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

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*1148 on the text of the environmental assessment that the agency prepared, not on the motivations that the agency had for slanting it. Of course it had a motive to slant the statement in favor of its preferred policy. Any executive agency can be expected to try to advance its and the president's policy preferences. If we require a record cleansed of any indication of a policy preference, all we will do is push the indicators of agency preference off the written record into the land of winks and nods, and choosing people to prepare the reports who, because of their known policy preferences, can be counted on to reach the conclusions the agency wants. We should read the environmental assessment and decide whether it states the facts without distortion, and fairly sets out the alternatives and the reasons for and against them. The district judge did so, and found nothing wrong with the environmental assessment, and neither have we. That should be the end of the "objectivity" inquiry.

FN7. Webster's Third New International Dictionary 1155-56 (1981).

Second, timing. The majority holds that the "at the earliest possible time" [FN8] requirement in the regulations means before "making an irreversible and irretrievable commitment of resources." [FN9] I agree with that proposition of law. But then the majority goes on to say that because the agency's commitment to the Makah tribe preceded the environmental assessment, the environmental assessment came too late. I respectfully disagree with the application of law to facts, though the issue is close.

FN8. 40 C.F.R. § 1501.2.

FN9. Op. at 1143.

The commitment to allow the Makah tribe to hunt whales was not an "irreversible and irretrievable commitment," despite the contract. The majority opinion misses the difference between the two contracts. In Conner v. Burford, [FN10] we held that where the agency retained regulatory authority prior to drilling, it could prepare the environmental impact statement after it issued oil and gas leases, but where the oil companies would immediately be free to build roads and drill without further regulatory approval, the agency had to prepare the environmental impact statement before issuing leases. [FN11] Thus the test in Conner was whether the oil companies could start drilling once the contract was signed, or whether there was a subsequent regulatory approval process. Applying that test here, to whale hunting rather than okay drilling, there was a subsequent regulatory process before the first harpoon could be fired, so the environmental assessment was not untimely. Rather than following Conner as it purports to, the majority is deciding this case inconsistently with Conner. The majority also misreads Thomas v. Peterson; [FN12] it concerns "connected actions," in that case a timber sale and the road to be built for the logging, and has no application to the case at bar, because no "connected actions" regulation has no application here. The timing requirement of the statute and regulations required that the agency prepare an environmental assessment before the Makah tribe was allowed to hunt whales. It did. There was no "irretrievable commitment" until no further regulatory process stood between the tribe and the whales.

FN10. Conner v. Burford, 848 F.2d 1441 (9th Cir.1988).

FN11. See id. at 1451.

FN12. Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985).

Promising to support the Makah whaling proposal before the International Whaling Commission was not an "irretrievable commitment of resources," for several reasons. Signing the contract did not entitle the Indians to kill whales. International Whaling Commission approval was sufficiently unlikely (the aboriginal "subsistence exception" was a hard sell to the Commission because the Makah had not hunted whales for seventy years and did not depend on them for subsistence) so that no one could count on any whale *1149 hunts despite the agency's support. There was no point wasting the public's time and money on an environmental assessment until and unless the International Whaling Commission made Makah whale hunting a possibility. Doing the NEPA process before the agency action is even possible, as today's majority requires, is like setting a wedding date, booking the hall, buying the dress, and paying the band before the couple has gotten engaged.

Even after the International Whaling Commission approved a Makah whale quota, the Makah still could not hunt whales (just as the oil companies in Conner could not drill). The agency had to decide upon and promulgate regulations. [FN13] An earlier version of the contract, made when the agency was likely to fail (it did fail) before the International Whaling Commission, said that the agency would adopt regulations within 30 days after the International Whaling Commission approved the quota. But once the Commission looked likely to come around on a joint Russian-American annual quota of 120 whales for the Siberians and 4 for the Makah (and before the Makah quota was granted), the agency and the Makah signed a novation replacing the old contract. The new contract obligated the Makah Tribal Council, but not the federal agency, to adopt a management plan and regulations. The agency's hands were not tied. [FN14] If the agency had changed policy, and decided not to issue regulations permitting Makah whale hunting as a result of the environmental assessment, the political strength of the advocacy groups opposing whale hunting, or anything else, the Makah might reasonably have regarded the policy change as a bad faith betrayal. But government changes policy continually, restrained only by concerns for fairness, public opinion, and that the incentives it offered in the future to induce private action would have to be higher to the extent that people felt they could not rely on the stability of government policies. [FN15] Specific performance of the contract could not have been compelled [FN16] and it is hard to imagine a damages remedy.

FN13. See 16 U.S.C. § 916 et seq. (1985); 50 C.F.R. § 230.1 (1998).

FN14. Bowen v. Public Agencies Opposed, 477 U.S. 41, 52, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986); Madera Irrigation Dist. v. Hancock, 985 F.2d 1397, 1400 (9th Cir.1993).

FN15. See Madera, 985 F.2d at 1397.

FN16. See 28 U.S.C. § 1491; Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 689, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982).

Preparation of an environmental assessment, and, if necessary, an environmental impact statement, is itself a major commitment of resources, and it does not make practical sense to require that these resources be wasted where the agency is not yet in a position to implement a policy choice requiring that expenditure. The draft and final environmental assessments, including an appendix of public comment, and the finding of no significant impact, consist of 200 pages of single spaced print, replete with expensive experts' opinions and research. It would be a foolish waste of time and money for an agency to initiate this process before the agency had decided on a policy. As Wyoming Outdoor Council v. United States Forest Service [FN17] 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." [FN18]

FN17. Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d 43 (D.C.Cir.1999).

FN18. Id. at 49.

Third, remedy. The majority's remedy brings us into conflict with the only other circuit to have considered the issue. In Realty Income Trust v. Eckerd, [FN19] the agency made a proposal to Congress, which involved moving a stream, before preparing its environmental impact statement. The statute plainly required the environmental *1150 impact statement to be included with the proposal, not to come afterwards as it did, [FN20] so the environmental impact statement was prepared too late. The District of Columbia Circuit held that construction could proceed without a second environmental impact statement, despite the unlawful timing, because "equity should not require the doing of a vain or useless thing." [FN21] That is to say, even if the environmental impact statement was prepared too late, the agency would not be required to prepare a new one in the absence of a showing that the statement was substantively inadequate.

FN19. See Realty Income Trust v. Eckerd, 564 F.2d 447, 457 (D.C.Cir.1977).

FN20. See 42 U.S.C. § 4332(C).

FN21. Realty Income Trust, 564F.2d at 458.

The majority purports to distinguish Eckerd on the basis that in the case at bar, the environmental advocacy groups contend that the environmental assessment was "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." [FN22] But that does not distinguish Eckerd at all. The majority concedes in its discussion of the "objectivity" requirement, the "process" cannot be "fatally defective" because the agency had a predisposition. Something that is immaterial cannot be a material distinction. True, there is a challenge to the substantive adequacy of the environmental assessment in this case and not in Eckerd. But we do not rule upon the challenge. The district court carefully examined all the substantive challenges and found them to be without merit, and we have found no fault with the district court's determination. In the absence of a judicial determination that the environmental assessment really was inadequate, as opposed to an unsuccessful argument claiming inadequacy, we cannot conclude that preparing another environmental assessment would be other than what Eckerd terms "a vain or useless thing."

FN22. Op. at 1145.

It is impractical to suppose that executive agencies will be uncommitted to policies when they prepare environmental assessments and environmental impact statements. It is precisely their determinations to move ahead with one proposal or another that occasions the assessments and impact statements. So long as the agency prepares an objective statement giving the initiative the required "hard look," prior to going ahead with it, it has done its duty, and even if it prepares the statement too late, it is pointless to require another one unless there is something wrong with the one the agency submitted. Environmental assessments and environmental impact statements are unlikely to persuade agency personnel, who initiated a project, to change their minds. Few things in government are as hard to shake as a bureaucratic policy choice.

The value of the environmental assessments and impact statements comes mostly after the agency has settled on a policy choice. The process of preparing them mobilizes groups that may generate political pressure sufficient to defeat the executive initiative. Exploration of the alternatives, and the facts brought out in preparation, may educate the agency, so that the initiative is modified in a useful way. The process may educate the agency about interests and concerns of which it was not aware, so that implementation will be more sensitive. The quality of the statement may persuade Congress or others who must pass on the agency proposal that the agency was wrong in its policy choice. The statement also stands as an archive with which the public may evaluate the correctness of the agency's policy choices after implementation, to decide whether the agency has done what it promised during implementation, and whether to repose more or less confidence in the agency's policy choices in the future. Preparation and publication of the statements eliminate the agency's monopoly *1151 of information, thus enabling other participants in the political process to use the information to overcome the agency's policy choice. None of these values were subverted in this case by the agency's commitment to the Makah Tribe. And nothing has been shown to be wrong with the environmental assessment. There is a legitimate clash of values between those who care more about whale hunting from the point of view of the hunter, and those who care more from the viewpoint of the whale. The political organs of government have the authority to choose. We have no warrant in this case to interfere.
214 F.3d 1135, 51 ERC 1429, 30 Envtl. L. Rep. 20,637, 00 Cal. Daily Op. Serv. 4542, 2000 Daily Journal D.A.R. 6107

Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

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