Anderson

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

*767 ORDER

The panel majority opinion filed December 20, 2002, appearing at 314 F.3d 1006 (9th Cir.2002), is AMENDED as follows:

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With the amendments incorporated into the attached opinion, Judge Gould and Judge Berzon have voted to deny the petitions for rehearing en banc and Judge Hill took no…

with whom HILL and BERZON, Circuit Judges, 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…