METCALF V DALEY
Case Number:98-36135
Date Filed: 06/09/00
FOR THE NINTH
CIRCUIT
JACK METCALF; AUSTRALIANS FOR ANIMALS; BEACH
MARINE PROTECTION; S'TASSAWOODOFTHE CHEABA FAMILYOF THE MAKAH NATION,
(Alberta N. Thompson); THE FUND FOR ANIMALS; TIM WALSH; LISA LAMB; SUE
MILLER; STEPHEN DUTTON; DEEP SEA CHARTERS,
INC., Plaintiffs-Appellants,
No. 98-36135 v.
D.C. No. WILLIAM DALEY, Secretary U.S.
CV-98-05289-FDB Department of Commerce; JAMES
OPINION BAKER, Administrator, National Oceanic
and Atmospheric Administration; ROLLAND A. SCHMITTEN, Director,
National Marine Fisheries
Service, Defendants-Appellees,
and
MAKAH
INDIAN TRIBE, Defendant-Intervenor-Appellee.
Appeal from the
United States District Court for the Western District of
Washington Franklin D. Burgess, District Judge,
Presiding
Argued and Submitted February 8, 2000--Seattle,
Washington
Filed June 9, 2000
5939
Before: Stephen S. Trott, Andrew J.
Kleinfeld, and Barry G. Silverman, Circuit Judges.
Opinion by
Judge Trott; Dissent by Judge
Kleinfeld
_________________________________________________________________
COUNSEL
Robert
H. Oakley, United States Department of Justice, Washington, D.C., for the
defendants-appellees.
Jonathan R. Lovvorn, Meyer &
Glitzenstein, Washington, D.C., for the
plaintiffs-appellants.
John B. Arum, Ziontz, Chestnut, Varnell,
Berley & Slonim, Seattle, Washington, for the
defendant-intervenor-appellee.
5945
Kimberly M. McCormick, Latham & Watkins, San
Diego, California, for the
Amicus.
_________________________________________________________________
OPINION
TROTT,
Circuit Judge:
Appellants Jack Metcalf et al. appeal the
district court's grant of summary judgment in favor of appellees
William Daley, Secretary of Commerce; James Baker, Administrator of
National Oceanic and Atmospheric Administration; Rol- land A. Schmitten,
Director of National Marine Fisheries Ser- vice (collectively "Federal
Defendants"); and the Makah Indian Tribe ("Makah" or "Tribe"). Appellants
argue that in granting the Makah authorization to resume whaling, the
Fed- eral Defendants violated the National Environmental Policy Act
("NEPA") by (1) preparing an Environmental Assessment ("EA") that was both
untimely and inadequate, and (2) declin- ing to prepare an Environmental
Impact Statement ("EIS"). In addition, appellants challenge the district
court's denial of their motion to compel production of administrative
record material, as well as their motion to supplement the
administra- tive record. We have jurisdiction pursuant to 28 U.S.C. S
1291, and we REVERSE and REMAND to the
district court.
I
FACTUAL
BACKGROUND
The Makah, who reside in Washington state on the
north- western Olympic Peninsula, have a 1500 year tradition of hunting
whales. In particular, the Makah target the California gray whale ("gray
whale"), which annually migrates between the North Pacific and the coast of
Mexico. During their yearly journey, the migratory gray whale population
travels through
5946
the Olympic Coast National Marine Sanctuary
("Sanctuary"), which Congress established in 1993 in order to protect
the marine environment in a pristine ocean and coastal area. A small
sub-population of gray whales, commonly referred to as "summer residents,"
live in the Sanctuary throughout the entire year.
In 1855,
the United States and the Makah entered into the Treaty of Neah Bay, whereby
the Makah ceded most of their land on the Olympic Peninsula to the United
States in exchange for "[t]he right of taking fish and of whaling or
seal- ing at usual and accustomed grounds and stations . .. ." Treaty of
Neah Bay, 12 Stat. 939, 940 (1855). Despite their long history of whaling and
the Treaty of Neah Bay, however, the Makah ceased whaling in the 1920s
because widespread commercial whaling had devastated the population of
gray whales almost to extinction. Thus, the Tribe suspended whale hunting
for seventy years, notwithstanding the important cul- tural role this
practice played in their community.
Because the gray whale had
become virtually extinct, the United States signed in 1946 the International
Convention for the Regulation of Whaling in order "to provide for the
proper conservation of whale stocks and thus make possible the orderly
development of the whaling industry . . . . " Interna- tional Convention for
the Regulation of Whaling, 62 Stat. 1716, 1717 (1946). The International
Convention for the Reg- ulation of Whaling enacted a schedule of whaling
regulations ("Schedule") and established the International Whaling
Com- mission ("IWC"), which was to be composed of one member from each
signatory nation. See id. Furthermore, the Interna- tional Convention for the
Regulation of Whaling granted the IWC the power to amend the Schedule by
"adopting regula- tions with respect to the conservation and utilization of
whale resources," including quotas for the maximum number of whales to be
taken in any one season. Id. at 1718-19.
Subsequently, in 1949,
Congress passed the Whaling Con- vention Act to implement domestically the
International Con-
5947
vention for the Regulation of Whaling. See 16 U.S.C.A.
S 916 et seq. (1985). The Whaling Convention Act prohibits whal- ing in
violation of the International Convention for the Regu- lation of Whaling,
the Schedule, or any whaling regulation adopted by the Secretary of Commerce.
See id. S 916c. In addition, the National Oceanic and Atmospheric
Administra- tion ("NOAA") and the National Marine Fisheries
Service ("NMFS"), branches of the Department of Commerce, have been tasked
with promulgating regulations to implement the provisions of the Whaling
Convention Act. See id. S 916 et seq.; 50 C.F.R. S 230.1
(1998).
When the IWC was established on December 2, 1946,
it took immediate action to protect the beleaguered mammal. Specifically,
the IWC amended the Schedule to impose a complete ban on the taking or
killing of gray whales. 62 Stat. at 1723. However, the IWC included an
exception to the ban "when the meat and products of such whales are to be
used exclusively for local consumption by the aborigines. " Id.
This qualification is referred to as the "aboriginal
subsistence exception."
In addition to being shielded from
commercial whaling under international law, the gray whale received
increased protection in 1970 when the United States designated the
spe- cies as endangered under the Endangered Species Conserva- tion Act of
1969, the predecessor to the Endangered Species Act of 1973 ("ESA"). In 1993,
however, NMFS determined that the eastern North Pacific stock of gray whales
had recov- ered to near its estimated original population size and was
no longer in danger of extinction. Endangered Fish and Wildlife, 58 Fed.
Reg. 3121, 3135 (1993). As such, this stock of gray whales was removed from
the endangered species list in 1994. Id. At that point, and as required by
the ESA, NMFS began a five-year monitoring program to document and to
evaluate the viability of the stock subsequent to
delisting.
After these gray whales were removed from the
endangered species list, the Makah decided to resume the hunting
of
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whales who migrated through the Sanctuary. To execute
this plan, the Makah turned to the United States government -- the
Department of Commerce, NOAA, and NMFS -- for assistance. The Tribe asked
representatives from the Depart- ment of Commerce to represent it in seeking
approval from the IWC for an annual quota of up to five gray
whales.
As evidenced in an internal e-mail message written by
an NMFS representative, the United States agreed in 1995 to "work with"
the Makah in obtaining an aboriginal subsistence quota from the IWC. It was
too late, however, to present the Makah's request formally at the IWC annual
meeting sched- uled to take place in May 1995. Nevertheless, the
United States took the opportunity at the annual meeting to inform the
Commission that: (1) the Makah had expressed an interest in harvesting up to
five gray whales for ceremonial and sub- sistence purposes; and (2) the
United States intended to sub- mit in the future a formal proposal requesting
such a quota.
After the 1995 annual meeting, NOAA prepared an
internal report evaluating the merits of the Tribe's proposal in order to
determine whether the United States should support its request for a gray
whale quota. In some respects, the report suggested that the United States
should lend its support to the Tribe. For example, the report concluded that
the Makah have a well-documented history of dependency on the gray
whale, and that a return to whaling could benefit the Tribe. On the other
hand, the report concluded also that allowing the Makah to whale could set a
precedent for other tribes who had also expressed an interest in whaling.
Despite these concerns, however, NOAA did not initiate the NEPA process by
pub- lishing a draft EA or EIS for public review.
In January
1996, Will Martin, an NOAA representative, sent an e-mail message to his
colleagues informing them that "we now have interagency agreement to support
the Makah's application in IWC for a whaling quota of 5 grey
whales." Shortly thereafter, on March 22, 1996, NOAA entered into
a
5949
formal
written Agreement with the Tribe, which provided that "[a]fter an adequate
statement of need is prepared [by the Makah], NOAA, through the U.S.
Commissioner to the IWC, will make a formal proposal to the IWC for a quota
of gray whales for subsistence and ceremonial use by the Makah Tribe."
Furthermore, the Agreement provided for cooperation between NOAA and the
Makah Tribal Council ("Council") in managing the harvest of gray whales. More
specifically, NOAA agreed: (1) to monitor the hunt; (2) to assist the
Coun- cil in collecting certain information (e.g., body length and sex of
the landed whales; length and sex of any fetus in a landed whale; whether a
whale that was struck, but not landed, suf- fered a potentially fatal wound
from a harpoon or bomb emplacement); and (3) to collect specimen material
from landed whales, including ovaries, ear plugs, baleen plates, stomach
contents, and tissue samples. Finally, the Agreement provided that within
thirty days of IWC approval of a quota, "NOAA will revise its regulations to
address subsistence whaling by the Makah Tribe, and the Council will
adopt a management plan and regulations to govern the harvest . . . ." The
Agreement was signed by the Chairman of the Makah Tribal Council, Hubert
Markishtum, and the Under Secretary for Oceans and Atmosphere, D. James
Baker.
Pursuant to the Agreement, the Makah prepared an
ade- quate statement of need, and the United States presented a formal
proposal to the IWC for a quota of gray whales for the Tribe at the IWC
annual meeting in June 1996. Several mem- ber nations supported the Makah
whaling proposal, while oth- ers expressed concerns and indicated that they
would vote against it. In short order, the proposal turned controversial.
As the annual meeting was in progress, the United States House of
Representatives Committee on Resources unanimously passed a resolution,
introduced by Representatives Jack Met- calf (R-Washington) and George Miller
(D-California), opposing the proposal. Ultimately, the United States
realized that it did not have the three-quarters majority required
to approve it. Thus, after consulting with the Makah, the
United
5950
States withdrew the proposal in order to give the
Tribe an opportunity to address the delegates' concerns.
In
June 1997, an attorney representing the organizations Australians for Animals
and BEACH Marine Protection wrote a letter to NOAA and NMFS alleging that the
United States Government had violated NEPA by authorizing and promot- ing
the Makah whaling proposal without preparing an EA or an EIS. In response,
the Administrator for NOAA wrote to Australians for Animals and BEACH Marine
Protection on July 25, 1997, informing them that an EA would be
prepared. Twenty-eight days later, on August 22, 1997, a draft EA
was distributed for public comment.
On October 13, 1997, NOAA
and the Makah entered into a new written Agreement, which, in most respects,
was identi- cal to the Agreement signed in 1996. Unlike the
earlier Agreement, however, the 1997 Agreement required the Makah to
"confin[e] hunting activities to the open waters of the Pacific Ocean outside
the Tatoosh-Bonilla Line. " Appar- ently, this provision was added to the
Agreement in order to increase the probability that, although the whaling
would occur in the Sanctuary, the Makah would hunt only the migra- tory
whales, rather than the Sanctuary's "summer residents." Four days later, and
after the signing of this new Agreement, NOAA/NMFS issued, on October 17,
1997, a final EA and a Finding of No Significant Impact
("FONSI").
The 1997 IWC annual meeting was held on October
18, 1997, one day after the final EA had been issued. Before this meeting,
however, the United States (representing the Makah) and the Russian
Federation (representing a Siberian aboriginal group called the Chukotka) had
met to discuss the possibility of submitting a joint proposal for a gray
whale quota, as the IWC previously had granted a gray whale quota for the
bene- fit of the Chukotka. After conferring, the United States and the
Russian Federation decided to submit a joint proposal for a five-year block
quota of 620 whales. The total quota of 620
5951
assumed an average annual harvest of 120
whales by the Chu- kotka and an average annual harvest of four whales by
the Makah. We note in passing that because "not every gray whale struck
will be landed," the EA eventually concluded that the cumulative impact of
the removal of injured gray whales by the Makah would total not just twenty
whales over a five-year period, but forty-one. The EA makes no
explicit mention of the decision to submit this joint proposal to the IWC,
which would include a block quota of 620 whales for the
Chukotka.
At the meeting, some delegates expressed doubts
about whether the Makah qualified for the quota under the "aborigi- nal
subsistence" exception. For this reason, these delegates suggested amending
the joint proposal to allow the quota to be used only by aboriginal groups
"whose traditional subsis- tence and cultural needs have been recognized by
the Interna- tional Whaling Commission." (emphasis added).
Presumably, these delegates were attempting to amend the proposal in
a manner that would allow the Chukotka to harvest gray whales, but would
prohibit the Makah from doing so. How- ever, the United States rejected this
amendment on the grounds that the IWC did not have an established
mechanism for recognizing such needs. Instead, the delegates agreed
to amend the proposal to allow the quota to be used only by aboriginal
groups "whose traditional subsistence and cultural needs have been
recognized." Shortly thereafter, the quota was approved by consensus with no
objections.
On April 6, 1998, NOAA issued a Federal Register
Notice setting the domestic subsistence whaling quotas for 1998.
See Notice of Aboriginal Subsistence Whaling Quotas, 63 Fed. Reg. 16,701
(1998). The Notice stated that the Makah's sub- sistence and cultural needs
had been recognized by both the United States and the IWC. Id. at 16,704.
Accordingly, the Notice allowed the Makah to engage in whaling pursuant
to the IWC-approved quota and Whaling Convention Act regu- lations.
Id.
5952
II
PROCEDURAL
BACKGROUND
On October 17, 1997, the same day as the release of
the FONSI, appellants, including, inter alia, Congressman Met- calf,
Australians for Animals, and BEACH Marine Protection, filed a complaint
against the Federal Defendants in the United States District Court for the
District of Columbia. Appellants alleged that the Federal Defendants had
violated NEPA, the Whaling Convention Act, and the Administrative
Procedures Act in connection with their support of the Makah
whaling proposal. After granting the Makah's motion to intervene,
the district court transferred the case to the Western District
of Washington.
The Federal Defendants provided the district
court with 172 documents that they claimed constituted the
administrative record. However, material had been redacted from
seventeen of these documents. Furthermore, pursuant to their request under
the Freedom of Information Act, 5 U.S.C. S 552 (1996), appellants learned
that NMFS possessed additional records relating to the Makah whaling proposal
that had not been included in the administrative record. Because
appellants believed the Federal Defendants were required to provide
the court with the entire administrative record, they moved (1) to compel
production of the materials that had been redacted from the administrative
record, and (2) to supplement the administrative record with the additional
documents discov- ered via the Freedom of Information Act request. The
district court denied the first motion on the ground that the
redacted material was protected by the "deliberative process
privilege," which is an exception to the Freedom of Information Act,
and it denied the second motion because appellants failed to
estab- lish that "the documents they sought would alter the
summary judgment analysis."
5953
Ultimately, the parties filed cross-motions for
summary judgment on the merits, which were briefed and argued during the
spring and summer of 1998. On September 21, 1998, the district court denied
appellants' motion for summary judg- ment and granted the Federal Defendants'
and the Makah's motions for summary judgment. Appellants now appeal.
1
III
STANDARD OF REVIEW
We
review the district court's decision to grant or deny a motion for summary
judgment de novo. PCCE, Inc. v. United States, 159 F.3d 425, 427 (9th Cir.
1998). However, we review substantive agency decisions concerning NEPA
under the "arbitrary and capricious" standard, meaning we must determine
whether the decision by NOAA/NMFS was "based on a consideration of the
relevant factors," or whether their actions were "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." Blue Mountains
Bio- diversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998)
(quoting the Administrative Procedures Act, 5 U.S.C. S 706(2)(A)). "NEPA does
not mandate particular results, but simply provides the necessary process to
ensure that federal agencies take a hard look at the environmental
consequences of their actions." Muckleshoot Indian Tribe v. United
States Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999). Under
this deferential standard, we must defer to an agency's decision that is
"fully informed and well-considered," Save the Yaak Comm. v. Block,
840 F.2d 714, 717 (9th Cir. 1988), but we need not forgive a "clear error of
judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 385
(1989). _________________________________________________________________ 1
The Humane Society of the United States ("Humane Society") made a motion for
leave to file an amicus brief, which we granted. However, we also granted
appellees' joint motion to strike the extra-record documents that the Humane
Society submitted with its amicus brief.
5954
IV
NEPA
CLAIM
A.
[1] NEPA sets forth a "national policy
which will encour- age productive and enjoyable harmony between man and
his environment . . . [and] promote efforts which will prevent
or eliminate damage to the environment and biosphere and stim- ulate the
health and welfare of man." 42 U.S.C.A.S 4321 (1994). NEPA does not set out
substantive environmental standards, but instead establishes "action-forcing"
procedures that require agencies to take a "hard look" at
environmental consequences. See Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 348 (1989). We have characterized
the statute as "primarily procedural," and held that "agency action taken
without observance of the procedure required by law will be set aside." Save
the Yaak, 840 F.2d at 717. In this respect, we have observed in connection
with the preparation of an EA that "[p]roper timing is one of NEPA's
central themes. An assessment must be `prepared early enough so that it
can serve practically as an important contribution to the decisionmaking
process and will not be used to rationalize or justify decisions
already made.' " Id. at 718 (quoting 40 C.F.R. S 1502.5
(1987)).
The phrase "early enough" means "at the earliest
possible time to insure that planning and decisions reflect
environmen- tal values." Andrus v. Sierra Club, 442 U.S. 347, 351
(1979); see also 40 C.F.R. S 1501.2 (1999). The Supreme Court in referring
to NEPA's requirements as "action forcing," Andrus, 442 U.S. at 350, has
embraced the rule that for proj- ects directly undertaken by Federal
agencies, environmental impact statements "shall be prepared at the
feasibility analysis (go-no go) stage and may be supplemented at a later
stage if necessary." Id. at 351 n.3; see also 40 C.F.R. S
1502.5(a) (1999).
5955
[2] All of these rules notwithstanding, NEPA does
not require that agency officials be "subjectively impartial."
Envi- ronmental Defense Fund v. Corps of Eng'rs of the U.S. Army, 470 F.2d
289, 295 (8th Cir. 1972). The statute does require, however, that projects be
objectively evaluated.
NEPA assumes as inevitable an
institutional bias within an agency proposing a project and erects
the procedural requirements of S 102 to insure that "there is
no way [the decision-maker] can fail to note the facts and understand
the very serious arguments advanced by the plaintiff if he carefully
reviews the entire environmental impact statement."
Id.
(quoting Environmental Defense Fund v. Corps of Eng'rs of the U.S. Army, 342
F. Supp. 1211, 1218 (E.D. Ark. 1972)).
In summary, the
comprehensive "hard look" mandated by Congress and required by the statute
must be timely, and it must be taken objectively and in good faith, not as an
exercise in form over substance, and not as a subterfuge designed
to rationalize a decision already made. As the Eighth Circuit observed in
Environmental Defense Fund,"[t]he unequivocal intent of NEPA is to require
agencies to consider and give effect to the environmental goals set forth in
the Act, not just to file detailed impact studies which will fill
governmental archives." Id. at 298.
[3] NEPA requires that an
EIS be prepared for all "major Federal actions significantly affecting the
quality of the human environment." 42 U.S.C.A. S 4332(2)(C)
(1994). However, if, as here, an agency's regulations do not
categori- cally require the preparation of an EIS, then the agency
must first prepare an EA to determine whether the action will have a
significant effect on the environment. See 40 C.F.R. S 1501.4 (1999); Salmon
River Concerned Citizens v. Robert- son, 32 F.3d 1346, 1356 (9th Cir. 1994).
If, in light of the EA,
5956
the agency determines that its action will
significantly affect the environment, then an EIS must be prepared; if not,
then the agency issues a FONSI. See 40 C.F.R.SS 1501.4, 1508.9 (1999);
Salmon River, 32 F.3d at 1356. "If an agency decides not to prepare an EIS,
it must supply a `convincing statement of reasons' to explain why a project's
impacts are insignifi- cant." Blue Mountains, 161 F.3d at 1211 (quoting Save
the Yaak, 840 F.2d at 717).
[4] In this case, the Federal
Defendants did (1) prepare an EA, (2) decide that the Makah whaling proposal
would not significantly affect the environment, and (3) issue a FONSI, but
they did so after already having signed two agreements binding them to
support the Tribe's proposal. Appellants assert that, in so doing, the
Federal Defendants violated NEPA in several ways. Appellants argue that,
although NOAA/NMFS ultimately prepared an EA, they violated NEPA because
they prepared the EA too late in the process. According to appellants, "by
making a commitment to autho- rize and fund the Makah whaling plan, and then
drafting a NEPA document which simply rubber-stamped the decision . . . ,
defendants eliminated the opportunity to choose among alternatives, . . . and
seriously imped[ed] the degree to which their planning and decisions could
reflect environmental val- ues." Additionally, appellants contend that the
Federal Defen- dants violated NEPA by preparing an inadequate EA, and
by issuing a FONSI instead of preparing an
EIS.
B.
[5] We begin by considering appellants'
argument that the Federal Defendants failed timely and in the proper
sequence to comply with NEPA. As provided in the regulations promul- gated
to implement NEPA, "[a]gencies shall integrate the NEPA process with other
planning at the earliest possible time to insure that planning and decisions
reflect environmen- tal values, to avoid delays later in the process, and to
head off potential conflicts." 40 C.F.R. S 1501.2 (emphasis added);
see
5957
also
id. S 1502.5 ("An agency shall commence preparation of an [EIS] as close as
possible to the time the agency is devel- oping or is presented with a
proposal . . . ." ). Furthermore, this court has interpreted these
regulations as requiring agen- cies to prepare NEPA documents, such as an EA
or an EIS, "before any irreversible and irretrievable commitment
of resources." Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988); see
also EDF v. Andrus, 596 F.2d 848, 852 (9th Cir. 1979). Thus, the issue we
must decide here is whether the Federal Defendants prepared the EA too late
in the decision- making process, i.e., after making an irreversible and
irre- trievable commitment of resources. We conclude that
they did.
[6] The purpose of an EA is to provide the agency
with suf- ficient evidence and analysis for determining whether to
pre- pare an EIS or to issue a FONSI. 40 C.F.R. S 1508.9. Because the very
important decision whether to prepare an EIS is based solely on the EA, the
EA is fundamental to the decision-making process. In terms of timing and
importance to the goals of NEPA, we see no difference between an EA and an
EIS in connection with when an EA must be integrated into the calculus. In
the case at bar, the Makah first asked the Federal Defendants to help them
secure IWC approval for a gray whale quota in 1995; however, NOAA/NMFS did
not prepare an EA until 1997. During these two years, the United States
and the Makah worked together toward obtaining a gray whale quota from the
IWC. In January 1996, an NOAA representative informed his colleagues that "we
now have interagency agreement to support the Makah's application in IWC
for a whaling quota of 5 grey whales." More impor- tantly, in March 1996,
more than a year before the EA was prepared, NOAA entered into a
contract with the Makah pur- suant to which it committed to (1) making a
formal proposal to the IWC for a quota of gray whales for subsistence and
cer- emonial use by the Makah and (2) participating in the man- agement of
the harvest. To demonstrate the firmness of this commitment, we need only to
look at the EA, which says, "In
5958
early 1996, [NOAA and the Makah Tribal Council ]
signed an agreement in which the United States committed to make a formal
request to the IWC . . . ."
[7] The Federal Defendants did not
engage the NEPA pro- cess "at the earliest possible time." Instead, the
record makes clear that the Federal Defendants did not even consider
the potential environmental effects of the proposed action until long
after they had already committed in writing to support the Makah whaling
proposal. The "point of commitment" in this case came when NOAA signed the
contract with the Makah in March 1996 and then worked to effectuate
the agreement. It was at this juncture that it made an "irreversible and
irretrievable commitment of resources." As in Save the Yaak, the "contracts
were awarded prior to the preparation of the EAs . . . . These events
demonstrate that the agency did not comply with NEPA's requirements
concerning the timing of their environmental analysis, thereby seriously
impeding the degree to which their planning and decisions could
reflect environmental values." Save the Yaak, 840 F.2d at 718-19. Although
it could have, NOAA did not make its promise to seek a quota from the IWC and
to participate in the harvest conditional upon a NEPA determination
that the Makah whal- ing proposal would not significantly affect the
environment.
[8] Had NOAA/NMFS found after signing the
Agreement that allowing the Makah to resume whaling would have a
sig- nificant effect on the environment, the Federal Defendants would have
been required to prepare an EIS, and they may not have been able to fulfill
their written commitment to the Tribe. As such, NOAA would have been in
breach of con- tract. Although the United States delegates to the 1996
IWC meeting ultimately withdrew their proposal for a Makah aboriginal
subsistence whaling quota, they did so with the Tribe's approval and because
the proposal did not have ade- quate support from other IWC delegations, not
in order to reconsider environmental concerns. The firmness of the
1996 Agreement became even clearer and more resolute in
1997
5959
when NOAA entered into a new, similar contract with
the Tribe to pursue its whaling quota at the 1997 IWC meeting. This
Agreement was signed four days before the final EA in this case was issued.
In the EA, the agencies referred to this second Agreement as having "renewed
the cooperative Agreement" signed in 1996. This is strong evidence
that NOAA and other agencies made the decision to support the Tribe's
proposal in 1996, before the EA process began and without considering the
environmental consequences thereof. By the time the Federal Defendants
completed the final EA in 1997, the die already had been cast. The "point of
commit- ment" to this proposal clearly had come and gone. As in Con- ner
v. Burford,2 Environmental Defense Fund, and Port of Astoria v. Hodel, 595
F.2d 467 (9th Cir. 1979), the contracts here amounted to a surrender of the
Government's right to prevent activity in the relevant area. Cf. Friends of
South- east's Future v. Morrison, 153 F.3d 1059, 1063 (9th Cir. 1998)
(holding that the Forest Service did not make an "irre- versible and
irretrievable commitment of resources " when it prepared a Tentative
Operating Schedule because "the agency was free to follow the [Schedule] or
alter it as conditions war- rant").
[9] It is highly likely
that because of the Federal Defen- dants' prior written commitment to the
Makah and concrete efforts on their behalf, the EA was slanted in favor of
finding that the Makah whaling proposal would not significantly affect the
environment. As the court below noted,"the longer the defendants worked with
the Tribe toward the end of whal- ing, the greater the pressure to achieve
this end . . . . [A]n EA prepared under such circumstances might be subject
to at least a subtle pro-whaling bias." The EA itself somewhat
disingen- uously claims in 1997 that the "decision to be made"
is _________________________________________________________________ 2
Conner v. Burford provides an excellent example of how to differenti- ate
between mineral leases that entail an "irreversible and
irretrievable commitment of resources" and those that do not. Conner, 848
F.2d at 1446-51.
5960
"whether to support the Makah Tribe in its effort to
continue its whaling tradition," when in point of fact that decision
had already been made in contract form. To quote the 1996 Agreement,
"after an adequate statement of need is prepared, NOAA . . . will make a
formal proposal to the IWC for a quota of gray whales . . . ." The Makah
satisfied its part of the bargain in 1996, binding the Federal Defendants to
deliver on theirs, as they did at the IWC meeting in June 1996.
Also, NOAA/NMFS's statement in the EA that "[a]ny perception that the U.S.
Government is trying to withdraw its support for Makah whaling would likely
plunge the Tribe into a difficult controversy with the United States"
strongly suggests that the Federal Defendants were predisposed to issue a
FONSI.
[10] NEPA's effectiveness depends entirely on
involving environmental considerations in the initial
decisionmaking process. See 40 C.F.R. SS 1501.2, 1502.5; see also
Methow Valley, 490 U.S. at 349 (explaining that NEPA "ensures that the
agency, in reaching its decision, will have available, and will carefully
consider, detailed information concerning sig- nificant environmental
impacts"). Moreover, the Supreme Court has clearly held that treaty rights
such as those at stake in this case "may be regulated . . . in the interest
of conserva- tion . . . , provided the regulation . . . does not
discriminate against the Indians." Puyallup Tribe v. Department of Game of
Wash., 391 U.S. 392, 398 (1968). Here, before preparing an EA, the Federal
Defendants signed a contract which obli- gated them both to make a proposal
to the IWC for a gray whale quota and to participate in the harvest of those
whales. We hold that by making such a firm commitment before pre- paring
an EA, the Federal Defendants failed to take a "hard look" at the
environmental consequences of their actions and, therefore, violated
NEPA.
Our decision in Thomas v. Peterson, 753 F.2d 754 (9th
Cir. 1985), supports this conclusion. In that case, the Forest Ser- vice
planned to construct a road in order to facilitate timber sales. See id. at
756-57. The Forest Service wanted to build
5961
the road, and then prepare an EA/EIS to
analyze the environ- mental impact of the timber sales. See id. at 757.
However, the court explained that "[b]uilding the road swings the
bal- ance decidedly in favor of timber sales even if such sales would have
been disfavored had road and sales been consid- ered together before the road
was built." Id. Accordingly, the Peterson court held that the Forest Service
must prepare an EIS before deciding whether to approve the proposed road.
Id. at 761. Similarly, we conclude that the Federal Defendants should not
have fully committed to support the Makah whal- ing proposal before preparing
the EA because doing so proba- bly influenced their evaluation of the
environmental impact of the proposal.
We want to make clear,
however, that this case does not stand for the general proposition that an
agency cannot begin preliminary consideration of an action without first
preparing an EA, or that an agency must always prepare an EA before it can
lend support to any proposal. We have discussed this distinction in
Association of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126
F.3d 1158 (9th Cir. 1997), where we pointed out that "an agency can formulate
a pro- posal or even identify a preferred course of action
before completing an EIS." Id. at 1184. We noted also that "Council on
Environmental Quality ("CEQ") regulations actually encourage identification
of a preferred course of action during the NEPA process . . . ." Id. at 1185
(citing 40 C.F.R. S 1502.14(e)). Rather, our holding here is limited to
the unusual facts and circumstances of this case where the defen- dants
already had made an "irreversible and irretrievable com- mitment of
resources" -- i.e., by entering into a contract with the Makah before they
considered its environmental conse- quences and prepared the
EA.3 _________________________________________________________________ 3
Because we conclude that the Federal Defendants violated NEPA by preparing
the EA too late, we need not directly decide whether they also violated NEPA
by preparing an inadequate EA, or by issuing a FONSI rather than preparing an
EIS.
5962
V
REMEDY
Appellees
argue that, even if the Federal Defendants did violate NEPA by preparing the
EA after deciding to support Makah whaling, the issue is moot because the
only relief that the court could order is the preparation of an adequate
EA, which, appellees contend, already has been done. In making this
argument, appellees rely on Realty Income Trust v. Eck- erd, 564 F.2d 447
(D.C. Cir. 1977), in which the court refused to remand to the district court
because an adequate EIS had been prepared before any action was taken that
might harm the environment. Id. at 457. The Eckerd court
explained:
The problem here, to repeat, was simply one of
tim- ing, that is, that there was not a timely filing of an
EIS with Congress. No complaint remains on appeal that the statements
in substance were inadequate in any
way.
Id.
We conclude that the case at bar is
distinguishable from Eckerd and, therefore, appellees' reliance on that case
is mis- placed. Unlike in Eckerd, appellants do not concede that the EA
that ultimately was prepared is adequate. To the contrary, appellants contend
that the EA is demonstrably suspect because the process under which the EA
was prepared was fatally defective -- i.e., the Federal Defendants were
predis- posed to finding that the Makah whaling proposal would
not significantly affect the environment. We agree. Moreover, appellants
vigorously maintain that the EA is deficient with respect to its content and
conclusions.
[11] Our conclusions about the EA in this case
raise an obvious question: Having already committed in writing to support
the Makah's whaling proposal, can the Federal
5963
Defendants now be trusted to take the
clear-eyed hard look at the whaling proposal's consequences required by the
law, or will a new EA be a classic Wonderland case of first-the- verdict,
then-the-trial? In order to avoid this problem and to ensure that the law is
respected, must we -- and can we -- set aside the FONSI and require the
Federal Defendants to proceed directly to the preparation of an
Environmental Impact Statement? On reflection, and in consideration of
our limited role in this process, we have decided that it is appro- priate
only to require a new EA, but to require that it be done under circumstances
that ensure an objective evaluation free of the previous taint. Unlike many
of the disputes we are cal- led on to resolve, time here is not of the
essence. Although the doctrine of laches cannot defeat Indian rights
recognized in a treaty, see United States v. Washington, 157 F.3d 630,
649 (9th Cir. 1998), the Makah's seventy year hiatus in connec- tion with
whale hunting suggests that a modest delay occa- sioned by the need
to respect NEPA's commands will cause no harm. Cf. Forelaws on Bd. v.
Johnson, 743 F.2d 677 (9th Cir. 1984) (operation of contracts in third year
of 20-year term not enjoined because of statutory mandate of
implemen- tation of a contractual system).
The manner of
ensuring that the process for which we remand this case is accomplished
objectively and in good faith shall be left to the relevant agencies. Should
a new EA come back to the courts for additional scrutiny, however,
the burden shall be on the Federal Defendants to demonstrate to the
district court that they have complied with this
require- ment.
Accordingly, we REVERSE and REMAND to the
district court. The district court is directed to order the Federal
Defen- dants to set aside the FONSI, suspend implementation of
the Agreement with the Tribe, begin the NEPA process afresh, and prepare a
new EA.4 Costs are awarded to Appellants Met- calf et
al. _________________________________________________________________ 4
Our determination that the Federal Defendants violated NEPA and, therefore,
must prepare a new EA renders moot appellants' argument that
5964
REVERSED and
REMANDED.
_________________________________________________________________
KLEINFELD,
Circuit Judge, dissenting:
I respectfully
dissent.
The federal government reconciled two policies, one
favor- ing aboriginal Indian interests and another favoring preserva- tion
of sea mammals, by choosing to advance the Indian whale-hunting interests.
But before allowing the Indians to hunt whales, the government took the "hard
look " at environ- mental consequences that was required by law. Nothing
more was required. The majority opinion errs in three respects: (1) it
imposes a novel version of the "objectivity " requirement that cannot be
applied in a predictable, consistent manner by other panels in other cases;
(2) it misconstrues the regulation that controls the time when an
environmental assessment ought to be prepared; (3) it requires that a new
environmental assessment be prepared without finding anything wrong
with the old one. Obviously the agency did not prepare the envi- ronmental
assessment until its officials had already decided that they wanted to let
the Makah Indians hunt whales. Why else would they have gone to the trouble
of preparing an envi- ronmental assessment? But without identifying
something wrong with the environmental assessment (and we have not), we
have no warrant for setting it
aside. _________________________________________________________________ the
district court erred in denying its motions to compel production
of administrative record material and to supplement the
administrative record. With the preparation of a new EA, a new administrative
record will also be generated. Given this background, however, the
agencies would be well-advised to prepare this record with the expectation
that every bit of it will be open to scrutiny should this matter return to
the courts yet a second time.
5965
First, "objectivity." There is a statutory and
regulatory basis for inferring that an environmental assessment must be
"objec- tive."1 But what does "objective" mean? The majority con- cedes
that the agency can "identify a preferred course of action" before preparing
the environmental assessment. Our decision in Association of Public Agency
Customers v. Bonne- ville Power Administration2 establishes that the agency
does not have to be impartial, and can decide what it wants to do before
preparing the environmental assessment or impact state- ment.3 And the
majority reasonably adopts the Eighth Circuit view, that "NEPA assumes as
inevitable an institutional bias within an agency proposing a project" and
the Eighth Cir- cuit's rejection of the proposition that "NEPA requires
agency officials to be subjectively impartial."4 As Wyoming
Outdoor Council v. United States Forest Service5 says, "it is not
logical that the Service would be required to delay its undertakings and
commit its resources to the preparation of an EIS which might
ultimately prove unnecessary."6
But then the majority
apparently holds that the environmen- tal assessment in this case fails the
objectivity test because "it is highly likely that," because the agency had
committed itself to the tribe, "the EA was slanted." This holding cannot be
rec- onciled with the others, and cannot be applied in a predict- able,
consistent manner. The agency's policy choice, to allow the Makah tribe to
hunt whales if it could, cannot be said to "slant" the environmental
assessment, when we do not iden- tify anything wrong with the environmental
assessment, unless the test of objectivity is exactly what we say it is
not, _________________________________________________________________ 1
See 42 U.S.C. S 4332(2)(D) (1994); 40 C.F.R. S 1502.14(a) (1999). 2
Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d
1158 (9th Cir. 1997). 3 See id. at 1185. 4 Environmental Defense Fund Inc.
v. Corps of Engineers, 470 F.2d 289, 295 (8th Cir. 1972). 5 Wyoming
Outdoor Council v. United States Forest Serv., 165 F.3d 43 (D.C.
Cir. 1999). 6 Id. at 49.
5966
"institutional bias within an agency" and subjective
partiality. All the majority shows is that the agency knew the answer
it wanted before it asked the question. But under Bonneville Power, that
"institutional bias" does not vitiate the environ- mental assessment's
"objectivity". To show that the environ- mental assessment is not objective,
an objector must show that there is something wrong with the assessment, not
just that the agency that prepared it wanted a particular
result.
The meaning of "objective" is "expressing or involving
the use of facts without distortion by personal feelings or
preju- dices."7 Thus our inquiry should be focused on the text of
the environmental assessment that the agency prepared, not on the
motivations that the agency had for slanting it. Of course it had a motive to
slant the statement in favor of its preferred policy. Any executive agency
can be expected to try to advance its and the president's policy preferences.
If we require a record cleansed of any indication of a policy
prefer- ence, all we will do is push the indicators of agency prefer- ence
off the written record into the land of winks and nods, and choosing people
to prepare the reports who, because of their known policy preferences, can be
counted on to reach the conclusions the agency wants. We should read the
envi- ronmental assessment and decide whether it states the facts without
distortion, and fairly sets out the alternatives and the reasons for and
against them. The district judge did so, and found nothing wrong
with the environmental assessment, and neither have we. That should be the
end of the "objectivity" inquiry.
Second, timing. The
majority holds that the "at the earliest possible time"8 requirement in the
regulations means before "making an irreversible and irretrievable commitment
of resources."9 I agree with that proposition of law. But then
the _________________________________________________________________ 7
Webster's Third New International Dictionary 1155-56 (1981). 8 40 C.F.R. S
1501.2. 9 Slip Op. at 5958.
5967
majority goes on to say that because the agency's
commit- ment to the Makah tribe preceded the environmental assess- ment,
the environmental assessment came too late. I respectfully disagree with the
application of law to facts, though the issue is close.
The
commitment to allow the Makah tribe to hunt whales was not an "irreversible
and irretrievable commitment," despite the contract. The majority opinion
misses the differ- ence between the two contracts. In Conner v. Burford,10
we held that where the agency retained regulatory authority prior to
drilling, it could prepare the environmental impact state- ment after it
issued oil and gas leases, but where the oil com- panies would immediately be
free to build roads and drill without further regulatory approval, the agency
had to prepare the environmental impact statement before issuing
leases.11 Thus the test in Conner was whether the oil companies
could start drilling once the contract was signed, or whether there was a
subsequent regulatory approval process. Applying that test here, to whale
hunting rather than okay drilling, there was a subsequent regulatory process
before the first harpoon could be fired, so the environmental assessment was
not untimely. Rather than following Conner as it purports to, the
majority is deciding this case inconsistently with Conner . The
majority also misreads Thomas v. Peterson;12 it concerns
"connected actions," in that case a timber sale and the road to be built
for the logging, and has no application to the case at bar, because no
"connected actions" regulation has no application here. The timing
requirement of the statute and regulations required that the agency prepare
an environmental assessment before the Makah tribe was allowed to hunt
whales. It did. There was no "irretrievable commitment" until no further
regulatory pro- cess stood between the tribe and the
whales. _________________________________________________________________ 10
Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988). 11 See id. at 1451. 12
Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985).
5968
Promising to support the Makah whaling
proposal before the International Whaling Commission was not an
"irretriev- able commitment of resources," for several reasons.
Signing the contract did not entitle the Indians to kill whales.
Interna- tional Whaling Commission approval was sufficiently unlikely (the
aboriginal "subsistence exception " was a hard sell to the Commission because
the Makah had not hunted whales for seventy years and did not depend on them
for sub- sistence) so that no one could count on any whale hunts despite
the agency's support. There was no point wasting the public's time and money
on an environmental assessment until and unless the International Whaling
Commission made Makah whale hunting a possibility. Doing the NEPA
process before the agency action is even possible, as today's
majority requires, is like setting a wedding date, booking the hall,
buy- ing the dress, and paying the band before the couple has got- ten
engaged.
Even after the International Whaling Commission
approved a Makah whale quota, the Makah still could not hunt whales (just
as the oil companies in Conner could not drill). The agency had to decide
upon and promulgate regulations.13 An earlier version of the contract, made
when the agency was likely to fail (it did fail) before the International
Whaling Commission, said that the agency would adopt regulations within 30
days after the International Whaling Commission approved the quota. But once
the Commission looked likely to come around on a joint Russian-American
annual quota of 120 whales for the Siberians and 4 for the Makah (and
before the Makah quota was granted), the agency and the Makah signed a
novation replacing the old contract. The new contract obligated the Makah
Tribal Council, but not the federal agency, to adopt a management plan and
regulations. The agency's hands were not tied.14 If the agency had
changed _________________________________________________________________ 13
See 16 U.S.C. S 916 et seq. (1985); 50 C.F.R. S 230.1 (1998). 14
Bowen v. Public Agencies Opposed, 477 U.S. 41, 52 (1986); Madera Irrigation
Dist. v. Hancock, 985 F.2d 1397, 1400 (9th Cir. 1993).
5969
policy, and decided not to issue
regulations permitting Makah whale hunting as a result of the environmental
assessment, the political strength of the advocacy groups opposing
whale hunting, or anything else, the Makah might reasonably have regarded
the policy change as a bad faith betrayal. But gov- ernment changes policy
continually, restrained only by con- cerns for fairness, public opinion, and
that the incentives it offered in the future to induce private action would
have to be higher to the extent that people felt they could not rely on
the stability of government policies.15 Specific performance of
the contract could not have been compelled16 and it is hard to imagine a
damages remedy.
Preparation of an environmental assessment, and,
if neces- sary, an environmental impact statement, is itself a
major commitment of resources, and it does not make practical sense to
require that these resources be wasted where the agency is not yet in a
position to implement a policy choice requiring that expenditure. The draft
and final environmental assessments, including an appendix of public comment,
and the finding of no significant impact, consist of 200 pages of single
spaced print, replete with expensive experts' opinions and research. It would
be a foolish waste of time and money for an agency to initiate this process
before the agency had decided on a policy. As Wyoming Outdoor Council v.
United States Forest Service17 says,"it is not logical that the
Service would be required to delay its undertakings and commit
its resources to the preparation of an EIS which might ultimately prove
unnecessary."18 _________________________________________________________________ 15
See Madera, 985 F.2d at 1397. 16 See 28 U.S.C. S 1491;Florida Dep't of State
v. Treasure Salvors, Inc., 458 U.S. 670, 689 (1982). 17 Wyoming
Outdoor Council v. United States Forest Serv., 165 F.3d 43 (D.C. Cir.
1999). 18 Id. at 49.
5970
Third, remedy. The majority's remedy brings us into
con- flict with the only other circuit to have considered the issue. In
Realty Income Trust v. Eckerd,19 the agency made a pro- posal to Congress,
which involved moving a stream, before preparing its environmental impact
statement. The statute plainly required the environmental impact statement to
be included with the proposal, not to come afterwards as it did,20 so the
environmental impact statement was prepared too late. The District of
Columbia Circuit held that construction could proceed without a second
environmental impact statement, despite the unlawful timing, because "equity
should not require the doing of a vain or useless thing." 21 That is to
say, even if the environmental impact statement was prepared too late, the
agency would not be required to prepare a new one in the absence of a showing
that the statement was substan- tively inadequate.
The
majority purports to distinguish Eckerd on the basis that in the case at bar,
the environmental advocacy groups contend that the environmental assessment
was "demonstra- bly suspect because the process under which the EA was
pre- pared was fatally defective -- i.e., the federal defendants
were predisposed to finding that the Makah whaling proposal would not
significantly affect the environment." 22 But that does not distinguish
Eckerd at all. The majority concedes in its discussion of the "objectivity"
requirement, the "process" cannot be "fatally defective" because the agency
had a predis- position. Something that is immaterial cannot be a
material distinction. True, there is a challenge to the substantive
ade- quacy of the environmental assessment in this case and not in Eckerd.
But we do not rule upon the challenge. The district court carefully examined
all the substantive challenges
and _________________________________________________________________ 19
See Realty Income Trust v. Eckerd, 564 F.2d 447, 457 (D.C.
Cir. 1977). 20 See 42 U.S.C. S 4332(C). 21 Realty Income
Trust, 564 F.2d at 458. 22 Slip Op. at 5963.
5971
found them to be without merit, and we
have found no fault with the district court's determination. In the absence
of a judicial determination that the environmental assessment really was
inadequate, as opposed to an unsuccessful argu- ment claiming inadequacy, we
cannot conclude that preparing another environmental assessment would be
other than what Eckerd terms "a vain or useless thing."
It is
impractical to suppose that executive agencies will be uncommitted to
policies when they prepare environmental assessments and environmental impact
statements. It is pre- cisely their determinations to move ahead with one
proposal or another that occasions the assessments and impact
state- ments. So long as the agency prepares an objective statement giving
the initiative the required "hard look, " prior to going ahead with it, it
has done its duty, and even if it prepares the statement too late, it is
pointless to require another one unless there is something wrong with the one
the agency submitted. Environmental assessments and environmental impact
state- ments are unlikely to persuade agency personnel, who initi- ated a
project, to change their minds. Few things in government are as hard to shake
as a bureaucratic policy choice.
The value of the
environmental assessments and impact statements comes mostly after the agency
has settled on a pol- icy choice. The process of preparing them mobilizes
groups that may generate political pressure sufficient to defeat
the executive initiative. Exploration of the alternatives, and the facts
brought out in preparation, may educate the agency, so that the initiative is
modified in a useful way. The process may educate the agency about interests
and concerns of which it was not aware, so that implementation will be more
sensi- tive. The quality of the statement may persuade Congress or others
who must pass on the agency proposal that the agency was wrong in its policy
choice. The statement also stands as an archive with which the public may
evaluate the correctness of the agency's policy choices after implementation,
to decide
5972
whether the agency has done what it promised during
imple- mentation, and whether to repose more or less confidence in the
agency's policy choices in the future. Preparation and publication of the
statements eliminate the agency's monop- oly of information, thus enabling
other participants in the political process to use the information to
overcome the agen- cy's policy choice. None of these values were subverted
in this case by the agency's commitment to the Makah Tribe. And nothing
has been shown to be wrong with the environ- mental assessment. There is a
legitimate clash of values between those who care more about whale hunting
from the point of view of the hunter, and those who care more from
the viewpoint of the whale. The political organs of government have the
authority to choose. We have no warrant in this case to interfere.
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