Whaling Convention Act Charges Against Makah Five Dismissed For Vagueness; Other Charges Stand

PAUL SHUKOVSKY, reports on the federal case against the Makah whalers in the Seattle PI

TACOMA -- A federal judge threw out half of the government's case Tuesday against five Makah tribal whalers accused of harpooning and killing a gray whale in September. The hunt underscored the frustration many members of the Northwest tribe feel over perceived bureaucratic impediments to their right to hunt whales on the Olympic Peninsula, as their ancestors have done for thousands of years.

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The five whalers had faced a three-count misdemeanor indictment, charged with violations of the Marine Mammal Protection Act and Whaling Convention Act, and conspiring to break those laws. But U.S. Magistrate Judge J. Kelley Arnold ruled Tuesday that the language of the Whaling Convention Act on criminal violations is too vague to apply. He dismissed those charges and part of the related conspiracy count. Arnold cited a previous decision by the 9th U.S. Circuit Court of Appeals that found that the Makah must seek a waiver under the Marine Mammal Protection Act in order to take whales. His ruling left intact the charges alleging violations of that law.

Very fair article by Mr. Shukovsky; read the whole thing.

Defendants in Makah Whaling Case Raise Treaty Defense

Jim Casey of the Peninsula Daily News reports today that a motion to dismiss federal charges against the Makah Five will be heard beginning Tuesday in Federal District Court in Tacoma.

A pretrial hearing on motions to dismiss federal charges against five Makah whale hunters will proceed on Tuesday. Peninsula Daily News erroneously reported Sunday that the hearing had been postponed. A reporter mistook a motion signed by Assistant U.S. Attorney James Oesterle for one signed by U.S. Magistrate Judge J. Kelley Arnold. Arnold on Wednesday ordered the hearing to proceed as scheduled and set aside two days for it. The crux of the hearing will be a defense claim that the charges void the 1855 Treaty of Neah Bay, in which the government granted to the Makah the right to hunt and kill whales and seals.

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[Assistant Us Attorney] Oesterle and his boss, U.S. Attorney Jeffrey Sullivan, sought to postpone the hearing because multiple federal agencies were interested in the motion to dismiss the charges against Wayne Johnson, Andy Noel, Frankie Gonzales, Theron Parker and William Secor Sr.

"Washington Dept. of Ecology Asks FERC to Rescind Its First Hydrokinetic License"

From the law firm Stoel Rives LLP comes this report on Ecology's petition to have FERC rescind the license for the Makah Bay wave-energy project based on technical violations of the Clean Water Act and Coastal Zone Management Act.

The Washington Department of Ecology ("Ecology") filed a petition on January 17, 2008 requesting that the Federal Energy Regulatory Commission ("FERC") rescind its first ever hydrokinetic license. Issues raised in Ecology's petition are not unique to Washington.