05-16940. Notice of Intent to Conduct Public Scoping Meetings and to Prepare an Environmental Impact Statement Related to the Makah Tribe's Continuation of Treaty Right Hunting of Gray Whales

AGENCY:

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

ACTION:

Notice; scoping meetings.

SUMMARY:

We intend to conduct public scoping meetings to gather information to prepare an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA), related to the Makah Tribe's request that NMFS waive the take moratorium of the Marine Mammal Protection Act (MMPA) to allow for treaty right hunting of eastern North Pacific gray whales in usual and accustomed grounds off the coast of Washington State. This notice briefly describes the background of the Makah's request for waiver; gives dates, times, and locations of public scoping meetings; identifies a set of preliminary alternatives to serve as a starting point for discussions; and terminates the prior notice of intent to prepare an EIS on a similar action.

DATES:

Three public scoping meetings are scheduled:

1. October 5, 2005, Neah Bay, WA.

2. October 6, 2005, Port Angeles, WA.

3. October 11, 2005, Seattle, WA.

See SUPPLEMENTARY INFORMATION for specific times and locations of the public meetings.

In addition to the meetings, written or electronic comments from all interested parties are encouraged and must be received no later than 5 p.m. PDT October 24, 2005.

ADDRESSES:

All comments concerning preparation of the EIS and NEPA process should be addressed to: Kassandra Brown, NMFS Northwest Region, Building 1, 7600 Sand Point Way NE, Seattle, WA 98115. Comments may also be submitted via fax [phone], Attn: Makah Tribe Whale Hunt EIS, or by electronic mail to [e-mail] with a subject line containing the document identifier: Makah Whale EIS.

FOR FURTHER INFORMATION CONTACT:

Kassandra Brown, NMFS Northwest Region, [phone].

SUPPLEMENTARY INFORMATION:

Public Scoping Meetings

Specific Times and Locations

Public scoping meetings will be held at the following addresses and times:

1. October 5, 2005, 6:30 p.m. - 9:30 p.m., Makah Tribal Council Community Hall, 81 3^rd Avenue (Makah Passage), Neah Bay, WA.

2. October 6, 2005, 6:30 p.m. - 9:30 p.m., Vern Burton Memorial Community Center, 308 East 4^th Street (corner of 4^th Street and Peabody Street), Port Angeles, WA.

3. October 11, 2005, 6:30 p.m. - 10 p.m., South Lake Union Park, 860 Terry Avenue North (The Naval Reserve Building), Seattle, WA.

The meeting format has been designed so that the public can constructively assist NMFS in development of the draft EIS, and will generally include presentations and small group work sessions. More details regarding meeting format will be posted under the “gray whale” link at http://www.nwr.noaa.gov by mid-September 2005.

Reasonable Accommodation

Persons needing reasonable accommodations to attend and participate in the public meetings should contact Kassandra Brown (see FOR FURTHER INFORMATION CONTACT). To allow sufficient time to process requests, please call at least 10 business days prior to the relevant meeting(s). Information regarding the Makah's request is available in alternative formats upon request.

Background

The Makah Indian Tribe of Washington State (Makah) seeks to continue its subsistence hunt(s) of eastern North Pacific (ENP) gray whales, a tradition dating back at least 1,500 years. The Makah's right to hunt whales at usual and accustomed grounds and stations off the coast of Washington was secured in Article 4 of the 1855 Treaty of Neah Bay in exchange for most of the land in the Olympic Peninsula. The Treaty of Neah Bay is the primary instrument defining the legal relationship between the United States Government and the Makah.

The Makah hunted whales until the 1920s when commercial whaling had drastically reduced the numbers of ENP gray whales available to the Makah hunters for harvest. Prior to enactment of the Endangered Species Act (of 1973 16 U.S.C. 1351 et seq.), the U.S. Fish and Wildlife Service included gray whales (among several genera of baleen whales) on its 1970 list of endangered species (35 FR 8491, June 2, 1970). The ENP distinct population segment was subsequently delisted on June 16, 1994 (59 FR 31094). In 1999, Makah hunters killed one ENP gray whale pursuant to an aboriginal subsistence harvest quota granted for 1998 through 2002 by the International Whaling Commission (IWC) and domestically implemented by NMFS under the Whaling Convention Act (WCA)(16 U.S.C. 916 et seq.). Due to a series of lawsuits, no whales were hunted by the Makah for the remainder of the 1998 through 2002 quota.

In May 2002, the IWC approved another aboriginal subsistence harvest quota of 620 gray whales for 2003 through 2007, on the basis of a joint request by the Russian Federation (approved for 600 whales) and the United States (approved for 20 whales). The United States' request was made on behalf of the Makah. On March 6, 2003 NMFS initiated an EIS to assess the environmental impacts of allocating the 2003 through 2007 quota to the Makah by soliciting comments and information to facilitate the environmental analysis (68 FR 10703). Due to litigation (described below), NMFS did not complete the EIS and did not allocate the quota under the WCA. The Makah have not conducted subsistence hunts to date under the 2003 through 2007 IWC quota.

On June 7, 2004, the Ninth Circuit Court of Appeals in the second amended version of Anderson v. Evans, 371 F.3d 475, held that the Tribe, to pursue any treaty rights for whaling, must comply with the process prescribed in the MMPA (16 U.S.C. 1361 et seq.) for authorizing “take” of marine mammals otherwise prohibited by a moratorium in section 101(a)(16 U.S.C. 1371(a)). The term "take" means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13)). Subsequent to the Anderson v. Evans ruling, the Makah submitted a request for a limited waiver of the moratorium on taking marine mammals, which we received on February 14, 2005. We published notice of availability of the waiver request for public inspection on March 3, 2005 (70 FR 10369), available online at http://www.nmfs.noaa.gov/​pr/​international/​makah (soon to be available on the NMFS Northwest Region website under the “gray whale” link at http://www.nwr.noaa.gov).

To exercise subsistence hunting treaty rights of gray whales, the Makah Tribe must undergo three separate but related processes: (1) The United States must obtain an aboriginal subsistence quota from the IWC on the Makah Tribe's behalf, (2) NMFS must decide whether to waive the MMPA take moratorium for the Makah Tribe, including conducting a NEPA review and issuing possible regulations and permits (see Proposed Action for more details), and (3) NMFS must allocate the IWC quota under the WCA. More information regarding these processes will soon be available to the public under the NMFS Northwest Region website “gray whale” link at http://www.nwr.noaa.gov. The NEPA review initiated by this notice of intent is to comply with process number (2) described above, which requires preparation of a site-specific EIS related to the Makah Tribe's request for a waiver of the MMPA take moratorium.

Proposed Action

The Makah's proposed action is to hunt up to 20 ENP gray whales during a 5-year period, subject to a maximum of five gray whales in any calendar year, within its adjudicated usual and accustomed grounds (See, United States v. Washington, 626 F.Supp. 1405, 1467 (W.D. Wash 1985)), subject to quotas granted by the IWC. The Makah proposes to hunt up to seven gray whales per year. The Makah's proposal to continue subsistence hunting of gray whales includes other standards for hunting, such as: (1) time and area restrictions designed to avoid any intentional harvest of gray whales comprising the Pacific Coast Feeding Aggregation (PCFA), (2) monitoring and adaptive management measures to ensure that any incidental harvest of gray whales from the PCFA remains at or below the annual strike limit, (3) measures to ensure that hunting is conducted in the most humane manner practicable, consistent with continued use of traditional hunting methods, and (4) measures to protect public safety. The full waiver request is posted online at http://www.nmfs.noaa.gov/​pr/​international/​makah, and will soon be available at NMFS Northwest Region's website at http://www.nwr.noaa.gov under the “gray whale” link.

Based on the Makah's waiver request, the Federal action consists of three parts: (1) Waiving the moratorium on take of marine mammals under section 101(a)(3)(A)(16 U.S.C. 1371(3)(A)) of the MMPA, and subsequently (2) promulgating hunting regulations implementing the waiver in accordance with section 103 (16 U.S.C. 1373) of the MMPA, and (3) issuing any necessary permit(s) to the Makah for whale hunting.

If NMFS waives the MMPA take moratorium and issues the necessary regulations and permit(s), the Makah would be allowed to continue subsistence hunting of ENP gray whales, subject to IWC quotas and allocation of those quotas under the WCA. The NEPA review initiated by this notice of intent, therefore, involves preparation of a site-specific EIS related to the Makah Tribe's proposed action of continuing treaty right subsistence ENP whale hunting (i.e., request for a waiver of the MMPA take moratorium), and alternatives to the waiver request.

Alternatives

Pursuant to NEPA, which requires Federal agencies to conduct an environmental analysis of proposed actions to determine if the actions may affect the human environment, and in recognition of the Ninth Circuit Court of Appeals ruling in Anderson v. Evans, we intend to conduct public scoping meetings and to prepare an EIS. Under NEPA, a reasonable range of alternatives to a proposed action must be developed and considered in our environmental review. Alternatives considered for analysis in this EIS may include: variations in the scope of the hunting activities, variations in the hunting location, or a combination of these elements. In addition, the EIS will identify potentially significant direct, indirect, and cumulative impacts on geology and soils, air quality, water quality, other fish and wildlife species and their habitat, vegetation, socioeconomics/tourism, treaty rights and Federal trust responsibilities, environmental justice, cultural resources, noise, aesthetics, transportation, public services, and human health and safety, and other environmental issues that could occur with the implementation of the Makah's proposed action and alternatives. For all potentially significant impacts, the EIS will identify avoidance, minimization, and mitigation measures to reduce these impacts, where feasible, to a level below significance.

We have identified the following preliminary alternatives for public comment during the public scoping period, and encourage information on additional alternatives to consider:

Alternative 1: No Action - Under the No Action Alternative, we would not approve the requested whale hunting, would not grant the waiver of the moratorium on take under the MMPA, nor issue the necessary regulations and permits.

Alternative 2: The Proposed Action - Under the proposed action, the Makah Tribe would be allowed to continue treaty right subsistence hunting of gray whales imposing time and area restrictions designed to target migrating whales and to avoid any intentional harvest of whales from the PCFA. We would grant the waiver of the moratorium on take under the MMPA and issue the necessary regulations and permits.

Alternative 3: The proposed action would be modified to allow limited take of gray whales from the PCFA during hunts.

Alternative 4: The proposed action would be modified to remove time and area restrictions from the hunts.

Alternative 5: The proposed action would be modified to allow hunting to target migrating whales, imposing time and area restrictions different than those contained in the proposed action that would maximize the likelihood of taking a migrating whale (and minimize the likelihood of taking a PCFA whale).

Request for Comments

We provide this notice to: (1) Advise other agencies and the public of our intentions, (2) obtain suggestions and information on the scope of issues to include in the EIS, (3) terminate the prior notice of intent to prepare an EIS on allocation of the 2003 through 2007 quota (68 FR 10703) published on March 6, 2003. Comments and suggestions received during the prior public comment period for the 2003 through 2007 quota allocation (March 6 through April 21, 2003), will be considered in developing the current EIS. Other comments and suggestions are invited from all interested parties to ensure that the full range of issues related to the Makah's waiver request and all significant issues are identified. We request that comments be as specific as possible. We seek public input on the scope of the required NEPA analysis, including the range of reasonable alternatives; associated impacts of any alternatives on the human environment, including geology and soils, air quality, water quality, other fish and wildlife species and their habitat, vegetation, socioeconomics/tourism, treaty rights and Federal trust responsibilities, environmental justice, cultural resources, noise, aesthetics, transportation, public services, and human health and safety; and suitable mitigation measures.

Comments concerning this environmental review process should be directed to NMFS (see ADDRESSES). See FOR FURTHER INFORMATION CONTACT for questions. All comments and material received, including names and addresses, will become part of the administrative record and may be released to the public.

Authority

The environmental review of continuation of the Makah subsistence gray whale hunting will be conducted under the authority and in accordance with the requirements of NEPA, Council on Environmental Quality Regulations (40 CFR 1500-1508), other applicable Federal laws and regulations, and policies and procedures of NMFS for compliance with those regulations. This notice is being furnished in accordance with 40 CFR 1501.7 to obtain suggestions and information from other agencies and the public on the scope of issues and alternatives to be addressed in the EIS.

Dated: August 19, 2005.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.