If one were to follow the news over the past few days, one might suspect a lot has happened regarding the Makah whaling issue and the IWC meeting currently taking place in Anchorage, Alaska.
Makah given whaling approval, Commission approves renewed gray whale hunt by Makahs, Makah tribe given another five years.
And my personal favorite, written by a newspaper that above all others, should know better (shame on you, Peninsula Daily News!): Makah win 5-year quota from whaling commission. One might also suspect we are caught in a time warp. The more things change, the more they stay the same…
BACKGROUND
For those of you following this debacle over the past decade (has it really been ten years?), you know how the story goes. NMFS goes to bat for the Makah Tribe at the IWC, wins a so-called “quota,” then proceeds to backfill an environmental study in order to justify their efforts in the first place. NMFS then awards another mythical “quota,” millions of dollars get flushed down the toilet, our side takes them to court, they lose. We’ve done it twice, and it looks like we’re going to do it again.
Rather than launch into a lengthy tirade against those fine, outstanding folks at NMFS, let’s just review the current case law on the subject, shall we? These are excerpts from the 9th Circuit’s opinion in Anderson v. Evans. Remember: this was written five years ago!
Good morning, justices.. What do you have for us today? What do you think of this so-called IWC quota that NMFS and the Makah Tribe are bragging about?
“The quota issued jointly to Russia and the United States was limited to whaling by aboriginal groups “whose traditional aboriginal subsistence needs have been recognised.” Conspicuously absent from this phrase is any delineation of who must do the recognizing or how… Whether recognition must formally come from the IWC or from the United States is not clear.”
Wow. That sounds VERY familiar, doesn’t it? I mean, it’s like we’re in Peabody’s “way back machine!” Anyway, how do you justices feel about this so-called quota? I mean, if all the newspapers are printing it (again), it must be true, right? Let’s pretend I’m a serious journalist: it sounds to me like the Makahs have a slam dunk here! And I like splashy headlines!
“We do not believe that Congress subordinated its goal of conservation in United States waters to the decisions of unknown future foreign delegates to an international commission…”
Whoa. That sounds serious. But I really, really, REALLY want a big, splashy headline! C’mon… it’s a quota, right? Everything is all hunky dory. The IWC said so!
“Whatever may be the IWC’s practice, the MMPA unambiguously requires express approval for § 1372(a)(2) to apply and to excuse the takings of marine mammals without a permit… the IWC’s intent to approve a whaling quota for the Tribe has not been demonstrated. The “expressly provided for” requirement of § 1372(a)(2) is not satisfied.”
Wow. You mean there’s more to this than I thought? Being a reporter can be such a drag… I was never very good at doing homework. Sheesh. It sounds like you justices don’t really like this whole “IWC quota” thingie, huh? If I didn’t know better, it sounds like you’re telling the fine folks at NMFS and their IWC pals to take a flying leap, huh?
“The federal defendants’ view so clearly offends the express, unambiguous language of the statute that the statutory interpretation offered by NOAA and the federal defendants cannot properly be afforded deference under Chevron.”
Huh? Are you telling me that federal law actually takes precedence over IWC press releases? What kind of a way is that to run a country? How am I going to sell newspapers this way?
COMING UP NEXT
We’ve all seen and been through this before… you know the drill. Lather, rinse, repeat.
1) NMFS and the Makah Tribe will inundate the media over the next several months with a liberal slathering of “news” and comments, expressing profound pride and gratitude for the opportunity to revive their culture and honor their treaty rights.
2) Hypnotized, the media will eat it up.
3) NMFS will release a mind-numbing Draft Environmental Impact Statement (EIS) this fall, asking for “public comment.” [insert irony alert here]
4) At the same time we’re all writing comment letters, NMFS will be spellchecking the Final EIS and getting signatures for an MMPA waiver.
5) We go to court.
Stay tuned, folks….
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