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



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III

STANDARD OF REVIEW
[1][2][3] We review the district court's decision to grant or deny a motion for summary judgment de novo. PCCE, Inc. v. United States, 159 F.3d 425, 427 (9th Cir.1998). However, we review substantive agency decisions concerning NEPA under the "arbitrary and capricious" standard, meaning we must determine whether the decision by NOAA/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 law." Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (quoting the Administrative Procedures Act, 5 U.S.C. § 706(2)(A)). "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." Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 814 (9th Cir.1999). Under this deferential standard, we must defer to an agency's decision that is "fully informed and well-considered," Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988), but we need not forgive a "clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 385, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
IV

NEPA CLAIM

A.
NEPA sets forth a "national policy which will encourage productive and enjoyable harmony between man and his environment ... [and] promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C.A. § 4321 (1994). NEPA does not set out substantive environmental standards, but instead establishes "action-forcing" procedures that require agencies to take a "hard look" at environmental consequences. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). We have characterized the statute as "primarily procedural," and held that "agency action taken without observance of the procedure required by law will be set aside." *1142 Save the Yaak, 840 F.2d at 717. In this respect, we have observed in connection with the preparation of an EA that "[p]roper timing is one of NEPA's central themes. An assessment must be 'prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.' " Id. at 718 (quoting 40 C.F.R. § 1502.5 (1987)).
[4] The phrase "early enough" means "at the earliest possible time to insure that planning and decisions reflect environmental values." Andrus v. Sierra Club, 442 U.S. 347, 351, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979); see also 40 C.F.R. § 1501.2 (1999). The Supreme Court in referring to NEPA's requirements as "action forcing," Andrus, 442 U.S. at 350, 99 S.Ct. 2335, has embraced the rule that 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." Id. at 351 n. 3, 99 S.Ct. 2335; see also 40 C.F.R. § 1502.5(a) (1999).
[5] All of these rules notwithstanding, NEPA does not require that agency officials be "subjectively impartial." Environmental Defense Fund v. Corps of Eng'rs of the U.S. Army, 470 F.2d 289, 295 (8th Cir.1972). The statute does require, however, that projects be objectively evaluated.

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 plaintiff if he carefully reviews the entire environmental impact statement."



Id. (quoting Environmental Defense Fund v. Corps of Eng'rs of the U.S. Army, 342 F.Supp. 1211, 1218 (E.D.Ark.1972)).
[6] In summary, the comprehensive "hard look" mandated by Congress and required by the statute 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. As the Eighth Circuit observed in Environmental Defense Fund, "[t]he unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives." Id. at 298.
[7][8][9] NEPA requires that an EIS be prepared for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C.A. § 4332(2)(C) (1994). However, if, as here, an agency's regulations do not categorically require the preparation of an EIS, then the agency must first prepare an EA to determine whether the action will have a significant effect on the environment. See 40 C.F.R. § 1501.4 (1999); Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). 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 FONSI. See 40 C.F.R. § § 1501.4, 1508.9 (1999); Salmon River, 32 F.3d at 1356. "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." Blue Mountains, 161 F.3d at 1211 (quoting Save the Yaak, 840 F.2d at 717).
In this case, the Federal Defendants did (1) prepare an EA, (2) decide that the Makah whaling proposal would not significantly affect the environment, and (3) issue a FONSI, but they did so after already having signed two agreements binding them to support the Tribe's proposal. Appellants assert that, in so doing, the Federal Defendants violated NEPA in several ways. Appellants argue that, although NOAA/NMFS ultimately prepared an EA, they violated NEPA because they prepared the EA too late in the process. *1143 According to appellants, "by making a commitment to authorize and fund the Makah whaling plan, and then drafting a NEPA document which simply rubber-stamped the decision ..., defendants eliminated the opportunity to choose among alternatives, ... and seriously imped[ed] the degree to which their planning and decisions could reflect environmental values." Additionally, appellants contend that the Federal Defendants violated NEPA by preparing an inadequate EA, and by issuing a FONSI instead of preparing an EIS.
B.
[10] We begin by considering appellants' argument that the Federal Defendants failed timely and in the proper sequence to comply with NEPA. As provided in the regulations promulgated to implement NEPA, "[a]gencies 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." 40 C.F.R. § 1501.2 (emphasis added); see also id. § 1502.5 ("An agency shall commence preparation of an [EIS] as close as possible to the time the agency is developing or is presented with a proposal...."). Furthermore, this court has interpreted these regulations as requiring agencies to prepare NEPA documents, such as an EA or an EIS, "before any irreversible and irretrievable commitment of resources." Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir.1988); see also EDF v. Andrus, 596 F.2d 848, 852 (9th Cir.1979). Thus, the issue we must decide here is whether the Federal Defendants prepared the EA too late in the decision-making process, i.e., after making an irreversible and irretrievable commitment of resources. We conclude that they did.
The purpose of an EA is to provide the agency with sufficient evidence and analysis for determining whether to prepare an EIS or to issue a FONSI. 40 C.F.R. § 1508.9. Because the very important decision whether to prepare an EIS is based solely on the EA, the EA is fundamental to the decision-making process. In terms of timing and importance to the goals of NEPA, we see no difference between an EA and an EIS in connection with when an EA must be integrated into the calculus. In the case at bar, the Makah first asked the Federal Defendants to help them secure IWC approval for a gray whale quota in 1995; however, NOAA/NMFS did not prepare an EA until 1997. During these two years, the United States and the Makah worked together toward obtaining a gray whale quota from the IWC. In January 1996, an NOAA representative informed his colleagues that "we now have interagency agreement to support the Makah's application in IWC for a whaling quota of 5 grey whales." More importantly, in March 1996, more than a year before the EA was prepared, NOAA entered into a contract with the Makah pursuant to which it committed to (1) making a formal proposal to the IWC for a quota of gray whales for subsistence and ceremonial use by the Makah and (2) participating in the management of the harvest. To demonstrate the firmness of this commitment, we need only to look at the EA, which says, "In early 1996, [NOAA and the Makah Tribal Council] signed an agreement in which the United States committed to make a formal request to the IWC...."
The Federal Defendants did not engage the NEPA process "at the earliest possible time." Instead, the record makes clear that the Federal Defendants did not even consider the potential environmental effects of the proposed action until long after they had already committed in writing to support the Makah whaling proposal. The "point of commitment" in this case came when NOAA signed the contract with the Makah in March 1996 and then worked to effectuate the agreement. It was at this juncture that it made an "irreversible and irretrievable commitment of resources." As in Save the Yaak, the "contracts were awarded prior to the preparation of the EAs.... These events demonstrate that *1144 the agency did not comply with NEPA's requirements concerning the timing of their environmental analysis, thereby seriously impeding the degree to which their planning and decisions could reflect environmental values." Save the Yaak, 840 F.2d at 718-19. Although it could have, NOAA did not make its promise to seek a quota from the IWC and to participate in the harvest conditional upon a NEPA determination that the Makah whaling proposal would not significantly affect the environment.
Had NOAA/NMFS found after signing the Agreement that allowing the Makah to resume whaling would have a significant effect on the environment, the Federal Defendants would have been required to prepare an EIS, and they may not have been able to fulfill their written commitment to the Tribe. As such, NOAA would have been in breach of contract. Although the United States delegates to the 1996 IWC meeting ultimately withdrew their proposal for a Makah aboriginal subsistence whaling quota, they did so with the Tribe's approval and because the proposal did not have adequate support from other IWC delegations, not in order to reconsider environmental concerns. The firmness of the 1996 Agreement became even clearer and more resolute in 1997 when NOAA entered into a new, similar contract with the Tribe to pursue its whaling quota at the 1997 IWC meeting. This Agreement was signed four days before the final EA in this case was issued. In the EA, the agencies referred to this second Agreement as having "renewed the cooperative Agreement" signed in 1996. This is strong evidence that NOAA and other agencies made the decision to support the Tribe's proposal in 1996, before the EA process began and without considering the environmental consequences thereof. By the time the Federal Defendants completed the final EA in 1997, the die already had been cast. The "point of commitment" to this proposal clearly had come and gone. As in Conner v. Burford, [FN2] Environmental Defense Fund, and Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir.1979), the contracts here amounted to a surrender of the Government's right to prevent activity in the relevant area. Cf. Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1063 (9th Cir.1998) (holding that the Forest Service did not make an "irreversible and irretrievable commitment of resources" when it prepared a Tentative Operating Schedule because "the agency was free to follow the [Schedule] or alter it as conditions warrant").

FN2. Conner v. Burford provides an excellent example of how to differentiate between mineral leases that entail an "irreversible and irretrievable commitment of resources" and those that do not. Conner, 848 F.2d at 1446-51.

It is highly likely that because of the Federal Defendants' prior written commitment to the Makah and concrete efforts on their behalf, the EA was slanted in favor of finding that the Makah whaling proposal would not significantly affect the environment. As the court below noted, "the longer the defendants worked with the Tribe toward the end of whaling, the greater the pressure to achieve this end.... [A]n EA prepared under such circumstances might be subject to at least a subtle pro-whaling bias." The EA itself somewhat disingenuously claims in 1997 that the "decision to be made" is "whether to support the Makah Tribe in its effort to continue its whaling tradition," when in point of fact that decision had already been made in contract form. To quote the 1996 Agreement, "after an adequate statement of need is prepared, NOAA ... will make a formal proposal to the IWC for a quota of gray whales...." The Makah satisfied its part of the bargain in 1996, binding the Federal Defendants to deliver on theirs, as they did at the IWC meeting in June 1996. Also, NOAA/NMFS's statement in the EA that "[a]ny perception that the U.S. Government is trying to withdraw its support for Makah whaling would likely plunge the Tribe into a difficult controversy with the United States" strongly suggests that the Federal Defendants were predisposed to issue a FONSI.


*1145 NEPA's effectiveness depends entirely on involving environmental considerations in the initial decisionmaking process. See 40 C.F.R. § § 1501.2, 1502.5; see also Methow Valley, 490 U.S. at 349, 109 S.Ct. 1835 (explaining that NEPA "ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts"). Moreover, the Supreme Court has clearly held that treaty rights such as those at stake in this case "may be regulated ... in the interest of conservation ..., provided the regulation ... does not discriminate against the Indians." Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 398, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968). Here, before preparing an EA, the Federal Defendants signed a contract which obligated them both to make a proposal to the IWC for a gray whale quota and to participate in the harvest of those whales. We hold that by making such a firm commitment before preparing an EA, the Federal Defendants failed to take a "hard look" at the environmental consequences of their actions and, therefore, violated NEPA.
Our decision in Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), supports this conclusion. In that case, the Forest Service planned to construct a road in order to facilitate timber sales. See id. at 756-57. The Forest Service wanted to build the road, and then prepare an EA/EIS to analyze the environmental impact of the timber sales. See id. at 757. However, the court explained that "[b]uilding the road swings the balance decidedly in favor of timber sales even if such sales would have been disfavored had road and sales been considered together before the road was built." Id. Accordingly, the Peterson court held that the Forest Service must prepare an EIS before deciding whether to approve the proposed road. Id. at 761. Similarly, we conclude that the Federal Defendants should not have fully committed to support the Makah whaling proposal before preparing the EA because doing so probably influenced their evaluation of the environmental impact of the proposal.
We want to make clear, however, that this case does not stand for the general proposition that an agency cannot begin preliminary consideration of an action without first preparing an EA, or that an agency must always prepare an EA before it can lend support to any proposal. We have discussed this distinction in Association of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158 (9th Cir.1997), where we pointed out that "an agency can formulate a proposal or even identify a preferred course of action before completing an EIS." Id. at 1184. We noted also that "Council on Environmental Quality ("CEQ") regulations actually encourage identification of a preferred course of action during the NEPA process...." Id. at 1185 (citing 40 C.F.R. § 1502.14(e)). Rather, our holding here is limited to the unusual facts and circumstances of this case where the defendants already had made an "irreversible and irretrievable commitment of resources"--i.e., by entering into a contract with the Makah before they considered its environmental consequences and prepared the EA. [FN3]

FN3. Because we conclude that the Federal Defendants violated NEPA by preparing the EA too late, we need not directly decide whether they also violated NEPA by preparing an inadequate EA, or by issuing a FONSI rather than preparing an EIS.

V

REMEDY
[11] Appellees argue that, even if the Federal Defendants did violate NEPA by preparing the EA after deciding to support Makah whaling, the issue is moot because the only relief that the court could order is the preparation of an adequate EA, which, appellees contend, already has been done. In making this argument, appellees rely on Realty Income Trust v. Eckerd, 564 F.2d 447 (D.C.Cir.1977), in which the court refused to remand to the district court because an adequate EIS had been prepared *1146 before any action was taken that might harm the environment. Id. at 457. The Eckerd court explained:

The problem here, to repeat, was simply one of timing, that is, that there was not a timely filing of an EIS with Congress. No complaint remains on appeal that the statements in substance were inadequate in any way.



Id.
We conclude that the case at bar is distinguishable from Eckerd and, therefore, appellees' reliance on that case is misplaced. Unlike in Eckerd, appellants do not concede that the EA that ultimately was prepared is adequate. To the contrary, appellants contend that the EA is demonstrably suspect because the process under which the EA was prepared was fatally defective--i.e., the Federal Defendants were predisposed to finding that the Makah whaling proposal would not significantly affect the environment. We agree. Moreover, appellants vigorously maintain that the EA is deficient with respect to its content and conclusions.
[12] Our conclusions about the EA in this case raise an obvious question: Having already committed in writing to support the Makah's whaling proposal, can the Federal Defendants now be trusted to take the clear-eyed hard look at the whaling proposal's consequences required by the law, or will a new EA be a classic Wonderland case of first-the-verdict, then-the-trial? In order to avoid this problem and to ensure that the law is respected, must we--and can we--set aside the FONSI and require the Federal Defendants to proceed directly to the preparation of an Environmental Impact Statement? On reflection, and in consideration of our limited role in this process, we have decided that it is appropriate only to require a new EA, but to require that it be done under circumstances that ensure an objective evaluation free of the previous taint. Unlike many of the disputes we are called on to resolve, time here is not of the essence. Although the doctrine of laches cannot defeat Indian rights recognized in a treaty, see United States v. Washington, 157 F.3d 630, 649 (9th Cir.1998), the Makah's seventy year hiatus in connection with whale hunting suggests that a modest delay occasioned by the need to respect NEPA's commands will cause no harm. Cf. Forelaws on Bd. v. Johnson, 743 F.2d 677 (9th Cir.1984) (operation of contracts in third year of 20-year term not enjoined because of statutory mandate of implementation of a contractual system).
The manner of ensuring that the process for which we remand this case is accomplished objectively and in good faith shall be left to the relevant agencies. Should a new EA come back to the courts for additional scrutiny, however, the burden shall be on the Federal Defendants to demonstrate to the district court that they have complied with this requirement.
Accordingly, we REVERSE and REMAND to the district court. The district court is directed to order the Federal Defendants to set aside the FONSI, suspend implementation of the Agreement with the Tribe, begin the NEPA process afresh, and prepare a new EA. [FN4] Costs are awarded to Appellants Metcalf et al.

FN4. Our determination that the Federal Defendants violated NEPA and, therefore, must prepare a new EA renders moot appellants' argument that the district court erred in denying its motions to compel production of administrative record material and to supplement the administrative record. With the preparation of a new EA, a new administrative record will also be generated. Given this background, however, the agencies would be well-advised to prepare this record with the expectation that every bit of it will be open to scrutiny should this matter return to the courts yet a second time.

REVERSED and REMANDED.




KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent.
The federal government reconciled two policies, one favoring aboriginal Indian interests and another favoring preservation of sea mammals, by choosing to advance *1147 the Indian whale-hunting interests. But before allowing the Indians to hunt whales, the government took the "hard look" at environmental consequences that was required by law. Nothing more was required. The majority opinion errs in three respects: (1) it imposes a novel version of the "objectivity" requirement that cannot be applied in a predictable, consistent manner by other panels in other cases; (2) it misconstrues the regulation that controls the time when an environmental assessment ought to be prepared; (3) it requires that a new environmental assessment be prepared without finding anything wrong with the old one. Obviously the agency did not prepare the environmental assessment until its officials had already decided that they wanted to let the Makah Indians hunt whales. Why else would they have gone to the trouble of preparing an environmental assessment? But without identifying something wrong with the environmental assessment (and we have not), we have no warrant for setting it aside.
First, "objectivity." There is a statutory and regulatory basis for inferring that an environmental assessment must be "objective." [FN1] But what does "objective" mean? The majority concedes that the agency can "identify a preferred course of action" before preparing the environmental assessment. Our decision in Association of Public Agency Customers v. Bonneville Power Administration [FN2] establishes that the agency does not have to be impartial, and can decide what it wants to do before preparing the environmental assessment or impact statement. [FN3] And the majority reasonably adopts the Eighth Circuit view, that "NEPA assumes as inevitable an institutional bias within an agency proposing a project" and the Eighth Circuit's rejection of the proposition that "NEPA requires agency officials to be subjectively impartial." [FN4] As Wyoming Outdoor Council v. United States Forest Service [FN5] says, "it is not logical that the Service would be required to delay its undertakings and commit its resources to the preparation of an EIS which might ultimately prove unnecessary." [FN6]

FN1. See 42 U.S.C. § 4332(2)(D) (1994); 40 C.F.R. § 1502.14(a) (1999).

FN2. Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d 1158 (9th Cir.1997).

FN3. See id. at 1185.

FN4. Environmental Defense Fund Inc. v. Corps of Engineers, 470 F.2d 289, 295 (8th Cir.1972).

FN5. Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d 43 (D.C.Cir.1999).

FN6. Id. at 49.

But then the majority apparently holds that the environmental assessment in this case fails the objectivity test because "it is highly likely that," because the agency had committed itself to the tribe, "the EA was slanted." This holding cannot be reconciled with the others, and cannot be applied in a predictable, consistent manner. The agency's policy choice, to allow the Makah tribe to hunt whales if it could, cannot be said to "slant" the environmental assessment, when we do not identify anything wrong with the environmental assessment, unless the test of objectivity is exactly what we say it is not, "institutional bias within an agency" and subjective partiality. All the majority shows is that the agency knew the answer it wanted before it asked the question. But under Bonneville Power, that "institutional bias" does not vitiate the environmental assessment's "objectivity". To show that the environmental assessment is not objective, an objector must show that there is something wrong with the assessment, not just that the agency that prepared it wanted a particular result.


The meaning of "objective" is "expressing or involving the use of facts without distortion by personal feelings or prejudices." [FN7] Thus our inquiry should be focused

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