01-18005. Marine Mammals: Environmental Assessment on Allocating Gray Whales to the Makah Tribe for the years 2001 and 2002

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of availability.

SUMMARY:

NMFS announces the availability of an Environmental Assessment (EA) that examines the environmental consequences of issuing the International Whaling Commission (IWC) quota for gray whales to the Makah Tribe for the years 2001 and 2002. NMFS has identified a preferred alternative in the EA that will grant the Makah Tribe the IWC quota of five whales per year with restrictions that would allow a limited hunt on the gray whale summer feeding aggregation.

ADDRESSES:

Copies of the EA may be obtained over the Internet at http://www.nmfs.noaa.gov/​prot_​res/​prot_​res.html under “New Arrivals.” Copies of the EA may also be requested by writing to Gale Heim, NOAA/NMFS, Office of Protected Resources, 13th Floor, 1315 East-West Hwy, Silver Spring, MD 20910. Mark the outside of the envelope with “Request for Makah EA.” Copies of the EA may also be obtained by contacting Gale Heim at 301/713-2322.

FOR FURTHER INFORMATION CONTACT:

Cathy Campbell or Chris Yates, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Prior to the 1997 Annual International Whaling Commission (IWC) Meeting, NMFS formally analyzed the environmental impacts of a decision to support or not support whaling, and to determine whether an annual subsistence quota of up to five Eastern Pacific gray whales would significantly affect the quality of the human environment. A draft EA was distributed for public comment on August 22, 1997. After reviewing and addressing the comments received, NMFS issued a final EA and Finding of No Significant Impact on October 17, 1997.

At its 1997 annual meeting, the IWC approved a quota of 620 gray whales for an aboriginal subsistence harvest during the years 1998 through 2002. The basis for the quota was a joint request by the Russian Federation (for a total of 600 whales) and the United States (for a total of 20 whales). In 1998 and 1999, NOAA granted an allocation of up to five whales a year to the Makah Indian Tribe, whose subsistence and ceremonial needs had been the foundation of the U.S. request to the IWC.

U.S. Congressman Jack Metcalf, Breach Marine Protection, and several other plaintiffs brought a lawsuit, Metcalf v. Daley, in October 1997, alleging that the U.S. Government had violated the National Environmental Policy Act (NEPA), the Whaling Convention Act, and other statutes. In September 1998, the U.S. District Court for the Western District of Washington ruled in favor of the U.S. Government on all issues.

On June 9, 2000, the Ninth Circuit Court of Appeals overturned one aspect of that decision, ruling that the 1997 EA should have been completed before the U.S. and the Makah Tribe entered into a cooperative agreement. That agreement had provided that, if the Tribe prepared an adequate needs statement documenting a cultural and subsistence need to harvest gray whales, NOAA would request a quota of gray whales from the IWC. Two judges on a three-judge panel held that the timing of the EA, which was completed after the 1996 agreement was signed and before the 1997 annual meeting of the IWC, may have predisposed the preparers to find that the whaling proposal would not significantly affect the environment. The Court ordered NOAA to set aside that finding and comply with NEPA under circumstances that would ensure an objective evaluation of the environmental consequences of the gray whale harvest.

Following the Court action, NOAA rescinded its cooperative agreement with the Makah Tribe on August 11, 2000. NOAA subsequently set the gray whale quota for 2000 (65 FR 75186, December 1, 2000) and 2001 (65 FR 14862, March 14, 2001) at zero, pending completion of its NEPA analysis.

NEPA requires that Federal agencies conduct an environmental analysis of their actions to determine if the actions may affect the environment. Accordingly, NMFS prepared a draft EA, published on January 12, 2001, conducted a public hearing in Seattle, WA on February 1, 2001, and held a 30-day public comment period to allow for public input on the Draft EA. This final EA explores the environmental consequences of four alternatives: (1) grant Makah Tribe the IWC quota with restrictions that allow a limited hunt on the pacific coast feeding aggregation; (2) grant Makah Tribe the IWC quota with restrictions to target hunt on migrating whales (similar to the 1999 regime); (3) grant Makah Tribe the IWC quota without time-area restrictions; and (4) (no action) - do not grant Makah Tribe the IWC quota. NMFS has identified the preferred alternative as alternative 1, which will grant the Makah Tribe the IWC quota of five whales per year with restrictions that would allow a limited hunt on the gray whale summer feeding aggregation.

This EA was prepared in accordance with NEPA and implementing regulations at 40 CFR parts 1500 through 1508 and NOAA guidelines concerning implementation of NEPA found in NOAA Administrative Order 216-6.

Dated: July 13, 2001.

Don Knowles,

Director, Office of Protected Resources, National Marine Fisheries Service.