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Case Number:98-36135
Date Filed: 06/09/00


NATION, (Alberta N. Thompson);
                                                     No. 98-36135
                                                     D.C. No.
WILLIAM DALEY, Secretary U.S.                         CV-98-05289-FDB
Department of Commerce; JAMES
BAKER, Administrator, National
Oceanic and Atmospheric
Administration; ROLLAND A.
SCHMITTEN, Director, National
Marine Fisheries Service,



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


Before: Stephen S. Trott, Andrew J. Kleinfeld, and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Trott;
Dissent by Judge Kleinfeld



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.


Kimberly M. McCormick, Latham & Watkins, San Diego,
California, for the Amicus.



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



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


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-


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

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


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


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


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


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.




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

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."


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



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.





[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)


[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.

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,


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.


[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


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

[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


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


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-

[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


"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


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.




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.


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


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-

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




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.


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.


"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"

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.


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).


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).


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.


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.

20 See 42 U.S.C. S 4332(C).
21 Realty Income Trust, 564 F.2d at 458.
22 Slip Op. at 5963.


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

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


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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