Anderson

Opinion by Judge BERZON for sections I and II; Opinion by Judge GOULD for sections III and IV.

OPINION

“[Wjhile in life the great whale’s body may have been a real terror to his foes, in his death his ghost[became] a powerless panic to [the] world.” Herman Melville, Moby Dick 262 (W.W. Norton & Co. 1967) (1851). This modern day struggle over whale hunting began when the United States granted support and approval to the Makah Tribe’s (“the Tribe’s”) plan to resume whaling.

The Tribe, a traditional Northwest Indian whale hunting tribe, had given up the hunt in the 1920s. In recent years, the Tribe leadership came to regret the cultural impact on the Tribe of the lapse of its whale hunting tradition. As part of a general effort at cultural revival, the Tribe developed plans to resume pursuing gray whales off the coast of Washington State and in the Strait of Juan de Fuca. The worldwide hunt for whales in the years the real-life Captain Ahabs roamed the high seas, however, seriously depleted the worldwide stock of the cetaceans. As a result of the near extinction of some species of whales, what had been a free realm for ancient and not-so-ancient mariners became an activity closely…

concur.

In addition to arguing their NEPA claim, plaintiffs maintain that the federal defendants issued a gray whale quota to the Tribe in violation of the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361 et. seq., which prohibits the taking of marine mammals absent a permit or waiver. The Tribe has not applied for a permit or waiver under the MMPA. Defendants maintain that the MMPA does not apply because the Tribe's whaling quota has been expressly provided for by an international treaty, or, in the alternative, because the Tribe has an Indian treaty whaling right that is not affected by the MMPA.

A. Exemption

The federal defendants, including NOAA, and the Makah Tribe as defendant-intervenor first assert that § 1372(a)(2) of the MMPA exempts the Tribe's whaling from the MMPA moratorium. Section 1372(a)(2) provides an exception to the MMPA's blanket moratorium on the taking of marine mammals when takes have been "expressly provided for by an international treaty, convention, or agreement to which the United States is a party and which was entered into before [1972] or by any statute implementing any such treaty, convention, or agreement." 16 U.S.C. § 1372 (a)(2).…