Metcalf v. Daley: The Makah Get Harpooned by NEPA

Thomas P. Rowland*

TABLE OF CONTENTS

I. INTRODUCTION ...... 395 II. THE MAKAH AND ...... 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 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., 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. 37 In 1855, the Makah signed the Treaty of Neah Bay with Washington territorial governor Isaac Stevens, which expressly reserved the tribe's right to hunt whales.38 After three days of negotiating, the Makah agreed to cede their lands to the United States so long as they were guaranteed the right to hunt whales. 39 Territorial Governor Stevens presented the treaty to the Makah protecting the right to take whales, declaring, "[T]he Great Father knows what whalers you are-how you go far to sea to take the whale. Far from wanting to stop you, he will help you . ,,40 Other Indian tribes have hunted whales sporadically, but the Makah are the only tribe in the United States4 to ask for and receive a right to hunt whales that is guaranteed by treaty. ' Despite the guaranteed right to hunt whales, the Makah voluntarily ceased the 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 Whale Hunt, 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. GONZAGA LAW REVIEW [Vol. 36:2

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

1. The Makah Decision to Begin Whaling Again

In 1995, after nearly eighty years of a self-imposed moratorium on whale hunting, the Makah announced the decision to restore the traditional whale hunt practice pursuant to the 1855 Treaty of Neah Bay.47 In support of their decision to reinstate the practice, the Makah insist the importance of the tribe's history and culture that was rooted in whaling intensified after an archeological dig in 1970 revealed numerous whaling artifacts." Furthermore, many of the Makah claim that some chronic health problems are the result of a deficiency in seafood and whale meat. 49 The Makah also hope that whaling will help build character in their children by instilling a sense of discipline and pride.5° The decision to restore whale hunting appears to have been driven by economic demands as well. After all, the tribe has had very few economic prospects without whaling. 5' "The Makah reservation is located one hundred and fifty miles northwest of and has struggled with poverty."52 As with many 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 allowing whaling 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-five percent). 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). 2000/01 ] THE MAKAH and timber stocks are now depleted.54 Seasonal unemployment approaches fifty 5 6 percent55 and the median household income averages only $7,000 per year. The Makah also struggle with drug and alcohol abuse and a rising rate of juvenile crime. 7 The Makah elders contend a return to whaling will alleviate the tribe's subsistence and economic needs and also instill a "sense of community, self- worth and spirituality., 58 The Makah's whaling heritage is tremendously important, providing necessities such as food, clothing, and shelter and also serving to shape the character of the Makah.59 Unfortunately for the Makah, while the decision to begin whaling again may serve to bolster and ignite a sense of self-worth and heritage, as well as provide subsistence needs, it will not have the economic benefits originally contemplated. The Tribal Council6' initially believed the whale trade would be a savior to the economic hardships plaguing the Makah since Japanese market prices valued a gray whale carcass from anywhere between $500,000 to 1 million dollars. 61 The Makah contemplated building a processing plant for whale products, and since they hold the only legal right under a 6treaty to hunt whales, they knew they could monopolize the whaling industry. However, a management plan was adopted by the Makah in 1997, with the help of the federal government, which strictly prohibits the commercial sale of whale products, except for traditional handicrafts, including artwork, made from non-edible parts of the whale.63 Further, the federal government has prohibited international trade of whale products. 64 Therefore, economic prosperity would not be realized by whaling. Nonetheless, the Makah decided to 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 council governs the tribe and the council recognizes that whaling is the mandate of an overwhelming majority of the tribe). 61. Id. 62. Id. 63. NORTHWEST INDIAN FISHERIES COMMISSION, Makah ManagementPlan ForMakah Treaty Gray Whale Hunting For The Years 1998-2002, at http://www.nwifc.wa.gov/whaling whaleplan.html (last visited Mar. 4, 2001). 64. Id. 402 GONZAGA LAW REVIEW [Vol. 36:2

2. The Road to Metcalf v. Daley

Despite the 1855 Treaty of Neah Bay, which preserved the Makah's "right of taking fish and whaling or sealing at usual and accustomed grounds and stations, ' 65 the tribe voluntarily ceased whaling in the 1920s because copious commercial hunting nearly brought the whale to extinction.66 In 1946, the United States signed 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 ... 67 This regulation established the International Whaling Commission, which is comprised of one member from each nation that signed on to the convention.68 The International Convention for the Regulation of Whaling enacted a schedule of whaling regulations and granted the IWC the power to amend the schedule by "adopting regulations with respect to the conservation and utilization of whale resources," including quotas for the maximum amount of whales that could be hunted in a single season.69 In 1949, Congress enacted the Whaling Convention Act to implement the International Convention for the Regulation of Whaling in the United States.7° The Whaling Convention Act prohibits whaling in violation of the International Convention for the Regulation of Whaling, the schedule, or any whaling regulation adopted by the Secretary of Commerce. 71 Two branches of the Commerce department, the National Oceanic and Atmospheric Administration ("NOAA") and the National Marine Fisheries Service ("NMFS"), promulgate regulations to implement the provisions of the Whaling Convention Act.72 In 1946, the 1WC protected the whale population by amending the schedule to impose a complete ban on the taking or killing of gray whales.73 However, the IWC included an "aboriginal subsistence exception" to the ban "when the meat and 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. 2000/01] THE MAKAH by the aborigines."74 Then, in 1970, the United States listed the gray whales as endangered under the Endangered Species Conservation Act of 1969, which subsequently led to the Endangered Species Act of 1973."s Additionally, in 1993, Congress established the Olympic Coast National Marine Sanctuary so that Washington's marine environment would be protected.76 While the annual gray whale migration travels through the Sanctuary, a sub-population of gray whales, referred to as "summer residents," live in the region permanently. 77 By establishing the Sanctuary, Congress provided protection for these summer residents, which are considered a fixture of the pristine ocean environment.78 Later that same year, however, NMFS found the North Pacific gray whale population had nearly recovered to its original population size and was no longer endangered.79 Consequently, the gray whale was removed from the endangered species list in 1994, and the Makah decided to resume hunting80 the gray whale during its migration through the Olympic Coast Sanctuary.

B. Overview of Events

1. The Makah Seek Assistance from the United States Government

In order to resume whale hunting, the Makah sought the assistance of the United States government. 8' The tribe relied on the Department of Commerce, NOAA, and NMFS, and requested federal government representation in their quest to obtain approval from the IWC to hunt up to five whales annually. 82 An e-mail message written by a NMFS representative proved that the United States had agreed to work with the Makah in obtaining an aboriginal subsistence quota 83 from the IWC. In 1995, NOAA prepared an evaluation of the merits surrounding the Makah 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. GONZAGA LAW REVIEW [Vol. 36:2 whales per year quota proposal. 84 However, the report was not unanimously in favor of supporting the Makah quota. On one hand, the report noted how resuming the practice would benefit the tribe, while on the other hand it stated that granting the Makah permission to hunt could set a "dangerous precedent" for other tribes wishing to pursue whaling.85 Disregarding the possible concerns raised in the report, NOAA failed to satisfy the NEPA requirements of publishing a draft environmental assessment or environmental impact statement for public comments.86 Instead, in January 1996, a NOAA representative sent an e-mail message to other agency representatives informing them that "we now have an interagency agreement to support the Makah's application to the IWC for a whaling quota of 5 grey [sic] whales. 87 In March 1996, NOAA entered into a formal written agreement with the Makah, which stated that "[a]fter an adequate statement of need is prepared, NOAA, through the U. S. Commissioner to the IWC, will make a formal proposal to the IWC for a quota of gray whales' 88 for aboriginal subsistence and ceremonial use by the Makah Tribe. Specifically, the agreement established cooperative management for the harvest of gray whales between NOAA and the Makah by granting NOAA the right to monitor hunts, collect specimen data, and adopt a management plan to govern the harvest.89 Following the agreement, the Makah prepared a statement of need, and the United States offered a formal proposal to the IWC for a quota of gray whales which was presented at the annual IWC meeting in June of 1996.90 The proposal was highly controversial and the United States ultimately realized that it would not have the three-quarters majority required for approval, and thus the proposal was withdrawn to allow the Makah an opportunity to address the delegates' concerns.91 In June 1997, an attorney for Australians for Animals and BEACH Marine Protection wrote to NOAA and NMFS stating the United States violated NEPA by 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. 2000/01] THE MAKAH

Environmental Assessment ("EA") or Environmental Impact Statement ("EIS"). 92 The NOAA Administrator responded by informing the organizations that an EA would be prepared, which it was.93 On October 13, 1997, NOAA entered into a new written agreement with the Makah that was nearly identical to the 1996 agreement. 94 This new agreement, however, required the Makah to "confin[e] hunting activities to the open waters of the Pacific Ocean outside the Tatoosh-Bonilla Line."95 Ostensibly, this addition would increase the likelihood that the Makah would only hunt the migratory whale, rather than target the Sanctuary's summer residents.96 The agreement was signed four days later and NOAA and NMFS issued a final EA and a Finding of No Significant Impact ("FONSI"). 97 At the annual IWC meeting, which was held one day after the final EA was issued, the United States and Russia submitted a joint proposal for a five-year quota of 620 whales, allowing for the Makah to take four whales annually, and the Russian Chukotka tribe to take 120 per year.98 While delegates raised questions about whether the Makah qualified for the quota under the "aboriginal subsistence exception," the quota was approved by consensus without objection.99 Consequently, NOAA issued a Federal Register Notice on April 6, 1998 that set the domestic subsistence whaling quota for the year and declared that the Makah's subsistence and cultural needs had been recognized. " Therefore, the Makah were permitted to re-institute whale hunting pursuant to the IWC quota and the Whaling Convention Act.10'

2. The Decision is Challenged

On October 17, 1997, the same day the FONSI was released, Congressman Metcalf, Australians for Animals, and BEACH Marine Protection filed a complaint alleging that the federal defendants, NOAA and NMFS, had violated NEPA. 102 Following the Makah's motion to intervene, which was granted, the case 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. GONZAGA LAW REVIEW [Vol. 36:2 cross-motions for summary judgment on the merits, and in September 1998, the district court granted the federal defendants' and the Makah's motions for summary judgment.' 04The Plaintiffs then appealed to the Ninth Circuit Court of Appeals.'05

C. Metcalf v. Daley: The Ninth Circuit Opinion

1. The Majority

Addressing the appropriate standard of review, the court noted that substantive agency decisions concerning NEPA are to be reviewed under the "arbitrary and capricious" standard. 0 6 More specifically, the court must determine if the joint decision by NOAA and 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 the law."'0 7 The court further noted that under this deferential standard, a court must 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 human environment; and (3) issue a finding of no significant impact.109 However, the court then proceeded to address the primary issues raised by the appellants that: (a) although NOAA and NMFS ultimately prepared an EA, they violated NEPA because they did so after having already signed two agreements to support the Makah proposal; (b) NEPA was also violated because the EA was inadequate; 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 concluded that the appellees prepared an EA too late in the process because NOAA and NMFS had already made an irreversible commitment of resources to the Makah. " The Makah first sought assistance to obtain IWC approval from the federal 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. 2000/01] THE MAKAH

EA until 1997. 112 During this period, the federal government and the Makah acted 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 only make a formal proposal to the IWC on behalf of the Makah, but also to assist in the management of the harvest. 114 Having considered these facts, the majority stated that the federal government failed to initiate the NEPA process "at the earliest possible tine.115 Additionally, the record clearly proved that the federal government ignored the potential environmental impacts of the proposal until long after committing to assist the Makah. 16 Therefore, the agency failed to comply with the timing requirements of NEPA." 7 Interestingly, the majority opined that if the federal government realized that the whaling would significantly affect the environment, an EIS would have been mandatory, which may have resulted in the agency having to cancel its written contract with the Makah.118 Though the 1996 proposal was withdrawn because of insufficient support, NOAA entered into a new contract with the Makah in 1997, which was referred as having "renewed the [ 1996] cooperative Agreement."" 9 Therefore, the court asserted that the agency made its decision to support the Makah in 1996, prior to the preparation of the 1EA,2 and by the time it was prepared in 1997, "the die had already been cast. 1 The majority asserted that the agency entered into a contract with the Makah that obligated them to make a proposal to the IWC for a quota and to assist in the harvest of the whales before a preparing an EA. 121 In making this firm commitment prior to preparing an EA, the agency neglected to take a "hard look" at the environmental impacts of the actions, which is a violation of the NEPA.12 2 Additionally, the commitment to support the Makah proposal before the EA was prepared likely influenced the later agency evaluation of the environmental consequences of the proposal. 123 Since the first issue raised by the 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). GONZAGA LAW REVIEW [Vol. 36:2 address the other two issues to determine if the agency also violated NEPA by preparing an inadequate24 EA or by issuing a FONSI rather than requiring the preparation of an EIS.1 In light of the NEPA violation, the court then considered the proper remedial measure. 12 The agencies argued that even if NEPA was violated because the EA was prepared too late, the issue became moot since the only26 appropriate relief was to force an EA to be prepared, which had been done. In contrast, the appellants contended the EA was suspect because the procedure under which it was prepared was defective, since the agencies were predisposed to deciding 2the7 Makah proposal would not significantly affect the environment. The majority agreed with the appellants and ordered the FONSI to be set aside."28 Although the majority considered ordering the agency to prepare an EIS, the court ultimately demanded only a new EA be prepared. 129 However, to avoid the prospect of a predisposed agency finding of no significant impact, the court did require the EA be "done under circumstances that ensure an objective evaluation free of the previous taint.' 130 The agency was ordered to act objectively 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. '31Finally, the majority noted that any delay the remedy may cause would not harm the32 Makah since they had been without whale hunting for the past seventy years.

2. The Dissent

The dissent noted that the decision erred in three respects: (1) it imposed a novel version of "objectivity" that could not be objectively applied; (2) it misinterpreted the EA timing requirement; and (3) it required a new EA when the 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). 2000/01 ] THE MAKAH 409 federal government reconciled the two competing interests between the Makah whaling rights and environmental134 preservationists in accordance with NEPA's procedural requirements. Regarding the "objectivity" issue, the dissent noted that an agency does not have to be impartial and may decide on a course of action prior to preparing an environmental assessment. 35 The dissent, acknowledging that the federal36 agencies prepared an EA after deciding to support the Makah proposal, pointed out that the only reason any agency would prepare an EA is if the agency decided to take a general course of action.'37 Since an agency can have a preferred course of action prior to preparing an EA, the "objectivity" inquiry38 should focus on the text of the EA, not on the preferences of the agency. Thus, the dissent maintained that in order to show the environmental assessment was not objective, the plaintiffs needed to prove the assessment was incorrect, not just that the agency wanted a specific result before the assessment was prepared. 139 As such, the dissent opined that the remedy of requiring the preparation of a new EA is pointless unless the existing EA is proven to be substantially inadequate.14° Therefore, as long as the agency takes a "hard look" before proceeding with a proposal, it has met its NEPA requirement. 14' Even if prepared late in the decision-making process, it would be useless to require an additional EA if the one submitted is accurate. 142 In closing, the dissent noted that the agencies' commitment to the Makah did not undermine the purpose of an EA. 143 The agencies still explored alternatives, became educated about issues they were previously unaware existed, and implemented a well-considered proposal. 144 Since both the district judge and the Ninth Circuit found no errors in the old EA, the assessment was both objective and accurate, 145 making the preparation of a new EA an act of futility. As to the timing issue, the dissent stated that although a written contract was 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. GONZAGA LAW REVIEW [Vol. 36:2

"irreversible and irretrievable commitment."146 The regulatory process requiring147 an EA was satisfied before the hunting began, and thus the EA was timely. After all, the timing requirement only mandates that an EA be prepared before the Makah was permitted to begin hunting whales. 148 Despite the fact that the contract was signed by the agency, the Makah were never entitled to hunt since the IWC had yet to approve of the Makah's claim of hunting whales as an aboriginal subsistence 49 need.1 Further, an EA would50 be both pointless and costly if the IWC ultimately refused the proposal. 1

III. ANALYSIS

A. National Environmental Policy Act

1. Broad Purpose and Procedure Demand Strict Adherence

On January 1, 1970, President Richard Nixon initiated "the environmental decade" by signing into law the National Environmental Policy Act.' 5' It established the nation's broad environmental policy "to use all practicable means and measures.., to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans.' 52 The National Environmental Policy Act does not establish substantive environmental standards; instead, it mandates "action-forcing" procedures that require agencies to take a "hard-look" at the environmental consequences of their actions. 53 The statute is primarily procedural, and agency action taken without 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 and biosphere and stimulate the health and welfare of man."' 155 Because this policy is 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). 2000/01] THE MAKAH taken by an agency and disallow decisions that are made by side-stepping the procedural mandates. Without adherence to these procedural requirements, the potential damage to the environment and the health and welfare of humanity lack consideration. Beyond the broad statutory purpose, NEPA further requires all federal agencies to prepare an environmental impact statement for "major Federal actions significantly affecting the quality of the human environment.' 56 The EIS must contain a detailed statement of environmental impacts, alternatives to the proposed action, and any irretrievable commitments of resources. 15 7 If an agency's regulations do not categorically require the preparation of an EIS, then the agency must first prepare an environmental assessment to determine whether the action will have a significant impact on the human environment. 5'8 An essential purpose of an EA is to provide the agency with sufficient evidence for determining whether to prepare an EIS or to issue a finding of no significant impact. 159 Thus, following the EA preparation, if the agency determines that its action will significantly affect the human environment, then an EIS must be prepared; 60 if not, then the agency issues a FONSI. 1 If the agency decides not to prepare an EIS, it must provide a "convincing statement of reasons" in the FONSI why 16 the environmental impacts are insignificant.' In Metcalf, the agencies prepared an EA, then found that the Makah whaling would not have a significant impact on the environment, and therefore issued a FONSI. 62 Unless it can be clearly shown by the evidence that a significant impact was ignored by the agency, the agency decision will likely63 survive a NEPA challenge because of strong deference to agency decisions. 1 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's procedural requirements, the only role for a court is to insure that the agency has 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). GONZAGA LAW REVIEW [Vol. 36:2 the area of the discretion of the executive as to the choice of the action...... 165

2. The Effectiveness of NEPA Depends on Timing

Ultimately, NEPA's effectiveness depends on agencies incorporating environmental considerations in their initial decision-making process. 6 6 An assessment must be prepared early enough so it can serve as an important contribution to the decision making process and will not be used to rationalize orjustify decisions already made. 167 As NEPA' s regulations indicate, "Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.' 68 Additionally, these regulations require agencies to prepare the NEPA documents, such as an EA or an EIS, "before any irreversible and irretrievable commitment of resources."' 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 an agency two years after a decision had been made to construct a road that clearly impacted endangered and threatened species in the area. 172 The court adhered to the rule that if agencies fail to take a "hard look" at environmental consequences, the action will be set aside, and noted that the agency was not only late in preparing an EA, but that the EA was 73 not prepared to examine the environmental impacts at all. Similarly, in the case of Metcalf v. Daley,174 the federal agency took action to support the Makah whaling quota proposal without formally considering the environmental impacts and without observing the statutory mandate established in 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 is presented 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). 2000/01 ] THE MAKAH

IWC approval for whaling in 1995, but did not procedurally comply with the broad purpose of NEPA and consider the ramifications on the harmony between people 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 NEPA process at the earliest time to insure reflection on potential environmental impacts. Ostensibly, the process did not begin until after the federal government guaranteed an irreversible commitment of resources to support the Makah proposal. In fact, NOAA and NMFS did not actually prepare an EA until 1997, which was two years after the Makah had initially inquired about obtaining agency 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 EA was prepared, agreeing to make the formal proposal for a whale quota to the 1WC and to participate with the Makah in the harvest.177 Therefore, the agency did not consider the possible environmental impacts until after making a written commitment in support of the Makah proposal. As the majority noted, the "point of commitment" came in March of 1996 when NOAA signed the contract with the Makah, since at this point the agency made an irreversible effort, in preparing the whaling commitment78 of resources, namely time and proposal. 1 In Save the Yaak Committee, the court noted that proper timing is a central theme of NEPA. 179 The assessment must serve as an important contributor in the decision making process and not simply justify a decision already made by 18 the agency. 0 In Save the Yaak, the Forest Service awarded a construction contract for the development of Porcupine Sullivan Creek Road prior to preparation of an EA. 18' The court concluded that the EA, which was eventually prepared, was untimely since NEPA requires planning at the earliest possible time so decisions reflect environmental values. 182 The reason for this rule is that agency inflexibility may occur if delay is allowed in preparing an EA because after major investments of time and money are made by an agency, it is more likely that environmental harm will be tolerated or intentionally overlooked by the 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)). GONZAGA LAW REVIEW [Vol. 36:2

Similarly, in Metcalf, the federal government complied with NEPA in an untimely manner, which likely served to impede the degree with which the agency could reflect on environmental values. When the agency contracted with the Makah prior to preparing the required EA, it ultimately may have contributed to the agencies decision not to find any significant environmental impacts. Since the EA was not prepared until two years after the agencies agreed to support the Makah proposal for a whale quota to the IWC, the agencies merely justified a decision that had already been made. In fact, the majority asserted the agency's prior commitment to the Makah and the concrete efforts on their behalf slanted the subsequent EA in favor of finding the proposal would have no significant impact. 184 Specifically, the court remarked "[t]he longer the defendants worked with the [t]ribe toward the end of whaling, the greater the pressure to achieve this end... [and an] EA prepared under such circumstances might be subject to at least a subtle pro-whaling bias.' 85 It is precisely this type of situation that NEPA is intended to prevent86 by mandating an assessment of environmental impacts early in the process. 1 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 to continue its whaling tradition," but in reality that decision was already made by the contract signed in 1995.187 In addition, the presence of the contract intimates a presumption that the agency was prepared to issue a FONSI and thereby avoid a breach of contract lawsuit. 188 Due to the contract signed with the Makah, the agency made a firm commitment of resources prior to taking a "hard look" at the potential environmental impacts in violation of the NEPA. In fact, the Ninth Circuit reached an identical decision in its 1985 Thomas v. Peterson decision.' 89 In Thomas, the Forest Service desired to build a road that would support timber sales prior to drafting an EA or EIS analyzing the environmental impact of the timber sales.' 90 The court required the Forest Service to prepare an EIS prior to deciding to accept the road construction proposal because building the road would swing the balance in favor of timber sales even if the sales would not have 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. 2000/01] THE MAKAH

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

3. Agency Objectivity Heightened When NEPA Procedure Violated

Courts have noted that an agency can "formulate a proposal or even identify a preferred course of action before completing an EIS. 192 Even the majority noted that Metcalf in fact allows preliminary consideration of actions and support of proposals prior to drafting an EA. 193 As the Council on Environmental Quality ("CEQ") has asserted, identification of a preferred agency action is encouraged to occur during the NEPA process.194 However, there is some basis in NEPA regulations for inferring that an agency's environmental assessment must be "objective."' 95 For example, in preparing an EIS, an agency must "[r]igorously explore and objectively evaluate all reasonable alternatives.' 96 And, while NEPA does not require that agency officials be "subjectively impartial," it does require that projects be objectively evaluated. 197 In Environmental Defense Fund v. Corps of Engineers of the United States Army, 198 the court stated:

NEPA assumes as inevitable an institutional bias within an agency proposing a project and erects the procedural requirements of § 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 plaintiff9 9 if he carefully reviews the entire environmental impact statement."

Agency objectivity is absolutely thwarted in a case like Metcalfwhere the defendants already made an "irreversible and irretrievable commitment of resources" 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.3d 1158, 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. GONZAGA LAW REVIEW [Vol. 36:2

EA prepared two years after the agency contracted to support the Makah lacks all notions of objectivity since the agencies were slanted toward favoring the decision they had already made.2°' The dissent argued that to illustrate an EA's lack of objectivity, an individual must prove the assessment is incorrect, not simply that the agency planned a certain outcome when it prepared the EA.2°2 In fact, in Association of Public Agency Customers v. Bonneville PowerAdministration, 20 3 the Ninth Circuit held that agency impartiality is not required and it may decide on a course of action before preparing an EA because institutional bias does not vitiate objectivity if the EA is without error.2°4 The problem with this interpretation is that it would completely invalidate and render ineffectual NEPA's procedural requirement that agencies integrate NEPA at the "earliest possible time" to insure decisions reflect environmental values and avoid delays later in the process.205 In fact, this manner of interpreting agency action would insure that delays do occur later in the process, since proposals will be accepted by agencies before and without consideration of environmental values. A post hoc analysis for "correctness" of an EA would encourage an agency to commit to a proposal first and then deal with potential environmental problems only if they arise later in the process. The National Environmental Policy Act would no longer be procedural in nature. In fact, it would become inherently substantive as courts would simply analyze the propriety of an agency action in the end, rather than enforce the timing requirement of an EA early in the process. The National Environmental Policy Act is clearly designed to compel agencies to consider how "man and nature can exist in productive harmony ' 206 at the "earliest possible time, '' 20 7 not after an agency has already made a commitment to act or when an environmental problem occurs. Ultimately, the Metcalf majority is correct in noting a difference between requiring an agency official to be subjectively impartial and requiring "projects to be objectively evaluated. ' 20 8 Courts have remarked that NEPA recognizes agency officials will wield bias when considering proposals, which is exactly why 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. 2000/01 ] THE MAKAH contemplates the important countervailing viewpoints.2 9 Alternative courses of action need to be introduced early to allow the agency to make an environmentally informed decision.

4. Proper Remedy Requires an EIS

The majority made an ineffectual and wasteful decision by requiring only that a new EA be prepared. The court relied on a similar case, Realty Income Trust v. Eckerd,21 in which the Administrator of General Services Administration failed to prepare an EIS before a construction project was proposed to Congress in violation of the timing requirement in NEPA.' Nonetheless, the court refused to remand the case to the district court despite improper timing in the preparation of an EIS because in all other respects, the EIS was adequate.212 While the timing of the EIS was in violation of NEPA, the substance of the EIS was sufficient and the court determined that the construction project could proceed because "equity should not require the doing of a vain or useless thing. '21 3 Furthermore, the Eckerd court held that relief under NEPA "must be tailored to remedy the particular violations in the case; courts will not issue injunctions under NEPA only as prophylactic or punitive 214 measures." However, Eckerd also noted that at the time the project was proposed to Congress, the agency made no "irrevocable commitments" concerning the building. 25 All parties admitted the EIS was adequate and it was not a situation where a project needed to be stopped so that an initial NEPA analysis could be prepared so that unknown environmental consequences or better alternatives could be revealed.216 Unlike Eckerd, the environmental advocacy groups in Metcalf specifically contended the EA was defective because the agency was "predisposed to finding the Makah whaling proposal would not significantly affect the environment. "217 This substantive challenge to the adequacy of the EA was a factor not present in Eckerd, and thus requiring the agency to prepare another environmental assessment 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. GONZAGA LAW REVIEW [Vol. 36:2

In fact, the majority should have required the agency to prepare not simply a new and objective EA, but a complete EIS. The majority considered this remedial measure, but elected to simply require a new EA.218 Requiring an EIS would have been appropriate in light of the evasive tactics of the agency to bypass NEPA's procedural mandates. In Metcalf, requiring an EIS would have forced 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 an EIS for "major Federal actions significantly affecting the quality of the human environment., 219 Agencies have discretion in defining the scope of an EIS, but there are situations in which an agency is required to consider several related actions in a single EIS. ° Arguably, the Makah proposal will result in several related actions that may together create a significant impact on the human environment. The Council on Environmental Quality ("CEQ") regulations require cumulative actions be considered together in a single EIS. 22 1 "Cumulative actions" are defined as actions "which when viewed with other proposed actions have cumulatively significant impacts. ''222 The Makah whaling proposal to the IWC was submitted as a joint proposal with the Russian Federation who represented the Chukotka Tribe for a total of 620 whales to be taken over five years.223 Although, this joint proposal will ultimately have only a minimal impact on the gray whale population, many are concerned about the repercussions that the Makah decision could have for whale populations 224 globally. In particular, many conservationists fear the Makah whale hunts will lead to 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 been traditionally 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. 2000/01] THE MAKAH

Japan has taken advantage of the IWC before, by conducting commercial whaling expeditions after gaining permission to hunt whales for scientific purposes.227 During these "scientific research" expeditions, the Japanese have taken large numbers of whales, performed minimal research, if any, and then sold the meat for considerable profit.228 Despite Japan's insistence that its motives for taking whales are scientific, the IWC is certain the practice is a guise for commercial whaling.229 Norway is another country that disapproves of the IWC whaling moratorium and announced a return to commercial whaling in 1993 .230 The Norwegians hunt only minke whales and use the meat only for domestic purposes .23 'The whale meat is used only for human consumption and serves as a staple of the traditional Norwegian diet. 2 In response to the actions of Japan and Norway, the IWC has only managed to "symbolically condemn" the countries' behavior.233 The condemnations occur every year at the IWC convention, but do not effect Japan and Norway because 23 the Commission has no ability to enforce its message. ' As such, many conservationists fear that continued Makah whale hunts will encourage countries like Japan and Norway to continue commercial whaling and also invite other nations, like the British Columbian tribes, to rekindle their whaling traditions.235 Following a Makah hunt on May 17, 1999, Congressman Metcalf issued a statement asserting that he "was deeply disturbed to learn that the Makah tribe killed a grey [sic] whale this morning. These majestic, highly intelligent creatures deserve better than to be brutally slaughtered as pawns in a political game being orchestrated by Japanese and Norwegian whaling interests. Today's hunt is a victory for Japan and Norway ....236 Ultimately, the joint proposal by the Makah and the Chukotka Tribes to reinstate whaling could have a cumulative significant impact on the human environment. While the connection between the Makah proposal for five whales a year and global commercial whaling may be rather tenuous, the excessive global 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. GONZAGA LAW REVIEW [Vol. 36:2 government to analyze on a global scale the impact of the whaling proposal on the human environment. This would truly conform to the broad purpose of NEPA to promote "conditions 237 under which man and nature can exist in productive harmony.,

C. PracticalEffects of the Decision

After being granted the authority to resume whale hunts, and deciding to act on that authority, the Makah have encountered intense opposition every time a hunt is planned. As reported by KOMO 4 News in Seattle in November of 1998, the Makah tribal police arrested four protestors who taunted people on the Makah Indian Reservation.238 One of the protestors, who was bleeding from his head, claimed tribal officers pushed him down before taking him into custody.239 Meanwhile, a riot on the waterfront ensued, in which rocks were hurled at the protestors' ship, the Sea Shepherd, which was camped in Neah Bay for over a month anticipating the Makah hunt.24° Furthermore, in a piece entitled "Open Letter to Every Makah" that was printed in the Peninsula Daily News of Port Angeles, the Makah were urged to consider not whaling in exchange of the goodwill of "individuals and groups interested in contributing to projects that improve the quality of life and self- sufficiency of all Makah. ' '241 There have also been reports of internal disputes amongst the Makah members themselves. One tribal elder, Alberta Thompson, was vehemently opposed to the actions of her tribe and decision to begin whaling again.242 Her position has caused her not only to be isolated from the tribe, 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, one has to wonder if the Makah should continue to hunt the gray whale. Since the last 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 ConsiderCompensation Offer, Associated Press, Nov. 2, 1998, at http'/seattletimes.nwsource.com/news/local/htm/98/maka_113098.html (last visited Mar. 22, 2001). 242. Lynda V. Mapes, Anti-Whaling ProtestersScuffle 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. 2000/01] THE MAKAH understand how the Makah need the whales for aboriginal subsistence purposes. Despite the Treaty of 1855, it is unlikely that the Makah are truly dependent upon the gray whale for subsistence, especially since the tribe is surviving even though the practice stopped eighty years ago. Undoubtedly, the debate will remain intense and animal rights protestors and environmental activists will continue to protest every time the Makah endeavor to hunt their allotted five whales annually. While the Makah hunts will have only a slight impact on the whale population, other nations, such as Japan and Norway, desire to resume commercial whaling in totality with little regard for the environmental implications. Hopefully, by having to prepare a new and objective EA, the federal government and the Makah will consider the potential global environmental impacts of the decision to resume whaling.

IV. CONCLUSION

The decision in Metcalf simply reinforces the procedural nature of the National Environmental Protection Act. The decision was in accordance with the essential purpose of NEPA to provide a manner by which humans and nature can co-exist in productive harmony.245 In order to preserve this goal, an agency must be forced to consider the potential environmental impacts prior to committing to a course of action. An agency may initially decide to support or reject an action upon receiving a proposal, but an assessment of the action must be performed to determine if that initial decision is proper. An assessment can potentially 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" 246 at environmental consequences at the earliest time. Under the Treaty of Neah Bay, the Makah were granted their right to hunt whales. But in seeking out the assistance of federal agencies to invoke this right, certain procedures, such as preparing an Environmental Assessment, must be sufficiently complied with. An EA prepared two years after the agency committed to assist the Makah is neither proper under the statutory mandate of NEPA, nor under Ninth Circuit case law. Requiring the agency to prepare a new EA is an adequate remedy, but the court should have required the preparation of a full Environmental Impact Statement since the agency actions were clearly intended to avoid and bypass the procedural mandates of NEPA. Ultimately, however, Metcalf v. Daley preserved the broad purpose and procedural requirements of NEPA and ensured that environmental impacts are considered 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.