A. R. 6107 (Cite as: 214 F. 3d 1135)



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214 F.3d 1135

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51 ERC 1429, 30 Envtl. L. Rep. 20,637, 00 Cal. Daily Op. Serv. 4542, 2000 Daily Journal D.A.R. 6107

(Cite as: 214 F.3d 1135)


United States Court of Appeals,

Ninth Circuit.
Jack METCALF; Australians for Animals; Beach Marine Protection; S'Tassawood

of the Cheaba Family of the Makah Nation, (Alberta N. Thompson); The Fund for

Animals; Tim Walsh; Lisa Lamb; Sue Miller; Stephen Dutton; Deep Sea

Charters, Inc., Plaintiffs-Appellants,

v.

William DALEY, Secretary U.S. Department of Commerce; James Baker,



Administrator, National Oceanic and Atmospheric Administration; Rolland A.

Schmitten, Director, National Marine Fisheries Service, Defendants-Appellees,

and

Makah Indian Tribe, Defendant-Intervenor-Appellee.


No. 98-36135.
Argued and Submitted Feb. 8, 2000.

Filed June 9, 2000.

Congressman and various organizations brought action against government officials, alleging that officials' support of Indian tribe's proposal to resume whaling violated the National Environmental Policy Act (NEPA). Tribe intervened. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., denied plaintiffs' motion to compel production of administrative record material, as well as their motion to supplement the administrative record, and granted summary judgment for officials and tribe. Plaintiffs appealed. The Court of Appeals, Trott, Circuit Judge, held that: (1) agencies' issuance of environmental assessment (EA) regarding decision to support tribe's proposal was untimely, and (2) agencies would be required to prepare new EA.
Reversed and remanded.
Kleinfeld, Circuit Judge, filed dissenting opinion.

West Headnotes


[1] Environmental Law 689

149Ek689 Most Cited Cases

(Formerly 199k25.15(10) Health and Environment)


Court of Appeals reviews substantive agency decisions concerning NEPA under the arbitrary and capricious standard, meaning Court must determine whether the decision by the agency was based on a consideration of the relevant factors, or whether its actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.A. § 706(2)(A); National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.
[2] Environmental Law 586

149Ek586 Most Cited Cases

(Formerly 199k25.10(5) Health and Environment)


[2] Environmental Law 577

149Ek577 Most Cited Cases

(Formerly 199k25.10(5) Health and Environment)


NEPA does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.
[3] Environmental Law 689

149Ek689 Most Cited Cases

(Formerly 199k25.15(10) Health and Environment)


Under deferential standard for reviewing substantive agency decisions concerning NEPA, Court of Appeals must defer to an agency's decision that is fully informed and well-considered, but need not forgive a clear error of judgment. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.
[4] Environmental Law 610

149Ek610 Most Cited Cases

(Formerly 199k25.10(1) Health and Environment)


Preparation of environmental assessment of agency action, pursuant to NEPA, must occur at the earliest possible time to insure that planning and decisions reflect environmental values. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.; 40 C.F.R. § 1501.2.
[5] Environmental Law 577

149Ek577 Most Cited Cases

(Formerly 199k25.10(5) Health and Environment)


NEPA does not require that agency officials be subjectively impartial, but does require that projects be objectively evaluated. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.
[6] Environmental Law 610

149Ek610 Most Cited Cases

(Formerly 199k25.10(5) Health and Environment)


Comprehensive "hard look" mandated by Congress and required by NEPA for federal agency actions must be timely, and it must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.
[7] Environmental Law 582

149Ek582 Most Cited Cases

(Formerly 199k25.10(5) Health and Environment)


If an agency's regulations do not categorically require the preparation of an environmental impact statement (EIS) for a particular action, then the agency must first prepare an environmental assessment (EA) to determine whether the action will have a significant effect on the environment. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332; 40 C.F.R. § 1501.4.
[8] Environmental Law 589

149Ek589 Most Cited Cases

(Formerly 199k25.10(3) Health and Environment)


If, in light of an environmental assessment (EA), an agency determines that its action will significantly affect the environment, then an environmental impact statement (EIS) must be prepared; if not, then the agency issues a Finding of No Significant Impact (FONSI). National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.; 40 C.F.R. § § 1501.4, 1508.9.
[9] Environmental Law 594

149Ek594 Most Cited Cases

(Formerly 199k25.10(5) Health and Environment)


If an agency decides not to prepare an environmental impact statement (EIS) for a particular action, it must supply a convincing statement of reasons to explain why a project's impacts are insignificant. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.


[10] Environmental Law 610

149Ek610 Most Cited Cases

(Formerly 199k25.10(5), 199k25.10(1) Health and Environment)


Government officials made irreversible and irretrievable commitment of resources by entering contract with Indian tribe that required officials to support tribe's proposal to resume whaling, so preparation of environmental assessment (EA) of that action after officials had made such commitment was untimely and in violation of NEPA; commitment interfered with officials' ability to take requisite "hard look" at environmental consequences and indicated that officials were predisposed to issuing Finding of No Significant Impact (FONSI). National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.; 40 C.F.R. § 1501.2.
[11] Environmental Law 582

149Ek582 Most Cited Cases

(Formerly 199k25.10(2.1) Health and Environment)


Government officials' violation of NEPA, consisting of untimely preparation of environmental assessment (EA) after resources had already been committed to support of Indian tribe's whaling proposal, warranted preparation of new EA, despite claim that no remedy was warranted because EA had ultimately been prepared, in view of allegations that EA was suspect due to defective process, that officials were predisposed to finding that proposal had no significant environmental effects, and that EA's conclusion was erroneous; new evaluation would have to be done under circumstances ensuring an objective evaluation free of the previous taint. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.
[12] Indians 3(1)

209k3(1) Most Cited Cases
Doctrine of laches cannot defeat Indian rights recognized in a treaty.

*1137 Robert H. Oakley, United States Department of Justice, Washington, D.C., for the defendants-appellees.
Jonathan R. Lovvorn, Meyer & Glitzenstein, Washington, D.C., for the plaintiffs-appellants.
John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, for the defendant-intervenor-appellee.
Kimberly M. McCormick, Latham & Watkins, San Diego, California, for the Amicus.
Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-98- 05289-FDB.

Before: TROTT, KLEINFELD, and SILVERMAN, Circuit Judges.


Opinion by Judge TROTT; Dissent by Judge KLEINFELD.



TROTT, Circuit Judge:
Appellants Jack Metcalf et al. appeal the district court's grant of summary judgment in favor of appellees William Daley, Secretary of Commerce; James Baker, Administrator of National Oceanic and Atmospheric Administration; Rolland A. Schmitten, Director of National Marine Fisheries Service (collectively "Federal Defendants"); and the Makah Indian Tribe ("Makah" or "Tribe"). Appellants argue that in granting the Makah authorization to resume whaling, the Federal Defendants violated the National Environmental Policy Act ("NEPA") by (1) preparing an Environmental Assessment ("EA") that was both untimely and inadequate, and (2) declining to prepare an Environmental Impact Statement ("EIS"). In addition, appellants challenge the district court's denial of their motion to compel production of administrative record material, as well as their motion to supplement the administrative record. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we REVERSE and REMAND to the district court.
I

FACTUAL BACKGROUND
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. A small sub-population of gray whales, commonly referred to as "summer residents," live in the Sanctuary throughout the entire year.
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 "[t]he right of taking fish and of whaling or sealing at usual and accustomed grounds and stations...." Treaty of Neah Bay, 12 Stat. 939, 940 (1855). 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...." International*1138 Convention for the Regulation of Whaling, 62 Stat. 1716, 1717 (1946). 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. See id. Furthermore, the International Convention for the Regulation of Whaling 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 number of whales to be taken in any one season. Id. at 1718-19.
Subsequently, in 1949, Congress passed the Whaling Convention Act to implement domestically the International Convention for the Regulation of Whaling. See 16 U.S.C.A. § 916 et seq. (1985). 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. See id. § 916c. In addition, the National Oceanic and Atmospheric Administration ("NOAA") and the National Marine Fisheries Service ("NMFS"), branches of the Department of Commerce, have been tasked with promulgating regulations to implement the provisions of the Whaling Convention Act. See id. § 916 et seq.; 50 C.F.R. § 230.1 (1998).
When the IWC was established on December 2, 1946, it took immediate action to protect the beleaguered mammal. Specifically, the IWC amended the Schedule to impose a complete ban on the taking or killing of gray whales. 62 Stat. at 1723. However, the IWC included an exception to the ban "when the meat and products of such whales are to be used exclusively for local consumption by the aborigines." Id. This qualification is referred to as the "aboriginal subsistence exception."
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"). In 1993, however, NMFS determined that the eastern North Pacific stock of gray whales had recovered to near its estimated original population size and was no longer in danger of extinction. Endangered Fish and Wildlife, 58 Fed.Reg. 3121, 3135 (1993). As such, this stock of gray whales was removed from the endangered species list in 1994. Id. At that point, and as required by the ESA, NMFS began a five-year monitoring program to document and to evaluate the viability of the stock subsequent to delisting.
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, NOAA, and 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.
As evidenced in an internal e-mail message written by an NMFS representative, the United States agreed in 1995 to "work with" the Makah in obtaining an aboriginal subsistence quota from the IWC. It was too late, however, to present the Makah's request formally at the IWC annual meeting scheduled to take place in May 1995. Nevertheless, the United States took the opportunity at the annual meeting to inform the Commission that: (1) the Makah had expressed an interest in harvesting up to five gray whales for ceremonial and subsistence purposes; and (2) the United States intended to submit in the future a formal proposal requesting such a quota.
After the 1995 annual meeting, NOAA prepared an internal report evaluating the merits of the Tribe's proposal in order to determine whether the United States *1139 should support its request for a gray whale quota. In some respects, the report suggested that the United States should lend its support to the Tribe. For example, the report concluded that the Makah have a well- documented history of dependency on the gray whale, and that a return to whaling could benefit the Tribe. On the other hand, the report concluded also that allowing the Makah to whale could set a precedent for other tribes who had also expressed an interest in whaling. Despite these concerns, however, NOAA did not initiate the NEPA process by publishing a draft EA or EIS for public review.
In January 1996, Will Martin, an NOAA representative, sent an e-mail message to his colleagues informing them that "we now have interagency agreement to support the Makah's application in IWC for a whaling quota of 5 grey whales." Shortly thereafter, on March 22, 1996, NOAA entered into a formal written Agreement with the Tribe, which provided that "[a]fter an adequate statement of need is prepared [by the Makah], NOAA, through the U.S. Commissioner to the IWC, will make a formal proposal to the IWC for a quota of gray whales for subsistence and ceremonial use by the Makah Tribe." Furthermore, the Agreement provided for cooperation between NOAA and the Makah Tribal Council ("Council") in managing the harvest of gray whales. More specifically, NOAA agreed: (1) to monitor the hunt; (2) to assist the Council in collecting certain information (e.g., body length and sex of the landed whales; length and sex of any fetus in a landed whale; whether a whale that was struck, but not landed, suffered a potentially fatal wound from a harpoon or bomb emplacement); and (3) to collect specimen material from landed whales, including ovaries, ear plugs, baleen plates, stomach contents, and tissue samples. Finally, the Agreement provided that within thirty days of IWC approval of a quota, "NOAA will revise its regulations to address subsistence whaling by the Makah Tribe, and the Council will adopt a management plan and regulations to govern the harvest...." The Agreement was signed by the Chairman of the Makah Tribal Council, Hubert Markishtum, and the Under Secretary for Oceans and Atmosphere, D. James Baker.
Pursuant to the Agreement, the Makah prepared an adequate statement of need, and the United States presented a formal proposal to the IWC for a quota of gray whales for the Tribe at the IWC annual meeting in June 1996. Several member nations supported the Makah whaling proposal, while others expressed concerns and indicated that they would vote against it. In short order, the proposal turned controversial. As the annual meeting was in progress, the United States House of Representatives Committee on Resources unanimously passed a resolution, introduced by Representatives Jack Metcalf (R-Washington) and George Miller (D-California), opposing the proposal. Ultimately,the United States realized that it did not have the three-quarters majority required to approve it. Thus, after consulting with the Makah, the United States withdrew the proposal in order to give the Tribe an opportunity to address the delegates' concerns.
In June 1997, an attorney representing the organizations Australians for Animals and BEACH Marine Protection wrote a letter to NOAA and NMFS alleging that the United States Government had violated NEPA by authorizing and promoting the Makah whaling proposal without preparing an EA or an EIS. In response, the Administrator for NOAA wrote to Australians for Animals and BEACH Marine Protection on July 25, 1997, informing them that an EA would be prepared. Twenty-eight days later, on August 22, 1997, a draft EA was distributed for public comment.
On October 13, 1997, NOAA and the Makah entered into a new written Agreement, which, in most respects, was identical to the Agreement signed in 1996. Unlike the earlier Agreement, however, the 1997 Agreement required the Makah to "confin[e] hunting activities to the open *1140 waters of the Pacific Ocean outside the Tatoosh-Bonilla Line." Apparently, this provision was added to the Agreement in order to increase the probability that, although the whaling would occur in the Sanctuary, the Makah would hunt only the migratory whales, rather than the Sanctuary's "summer residents." Four days later, and after the signing of this new Agreement, NOAA/NMFS issued, on October 17, 1997, a final EA and a Finding of No Significant Impact ("FONSI").
The 1997 IWC annual meeting was held on October 18, 1997, one day after the final EA had been issued. Before this meeting, however, the United States (representing the Makah) and the Russian Federation (representing a Siberian aboriginal group called the Chukotka) had met to discuss the possibility of submitting a joint proposal for a gray whale quota, as the IWC previously had granted a gray whale quota for the benefit of the Chukotka. After conferring, the United States and the Russian Federation decided to submit a joint proposal for a five-year block quota of 620 whales. The total quota of 620 assumed an average annual harvest of 120 whales by the Chukotka and an average annual harvest of four whales by the Makah. We note in passing that because "not every gray whale struck will be landed," the EA eventually concluded that the cumulative impact of the removal of injured gray whales by the Makah would total not just twenty whales over a five-year period, but forty-one. The EA makes no explicit mention of the decision to submit this joint proposal to the IWC, which would include a block quota of 620 whales for the Chukotka.
At the meeting, some delegates expressed doubts about whether the Makah qualified for the quota under the "aboriginal subsistence" exception. For this reason, these delegates suggested amending the joint proposal to allow the quota to be used only by aboriginal groups "whose traditional subsistence and cultural needs have been recognized by the International Whaling Commission. " (emphasis added). Presumably, these delegates were attempting to amend the proposal in a manner that would allow the Chukotka to harvest gray whales, but would prohibit the Makah from doing so. However, the United States rejected this amendment on the grounds that the IWC did not have an established mechanism for recognizing such needs. Instead, the delegates agreed to amend the proposal to allow the quota to be used only by aboriginal groups "whose traditional subsistence and cultural needs have been recognized." Shortly thereafter, the quota was approved by consensus with no objections.
On April 6, 1998, NOAA issued a Federal Register Notice setting the domestic subsistence whaling quotas for 1998. See Notice of Aboriginal Subsistence Whaling Quotas, 63 Fed.Reg. 16,701 (1998). The Notice stated that the Makah's subsistence and cultural needs had been recognized by both the United States and the IWC. Id. at 16,704. Accordingly, the Notice allowed the Makah to engage in whaling pursuant to the IWC-approved quota and Whaling Convention Act regulations. Id.
II

PROCEDURAL BACKGROUND
On October 17, 1997, the same day as the release of the FONSI, 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. After granting the Makah's motion to intervene, the district court transferred the case to the Western District of Washington.
The Federal Defendants provided the district court with 172 documents that they claimed constituted the administrative record. However, material had been redacted *1141 from seventeen of these documents. Furthermore, pursuant to their request under the Freedom of Information Act, 5 U.S.C. § 552 (1996), appellants learned that NMFS possessed additional records relating to the Makah whaling proposal that had not been included in the administrative record. Because appellants believed the Federal Defendants were required to provide the court with the entire administrative record, they moved (1) to compel production of the materials that had been redacted from the administrative record, and (2) to supplement the administrative record with the additional documents discovered via the Freedom of Information Act request. The district court denied the first motion on the ground that the redacted material was protected by the "deliberative process privilege," which is an exception to the Freedom of Information Act, and it denied the second motion because appellants failed to establish that "the documents they sought would alter the summary judgment analysis."
Ultimately, the parties filed cross-motions for summary judgment on the merits, which were briefed and argued during the spring and summer of 1998. On September 21, 1998, the district court denied appellants' motion for summary judgment and granted the Federal Defendants' and the Makah's motions for summary judgment. Appellants now appeal. [FN1]

FN1. The Humane Society of the United States ("Humane Society") made a motion for leave to file an amicus brief, which we granted. However, we also granted appellees' joint motion to strike the extra-record documents that the Humane Society submitted with its amicus brief.


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