2 Makahs get jail time for killing whale

TACOMA — A federal judge Monday decided to lock up two Makah tribal members for illegally killing a gray whale last fall, while three others received two years' probation.

As part of the plea deal reached with federal prosecutors, whalers William Secor, Theron Parker, and Frankie Gonzales also will have to perform community service in Neah Bay ranging from 100 to 150 hours, according to the sentence imposed by United States Magistrate Judge Kelley Arnold in U.S. District Court in Tacoma.

Two other whalers, Andy Noel and Wayne Johnson, did not take the deal and were found guilty in a bench trial of the same misdemeanor charge of violating the Marine Mammal Protection Act. They have appealed their convictions.

Johnson received the longest sentence, five months at the federal detention center in SeaTac — even more than prosecutors had requested. Noel is to serve 90 days. Each also will serve a year of probation and perform community service.

The judge prohibited all five men from taking part in any whale hunt while on probation. And he fined them from $25 to $50 each, citing an inability for them to pay higher fines.

In imposing the heavier jail time on Noel and Johnson, the judge explained that he saw them as the leaders of the hunt. He also said he did not believe they undertook the hunt with the implied permission of the Makah Tribal Council, as some of the whalers claimed in documents provided to the court.

"I don't believe it, and if they did it's no excuse," Arnold said. He added that he believed Johnson felt "not an ounce of remorse."

Johnson, dressed in a shirt, coat and tie, looked stunned as the bailiff led him away. Noel caught his father's eye and waved goodbye.

In September, the five men killed a gray whale in the Strait of Juan de Fuca, shooting it at least 16 times and sinking at least four harpoons into its flesh. The animal bled for some 12 hours before dying and sinking to the bottom.

The poaching was a black eye for the Makah Tribe, which is seeking a waiver from the federal government to allow it to legally hunt gray whales. A decision is years away on the tribe's proposal to kill up to 20 whales over five years.

The tribe had stopped whaling when the animals were nearly depleted by commercial whaling. Gray whales were listed for protection under the Endangered Species Act in 1968, and their population increased from 13,095 to 26,635 in 1998, when the animals were taken off the federal protection list.

The Makah are the only tribe in the country with a treaty right to whale, and the tribal council in 1998 entered into an agreement with the federal government allowing the tribe to legally hunt and kill its first whale in more than 70 years, in May 1999.

But last September, the whalers had no permit from either the tribe or the federal government. The whalers were indicted by a federal grand jury in October and charged with conspiracy, unlawful taking of a marine mammal and unauthorized whaling, misdemeanors punishable by up to a year in jail and a $100,000 fine.

Some animal-rights activists were disappointed with the sentence actually imposed.

"I think it's light, given the grave injury that was done," said Will Anderson, of Friends of the Gray Whale. "It's sad all the way around."

Naomi Rose, senior scientist with the Humane Society of the United States, said she was surprised Johnson and Noel were sentenced more severely.

"I'm glad they got jail time. They didn't express remorse," she said. "There's no point in any of this if they don't learn something. I find this whole thing really sad. It divided a tribe and a community."

Other poaching crimes have brought stiffer punishment. In June, a Grays Harbor County man lost his hunting privileges for two years after pleading guilty to illegally killing a blacktail deer. He also was fined $2,700, sentenced to two years probation, and had to pay a $3,000 fee for the return of his hunting rifle seized during the poaching investigation.

By contrast, in the Makah village of Neah Bay, sentiment over the illegal whale hunt was sharply divided.

The defendants originally faced punishment on tribal charges of a year in the Neah Bay jail, $5,000 fines and temporary suspension of their treaty right to hunt and fish. In a news conference called after the rogue hunt, the tribal council called for punishment to the fullest extent of the law.

But in the end, the tribal court had trouble even putting a jury together and tribal judge Stanley Myers agreed to waive any punishment and drop all tribal charges against the whalers in return for a year's good behavior.

Myers has since been dismissed.

Lynda V. Mapes: 206-464-2736 or lmapes@seattletimes.com