Posted by [EMAIL PROTECTED] : WASHINGTON STATE CANNOT HALT GRAY WHALE HUNT http://ens.lycos.com/ens/dec99/1999L-12-03-09.html OLYMPIA, Washington, December 3, 1999 (ENS) - The Washington Department of Fish and Wildlife has concluded the state has no authority to regulate hunting of gray whales along the state's coastlines. Last week, Governor Gary Locke asked the department to investigate and report back to him on whether the state has authority to intervene in the hunt of gray whales by the Makah Indian tribe, after protesters claimed the whale that Makah hunters killed earlier this year was a "resident gray whale." They maintained that because it was a member of a "resident" population, the whales deserve state protection as a natural resource. The Makah tribe exercised its treaty hunting rights to harvest marine mammals under a permit issued by the U.S. government. "This study investigated whether the state has a role in the Makah tribe's hunt of gray whales," Locke said. "The state has no jurisdiction in this issue, and we must respect the tribe's treaty rights to hunt gray whales." The investigation concluded: Management of gray whales and other marine mammals is under the authority of the federal Department of Commerce, and the state has no authority to regulate gray whale populations The North Pacific gray whale is a healthy population that is at or above recorded historic levels Although some whales have been seen feeding along the Washington coast, there are no records to indicate these whales remain in Washington throughout the year The management agreement between the National Marine Fisheries Service and the Makah tribe provides safeguards to protect local feeding groups of whales in waters of Washington WHALE ASSESSMENT: Date: Fri, 03 Dec 1999 11:44:35 -0800 To: [EMAIL PROTECTED] Date: Fri, 03 Dec 1999 11:43:22 -0800 From: Wildlife Program <[EMAIL PROTECTED]> To: ishgooda-at-tdi. Subject: Makah Whale Hunt Thank you for your recent E-mail regarding the Washington Department of Fish Wildlife 's review of the management and status of gray whales in Washington. Below is the Department's response to Governor Locke on this issue. We appreciate your interest and concern. Sincerely, Rocky Beach Wildlife Diversity Division Manager ______________________________________________________________________________ November 23, 1999 The Honorable Gary Locke Washington State Governor Post Office Box 40002 Olympia, Washington 98504-0002 Dear Governor Locke: At the recent "Capitol for a Day" meeting in Port Angeles, you asked the Washington Department of Fish and Wildlife (WDFW) to review the current biological and management status of gray whales. I have taken the intervening time to consult with the State Attorney General's Office, to review pertinent scientific literature and to contact researchers working on gray whales. In presenting this review, I particularly focus on: 1) the status of the population of gray whales along the west coast of North America; 2) federal and state laws that relate to marine mammal management; 3) the feeding assemblages of gray whales which occur in the region; and 4) the impact of the proposed Makah Tribe whale hunting on the overall population and local feeding assemblages. Population Status Currently, the gray whale population in the eastern North Pacific has been increasing at 2.5 percent per year, is at or above historic levels, and is currently estimated at 26,000 animals. In light of the robust population of this species, it was removed from the federal Endangered Species Act's "List of Endangered and Threatened Wildlife" in 1994. Subsequently, gray whales were downlisted to "Sensitive" status under Washington State endangered species rules in 1997 (WAC 232-12-297).1 Federal and State Laws Related to Gray Whales Under the federal Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., the Department of Commerce is charged with management of gray whales and the State may not enforce any State law or regulation relating to the taking of gray whales unless the Secretary of Commerce has transferred such authority to the State [16 U.S.C. 1379(a) under the standards of §1379(b)]. No such transfer has occurred and the State is preempted from regulating or managing gray whales. If the State is preempted, it has no greater role in the management and regulation of gray whales than any other citizen does. 1The label of "sensitive" means "any wildlife species native to the state of Washington that is vulnerable or declining and is likely to become endangered or threatened in a significant portion of its range within the State without cooperative management or removal of threats." WAC 232-12-297 (2.6). Washington currently conducts cooperative management for gray whales with other state, federal, and local agencies. Feeding Assemblages Some researchers have suggested that gray whales that have been observed to routinely feed in successive years in the same place in Washington waters, may be a genetically discernible subunit of the population. This has been demonstrated in humpback whale feeding assemblages. However, the limited genetic information published on gray whales has been focused on the genetic difference between the eastern and western Pacific stocks. Genetic research on the eastern Pacific population is under way. Although some whales (sometimes referred to as "summer residents" or "feeding assemblages") remain in Washington waters outside of migratory periods, there are no records to indicate that these whales remain in Washington throughout the year nor that they are temporally or spatially isolated from the overall gray whale population which breeds along the Baja, Mexico coast. Research has shown that several gray whale feeding assemblages occur from northern California to southeast Alas! ! ! ! ka. It is conservatively estimated that 200-300 animals occur in these coastal feeding assemblages, and individual whales have been shown to move between groups and areas along the west coast. Gray whale management and protection is currently recognized on a population or stock level by the International Whaling Commission (IWC) and the National Marine Fisheries Service (NMFS). This stock is defined as the entire North Pacific gray whale population of 26,000 whales. As a precautionary measure, in light of the continuing research being conducted on the eastern Pacific population and seasonal feeding assemblages, NMFS has correctly taken a conservative management approach. I have directed my staff to work with NMFS and researchers along the Pacific Coast to further investigate the local feeding assemblages and ensure that proper safeguards are in place. Impact of the Makah Tribe Whale Hunt Provisions of the MMPA also acknowledge existing treaty rights to harvest marine mammals (16 U.S.C. 1383), with whaling one of the explicit rights granted to the Makah Tribe. NMFS and the Makah Tribe have established a harvest management plan. The level of gray whale harvest established for the Makah Tribe (5 per year with 20 whales total to be taken over a 5-year period) was determined to be conservative relative to both the overall gray whale population of 26,000 and to the aboriginal take established by the IWC. The Makah Tribe harvest does not constitute an increase in the aboriginal or overall harvest level set by the IWC. In the harvest plan between NMFS and the Makah Tribe, in an attempt to reduce the probability that whales from local feeding assemblages would be taken, the timing of gray whale hunts were set to harvest whales during periods of the annual migrations along the Washington coast. The plan also stipulates that the Makah Tribe will only take whales in ! ! ! ! the ocean outside of the Strait of Juan de Fuca inland feeding areas. NMFS continues to work with the Makah Tribe to ensure that the focus of their take is on migrating whales and not on seasonal feeding assemblages in Washington. In the past, WDFW and NMFS have provided funding and staff support for research on these animals and we continue to strongly encourage further gray whale genetic and population research in this area. Findings A summary of the findings from this review are: The North Pacific gray whale represent a robust, healthy population which is at or exceeds any recorded historic levels. The management of gray whales and other marine mammals are under the sole authority of the Department of Commerce under provisions of the Marine Mammal Protection Act. State law is currently preempted under the act and thus you have no authority to regulate gray whale populations. Seasonal feeding assemblages have been observed in waters stretching from California to southeast Alaska, including Washington. There are no records to indicate that these whales remain in Washington throughout the year nor that they are temporally or spatially isolated from the overall gray whale population which breeds along the Baja, Mexico coast. Moreover, seasonal feeding assemblages are not recognized by the IWC or NMFS as separate stocks. However, as a precautionary measure, further research is needed to ensure that these seasonal feeding assemblages are not adversely impacted. Based on the best available information, I do not feel that the Makah Tribe hunt poses any significant conservation risk which would cause irreparable harm to the gray whale population. The management agreement between NMFS and the Makah Tribe currently provides safeguards to protect local feeding assemblage of whales in the waters of Washington. We will continue to recommend and encourage monitoring and research on gray whales feeding in Washington. Please let me know if I can provide any further information. Meanwhile, WDFW will continue to monitor the status of these animals to ensure that healthy gray whale populations remain a part of Washington's rich natural heritage. Sincerely, Jeff P. Koenings, Ph.D. Director JPK:blm
