast Guard would need to alter its regulations to

conform with the broader geographic area of the hunt. In addition, the Coast Guard would most

likely face greater challenges in enforcing this regulation because of easier public access to the areas

where the Makah whale hunt would be occurring, potentially more recreational and commercial

vessel traffic, and increased public concern over the take of individuals from the Pacific coast

feeding aggregation.

Granting the Makah Tribe a quota at this time would promote cultural diversity and recognize the

importance of maintaining traditions for the coherence of Native American groups. Granting the

Makah Tribe a quota without restrictions might be considered favorable to the Tribe because it

would allow the Tribe to conduct whaling activities throughout its U&A throughout the year, but

might be counter to the Tribe’s interests by inducing additional public resistance to the hunt.

5.4. Alternative 4 - No Action - Do Not Grant Makah Tribe the IWC Quota

Under this alternative, NOAA would not issue the IWC quota for the subsistence harvest of gray

whales to the Makah Tribe. This alternative would be viewed by the Makah as a failure by the U.S.

Government to uphold treaty-secured rights of the Makah Tribe. Since no act of Congress has

explicitly abrogated the Treaty of Neah Bay, and since there is no conservation-based rationale for

denying a quota, a denial opposed by the Tribe would not comport with NOAA’s objective to

accommodate Federal trust responsibilities and treaty rights to the fullest extent possible. Several

scenarios could occur under this option: 1) the Makah Tribe might litigate to force the government
51

to acknowledge its treaty rights; 2) NOAA could encourage and assist the Tribe in non-lethal

whaling ventures such as whale watching or ecotourism; 3) NOAA could compensate the Tribe for

its loss; and 4) the Makah Tribe could proceed to hunt gray whales under its treaty right without

issuance of a quota.

The no-action alternative would have the worst consequences for the Makah Tribe. A U.S.

Government decision not to grant the Makah Tribe a quota would be viewed by the Tribe as a failure

to uphold the Treaty of Neah Bay and would almost inevitably lead to litigation. The nature of the

suit would depend on the circumstances, and on decisions taken by the Makah Tribe and the U.S.

Government. In light of past governmental action, it is understandable why the Makah Tribe would

find this alternative unacceptable. In the late 1800s, the U.S. Government sent agricultural tools to

the Makah Tribe instead of whaling and fishing implements as promised. Sending these tools was

part of a well-meaning but misguided effort to teach the Tribe new skills that would provide a more

stable income and subsistence base. The effect was to make it more difficult for the Makah Tribe

to maintain its sense of tradition and community.

Encouraging whale watching, unless done with sensitivity to cultural differences, could be similarly

counterproductive to the Makah effort to reaffirm its traditions. Although the Tribe does not

recognize whale watching as a direct substitute for whaling, it has been receptive to developing its

ecotourism potential. NOAA discussed the possibility of developing ecotourism in Neah Bay in lieu

of whaling with the Tribal Council and the Makah Whaling Commission in 1997. Tribal

representatives advised that this is not a course of action the Tribe would find acceptable. Their

concern is that whale watching would alienate the past from the present, imparting a museum-like

quality to an activity the Tribe considers a vibrant part of its current culture. While recognizing that

ecotourism might be a beneficial activity from an economic point of view and might help the Tribe

celebrate its history, the Tribe does not believe whale watching could be a substitute for whaling.

The Tribe advised that it preferred an active, participatory continuation of Makah traditions over a

preservation of them for their anthropological and educational value.

Compensating the Tribe not to exercise its treaty right has also met resistance in the Tribe with a

common sentiment that treaty rights are not for sale. While it may be appropriate for the Tribe to

receive compensation for economic harm due to a prohibition of a commercial fishery, in this case

the Tribe is requesting a quota for ceremonial and subsistence purposes, something that cannot be

compensated with money.

If the Tribe decides to resume whaling without issuance of a quota, the U.S. Government would then

need to decide whether to prosecute this activity as a violation of the Whaling Convention Act or any

other applicable law. If it did, the Makah Tribe could defend its action on the basis that the rights

conferred in the Treaty of Neah Bay are not superseded by that or any other relevant statute. If it

chose not to prosecute, the U.S. Government might be challenged by anti-whaling groups, and the

same issues might be argued in a different court from a different perspective.

If no action is taken to issue a quota to the Makah Tribe, it is possible that no whales would be
52

landed or struck and there would be no environmental consequences for the gray whale population.

However, the Makah Tribe may exercise its treaty right to harvest gray whales without issuance of

a quota. Assuming the Makah Tribe limited its hunt to the same levels as would be authorized by

the IWC, the direct environmental consequences of Makah whaling would be the same as for

Alternative 3. However, the environmental consequences from secondary effects of protest craft

monitoring or attempting to disrupt the hunt may increase.

The lack of whaling under this alternative would have no effect on the Sanctuary, Wildlife Refuge,

or wildlife resources in the Makah U&A. If the Makah Tribe decided to harvest whales without

issuance of a quota, the environmental consequences are likely the same as those in Alternative 3,

assuming the Tribe limits the hunt to the IWC quota.

If whaling does not occur under this alternative, there are no public safety issues for the whalers and

others observing or attempting to disrupt the hunt. The Coast Guard’s RNA for the Makah whale

hunt would not be necessary and could be eliminated. If whaling does occur without issuance of a

quota, the Coast Guard could be placed in a difficult position of protecting public safety during a

non-sanctioned tribal hunt.

In addition to provoking litigation, the no-action alternative could also provoke confrontation

between the Makah Tribe and NOAA. Cooperative research and management efforts between the

Tribe and NOAA that benefit marine mammals as well as ESA-listed salmonids could be

jeopardized. This alternative could also affect working relationships with other treaty tribes that

would view NOAA’s action under this alternative as a breach of faith by the U.S. Government in

upholding any treaty right. Most Indian tribes throughout the United States would likely view this

alternative as insensitivity to the cultural diversity of Native Americans in general.

Denying a quota would be inconsistent with the IWC objective for the management of whale stocks

subject to aboriginal subsistence whaling. The IWC objective is “to enable aboriginal people to

harvest whales in perpetuity at levels appropriate to their cultural and nutritional requirements” so

long as 1) the risks of extinction to individual stocks are not seriously increased by subsistence

whaling, 2) the stocks are maintained at or above the level giving the highest net recruitment, and

3) stocks below the level giving the highest net recruitment are moved towards it, so far as the

environment permits.

It is difficult to predict the effects that failing to issue the Makah Tribe a quota would have in the

IWC proceedings and member countries. Some countries may support this action while others may

view it as a unilateral move by the United States contrary to the IWC action.

Whale watching activities for gray whales are not likely to be affected by this alternative as there is

no information that would indicate whaling for five gray whales would have any effect on whale

watching. If the Makah Tribe decided to harvest whales without issuance of a quota, the direct

environmental consequences are likely the same as those in Alternative 3, assuming the Tribe limits

the hunt to the IWC quota. However, there may be increased protest vessel activity if the Tribe
53

hunted whales without a quota. If the U.S. Government provided economic incentives to the Makah

Tribe to undertake whale watching, it could place the Tribe in an economic advantage over other

whale watching operations in other areas and may affect these other businesses.

This alternative would be supported by citizens opposed to whaling. By taking no action, NOAA

may avoid further legal challenges from animal protection groups. But this could be countered by

legal challenges by the Makah and other Indian tribes.

6. COORDINATION AND CONSULTATION

Preparation of this draft EA included extensive consultation and coordination with various programs

and offices of NOAA, NMFS, NOS, DOI, DOS, and BIA.

7. LIST OF PREPARERS

Carol Bernthal Olympic Coast National Marine Sanctuary

National Ocean Service

Port Angeles, WA

Ed Bowlby Olympic Coast National Marine Sanctuary

National Ocean Service

Port Angeles, WA

Mary Sue Brancato Olympic Coast National Marine Sanctuary

National Ocean Service

Port Angeles, WA

Cathy E. Campbell Office of Protected Resources

National Marine Fisheries Service

Silver Spring, MD

Douglas DeMaster National Marine Mammal Laboratory

National Marine Fisheries Service

Seattle, WA

Patrick Gearin National Marine Mammal Laboratory

National Marine Fisheries Service

Seattle, WA

Margaret F. Hayes Assistant General Counsel for Fisheries

National Oceanic and Atmospheric Administration
54

Silver Spring, MD

Jeffrey Laake National Marine Mammal Laboratory

National Marine Fisheries Service

Seattle, WA

David Rugh National Marine Mammal Laboratory

National Marine Fisheries Service

Seattle, WA

Joe Scordino Northwest Regional Office

National Marine Fisheries Service

Seattle, WA

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