Can you please provide some context on this issue?
On February 14, 2005, NOAA Fisheries received a request from the Makah Indian Tribe for a limited waiver of the Marine Mammal Protection Act moratorium on take of Eastern North Pacific gray whales (Eschrichtius robustus). The Tribe requested that NOAA Fisheries authorize a tribal hunt in the coastal portion of the Tribe’s usual and accustomed fishing area for ceremonial and subsistence purposes and authorize the making and sale of handicrafts created from the harvested whales. The Act imposes a general moratorium on the taking of marine mammals but authorizes the Secretary of Commerce to waive the moratorium and issue regulations governing the take of marine mammals if certain statutory criteria are met.
On April 5, 2019, we published a proposed rule to issue a waiver under the MMPA and proposed regulations governing the hunting of eastern North Pacific gray whales by the Makah Tribe for a 10-year period and a related notice of hearing before an administrative law judge to consider the waiver and proposed regulations. NOAA Fisheries’ decision on whether to waive the moratorium and issue regulations involves “formal rulemaking” and must be made on the record after an opportunity for an agency hearing on both the proposed waiver and regulations. That hearing took place on November 14–21, 2019 before Administrative Law Judge George J. Jordan in Seattle, Washington. The hearing was publicly conducted and reported verbatim by an official reporter.
On September 23, 2021, the Administrative Law Judge transmitted his recommended decision to the Assistant Administrator for NOAA Fisheries along with the hearing transcript and other required documentation. These documents—and public comments on them—informed our final decision on the Makah Tribe’s waiver request.
On June 13, 2024, NOAA Fisheries announced its final decision granting a waiver to the Makah Tribe to allow a limited subsistence and ceremonial hunt of ENP gray whales. NOAA Fisheries also promulgated regulations to govern the issuance of hunt permits and the hunt itself.
Timeline, past documents, and past comments
Why would NOAA Fisheries consider allowing the Makah Tribe to hunt gray whales?
The Treaty of Neah Bay of 1855 between the Makah Tribe and the United States expressly provides the Tribe the right to hunt whales. The Ninth Circuit Court of Appeals specified the process the Tribe must follow to exercise that right, including seeking a waiver of the Marine Mammal Protection Act and obtaining the necessary permits from NOAA Fisheries. NOAA Fisheries also establishes regulations for a hunt. Both NOAA Fisheries and the Tribe are following this process.
The MMPA imposes a general moratorium on the taking of marine mammals but authorizes the Secretary of Commerce to waive the moratorium and issue regulations governing the take of marine mammals if certain statutory criteria are met. The Assistant Administrator for Fisheries, after a hearing on the record, has determined that these statutory criteria have been met and is granting the request for a waiver. As described above, additional steps in the process still need to be completed before the Tribe can resume hunting.
How soon could the Makah Tribe hunt whales?
It is difficult to say when the Tribe might resume such hunts. As described in the flowchart, there are steps under the permit process and the Whaling Convention Act that must be completed before the Tribe could resume hunting.
