Metcalf v. Daley:The Makah Get Harpooned by NEPA

Thomas P. Rowland*

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 395II. THE MAKAH AND WHALING ........................... 398

A. Brief H istory ................................... 3981. The Makah Decision to Begin Whaling Again ......... 4002. The Road to Metcalf v. Daley ..................... 402

B. Overview of Events ............................... 4031. The Makah Seek Assistance from the United

States Government ............................. 4032. The Decision is Challenged ...................... 405

C. Metcalf v. Daley: The Ninth Circuit Opinion ............ 4061. The M ajority ................................. 4062. The D issent .................................. 408

I1. A NALYSIS ......................................... 410A. National Environmental Policy Act ................... 410

1. Broad Purpose and Procedure DemandStrict Adherence .............................. 410

2. The Effectiveness of NEPA Depends on Timing ....... 4123. Agency Objectivity Heightened When NEPA

Procedure Violated ............................. 4154. Proper Remedy Requires an EIS ................... 417

B. Unintended Repercussions ......................... 418C. Practical Effects of the Decision ..................... 420

IV. CONCLUSION ..................................... 421

1. INTRODUCTION

Americans began to hunt whales in the eighteenth century.' Only a centurylater, the United States had developed premier whaling practices and had nearly

* J.D., Gonzaga University School of Law, 2001; B.A., Washington State University,1998. I would like to thank my parents and my sisters for their love and support and theeditorial staff of the Gonzaga Law Review for its commitment to excellence.

1. Cliff M. Stein, Comment, Whales Swim for Their Lives as Captain Ahab Returnsin a Norwegian Uniform: An Analysis of Norway's Decision to Resume Commercial Whaling,8 TEMP. INT'L & COMP. L.J. 155, 159 (1994).

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depleted the whale population to extinction.2 Although whales were a criticalsource of oil for Americans, the practice of whaling stopped when the UnitedStates tapped the petroleum industry as an alternate source of oil.3

While the United States hunted whales rather recently for a fairly briefperiod, other cultures began hunting whales thousands of years ago,4 using thewhale for food, oil, clothing, and tools. 5 One such culture that began whalehunting thousands of years before the Americans is the Makah Tribe, locatedalong the Olympic Peninsula in the northwestern corner of Washington State.6

The whale hunt is an ancient Makah tradition.7 Gray and humpback whalesonce provided up to eighty percent of the tribe's subsistence needs and thestrenuous training and preparation demanded an entire community effort.8

The practice of commercial whaling was placed under a moratorium by theInternational Whaling Commission ("IWC") in 1986.9 This moratorium createda conflict, since the Makah were guaranteed the "right of taking fish and ofwhaling" under the 1855 Treaty of Neah Bay ("Treaty")10 signed by the UnitedStates." The Treaty recognizes the Makah's sovereign rights and is treated asan agreement between the United States and a foreign nation. 12 However, theMakah voluntarily ceased all whale hunts around 1920 because commercialpractices had virtually decimated the whale population. 13 This decimation

2. Id.3. Sarah Suhre, Note, Misguided Morality: The Repercussions of the International

Whaling Commission's Shift from a Policy of Regulation to One of Preservation, 12 GEO.INT'L ENVTL L. REV. 305, 307-08 (1999).

4. Id. at 307 (noting that although there is evidence that whaling began as early as1500 B.C., some historians suggest that the Basques of Biscay organized whaling in 800 A.D.to 1000 A.D., and that the French and Germans began to whale in the North Atlantic less thana century later).

5. Id. at 305.6. SUSTAINABLE ECOSYSTEMS INSTITUTE, The Makah Tribe and their whaling

history: Answers to Questions, at http://www.sei.org/huntjhistory.html (last visited Mar. 21,2001).

7. The Makah Nation: On Washington's Olympic Peninsula, at http://www.northolympic.com/makah (visited Mar. 21, 2001).

8. ALAMUT BASTION OF PEACE AND INFORMATION, The History of the Makah WhaleHunt, at http://www.alamut.com/subj/the other/misc/makahWhaling.html (last visited Mar.21, 2001).

9. Id.10. Treaty with the Makah, Jan. 31, 1855, U.S.-Makah, 12 Stat. 939, 940.11. Id. at 939.12. Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty:

What Does the Tribal Rights-Endangered Species OrderAccomplish?, 83 MINN. L. REv. 523,535-36 (1998) (explaining that this treaty has the power of federal law).

13. ALAMUT BASTION OF PEACE AND INFORMATION, The History of the Makah WhaleHunt, at http://www.alamut.com/subj/the-other/miscmakahWhaling.html (last visited Mar.

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caused the United States to list the gray whale as endangered under theEndangered Species Conservation Act of 1969, which led to the EndangeredSpecies Act of 1973 ("ESA").14 However, in 1994, the gray whale was removedfrom the endangered species list, and the Makah decided to reinstate thetraditional practice of hunting with the assistance of the United Statesgovernment.15

In 1997, the Makah obtained permission from the IWC to resumeharvesting up to five whales per year. 16 A number of groups, includingCongressman Jack Metcalf of Washington, responded by filing a complaintagainst the federal government, alleging a violation of the NationalEnvironmental Policy Act ("NEPA").17 Thus, in Metcalf v. Daley,18 the NinthCircuit endeavored to clarify how critical NEPA procedural requirements arewhen an agency's proposed course of action may potentially have significantimpacts on the environment. 9 The Ninth Circuit held that an agency mustprepare an objective environmental assessment before making an irrevocablecommitment of resources.2°

The Ninth Circuit ruling was correct. The court based its decision on thecongressional purpose behind NEPA: to prevent environmental damage and topromote harmony between humans and the environment. 2

1 The NationalEnvironmental Policy Act does not set forth substantive environmentalstandards.22 Rather, it establishes strict procedures that force agencies to takea "hard look' at environmental consequences at the "earliest possible time" sothat potential environmental impacts can be considered.23 In a well-reasonedopinion, the majority applied the facts of the Makah case to the priorinterpretations of NEPA and ultimately required the federal agency assisting the

21, 2001).14. Metcalf v. Daley, 214 F.3d 1135, 1138 (9th Cir. 2000).15. Makah Whaling: Questions and Answers, at http://www.makah.com/whales.htm

(last visited Mar. 21, 2001).16. Metcalf, 214 F.3d at 1140; Makah Whaling: Questions and Answers, at http'J/

www.makah.com/whales.htm (last visited Mar. 21, 2001).17. See Metcalf, 214 F.3d at 1139; National Environmental Policy Act of 1969, § 102,

42 U.S.C. § 4321 (Supp. IV 1998). Congressman Jack Metcalf is a Republican fromWashington State. Metcalf, 214 F.3d at 1139.

18. 214 F3d 1135 (9th Cir. 2000).19. Seeid. at 1137.20. Id. at 1146.21. 42 U.S.C. § 4321 (Supp. IV 1998).22. 42 U.S.C. § 4332 (Supp. IV 1998).23. Andrus v. Sierra Club, 442 U.S. 347, 351 (1979); 40 C.FR. § 1501.2 (1999).

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Makah in obtaining a whaling quota proposal to prepare a new and objectiveenvironmental assessment.24

In analyzing the Ninth Circuit's ruling in Metcalf v. Daley, this Note willfirst provide a brief history of the Makah tribe and the importance of whalingto the Makah community. After examining the historical underpinnings of theMakah and their whaling tradition, this Note will provide a synopsis of thefactual and procedural history of Metcalf v. Daley. Finally, this Note willanalyze the ruling by the Ninth Circuit as it applied NEPA and the pertinentcase law to assess the soundness and immediate effects of the decision.

II. THE MAKAH AND WHALING

A. Brief History

It is unclear how long the Makah have hunted whales. Archeologicaldeposits and evidence indicate the practice dates back at least two thousandyears. 26 Makah elders contend that whale hunts have occurred "forever. 27

Available history makes clear that the Makah have traditionally targeted theCalifornia gray whale, which migrates annually between the North Pacific andthe coast of Mexico.28

Whaling has provided up to eighty percent of the Makah's subsistenceneeds for the five family tribes that constitute the Makah nation.29 Inpreparation for a whale hunt, the Makah community would undergo a rigoroustraining ritual.3° In anticipation of a hunt, tribesmen would immerse themselvesin the icy waters of the Pacific Ocean and rub their skin raw with piercing

24. Metcalf, 214 F.3d at 1146.25. ALAMUT BASTION OF PEACE AND INFORMATION, The History of the Makah Whale

Hunt, at http://alamut.com/subj/theother/misc/makahWhaling.html (last visited Mar. 21,2001).

26. Id.27. Id.28. Metcalf, 214 F.3d at 1137.29. See Lawrence Watters & Connie Dugger, The Hunt for Gray Whales: The Dilemma

of Native American Treaty Rights and the International Moratorium on Whaling, 22 COLUM.J. ENVTL L. 319, 323 (1997).

30. Id. at 323.

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barnacles.3' Occasionally, the Makah would exhume a corpse and fasten thedismembered torso to their backs during the hunt as a gesture of respect fortheir deceased tribesmen.32

During the hunt, Makah whalers would plunge a harpoon deep into theback of a gray or humpback whale.33 After the whale died, a diver would delveinto the water and sew the whale's mouth shut, facilitating an easier hauling ofthe whale to land.34 Once the whale reached land, the meat and blubber wouldbe divided among the Makah according to a "strict tribal hierarchy. '' 35 Ahumpback whale would be almost entirely eaten, while a gray whale carcasswould be utilized for O1.36 When the first Europeans arrived in the 1700s, theMakah aggressively traded whale meat and oil, a practice that endured until themid 1800s. 37

In 1855, the Makah signed the Treaty of Neah Bay with Washingtonterritorial governor Isaac Stevens, which expressly reserved the tribe's right tohunt whales.38 After three days of negotiating, the Makah agreed to cede theirlands to the United States so long as they were guaranteed the right to huntwhales. 39 Territorial Governor Stevens presented the treaty to the Makahprotecting the right to take whales, declaring, "[T]he Great Father knows whatwhalers you are-how you go far to sea to take the whale. Far from wanting tostop you, he will help you . ,,40 Other Indian tribes have hunted whalessporadically, but the Makah are the only tribe in the United States to ask forand receive a right to hunt whales that is guaranteed by treaty.4'

Despite the guaranteed right to hunt whales, the Makah voluntarily ceasedthe practice in the 1920s to pursue the more remunerative fur seal trade.42

31. ALAMUT BASTION OF PEACE AND INFORMATION, The History of the Makah WhaleHunt, at http://www.alamut.com/subj/the-other/misc/makahWhaling.html (last visited Mar.21, 2001).

32. Id.33. Id.34. Id. (explaining that this process ensured that the whale would not fill with water

and sink while the hunters towed it back to land).35. Id.36. ALAMUT BASTION OF PEACE AND INFORMATION, The History of the Makah Whale

Hunt, at http://alamut.com/subj/the-other/rnisc/makahWhaling.html (last visited Mar. 21,2001).

37. Id.38. Treaty with the Makah, Jan. 31, 1855, U.S.-Makah, 12 Stat. 939, 939.39. Makah Whaling: Questions and Answers, at http://www.makah.com/whales.htm

(last visited Mar. 21, 2001).40. Id.41. Watters & Dugger, supra note 29, at 325.42. ALAMUT BASTION OF PEACE AND INFORMATION, The History of the Makah Whale

Hunt, at http://www.alamut.com/subj/the-other/misc/makahWhaling.htnl (last visited Mar.

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Following the decimation of the fur seal population, the Makah attempted toreturn to hunting whales.43 However, by 1915, commercial whaling depleted thegray whale population to an estimate of less than five thousand." Today, tribalelders still recollect the last hunt in the 1920s.45 These elders maintain that theyvoluntarily ceased hunting, and that they understood the Makah would resumethe practice as soon as the gray whale population recovered. 46

1. The Makah Decision to Begin Whaling Again

In 1995, after nearly eighty years of a self-imposed moratorium on whalehunting, the Makah announced the decision to restore the traditional whale huntpractice pursuant to the 1855 Treaty of Neah Bay.47 In support of their decisionto reinstate the practice, the Makah insist the importance of the tribe's historyand culture that was rooted in whaling intensified after an archeological dig in1970 revealed numerous whaling artifacts." Furthermore, many of the Makahclaim that some chronic health problems are the result of a deficiency in seafoodand whale meat.49 The Makah also hope that whaling will help build characterin their children by instilling a sense of discipline and pride.5°

The decision to restore whale hunting appears to have been driven byeconomic demands as well. After all, the tribe has had very few economicprospects without whaling. 5' "The Makah reservation is located one hundredand fifty miles northwest of Seattle and has struggled with poverty."52 As withmany other tribes, the Makah attempted to raise revenues through casinos;however, the remote location attracted few visitors.53 Once bountiful salmon

21, 2001).43. Id.44. Watters & Dugger, supra note 29, at 323.45. Id.46. Id.47. Alma Soongi Beck, Comment, The Makah 's Decision to Reinstate Whaling: When

Conservationists Clash With Native Americans Over an Ancient Hunting Tradition, 11 J.ENVTL L. & LrrIG. 359,359 (1996). The tribe overwhelmingly passed a referendum allowingwhaling to be resumed. Makah Whaling: Questions and Answers, at http:/www.makah.com/whales.htm (visited Mar. 9, 2001) (explaining that the measure passed by eighty-fivepercent).

48. Id.49. Id.50. Id.51. Watters & Dugger, supra note 29, at 324.52. Id.53. ALAMUT BASTION OF PEACE AND INFORMATION, The History of the Makah Whale

Hunt, at http:/alamut.com/subj/the-other/misc/makahWhaling.html (last visited Mar. 21,2001).

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and timber stocks are now depleted.54 Seasonal unemployment approaches fiftypercent55 and the median household income averages only $7,000 per year.5 6

The Makah also struggle with drug and alcohol abuse and a rising rate ofjuvenile crime. 7

The Makah elders contend a return to whaling will alleviate the tribe'ssubsistence and economic needs and also instill a "sense of community, self-worth and spirituality., 58 The Makah's whaling heritage is tremendouslyimportant, providing necessities such as food, clothing, and shelter and alsoserving to shape the character of the Makah.59

Unfortunately for the Makah, while the decision to begin whaling againmay serve to bolster and ignite a sense of self-worth and heritage, as well asprovide subsistence needs, it will not have the economic benefits originallycontemplated. The Tribal Council6' initially believed the whale trade would bea savior to the economic hardships plaguing the Makah since Japanese marketprices valued a gray whale carcass from anywhere between $500,000 to 1million dollars. 61 The Makah contemplated building a processing plant forwhale products, and since they hold the only legal right under a treaty to huntwhales, they knew they could monopolize the whaling industry.6

However, a management plan was adopted by the Makah in 1997, with thehelp of the federal government, which strictly prohibits the commercial sale ofwhale products, except for traditional handicrafts, including artwork, madefrom non-edible parts of the whale.63 Further, the federal government hasprohibited international trade of whale products. 64 Therefore, economicprosperity would not be realized by whaling. Nonetheless, the Makah decidedto return to the practice.

54. Watters & Dugger, supra note 29, at 324.55. Id.56. Watters & Dugger, supra note 29, at 324.57. Id.58. Id.59. Id. at 324-25.60. Makah Whaling: Questions and Answers, at httpJ/www.makah.com/whales.htm

(last visited Mar. 4, 2001) (explaining that a democratically elected five-member councilgoverns the tribe and the council recognizes that whaling is the mandate of an overwhelmingmajority of the tribe).

61. Id.62. Id.63. NORTHWEST INDIAN FISHERIES COMMISSION, Makah Management Plan For Makah

Treaty Gray Whale Hunting For The Years 1998-2002, at http://www.nwifc.wa.gov/whalingwhaleplan.html (last visited Mar. 4, 2001).

64. Id.

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2. The Road to Metcalf v. Daley

Despite the 1855 Treaty of Neah Bay, which preserved the Makah's "rightof taking fish and whaling or sealing at usual and accustomed grounds andstations, ' 65 the tribe voluntarily ceased whaling in the 1920s because copiouscommercial hunting nearly brought the whale to extinction.66 In 1946, theUnited States signed the International Convention for the Regulation ofWhaling in order "to provide for the proper conservation of whale stocks andthus make possible the orderly development of the whaling industry ... 67This regulation established the International Whaling Commission, which iscomprised of one member from each nation that signed on to the convention.68

The International Convention for the Regulation of Whaling enacted a scheduleof whaling regulations and granted the IWC the power to amend the scheduleby "adopting regulations with respect to the conservation and utilization ofwhale resources," including quotas for the maximum amount of whales thatcould be hunted in a single season.69

In 1949, Congress enacted the Whaling Convention Act to implement theInternational Convention for the Regulation of Whaling in the United States.7°

The Whaling Convention Act prohibits whaling in violation of the InternationalConvention for the Regulation of Whaling, the schedule, or any whalingregulation adopted by the Secretary of Commerce. 71 Two branches of theCommerce department, the National Oceanic and Atmospheric Administration("NOAA") and the National Marine Fisheries Service ("NMFS"), promulgateregulations to implement the provisions of the Whaling Convention Act.72

In 1946, the 1WC protected the whale population by amending the scheduleto impose a complete ban on the taking or killing of gray whales.73 However, theIWC included an "aboriginal subsistence exception" to the ban "when the meatand products of such whales are to be used exclusively for local consumption

65. Treaty with the Makah Tribe, Jan. 31, 1855, U.S.-M.T., 12 Stat. 939, 940.66. Metcalf, 214 F.3d at 1137.67. Int'l Convention for the Regulation of Whaling, Dec. 2, 1946, art. 3, 62 Stat. 1716,

1717.68. Id.69. Id. at 1718.70. 16 U.S.C. § 916 (1994).71. Id. at § 916(c).72. Id. at § 916(b); 50 C.ER. § 230.1 (2000).73. Int'l Convention for the Regulation of Whaling, supra note 67, at 1723.

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by the aborigines."74 Then, in 1970, the United States listed the gray whales asendangered under the Endangered Species Conservation Act of 1969, whichsubsequently led to the Endangered Species Act of 1973."s

Additionally, in 1993, Congress established the Olympic Coast NationalMarine Sanctuary so that Washington's marine environment would beprotected.76 While the annual gray whale migration travels through theSanctuary, a sub-population of gray whales, referred to as "summer residents,"live in the region permanently. 77 By establishing the Sanctuary, Congressprovided protection for these summer residents, which are considered a fixtureof the pristine ocean environment.78

Later that same year, however, NMFS found the North Pacific gray whalepopulation had nearly recovered to its original population size and was nolonger endangered.79 Consequently, the gray whale was removed from theendangered species list in 1994, and the Makah decided to resume hunting thegray whale during its migration through the Olympic Coast Sanctuary.80

B. Overview of Events

1. The Makah Seek Assistance from theUnited States Government

In order to resume whale hunting, the Makah sought the assistance of theUnited States government. 8' The tribe relied on the Department of Commerce,NOAA, and NMFS, and requested federal government representation in theirquest to obtain approval from the IWC to hunt up to five whales annually. 82 Ane-mail message written by a NMFS representative proved that the United Stateshad agreed to work with the Makah in obtaining an aboriginal subsistence quotafrom the IWC. 83

In 1995, NOAA prepared an evaluation of the merits surrounding theMakah request to determine whether the United States should support the five

74. Id.75. Metcalf, 214 F.3d at 1138.76. Id. at 1137.77. Id.78. Id.79. Endangered Fish and Wildlife; Gray Whale, 58 Fed. Reg. 3121, 3135 (Jan. 7,

1993).80. Metcalf, 214 F.3d at 1138.81. Id.82. Id.83. Id. at 1138.

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whales per year quota proposal. 84 However, the report was not unanimously infavor of supporting the Makah quota. On one hand, the report noted howresuming the practice would benefit the tribe, while on the other hand it statedthat granting the Makah permission to hunt could set a "dangerous precedent"for other tribes wishing to pursue whaling.85 Disregarding the possible concernsraised in the report, NOAA failed to satisfy the NEPA requirements ofpublishing a draft environmental assessment or environmental impact statementfor public comments.86

Instead, in January 1996, a NOAA representative sent an e-mail messageto other agency representatives informing them that "we now have aninteragency agreement to support the Makah's application to the IWC for awhaling quota of 5 grey [sic] whales. 87 In March 1996, NOAA entered into aformal written agreement with the Makah, which stated that "[a]fter anadequate statement of need is prepared, NOAA, through the U. S. Commissionerto the IWC, will make a formal proposal to the IWC for a quota of gray whalesfor aboriginal subsistence and ceremonial use by the Makah Tribe. ' 88

Specifically, the agreement established cooperative management for the harvestof gray whales between NOAA and the Makah by granting NOAA the right tomonitor hunts, collect specimen data, and adopt a management plan to governthe harvest.89

Following the agreement, the Makah prepared a statement of need, and theUnited States offered a formal proposal to the IWC for a quota of gray whaleswhich was presented at the annual IWC meeting in June of 1996.90 Theproposal was highly controversial and the United States ultimately realized thatit would not have the three-quarters majority required for approval, and thus theproposal was withdrawn to allow the Makah an opportunity to address thedelegates' concerns.91

In June 1997, an attorney for Australians for Animals and BEACH MarineProtection wrote to NOAA and NMFS stating the United States violated NEPAby allowing and promoting the Makah proposal before issuance of an

84. Id. at 1138-39.85. Metcalf v. Daley, 214 E2d at 1135, 1139 (9th Cir. 2000).86. Id. (explaining that NEPA is a statutory scheme in which administrative agencies

are required to evaluate the environmental impacts of agency decisions).87. Id.88. Id.89. Id.90. Metcalf v. Daley, 214 R3d 1135, 1139 (9th Cir. 2000).91. Id.

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Environmental Assessment ("EA") or Environmental Impact Statement("EIS"). 92 The NOAA Administrator responded by informing the organizationsthat an EA would be prepared, which it was.93

On October 13, 1997, NOAA entered into a new written agreement with theMakah that was nearly identical to the 1996 agreement. 94 This new agreement,however, required the Makah to "confin[e] hunting activities to the open watersof the Pacific Ocean outside the Tatoosh-Bonilla Line."95 Ostensibly, thisaddition would increase the likelihood that the Makah would only hunt themigratory whale, rather than target the Sanctuary's summer residents.96 Theagreement was signed four days later and NOAA and NMFS issued a final EAand a Finding of No Significant Impact ("FONSI"). 97 At the annual IWCmeeting, which was held one day after the final EA was issued, the UnitedStates and Russia submitted a joint proposal for a five-year quota of 620whales, allowing for the Makah to take four whales annually, and the RussianChukotka tribe to take 120 per year.98 While delegates raised questions aboutwhether the Makah qualified for the quota under the "aboriginal subsistenceexception," the quota was approved by consensus without objection.99

Consequently, NOAA issued a Federal Register Notice on April 6, 1998that set the domestic subsistence whaling quota for the year and declared thatthe Makah's subsistence and cultural needs had been recognized. " Therefore,the Makah were permitted to re-institute whale hunting pursuant to the IWCquota and the Whaling Convention Act.10'

2. The Decision is Challenged

On October 17, 1997, the same day the FONSI was released, CongressmanMetcalf, Australians for Animals, and BEACH Marine Protection filed acomplaint alleging that the federal defendants, NOAA and NMFS, had violatedNEPA. 102 Following the Makah's motion to intervene, which was granted, thecase was transferred to the Western District of Washington.10 3 The parties filed

92. Id.93. Id.94. Id.95. Metcalf v. Daley, 214 F.3d 1135, 1139-40 (9th Cir. 2000).96. Id. at 1140.97. Id.98. Id.99. Id.100. Metcalf v. Daley, 214 F.3d 1135, 1139-40 (9th Cir. 2000).101. Id.102. Id.103. Id.

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cross-motions for summary judgment on the merits, and in September 1998, thedistrict court granted the federal defendants' and the Makah's motions forsummary judgment.' 04The Plaintiffs then appealed to the Ninth Circuit Courtof Appeals.'05

C. Metcalf v. Daley: The Ninth Circuit Opinion

1. The Majority

Addressing the appropriate standard of review, the court noted thatsubstantive agency decisions concerning NEPA are to be reviewed under the"arbitrary and capricious" standard. 0 6 More specifically, the court mustdetermine if the joint decision by NOAA and NMFS was "based on aconsideration of the relevant factors," or whether their actions were "arbitrary,capricious, an abuse of discretion, or otherwise not in accordance with thelaw."'0 7 The court further noted that under this deferential standard, a courtmust defer to an agency's decision that is "fully informed and well-considered,"but it is not required to defer to a "clear error of judgment."' 8

In light of this standard of review for NEPA decisions, the majority noted,as an initial matter, that the federal government did in fact: (1) prepare an EA;(2) decide the Makah whaling proposal would not significantly affect the humanenvironment; and (3) issue a finding of no significant impact.109 However, thecourt then proceeded to address the primary issues raised by the appellants that:(a) although NOAA and NMFS ultimately prepared an EA, they violatedNEPA because they did so after having already signed two agreements tosupport the Makah proposal; (b) NEPA was also violated because the EA wasinadequate; and (c) the agencies should have ordered the preparation of an EIS,rather than issue a FONSI. '10

Addressing the first issue raised by the appellants, the majority concludedthat the appellees prepared an EA too late in the process because NOAA andNMFS had already made an irreversible commitment of resources to theMakah. " The Makah first sought assistance to obtain IWC approval from thefederal government in 1995; however, NOAA and NMFS failed to prepare an

104. Id. at 1141.105. Metcalf v. Daley, 214 E3d 1135, 1141 (9th Cir. 2000).106. Id.107. Id.108. Id.109. Id. at 1142.110. Metcalfv. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000).111. Id.

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EA until 1997. 112 During this period, the federal government and the Makahacted in conjunction to procure the gray whale quota from the IWC." 3

Furthermore, the majority noted that a year before the EA was prepared-March of 1996-NOAA contracted with the Makah, committing to not onlymake a formal proposal to the IWC on behalf of the Makah, but also to assistin the management of the harvest. 114

Having considered these facts, the majority stated that the federalgovernment failed to initiate the NEPA process "at the earliest possible tine.115Additionally, the record clearly proved that the federal government ignored thepotential environmental impacts of the proposal until long after committing toassist the Makah. 16 Therefore, the agency failed to comply with the timingrequirements of NEPA." 7

Interestingly, the majority opined that if the federal government realizedthat the whaling would significantly affect the environment, an EIS would havebeen mandatory, which may have resulted in the agency having to cancel itswritten contract with the Makah.118 Though the 1996 proposal was withdrawnbecause of insufficient support, NOAA entered into a new contract with theMakah in 1997, which was referred as having "renewed the [ 1996] cooperativeAgreement."" 9 Therefore, the court asserted that the agency made its decisionto support the Makah in 1996, prior to the preparation of the EA, and by thetime it was prepared in 1997, "the die had already been cast. 121

The majority asserted that the agency entered into a contract with theMakah that obligated them to make a proposal to the IWC for a quota and toassist in the harvest of the whales before a preparing an EA. 121 In making thisfirm commitment prior to preparing an EA, the agency neglected to take a "hardlook" at the environmental impacts of the actions, which is a violation of theNEPA.12 2 Additionally, the commitment to support the Makah proposal beforethe EA was prepared likely influenced the later agency evaluation of theenvironmental consequences of the proposal. 123 Since the first issue raised bythe appellants proved to be a clear violation of NEPA, the court chose not to

112. Id.113. Id.114. Id.115. Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000).116. Id.117. See 40 C.F.R. §§ 1501.2, 1502.5 (2000).118. Metcalf, 214 F.3d at 1144.119. Id.120. Id.121. Id. at 1145.122. Id.123. Metcalf v. Daley, 214 F.3d 1135, 1145 (9th Cir. 2000).

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address the other two issues to determine if the agency also violated NEPA bypreparing an inadequate EA or by issuing a FONSI rather than requiring thepreparation of an EIS.124

In light of the NEPA violation, the court then considered the properremedial measure. 12 The agencies argued that even if NEPA was violatedbecause the EA was prepared too late, the issue became moot since the onlyappropriate relief was to force an EA to be prepared, which had been done. 26

In contrast, the appellants contended the EA was suspect because the procedureunder which it was prepared was defective, since the agencies were predisposedto deciding the Makah proposal would not significantly affect theenvironment.

27

The majority agreed with the appellants and ordered the FONSI to be setaside."28 Although the majority considered ordering the agency to prepare anEIS, the court ultimately demanded only a new EA be prepared. 129 However, toavoid the prospect of a predisposed agency finding of no significant impact, thecourt did require the EA be "done under circumstances that ensure an objectiveevaluation free of the previous taint.' 130 The agency was ordered to actobjectively and in good faith, and if the new EA were challenged in court again,the burden of proof would fall on the agency to prove compliance. '31 Finally,the majority noted that any delay the remedy may cause would not harm theMakah since they had been without whale hunting for the past seventy years. 32

2. The Dissent

The dissent noted that the decision erred in three respects: (1) it imposeda novel version of "objectivity" that could not be objectively applied; (2) itmisinterpreted the EA timing requirement; and (3) it required a new EA whenthe old one was not found to be insufficient. 133 The dissent reasoned that the

124. Id. at 1145 n.3.125. Id. at 1146.126. Id.127. Id.128. Metcalf v. Daley, 214 F.3d 1135, 1146 (9th Cir. 2000).129. Id.130. Id.131. Id.132. Id.133. Metcalf v. Daley, 214 F.3d 1135, 1147 (9th Cir. 2000).

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federal government reconciled the two competing interests between the Makahwhaling rights and environmental preservationists in accordance with NEPA'sprocedural requirements.

134

Regarding the "objectivity" issue, the dissent noted that an agency does nothave to be impartial and may decide on a course of action prior to preparing anenvironmental assessment. 35 The dissent, acknowledging that the federalagencies prepared an EA after deciding to support the Makah proposal, 36

pointed out that the only reason any agency would prepare an EA is if theagency decided to take a general course of action.'37 Since an agency can havea preferred course of action prior to preparing an EA, the "objectivity" inquiryshould focus on the text of the EA, not on the preferences of the agency. 38

Thus, the dissent maintained that in order to show the environmental assessmentwas not objective, the plaintiffs needed to prove the assessment was incorrect,not just that the agency wanted a specific result before the assessment wasprepared. 139

As such, the dissent opined that the remedy of requiring the preparation ofa new EA is pointless unless the existing EA is proven to be substantiallyinadequate.14° Therefore, as long as the agency takes a "hard look" beforeproceeding with a proposal, it has met its NEPA requirement. 14' Even ifprepared late in the decision-making process, it would be useless to require anadditional EA if the one submitted is accurate. 142 In closing, the dissent notedthat the agencies' commitment to the Makah did not undermine the purpose ofan EA. 143 The agencies still explored alternatives, became educated about issuesthey were previously unaware existed, and implemented a well-consideredproposal. 144 Since both the district judge and the Ninth Circuit found no errorsin the old EA, the assessment was both objective and accurate, making thepreparation of a new EA an act of futility.145

As to the timing issue, the dissent stated that although a written contractwas entered into with the Makah, the federal government did not make an

134. Id. at 1146-47.135. Id. at 1147 (citing Ass'n of Pub. Agency Customers v. Bonneville Power Admin.,

126 F.3d 1158, 1185 (9th Cir. 1997)).136. Metcalf, 214 F.3d at 1147.137. Id.138. Id. at 1147-48.139. Id. at 1148.140. Id. at 1150.141. Metcalf v. Daley, 214 F.2d 1135, 1150 (9th Cir. 2000).142. Id.143. Id. at 1151.144. Id. at 1150-51.145. Id. at 1150.

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"irreversible and irretrievable commitment."146 The regulatory process requiringan EA was satisfied before the hunting began, and thus the EA was timely. 147

After all, the timing requirement only mandates that an EA be prepared beforethe Makah was permitted to begin hunting whales. 148 Despite the fact that thecontract was signed by the agency, the Makah were never entitled to hunt sincethe IWC had yet to approve of the Makah's claim of hunting whales as anaboriginal subsistence need.149 Further, an EA would be both pointless andcostly if the IWC ultimately refused the proposal. 150

III. ANALYSIS

A. National Environmental Policy Act

1. Broad Purpose and Procedure DemandStrict Adherence

On January 1, 1970, President Richard Nixon initiated "the environmentaldecade" by signing into law the National Environmental Policy Act.' 5 ' Itestablished the nation's broad environmental policy "to use all practicablemeans and measures.., to create and maintain conditions under which man andnature can exist in productive harmony, and fulfill the social, economic andother requirements of present and future generations of Americans.' 52 TheNational Environmental Policy Act does not establish substantiveenvironmental standards; instead, it mandates "action-forcing" procedures thatrequire agencies to take a "hard-look" at the environmental consequences oftheir actions. 53 The statute is primarily procedural, and agency action takenwithout following the specified procedure will be set aside. 154

The National Environmental Policy Act has a broad policy designed to"promote efforts which will prevent or eliminate damage to the environment andbiosphere and stimulate the health and welfare of man."' 155 Because this policyis procedural in nature, it is imperative that courts strictly analyze the steps

146. Metcalf v. Daley, 214 F.3d 1135, 1148 (9th Cir. 2000).147. Id.148. Id.149. Id. at 1148-49.150. Id. at 1149.151. 42 U.S.C. §4321; 42 U.S.C. § 4370(a) (1994).152. Robert F. Blomquist, Government's Role Regarding Industrial Pollution

Prevention in the United States, 29 GA. L. REV. 359 (1995); 42 U.S.C. § 4331(a) (1994).153. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989).154. Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988).155. 42 U.S.C. § 4321 (1994).

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taken by an agency and disallow decisions that are made by side-stepping theprocedural mandates. Without adherence to these procedural requirements, thepotential damage to the environment and the health and welfare of humanitylack consideration.

Beyond the broad statutory purpose, NEPA further requires all federalagencies to prepare an environmental impact statement for "major Federalactions significantly affecting the quality of the human environment.' 56 TheEIS must contain a detailed statement of environmental impacts, alternatives tothe proposed action, and any irretrievable commitments of resources. 15 7 If anagency's regulations do not categorically require the preparation of an EIS, thenthe agency must first prepare an environmental assessment to determinewhether the action will have a significant impact on the human environment. '58

An essential purpose of an EA is to provide the agency with sufficient evidencefor determining whether to prepare an EIS or to issue a finding of no significantimpact. 159

Thus, following the EA preparation, if the agency determines that its actionwill significantly affect the human environment, then an EIS must be prepared;if not, then the agency issues a FONSI. 160 If the agency decides not to preparean EIS, it must provide a "convincing statement of reasons" in the FONSI whythe environmental impacts are insignificant.' 16

In Metcalf, the agencies prepared an EA, then found that the Makahwhaling would not have a significant impact on the environment, and thereforeissued a FONSI. 62 Unless it can be clearly shown by the evidence that asignificant impact was ignored by the agency, the agency decision will likelysurvive a NEPA challenge because of strong deference to agency decisions. 163

As the Supreme Court noted in Strycker's Bay Neighborhood Council, Inc. v.Karlen, 64 "Once an agency has made a decision subject to the NEPA'sprocedural requirements, the only role for a court is to insure that the agencyhas considered the environmental consequences; it cannot 'interject itself within

156. 42 U.S.C. § 4332(2)(C) (1994).157. Id.158. 40 C.FR. § 1501.4 (1999).159. 40 C.ER. § 1508.9(a)(1) (1999).160. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.

1994); 40 C.F.R. §§ 1501.4(e)(1), 1508.9(a)(1) (1999).161. Blue Mountains BiodiversityProject v. Blackwood, 161 E3d 1208, 1211 (9th Cir.

1998) (quoting Save the Yaak Comm., 840 F.2d at 717).162. Metcalf, 214 E3d at 1140.163. See generally, Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223

(1980).164. 444 U.S. 223 (1980).

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...165the area of the discretion of the executive as to the choice of the action....

2. The Effectiveness of NEPADepends on Timing

Ultimately, NEPA's effectiveness depends on agencies incorporatingenvironmental considerations in their initial decision-making process. 6 6 Anassessment must be prepared early enough so it can serve as an importantcontribution to the decision making process and will not be used to rationalizeorjustify decisions already made. 167 As NEPA' s regulations indicate, "Agenciesshall integrate the NEPA process with other planning at the earliest possibletime to insure that planning and decisions reflect environmental values, to avoiddelays later in the process, and to head off potential conflicts.' 68 Additionally,these regulations require agencies to prepare the NEPA documents, such as anEA or an EIS, "before any irreversible and irretrievable commitment ofresources."' 169 For projects 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."' 7 °

In Save the Yaak Committee v. Block, 17 1 an EA was submitted by anagency two years after a decision had been made to construct a road that clearlyimpacted endangered and threatened species in the area. 172 The court adheredto the rule that if agencies fail to take a "hard look" at environmentalconsequences, the action will be set aside, and noted that the agency was notonly late in preparing an EA, but that the EA was not prepared to examine theenvironmental impacts at all. 73

Similarly, in the case of Metcalf v. Daley,174 the federal agency took actionto support the Makah whaling quota proposal without formally considering theenvironmental impacts and without observing the statutory mandate establishedin NEPA. Quite simply, NOAA and NMFS agreed to help the Makah obtain

165. Id. at 227-28 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).166. 40 C.F.R. §§ 1501.2, 1502.5 (1999).167. 40 C.F.R. § 1502.5.168. 40 C.F.R. § 1501.2; 40 C.F.R. § 1502.5 (stating that "[a]n agency shall commence

preparation of an [EIS] as close as possible to the time the agency is developing or ispresented with a proposal ....").

169. Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988); Envtl. Def. Fund v.Andrus, 596 F.2d 848, 852 (9th Cir. 1979).

170. Andrus, 596 F.2d at 852; 40 C.FR. § 1502.5(a) (1999).171. 840 F.2d 714 (9th Cir. 1988).172. Id. at 716.173. Id. at 717.174. 214 F.3d 1135 (9th Cir. 2000).

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IWC approval for whaling in 1995, but did not procedurally comply with thebroad purpose of NEPA and consider the ramifications on the harmony betweenpeople and their environment until 1997, when the EA was finally completed.' 75

The Makah and the federal agencies in this case failed to initiate the NEPAprocess at the earliest time to insure reflection on potential environmentalimpacts. Ostensibly, the process did not begin until after the federal governmentguaranteed an irreversible commitment of resources to support the Makahproposal. In fact, NOAA and NMFS did not actually prepare an EA until 1997,which was two years after the Makah had initially inquired about obtainingagency assistance in securing a gray whale quota from the IWC. '76

In fact, NOAA entered into a contract with the Makah a year before the EAwas prepared, agreeing to make the formal proposal for a whale quota to the1WC and to participate with the Makah in the harvest.177 Therefore, the agencydid not consider the possible environmental impacts until after making a writtencommitment in support of the Makah proposal. As the majority noted, the"point of commitment" came in March of 1996 when NOAA signed thecontract with the Makah, since at this point the agency made an irreversiblecommitment of resources, namely time and effort, in preparing the whalingproposal. 1

78

In Save the Yaak Committee, the court noted that proper timing is a centraltheme of NEPA. 179 The assessment must serve as an important contributor inthe decision making process and not simply justify a decision already made bythe agency. 180 In Save the Yaak, the Forest Service awarded a constructioncontract for the development of Porcupine Sullivan Creek Road prior topreparation of an EA. 18' The court concluded that the EA, which was eventuallyprepared, was untimely since NEPA requires planning at the earliest possibletime so decisions reflect environmental values. 182 The reason for this rule is thatagency inflexibility may occur if delay is allowed in preparing an EA becauseafter major investments of time and money are made by an agency, it is morelikely that environmental harm will be tolerated or intentionally overlooked bythe agency. 183

175. Id. at 1143.176. Id.177. Id.178. Id.179. Save the Yaak Comm., 840 F.2d at 718.180. Id.181. Id.182. Id. at 718-19.183. Id. at 718 (citing Confederated Tribes and Bands of the Yakima Indian Nation v.

FERC, 746 F2d 466, 471-72 (9th Cir. 1984)).

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Similarly, in Metcalf, the federal government complied with NEPA in anuntimely manner, which likely served to impede the degree with which theagency could reflect on environmental values. When the agency contracted withthe Makah prior to preparing the required EA, it ultimately may havecontributed to the agencies decision not to find any significant environmentalimpacts.

Since the EA was not prepared until two years after the agencies agreed tosupport the Makah proposal for a whale quota to the IWC, the agencies merelyjustified a decision that had already been made. In fact, the majority asserted theagency's prior commitment to the Makah and the concrete efforts on theirbehalf slanted the subsequent EA in favor of finding the proposal would haveno significant impact. 184 Specifically, the court remarked "[t]he longer thedefendants worked with the [t]ribe toward the end of whaling, the greater thepressure to achieve this end... [and an] EA prepared under such circumstancesmight be subject to at least a subtle pro-whaling bias.' 85 It is precisely this typeof situation that NEPA is intended to prevent by mandating an assessment ofenvironmental impacts early in the process. 186

Furthermore, the purpose of the EA was entirely undermined because the"decision to be made" was "whether to support the Makah Tribe in its effort tocontinue its whaling tradition," but in reality that decision was already made bythe contract signed in 1995.187 In addition, the presence of the contract intimatesa presumption that the agency was prepared to issue a FONSI and therebyavoid a breach of contract lawsuit. 188

Due to the contract signed with the Makah, the agency made a firmcommitment of resources prior to taking a "hard look" at the potentialenvironmental impacts in violation of the NEPA. In fact, the Ninth Circuitreached an identical decision in its 1985 Thomas v. Peterson decision.' 89 InThomas, the Forest Service desired to build a road that would support timbersales prior to drafting an EA or EIS analyzing the environmental impact of thetimber sales.' 90 The court required the Forest Service to prepare an EIS priorto deciding to accept the road construction proposal because building the roadwould swing the balance in favor of timber sales even if the sales would nothave been favorable if the two aspects were considered together. 19' Metcalf

184. See Metcalf, 214 F.3d at 1144.185. Id.186. Save the Yaak Comm., 840 F.2d at 718 (quoting 40 C.F.R. § 1502.5 (1987)).187. Metcalf, 214 F3d at 1144.188. Id.189. 753 F.2d 754 (9th Cir. 1985).190. Id. at 756-57.191. Id. at 757, 761.

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presents an exact situation, as the agencies were almost certainly influenced bythe previous commitment to the Makah proposal when it finally assessed thepossible environmental impacts two years later.

3. Agency Objectivity Heightened When NEPAProcedure Violated

Courts have noted that an agency can "formulate a proposal or evenidentify a preferred course of action before completing an EIS. 192 Even themajority noted that Metcalf in fact allows preliminary consideration of actionsand support of proposals prior to drafting an EA. 193 As the Council onEnvironmental Quality ("CEQ") has asserted, identification of a preferredagency action is encouraged to occur during the NEPA process.194

However, there is some basis in NEPA regulations for inferring that anagency's environmental assessment must be "objective."' 95 For example, inpreparing an EIS, an agency must "[r]igorously explore and objectivelyevaluate all reasonable alternatives.' 96 And, while NEPA does not require thatagency officials be "subjectively impartial," it does require that projects beobjectively evaluated. 197 In Environmental Defense Fund v. Corps ofEngineers of the United States Army, 198 the court stated:

NEPA assumes as inevitable an institutional bias within an agencyproposing a project and erects the procedural requirements of § 102 toinsure that 'there is no way [the decision-maker] can fail to note the factsand understand the very serious arguments advanced by the plaintiff if hecarefully reviews the entire environmental impact statement." 9 9

Agency objectivity is absolutely thwarted in a case like Metcalf where thedefendants already made an "irreversible and irretrievable commitment ofresources" by contracting with the Makah before the EA was prepared.2 ° The

192. Ass'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d1158, 1185 (9th Cir. 1997).

193. Metcalf, 214 F.3d at 1145.194. 40 C.F.R. § 1502.14(a) (1999).195. 42 U.S.C. § 4332(2)(D) (1994); 40 C.F.R. § 1502.14(a).196. 40C.F.R. § 1502.14(a).197. See generally Envtl. Def. Fund, Inc. v. Corps of Eng'rs of the U.S. Army, 470 F.2d

289, 295 (8th Cir. 1972).198. 470 F.2d 289 (8th Cir. 1972).199. Id. at 295 (quoting Envtl. Def. Fund v. Corps of Eng'rs of the U.S. Army, 342 F.

Supp. 1211, 1218 (E.D. Ark. 1972)).200. Metcalf, 214 F.3d at 1145.

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EA prepared two years after the agency contracted to support the Makah lacksall notions of objectivity since the agencies were slanted toward favoring thedecision they had already made.2°'

The dissent argued that to illustrate an EA's lack of objectivity, anindividual must prove the assessment is incorrect, not simply that the agencyplanned a certain outcome when it prepared the EA.2°2 In fact, in Associationof Public Agency Customers v. Bonneville Power Administration,20 3 the NinthCircuit held that agency impartiality is not required and it may decide on acourse of action before preparing an EA because institutional bias does notvitiate objectivity if the EA is without error.2°4

The problem with this interpretation is that it would completely invalidateand render ineffectual NEPA's procedural requirement that agencies integrateNEPA at the "earliest possible time" to insure decisions reflect environmentalvalues and avoid delays later in the process.205 In fact, this manner ofinterpreting agency action would insure that delays do occur later in theprocess, since proposals will be accepted by agencies before and withoutconsideration of environmental values. A post hoc analysis for "correctness" ofan EA would encourage an agency to commit to a proposal first and then dealwith potential environmental problems only if they arise later in the process.The National Environmental Policy Act would no longer be procedural innature. In fact, it would become inherently substantive as courts would simplyanalyze the propriety of an agency action in the end, rather than enforce thetiming requirement of an EA early in the process. The National EnvironmentalPolicy Act is clearly designed to compel agencies to consider how "man andnature can exist in productive harmony ' 206 at the "earliest possible time, '' 20 7 notafter an agency has already made a commitment to act or when anenvironmental problem occurs.

Ultimately, the Metcalf majority is correct in noting a difference betweenrequiring an agency official to be subjectively impartial and requiring "projectsto be objectively evaluated. ' 20 8 Courts have remarked that NEPA recognizesagency officials will wield bias when considering proposals, which is exactlywhy NEPA must be initiated early to guarantee the agency understands and

201. Id.202. Id. at 1147.203. 126 F.3d 1158 (9th Cir. 1997).204. Ass'n of Pub. Ag. Customers, 126 F.3d at 1175.205. See 40 C.FR. § 1501.2 (1987).206. 42 U.S.C. § 4331(a) (1994).207. 40 C.F.R. § 1501.2 (1999).208. Metcalf, 214 F.3d at 1142.

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contemplates the important countervailing viewpoints.2 9 Alternative coursesof action need to be introduced early to allow the agency to make anenvironmentally informed decision.

4. Proper Remedy Requires an EIS

The majority made an ineffectual and wasteful decision by requiring onlythat a new EA be prepared. The court relied on a similar case, Realty IncomeTrust v. Eckerd,21 in which the Administrator of General ServicesAdministration failed to prepare an EIS before a construction project wasproposed to Congress in violation of the timing requirement in NEPA.'Nonetheless, the court refused to remand the case to the district court despiteimproper timing in the preparation of an EIS because in all other respects, theEIS was adequate.212 While the timing of the EIS was in violation of NEPA, thesubstance of the EIS was sufficient and the court determined that theconstruction project could proceed because "equity should not require the doingof a vain or useless thing. '21 3 Furthermore, the Eckerd court held that reliefunder NEPA "must be tailored to remedy the particular violations in the case;courts will not issue injunctions under NEPA only as prophylactic or punitivemeasures."

214

However, Eckerd also noted that at the time the project was proposed toCongress, the agency made no "irrevocable commitments" concerning thebuilding. 25 All parties admitted the EIS was adequate and it was not a situationwhere a project needed to be stopped so that an initial NEPA analysis could beprepared so that unknown environmental consequences or better alternativescould be revealed.216

Unlike Eckerd, the environmental advocacy groups in Metcalf specificallycontended the EA was defective because the agency was "predisposed to findingthe Makah whaling proposal would not significantly affect the environment. "217

This substantive challenge to the adequacy of the EA was a factor not presentin Eckerd, and thus requiring the agency to prepare another environmentalassessment was neither vain nor useless.

209. Envtl. Def. Fund, 342 F Supp. at 1217-18.210. 564 F.2d 447 (D.C. Cir. 1977).211. Id. at449.212. Id. at 457.213. Id. at 458.214. Id. at 456.215. Realty Income Trust v. Eckerd, 564 F.2d 447, 455 (D.C. Cir. 1977).216. Id. at 457.217. Metcalf, 214 F.3d at 1150.

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In fact, the majority should have required the agency to prepare not simplya new and objective EA, but a complete EIS. The majority considered thisremedial measure, but elected to simply require a new EA.218 Requiring an EISwould have been appropriate in light of the evasive tactics of the agency tobypass NEPA's procedural mandates. In Metcalf, requiring an EIS would haveforced the agency to analyze objectively the impacts of the whaling proposal,as well as consider the alternatives.

B. Unintended Repercussions

The National Environmental Policy Act requires that an agency prepare anEIS for "major Federal actions significantly affecting the quality of the humanenvironment., 219 Agencies have discretion in defining the scope of an EIS, butthere are situations in which an agency is required to consider several relatedactions in a single EIS. ° Arguably, the Makah proposal will result in severalrelated actions that may together create a significant impact on the humanenvironment.

The Council on Environmental Quality ("CEQ") regulations requirecumulative actions be considered together in a single EIS. 22 1 "Cumulativeactions" are defined as actions "which when viewed with other proposed actionshave cumulatively significant impacts. ''222 The Makah whaling proposal to theIWC was submitted as a joint proposal with the Russian Federation whorepresented the Chukotka Tribe for a total of 620 whales to be taken over fiveyears.223 Although, this joint proposal will ultimately have only a minimalimpact on the gray whale population, many are concerned about therepercussions that the Makah decision could have for whale populationsglobally.

224

In particular, many conservationists fear the Makah whale hunts will leadto a decision by other countries to resume commercial whaling.225 For example,Japan has made repeated requests to the IWC for small-type coastal whaling,a practice Japan does not claim is for "aboriginal subsistence," but has beentraditionally carried out by small villages that have whale hunting traditions.226

218. Id. at 1146.219. 42 U.S.C. § 4332(2)(C) (1994).220. Kieppe v. Sierra Club, 427 U.S. 390, 409-10, 412-14 (1976).221. 40 C.F.R. § 1508.25(a)(2) (1999).222. Id.223. Metcalf, 214 F.3d at 1140.224. Beck, supra note 47, at 362.225. Id.226. Id. at 390.

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Japan has taken advantage of the IWC before, by conducting commercialwhaling expeditions after gaining permission to hunt whales for scientificpurposes.227 During these "scientific research" expeditions, the Japanese havetaken large numbers of whales, performed minimal research, if any, and thensold the meat for considerable profit.228 Despite Japan's insistence that itsmotives for taking whales are scientific, the IWC is certain the practice is aguise for commercial whaling.229

Norway is another country that disapproves of the IWC whalingmoratorium and announced a return to commercial whaling in 1993 .230 TheNorwegians hunt only minke whales and use the meat only for domesticpurposes .23 'The whale meat is used only for human consumption and serves asa staple of the traditional Norwegian diet. 2

In response to the actions of Japan and Norway, the IWC has only managedto "symbolically condemn" the countries' behavior.233 The condemnations occurevery year at the IWC convention, but do not effect Japan and Norway becausethe Commission has no ability to enforce its message.23

' As such, manyconservationists fear that continued Makah whale hunts will encouragecountries like Japan and Norway to continue commercial whaling and alsoinvite other nations, like the British Columbian tribes, to rekindle their whalingtraditions.235 Following a Makah hunt on May 17, 1999, Congressman Metcalfissued a statement asserting that he "was deeply disturbed to learn that theMakah tribe killed a grey [sic] whale this morning. These majestic, highlyintelligent creatures deserve better than to be brutally slaughtered as pawns ina political game being orchestrated by Japanese and Norwegian whalinginterests. Today's hunt is a victory for Japan and Norway ....236

Ultimately, the joint proposal by the Makah and the Chukotka Tribes toreinstate whaling could have a cumulative significant impact on the humanenvironment. While the connection between the Makah proposal for five whalesa year and global commercial whaling may be rather tenuous, the excessiveglobal whaling argument is not implausible. An EIS would force the federal

227. Jeffery D. Lindemann, The Dilemma of the International Whaling Commission:The Loophole Provisions of the Commission vs. the World Conscience, 7 D.C. L.J. INT'L L.& PRAC. 491, 493 (1998).

228. Id. at 493-94.229. Suhre, supra note 3, at 313.230. Id.231. Id.232. Id. at 314.233. Id. at 317.234. Suhre, supra note 3, at 317.235. Beck, supra note 47, at 390.236. Id.

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government to analyze on a global scale the impact of the whaling proposal onthe human environment. This would truly conform to the broad purpose ofNEPA to promote "conditions under which man and nature can exist inproductive harmony.,

237

C. Practical Effects of the Decision

After being granted the authority to resume whale hunts, and deciding to acton that authority, the Makah have encountered intense opposition every time ahunt is planned. As reported by KOMO 4 News in Seattle in November of1998, the Makah tribal police arrested four protestors who taunted people onthe Makah Indian Reservation.238 One of the protestors, who was bleeding fromhis head, claimed tribal officers pushed him down before taking him intocustody.239 Meanwhile, a riot on the waterfront ensued, in which rocks werehurled at the protestors' ship, the Sea Shepherd, which was camped in NeahBay for over a month anticipating the Makah hunt.24°

Furthermore, in a piece entitled "Open Letter to Every Makah" that wasprinted in the Peninsula Daily News of Port Angeles, the Makah were urged toconsider not whaling in exchange of the goodwill of "individuals and groupsinterested in contributing to projects that improve the quality of life and self-sufficiency of all Makah. ' '241 There have also been reports of internal disputesamongst the Makah members themselves. One tribal elder, Alberta Thompson,was vehemently opposed to the actions of her tribe and decision to beginwhaling again.242 Her position has caused her not only to be isolated from thetribe, but even has resulted in threats, harassment, and the killing of her dog.243

With this type of extensive internal and public disdain for the practice, onehas to wonder if the Makah should continue to hunt the gray whale. Since thelast reported whale hunt occurred in the 1920s,244 it is difficult for many to

237. 42 U.S.C. §4331(a) (1994).238. KOMO 4 News, Anti-Whale Protests Bring Arrests, Nov. 1, 1998, available at

http'/.www.geocitites.com/Yosemite7431/riots.htm (visited Mar. 22, 2001).239. Id.240. Makah Whaling News and Info Pages, at http://www.geocities.com/Yosenmite/

17431/riots.htm (last visited Mar. 5, 2001).241. Peggy Andersen, Makahs to Consider Compensation Offer, Associated Press, Nov.

2, 1998, at http'/seattletimes.nwsource.com/news/local/htm/98/maka_113098.html (lastvisited Mar. 22, 2001).

242. Lynda V. Mapes, Anti-Whaling Protesters Scuffle With Makahs, SEATrLE TIMES,

Nov. 2, 1998, available at http://www.seattletimes.nwsource.com/news/local/htm98/whal_110298.html (last visited Mar. 22, 2001).

243. Id.244. Watters & Dugger, supra note 29, at 323.

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understand how the Makah need the whales for aboriginal subsistence purposes.Despite the Treaty of 1855, it is unlikely that the Makah are truly dependentupon the gray whale for subsistence, especially since the tribe is surviving eventhough the practice stopped eighty years ago. Undoubtedly, the debate willremain intense and animal rights protestors and environmental activists willcontinue to protest every time the Makah endeavor to hunt their allotted fivewhales annually.

While the Makah hunts will have only a slight impact on the whalepopulation, other nations, such as Japan and Norway, desire to resumecommercial whaling in totality with little regard for the environmentalimplications. Hopefully, by having to prepare a new and objective EA, thefederal government and the Makah will consider the potential globalenvironmental impacts of the decision to resume whaling.

IV. CONCLUSION

The decision in Metcalf simply reinforces the procedural nature of theNational Environmental Protection Act. The decision was in accordance withthe essential purpose of NEPA to provide a manner by which humans andnature can co-exist in productive harmony.245 In order to preserve this goal, anagency must be forced to consider the potential environmental impacts prior tocommitting to a course of action. An agency may initially decide to support orreject an action upon receiving a proposal, but an assessment of the action mustbe performed to determine if that initial decision is proper. An assessment canpotentially change the view an agency originally had upon reading a proposal.This is the very nature of NEPA, which requires agencies to take a "hard-look"at environmental consequences at the earliest time.246

Under the Treaty of Neah Bay, the Makah were granted their right to huntwhales. But in seeking out the assistance of federal agencies to invoke this right,certain procedures, such as preparing an Environmental Assessment, must besufficiently complied with. An EA prepared two years after the agencycommitted to assist the Makah is neither proper under the statutory mandate ofNEPA, nor under Ninth Circuit case law. Requiring the agency to prepare anew EA is an adequate remedy, but the court should have required thepreparation of a full Environmental Impact Statement since the agency actionswere clearly intended to avoid and bypass the procedural mandates of NEPA.Ultimately, however, Metcalf v. Daley preserved the broad purpose andprocedural requirements of NEPA and ensured that environmental impacts areconsidered early in an agency's decision-making process.

245. See 42 U.S.C. § 4331(a) (1994).246. Save the Yaak Comm., 840 F.2d at 717.

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