Anderson

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

ORDER

The panel majority opinion, as amended, appearing at 350 F.3d 815 (9th Cir.2003), is AMENDED as follows:

On Page 844, in Part IV, after the sentence that ends “they must do so before any taking of a marine mammal”, insert the following footnote:

In connection with petitions for rehearing en banc, the Appellees urged that this case is moot because the whaling quota expired before we filed our opinion. We disagree. First, Appellants’ complaint sought relief broader than invalidation of the then-existing whaling quota, including invalidation of the procedures used to obtain the IWC permit and of the Cooperative Agreement as violative of NEPA and the MMPA. The government activity challenged is not an ordinary, time-limited regulatory permit, but rather the way the government has gone about contracting with the Makah, obtaining “aboriginal subsistence” quotas from the IWC, and allocating them to the Tribe. The quotas are not assigned pursuant to a statutory or regulatory regime. The system by which the Department of Commerce has allocated a whale quota to the Makah Tribe is ad hoc;…

Judge, with whom HILL and BERZON, Circuit Judges, concur:

III. MMPA Analysis

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 *495 party and which was entered into before [1972] or by any statute implementing…