3 Makah whalers accept plea deal

Three of five men who participated in a rogue whale hunt last year pleaded guilty in U.S. District Court on Thursday to one count of violating the Marine Mammal Protection Act.

In return, prosecutors said they would recommend probation, rather than a jail term.

Frankie Gonzales, Theron Parker and William Secor Sr. pleaded guilty to the misdemeanor after federal prosecutors said they would defer to the Makah Tribe on the issue of whether the men could participate in future whale hunts.

They are scheduled to be sentenced June 6 in U.S. District Court in Tacoma.

The two remaining defendants, Wayne Johnson and Andrew Noel, refused to take the plea deal.

"I really didn't want to say 'guilty' in the first place," said Johnson, who earlier this week appeared ready to take the deal. "I still don't think I did nothing wrong."

Jack Fiander, an attorney who is representing Noel in federal court and Noel and Johnson in tribal court, said the two have a "moral conviction" about their treaty right to hunt whale without the oversight or interference of the federal government.

"The feeling of Mr. Johnson is that even if he is convicted, the value of the education [about treaty rights] will be worthwhile."

Fiander said he intends to argue that the whale hunt began in water that is part of the Makah Reservation and is not subject to U.S. laws.

Johnson and Noel are scheduled to begin a four- to five-day trial on April 8.

The Makah Tribe is the only tribe in the country with an explicit treaty right to whale.

The tribe had previously agreed to seek a federal permit before beginning a whale hunt, Fiander said, and in 1999 successfully harvested a gray whale in a permitted, but controversial, hunt.

Since then, the tribe has been seeking a permit to hold another hunt but the process has been lengthy in part because of court challenges by animal-rights activists that resulted in the requiring of environmental studies before issuance of a permit.

Fiander said tribal members have been deeply frustrated by the delays.

The five whalers did not have a permit for the hunt Sept. 8 when they harpooned and shot a whale in the Strait of Juan de Fuca near Neah Bay, Clallam County.

A tribal report indicated that the gray whale took nearly 10 hours to die because the hunters didn't know what they were doing and shot the animal in the wrong part of its head.

Federal authorities intervened during the hunt, preventing whalers from finishing off the whale or from harvesting it after death.

Parker, whose family members expressed relief at the resolution of his case after the hearing, said he believes the whale would have died earlier and more humanely had the hunt not been interrupted by the Coast Guard.

The tribal members were originally indicted on five misdemeanor charges of conspiracy, unlawful taking of a marine mammal and unauthorized whaling, but U.S. Magistrate Judge Kelley Arnold dismissed the charge stemming from the Whaling Convention Act as inapplicable.

Each man had faced — and Johnson and Noel still face — up to a year in jail and fines of $100,000 if convicted on the federal charges.

Defense attorney Fiander had sought to have the entire case against the rogue whalers dismissed, saying that it was unfair to prosecute Makah whalers for hunting the same gray whales Alaska natives are allowed to hunt by an exemption to the Marine Mammal Protection Act. The Makah Tribe is in the process of seeking a similar exemption.

The tribe, which had originally promised to prosecute the men to the full extent of the law has now decided to let the men be prosecuted solely in the federal courts, Fiander said.

Animal-rights activists were outraged with the plea deal and vowed to continue their efforts to block whale-hunting waivers.

Christine Clarridge: 206-464-8983 or cclarridge@seattletimes.com. Information from Seattle Times reporter Lynda Mapes is included in this report.