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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 !
!
!
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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

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