Unless mainstream environmentalists are content to see meaningful laws get hijacked for purposes other than environmental protection, they better start filing friend-of-the-court briefs in response to a recent ruling by the Ninth Circuit’s Court of Appeals regarding the Makah tribe’s right to catch whales in Washington state. According to a three-judge panel, the right to whale conferred to the Makah in a U.S. treaty signed in 1853 can be trumped by environmental legislation enacted more 150 years later. So much for the Constitution declaring that U.S. treaty agreements are to be upheld as the "supreme law of the land."

The arrogation of whaling rights in favor of environmental protection may seem like a win for people interested in protecting biodiversity, but the ruling is a net loss for environmentalists. Not only does the ruling undermine the environmental movement’s ability to appeal to mainstream voters by allowing laws to be invoked in the pursuit of an animal rights agenda, the ruling undermines native fishing rights in Washington state which have been a powerful force for environmental protection in the Pacific Northwest.

The details of the case are this: In response to a complaint from a coalition of animal rights groups including the Fund for Animals, the Humane Society of the United States (HSUS) and the West Coast Anti-Whaling Society, the court ruled that the tribe's annual hunt of gray whales must stop until the National Marine Fisheries Service conducts an environmental impact assessment under the National Environmental Policy Act. Under the ruling, NOAA Fisheries must determine whether the hunt poses a substantial risk to the local population of gray whales that reside off the coast of Washington. Additionally, the judges ruled the Makah hunt of gray whales can only be conducted after a review under the Marine Mammal Protection Act determines the hunt "will not threaten the role of gray whales as functioning elements of the marine ecosystem."

The ruling echoes the canard of anti-whaling activists -- that any harvest (however small) of whales (no matter how numerous) poses a huge environmental threat. The ruling states that the Makah harvest of whales "could be used as a precedent for other countries to declare the subsistence need of their own aboriginal groups, thereby making it easier for such groups to gain approval for whaling. If such an increase in whaling occurs, there will obviously be a significant impact on the environment."

A few facts are in order. The California gray whale, which migrates annually between the west coast of Mexico and the North Pacific, was placed on the endangered species list in 1970 when its population numbered less than 1,500 and was taken off the list in 1995 after a robust recovery. Scientists from the National Marine Fishing Service and the International Whaling Commission now estimate the species' population at 17,000 and have said that the species can support an annual harvest of 300 to 500 whales. In 1998, NOAA fisheries gave the Makah tribe a permit allowing the tribe to harvest five animals a year, but the tribe has so far only harvested one gray whale since the permit was issued. Another tribe, the Chukotkas of Siberia, are allocated an annual quota of 120 animals by the International Whaling Commission. Between the combined harvest of the Makah and the Chukotka, the depletion of gray whales is not a possibility.

In fact, a spike in the number of fatal strandings of California gray whales in 1999 and 2000 indicates the species recently exceeded its carrying capacity. From 1995 to 1998, the annual number of gray whale strandings hovered around 50, but in 1999, after the population estimate for California gray whales hit its all-time high of 26,000, strandings jumped to 274 and in 2000 the strandings increased to over 350. The emaciated condition of the stranded whales, combined with the high population count and the extraordinary high number of strandings suggests that after a 30-year recovery, California gray whales overshot their carrying capacity and that the strandings were part of an inevitable die-off that brought their population to sustainable levels.

Given the numbers, any suggestion that the harvest of even five whales threatens the role of gray whales as a functioning element in the ecosystem is ludicrous, indicating that the suit isn’t about environmental protection, but about preventing the hunt of whales in the name of animal rights. And while there is overlap between the two issues, there is a huge difference between arguing on behalf of ecosystem protection and the rights of individual animals. Most Americans can understand the need to protect animals from extinction, but to ask that they stop hunting or refrain from eating meat is another issue altogether. It is this agenda, not ecosystem protection, that is the ultimate goal of the plaintiffs.

But instead of arguing that the Makah hunt must stop on moral grounds -- an argument they know probably won’t win -- the plaintiffs have tried to turn the issue into a scientific debate. And in order to win the debate, they have based their arguments on a willful misreading of the scientific literature regarding feeding aggregations of whales that form off the west coast and judges cooperated. The main peg of the ruling is this: The Makah hunt could negatively impact a group of whales that spends its summers off the Washington coast, feeding in the Strait of Juan de Fuca. Instead of seeing the aggregation for what it is -- an indeterminate number of whales avoiding a longer trip north by taking advantage of high concentrations of food available to them off the Washington Coast -- the judges accepted the notion that the aggregation forms a distinct subset of animals needing protection. Neither the International Whaling Commission nor NOAA fisheries regard feeding aggregations as distinct populations, but the court, in an astounding display of ecological gerrymandering, ruled otherwise.

The judges’ ruling doesn’t end with a willful misreading of scientific record. The judges also misread the Treaty of Neah Bay, which accords the Makah the right to harvest marine resources of Washington in common with the state’s other residents. Previous rulings have made clear that barring an overriding environmental concern, Washington’s tribes have an absolute right to harvest the state’s marine resources such as shellfish, finfish and yes, even whales. It’s a powerful right, but for this promise, the tribes extinguished their claims to millions of acres of land.

To protect their access to marine resources, the tribes have been accorded a legal right to insist the marine resources in question be preserved. As a consequence of a 1980 ruling, tribes in Washington state have legal standing to sue when officials fail to protect marine resources. While the tribes have so far chosen not to sue but instead negotiate with state and federal officials over the protection of marine resources, the threat of tribal lawsuits over salmon habitat has been a major force behind efforts to reform forestry practices, land use and water policy in the region. By convincing the judges to arrogate tribal fishing rights, the plaintiffs in this suit might end up weakening a powerful force for environmental protection in the Pacific Northwest.

Environmentalists concerned with conservation and the protection of ecosystems would regard this threat of tribal lawsuits as a tool worth protecting. The plaintiffs, however, see it differently. While they are putatively concerned with a healthy environment and the protection of ecosystems, the plaintiffs are ultimately concerned with the alleged right of whales to be free from human predation.

To the plaintiffs, the tribes’ right to file suit to protect marine resources is suspect because it is rooted in their protected right to harvest whales, which they think is inhumane, and morally wrong -- constitutionally protected or not.

Overlooking the Constitutional declaration that upholds U.S. treaties and the rights of the Makah is a function of the philosophy that motivates animal rights groups. When deciding how to behave and organize their communities, animal rights activists assert, humans should abandon anthropocentrism and quit regarding themselves as the center of the universe and take into account the rights of other species. It sounds nice in theory, but in practice somebody has to decide who gets shoved out of the center first. Today, the HSUS and the Fund for Animals have decided it’s the Makah.

One can only wonder who's next.