updated 3/24/2008 7:43:02 PM ET 2008-03-24T23:43:02

A plea agreement involving five members of the Makah tribe who killed a gray whale during a rogue hunt in September fell apart Monday after federal prosecutors said in court they might seek to curtail the defendants' hunting rights.

The defendants apparently expected they might get probation and that the government had agreed not to recommend jail time.

But as a federal magistrate judge in Tacoma expressed confusion Monday over what sentence the men could face, Seattle U.S. Attorney Jeff Sullivan stepped forward to say the government might seek to curtail the men's hunting rights.

The judge turned to the defendants and asked if this was news to them. One of the whalers, Andy Noel, replied: "Yes, it is, and I don't agree with it."

Defense attorney Jack Fiander said earlier that the government agreed not to recommend jail time as part of the deal. Each defendant had been scheduled to plead guilty to one misdemeanor count of violating the Marine Mammal Protection Act.

Fiander said the men still believe they were acting within their tribal rights when they harpooned and shot the whale Sept. 8 in the Strait of Juan de Fuca. But they acknowledge there’s enough evidence for the court to convict them.

The Makah, who have been whalers for centuries, have sought to resume the hunts as part of their cultural heritage. But their treaty rights to hunt whales have been tangled in the courts for several years.

The federal government removed the gray whale from the endangered species list in 1994. Tribal members’ last legal whale hunt was in 1999.

An indictment alleges Noel, Frankie Gonzales, Wayne Johnson, Theron Parker and William Secor took two motorboats into the strait and shot the California gray whale at least 16 times with at least one of the three high-powered rifles they had obtained from the tribe.

The men did not have the tribe’s permission for the hunt, nor did they have a federal permit to kill the whale, which eventually sank in the strait.

The five originally faced charges of conspiracy, unlawful taking of a marine mammal and unauthorized whaling, all punishable by up to a year in jail and a $100,000 fine.

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