Metcalf V. Daley: the Makah Get Harpooned by NEPA

Metcalf v. Daley: The Makah Get Harpooned by NEPA Thomas P. Rowland* TABLE OF CONTENTS I. INTRODUCTION ..................................... 395 II. THE MAKAH AND WHALING ........................... 398 A. Brief History ................................... 398 1. The Makah Decision to Begin Whaling Again ......... 400 2. The Road to Metcalf v. Daley ..................... 402 B. Overview of Events ............................... 403 1. The Makah Seek Assistance from the United States Government ............................. 403 2. The Decision is Challenged ...................... 405 C. Metcalf v. Daley: The Ninth Circuit Opinion ............ 406 1. The M ajority ................................. 406 2. The D issent .................................. 408 I1. A NALYSIS ......................................... 410 A. National EnvironmentalPolicy Act ................... 410 1. Broad Purpose and Procedure Demand Strict Adherence .............................. 410 2. The Effectiveness of NEPA Depends on Timing ....... 412 3. Agency Objectivity Heightened When NEPA Procedure Violated ............................. 415 4. Proper Remedy Requires an EIS ................... 417 B. Unintended Repercussions ......................... 418 C. PracticalEffects of the Decision ..................... 420 IV. CONCLUSION ..................................... 421 1. INTRODUCTION Americans began to hunt whales in the eighteenth century.' Only a century later, 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 the editorial staff of the Gonzaga Law Review for its commitment to excellence. 1. Cliff M. Stein, Comment, Whales Swim for Their Lives as CaptainAhab Returns in a Norwegian Uniform: An Analysis of Norway's Decision to Resume Commercial Whaling, 8 TEMP. INT'L & COMP. L.J. 155, 159 (1994). GONZAGA LAW REVIEW [Vol. 36:2 depleted the whale population to extinction.2 Although whales were a critical source of oil for Americans, the practice of whaling stopped when the United States tapped the petroleum industry as an alternate source of oil.3 While the United States hunted whales rather recently for a fairly brief period, other cultures began hunting whales thousands of years ago,4 using the whale for food, oil, clothing, and tools. 5 One such culture that began whale hunting thousands of years before the Americans is the Makah Tribe, located along the Olympic Peninsula in the northwestern corner of Washington State.6 The whale hunt is an ancient Makah tradition.7 Gray and humpback whales once provided up to eighty percent of the tribe's subsistence needs and the strenuous training and preparation demanded an entire community effort.8 The practice of commercial whaling was placed under a moratorium by the International Whaling Commission ("IWC") in 1986.9 This moratorium created a conflict, since the Makah were guaranteed the "right of taking fish and of whaling" under the 1855 Treaty of Neah Bay ("Treaty")10 signed by the United States." The Treaty recognizes the Makah's sovereign rights and is treated as 2 an agreement between the United States and a foreign nation. 1 However, the Makah voluntarily ceased all whale hunts around 1920 because commercial practices 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 as 1500 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 than a 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 Whale Hunt, 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-EndangeredSpecies 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 Whale Hunt, at http://www.alamut.com/subj/the-other/miscmakahWhaling.html (last visited Mar. 2000/01] THE MAKAH caused the United States to list the gray whale as endangered under the Endangered Species Conservation Act of 1969, which led to the Endangered Species Act of 1973 ("ESA").14 However, in 1994, the gray whale was removed from the endangered species list, and the Makah decided to reinstate the traditional practice of hunting with the assistance of the United States government.15 In 1997, the Makah obtained permission from the IWC to resume harvesting up to five whales per year. 16 A number of groups, including Congressman Jack Metcalf of Washington, responded by filing a complaint against the federal government, alleging a violation of the National Environmental Policy Act ("NEPA").17 Thus, in Metcalfv. Daley,18 the Ninth Circuit endeavored to clarify how critical NEPA procedural requirements are when an agency's proposed course of action may potentially have significant impacts on the environment. 9 The Ninth Circuit held that an agency must prepare an objective environmental assessment before making an irrevocable commitment of resources.2° The Ninth Circuit ruling was correct. The court based its decision on the congressional purpose behind NEPA: to prevent environmental damage and to 2 promote harmony between humans and the environment. 1 The National Environmental Policy Act does not set forth substantive environmental standards.22 Rather, it establishes strict procedures that force agencies to take a "hard look' at environmental consequences at the "earliest possible time" so that potential environmental impacts can be considered.23 In a well-reasoned opinion, the majority applied the facts of the Makah case to the prior interpretations 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 from Washington 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). GONZAGA LAW REVIEW [Vol. 36:2 Makah in obtaining a whaling quota proposal to prepare a new and objective environmental assessment.24 In analyzing the Ninth Circuit's ruling in Metcalf v. Daley, this Note will first provide a brief history of the Makah tribe and the importance of whaling to the Makah community. After examining the historical underpinnings of the Makah and their whaling tradition, this Note will provide a synopsis of the factual and procedural history of Metcalf v. Daley. Finally, this Note will analyze the ruling by the Ninth Circuit as it applied NEPA and the pertinent case law to assess the soundness and immediate effects of the decision. II. THE MAKAH AND WHALING A. BriefHistory It is unclear how long the Makah have hunted whales. Archeological deposits and evidence indicate the practice dates back at least two thousand27 years. 26 Makah elders contend that whale hunts have occurred "forever. Available history makes clear that the Makah have traditionally targeted the California gray whale, which migrates annually between the North Pacific and the coast of Mexico.28 Whaling has provided up to eighty percent of the Makah's subsistence needs for the five family tribes that constitute the Makah nation.29 In preparation for a whale hunt, the Makah community would undergo a rigorous training ritual.3° In anticipation of a hunt, tribesmen would immerse themselves in 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 Huntfor Gray Whales: The Dilemma ofNative American Treaty Rights and the InternationalMoratorium on Whaling, 22 COLUM. J. ENVTL L. 319, 323 (1997). 30. Id. at 323. 2000/01] THE MAKAH barnacles.3' Occasionally, the Makah would exhume a corpse and fasten the dismembered torso to their backs during the hunt as a gesture of respect for their deceased tribesmen.32 During the hunt, Makah whalers would plunge a harpoon deep into the back of a gray or humpback whale.33 After the whale died, a diver would delve into the water and sew the whale's mouth shut, facilitating an easier hauling of the whale to land.34 Once the whale reached land, the meat and blubber would be divided among the Makah according to a "strict tribal hierarchy.'' 35 A humpback whale would be almost entirely eaten, while a gray whale carcass would be utilized for O1.36 When the first Europeans arrived in the 1700s, the Makah aggressively traded whale meat and oil, a practice that endured until the mid 1800s.

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