In a case likely to end up in the Supreme Court, a three judge panel of the 9th Circuit Court of Appeals halted a planned Makah whale hunt. The panel ruled that the National Marine Fisheries Service had failed to provide an adequate environmental assessment in allowing the whale hunt to go forward.
The Fund for Animals and the Humane Society of the United States had sued the NMFS to overturn a lower court’s ruling allowing the hunt to go forward. Fund for Animals president Michael Markarian told the Seattle Post-Intelligencer that he was,
. . . elated that the court has put a stop to this illegal and inhumane whale hunt. This court decision upholds the MMPA, which is a sweeping conservation measure to protect marine mammals in the U.S.
This victory, however, is likely to be short lived. The Makah intend to appeal the decision to the full 9th Circuit Court and to the Supreme Court if necessary.
And they are likely to succeed. There’s a reason the 9th Circuit Court of Appeals is overwhelmingly the most overturned circuit court in the nation — because it consistently issues rulings like this that completely ignore its own and the Supreme Court’s established precedents.
As Bob Anderson, professor of law at the University of Washington, told The Post-Intelligencer,
It [the decision] is an unprecedented break with how every other court has analyzed general statutes and treaty rights. It seems flatly wrong on the Indian-law component of the analysis. They are definitely stretching to find federal regulatory authority to limit treaty rights when the Supreme Court has said that you have to find clear evidence that Congress intended to do so.
And, as Anderson points out, Congress made the Makah case for it in 1994 when it amended the Marine Mammal Protection Act to read, among other things, that “nothing in this act . . . alters or is intended to alter any treaty between the U.S. and one or more Indian tribes.”
Only the 9th Circuit Court would infer from that that Congress meant to limit the Makah’s treaty rights.
Court stops Makah whale hunt. Paul Shukovsky, Seattle Post-Intelligencer, December 21, 2002.
Court stops Makah whale hunt. Fund for Animals, Press Release, December 20, 2002.