Metcalf v. Daley

No. 98-36135 (214 F.3d 1135) (9th Cir. June 9, 2000)

ELR Digest

The court reverses a district court and holds that the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service, and other federal defendants violated the National Environmental Policy Act (NEPA) by preparing an untimely and inadequate environmental assessment (EA) and then failing to prepare an environmental impact statement when they granted the Makah Indian Tribe of Washington State authorization to resume whaling. NOAA entered an agreement with the Makah to support a proposal to the International Whaling Commission for a quota of gray whales for subsistence and ceremonial use by the Makah Tribe. After making this commitment to the tribe, NOAA then issued a final EA and a finding of no significant impact (FONSI).

The court first holds that by making such a firm commitment to the tribe before preparing an EA, the federal defendants failed to take a hard look at the environmental consequences of their actions and, therefore, violated NEPA. The federal defendants did not engage the NEPA process 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. Additionally, it is highly likely that because of the federal defendants prior written commitment to the Makah and the concrete efforts on their behalf, the EA was slanted in favor of finding that the Makah whaling proposal would not significantly affect the environment. Therefore, the court instructs the district court to direct the federal defendants to set aside the FONSI, suspend implementation of the agreement with the tribe, begin the NEPA process afresh, and prepare a new EA.

The full text of this opinion is available from ELR (35 pp., ELR Order No. L-235).

Counsel for Plaintiffs
Jonathan R. Lovvorn
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendants
Robert H. Oakley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20637]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]