Anderson v. Evans

• Decision Date: 20 December 2002
• Docket Number: No. 02-35761.,02-35761.
• Citation: 314 F.3d 1006
• Parties: Will ANDERSON; Fund for Animals; Humane Society of the United States; Australians for Animals; Cetacean Society International; West Coast Anti-whaling Society; Sandra Abels; Cindy Hansen; Patricia Ness; Robert Ness; Lisa Lamb; Margaret Owens; Charles Owens; Peninsula Citizens for the Protection of Whales; Dan Spomer; Sue Miller; Steph Dutton, Plaintiffs-Appellants, v. Donald EVANS, Secretary, U.S. Department of Commerce; Conrad Lautenbacher, Administrator, National Oceanic and Atmospheric Administration; William Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants-Appellees, Makah Indian Tribe, Defendant-intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.3d 1006

Will ANDERSON; Fund for Animals; Humane Society of the United States; Australians for Animals; Cetacean Society International; West Coast Anti-whaling Society; Sandra Abels; Cindy Hansen; Patricia Ness; Robert Ness; Lisa Lamb; Margaret Owens; Charles Owens; Peninsula Citizens for the Protection of Whales; Dan Spomer; Sue Miller; Steph Dutton, Plaintiffs-Appellants, v. Donald EVANS, Secretary, U.S. Department of Commerce; Conrad Lautenbacher, Administrator, National Oceanic and Atmospheric Administration; William Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants-Appellees Makah Indian Tribe, Defendant-intervenor-Appellee.

No. 02-35761.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 28, 2002.

Filed December 20, 2002.

COPYRIGHT MATERIAL OMITTED

Eric R. Glitzenstein and Kimberly D. Ockene, Meyer & Glitzenstein, Washington, D.C., for the plaintiffs-appellants.

Robert H. Oakley, Environment & Natural Resources Division, United States Department

of Justice, Washington, D.C., for the defendants-appellees.

John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-02-00081-FDB.

Before HILL,^* GOULD and BERZON, Circuit Judges.

Opinion by Judge BERZON for sections I and II; Opinion by Judge GOULD for sections III and IV.

OPINION

BERZON, Circuit Judge.

"[W]hile in life the great whale's body may have been a real terror to his foes, in his death his ghost[became] a powerless panic to [the] world." Herman Melville, Moby Dick 262 (W.W. Norton & Co. 1967) (1851). This modern day struggle over whale hunting began when the United States granted support and approval to the Makah Tribe's ("the Tribe's") plan to resume whaling.

The Tribe, a traditional Northwest Indian whale hunting tribe, had given up the hunt in the 1920s. In recent years, the Tribe leadership came to regret the cultural impact on the Tribe of the lapse of its whale hunting tradition. As part of a general effort at cultural revival, the Tribe developed plans to resume pursuing gray whales off the coast of Washington State and in the Strait of Juan de Fuca. The worldwide hunt for whales in the years the real-life Captain Ahabs roamed the high seas, however, seriously depleted the worldwide stock of the cetaceans. As a result of the near extinction of some species of whales, what had been a free realm for ancient and not-so-ancient mariners became an activity closely regulated under both federal and international law. This case is the second in which we have considered whether the federal government's approval of the Tribe's plans to pursue once again the Leviathan of the deep runs afoul of that regulation. See Metcalf v. Daley, 214 F.3d 1135 (9th Cir.2000).

The plaintiffs, citizens and animal conservation groups,¹ challenge, as did the plaintiffs in Metcalf, the government's failure to prepare an environmental impact statement ("EIS") pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. They also contend that the Tribe's whaling plan cannot be implemented because the Tribe has not complied with the Marine Mammal Protection Act of 1972 ("MMPA"), 16 U.S.C. § 1361 et seq. Having reviewed the environmental assessment ("EA") prepared by the government agencies and the administrative record, we conclude that there are substantial questions remaining as to whether the Tribe's whaling plans will have a significant effect on the environment. The government therefore violated NEPA by failing to prepare an EIS before approving a whaling quota for the Tribe. We also conclude that the MMPA applies to the Tribe's proposed whale hunt.

I. Background

A. The Whales

The record discloses that there are two genetically distinct North Pacific gray whale populations — an eastern stock, also known as the California gray whale, and a western stock, confined to East Asian waters. See Steven L. Swartz et al., Review of Studies on Stock Identity in the Gray Whale (Eschrichtius robustus) (hereinafter "Review of Studies") (written by scientists employed by National Marine and Fisheries Service ("NMFS") and National Oceanic and Atmospheric Administration ("NOAA"), at 1 (2000)). The California gray whales migrate annually between the North Pacific and the West Coast of Mexico. These whales were at one time nearing extinction and were therefore listed on the Endangered Species Act list. See Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.; Metcalf, 214 F.3d at 1138. Protected by the endangered species designation and by other conservation measures, the California gray whale stock revived, so that by 1994 the whale was removed from the endangered species list. See 59 Fed.Reg. 31,094 (Jun. 16, 1994). The NMFS has determined that the eastern North Pacific gray whale stock has now recovered to between 17,000 and 26,000 whales, a number near its carrying capacity.² See 63 Fed.Reg. 16,701, 16,704 (Apr. 6, 1998); 58 Fed.Reg. 3121, 3122 (Jan. 7, 1993); John Calambokidis et al., Final Report, Range and Movements of Seasonal Resident Gray Whales from California to Southeast Alaska, at 11 (Dec.2000); Review of Studies at 11, 14.³ Most of the migrating whales pass through the Olympic Coast National Marine Sanctuary ["Marine Sanctuary"],⁴ adjacent to the Makah Tribe's home territory on the coast of Washington State, on their way to the Bering and Chukchi Seas, and again when heading south for the winter.

Not all of the gray whales, however, make the entire journey to the Far North each summer. On this much the parties agree, although they disagree about the habits of the nonmigrating whales as they pertain to this case.

The plaintiffs contend that a separate group of gray whales remains in and around the Marine Sanctuary waters and within the Strait of Juan de Fuca (south of Vancouver Island and east of the Pacific Ocean) during the summer and early fall, rather than migrating to the Bering and Chukchi Seas with the other eastern stock North Pacific gray whales. See Appendix (map depicting area). This resident group, plaintiffs maintain, arrives in the late spring with the northward migration and remains in the area for the summer, leaving only when the larger contingent of behemoths migrate south for the winter.

The government, in contrast, posits that the whales in the Marine Sanctuary area and the Strait of Juan de Fuca are not a distinct group but rather a rotating one changing from year to year, albeit with some repeat visitors. See Environmental Assessment on Issuing a Quota to the Makah Indian Tribe for a Subsistence Hunt on Gray Whales for the Years 2001 and 2002, at 22-29 (July 12, 2001) ["Final EA"]. The government points to several studies that suggest that if there is any identifiable whale subgroup, it is a much larger one than the plaintiffs suppose. This larger subgroup is denominated by the government the Pacific Coast Feeding Aggregation ("PCFA"). The PCFA, the government maintains, does not migrate all the way north for the summer but ranges over a long stretch of the Pacific Coast from California to Southern Alaska. See id. According to this analysis, although some whales in the PCFA show a tendency to return to the same area along the Pacific Coast, most of them move around among different areas along the West Coast rather than staying in a particular area. Some frequent different locations throughout the summer, and others visit different places each year.

Despite this disagreement among the parties about the habits of the nonmigrating whales, there are some concepts that are not disputed. Scientists, including those relied upon by the government agencies, generally support the assessment that there is a fairly small number of whales who spend some or all of the summer in the general area of the planned Tribe hunt, and that some of these whales return to the area for more than one summer, albeit not necessarily in successive years. See, e.g., John Calambokidis et al., Final Report, Gray Whale Photographic Identification in 1999: Collaborative Research, by Cascadia Research, the National Marine Mammal Laboratory, and Humboldt State University, at 8-10 (Dec.2000) (prepared for the National Marine Mammal Laboratory ["NMML"]); Calambokidis et al., Range and Movements, supra, at 3-4, 6-9, 11 (funded by NMML with participation of Dr. James Darling, the plaintiffs' main expert); Darling Decl. ¶¶ 2-3;⁵ Review of Studies at 10, 14-15 (NMFS and NMML study); Jennifer Leigh Quan, Univ. of Wash. Sch. of Marine Affairs, Thesis, Summer Resident Gray Whales of Washington State: Policy, Biological and Management Implications of Makah Whaling, at 1, 7-11 (2000).

Further, while the parties disagree in their assessment of the scientific literature as it pertains to many details regarding the behavior of these returning whales, they agree — and our review of the administrative record confirms — that overall, the best current scientific evidence indicates that each summer about sixty percent of the whales in the area around Neah Bay and the Strait of Juan de Fuca are returning whales. See Final EA at 24, 27; Review of Studies at 1, 13-15, 20-21 (finding that there are "identifiable gray whales, termed `summer residents' [that] have been observed to return each summer to the same areas at various locations along the Pacific Northwest Coast" for at least part of the season) (citing studies done within the Tribe's hunting grounds off the Washington Coast and near Vancouver Island); Quan, supra, at 4, 9-10 (supporting the finding that approximately 61% of the whales found in the Tribe's whaling area were repeat visitors). See also, Darling Decl. ¶¶ 2-3, 7 (approximately sixty percent of the whales identified in a separate area, off central Vancouver Island in...