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The National Environmental Policy Act (NEPA) requires that an environmental impact statement (EIS) be prepared for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C.S. § 4332(2)(C). However, if an agency's regulations do not categorically require the preparation of an EIS, then the agency must first prepare an environmental assessment (EA) to determine whether the action will have a significant effect on the environment. 40 C.F.R. § 1501.4 (1999). If, in light of the EA, the agency determines that its action will significantly affect the environment, then an EIS must be prepared; if not, then the agency issues a finding of no significant impact. 40 C.F.R. §§ 1501.4, 1508.9 (1999). If an agency decides not to prepare an EIS, it must supply a convincing statement of reasons to explain why a project's impacts are insignificant.
The Makah, who reside in Washington state on the northwestern Olympic Peninsula, have a 1500 year tradition of hunting whales. In particular, the Makah target the California gray whale ("gray whale"), which annually migrates between the North Pacific and the coast of Mexico. During their yearly journey, the migratory gray whale population travels through the Olympic Coast National Marine Sanctuary ("Sanctuary"), which Congress established in 1993 in order to protect the marine environment in a pristine ocean and coastal area. In 1855, the United States and the Makah entered into the Treaty of Neah Bay, whereby the Makah ceded most of their land on the Olympic Peninsula to the United States in exchange for "the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations…" Despite their long history of whaling and the Treaty of Neah Bay, however, the Makah ceased whaling in the 1920s because widespread commercial whaling had devastated the population of gray whales almost to extinction. Thus, the Tribe suspended whale hunting for seventy years, notwithstanding the important cultural role this practice played in their community. Because the gray whale had become virtually extinct, the United States signed in 1946 the International Convention for the Regulation of Whaling in order "to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry…" The International Convention for the Regulation of Whaling enacted a schedule of whaling regulations ("Schedule") and established the International Whaling Commission ("IWC"), which was to be composed of one member from each signatory nation. Subsequently, in 1949, Congress passed the Whaling Convention Act to implement domestically the International Convention for the Regulation of Whaling. 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. In addition to being shielded from commercial whaling under international law, the gray whale received increased protection in 1970 when the United States designated the species as endangered under the Endangered Species Conservation Act of 1969, the predecessor to the Endangered Species Act of 1973 ("ESA"). After these gray whales were removed from the endangered species list, the Makah decided to resume the hunting of whales who migrated through the Sanctuary. To execute this plan, the Makah turned to the United States government - the Department of Commerce, National Oceanic and Atmospheric Administration ("NOAA"), and National Marine Fisheries Service ("NMFS") - for assistance. The Tribe asked representatives from the Department of Commerce to represent it in seeking approval from the IWC for an annual quota of up to five gray whales. On April 6, 1998, NOAA issued a Federal Register Notice setting the domestic subsistence whaling quotas for 1998. The Notice stated that the Makah's subsistence and cultural needs had been recognized by both the United States and the IWC. Accordingly, the Notice allowed the Makah to engage in whaling pursuant to the IWC-approved quota and Whaling Convention Act regulations. Appellants, including, inter alia, Congressman Metcalf, Australians for Animals, and BEACH Marine Protection, filed a complaint against the Federal Defendants in the United States District Court for the District of Columbia. Appellants alleged that the Federal Defendants had violated NEPA, the Whaling Convention Act, and the Administrative Procedures Act in connection with their support of the Makah whaling proposal.
Did the federal agencies violate the NEPA?
The court concluded that appellee federal agencies prepared the environmental assessment too late in the decision-making process because they engaged in the environmental assessment process only after they had signed a contract with appellee Native American tribe. The court held that by making such a firm commitment before preparing an environmental assessment, appellee federal agencies failed to take a hard look at the environmental consequences of their actions, thereby violating NEPA. In fashioning a remedy, the court determined that the environmental assessment prepared after resources were irretrievably committed was demonstrably suspect because the process under which it was prepared was fatally defective. Thus, the court ordered that a new environmental assessment be prepared under circumstances that ensured an objective evaluation free of the previous taint.