Anderson v. Evans

• Decision Date: 20 December 2002
• Docket Number: No. 02-35761.,02-35761.
• Citation: 371 F.3d 475
• 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

371 F.3d 475

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.

Amended November 26, 2003.

Second Amendment June 7, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eric R. Giltzenstein 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.

ORDER

The panel majority opinion, as amended, appearing at 350 F.3d 815 (9th Cir.2003), is AMENDED as follows:

On Page 844, in Part IV, after the sentence that ends "they must do so before any taking of a marine mammal", insert the following footnote:

In connection with petitions for rehearing en banc, the Appellees urged that this case is moot because the whaling quota expired before we filed our opinion. We disagree. First, Appellants' complaint sought relief broader than invalidation of the then-existing whaling quota, including invalidation of the procedures used to obtain the IWC permit and of the Cooperative Agreement as violative of NEPA and the MMPA. The government activity challenged is not an ordinary, time-limited regulatory permit, but rather the way the government has gone about contracting with the Makah, obtaining "aboriginal subsistence" quotas from the IWC, and allocating them to the Tribe. The quotas are not assigned pursuant to a statutory or regulatory regime. The system by which the Department of Commerce has allocated a whale quota to the Makah Tribe is ad hoc; there is no requirement that quotas coincide with the five-year quotas assigned by the IWC. See 16 U.S.C. § 916d; 50 C.F.R. §§ 230.4-230.6. This remains an active controversy over the question of the procedures to be followed before permitting whaling by the Tribe, GATX/Airlog Co. v. U.S. District Court, 192 F.3d 1304, 1306 (9th Cir.1999), so our decision still governs the relations between the parties. See Friends of the Earth v. Laidlaw, 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569-70, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984).

Second, vacating our opinion would make the precedential harms from the 2001-02 permit irredressable. See Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851, 855 n. 3 856-57 (9th Cir.1999). The precedential effects of past agency decisions must be considered when an agency determines whether an environmental impact statement (EIS) is required. See 40 C.F.R. § 1508.27(b)(6). Precedential harms continue to flow from the government's action. As there remains a continuing impact for NEPA purposes of the 2001-02 permit, the case is not moot.

Third, the expiration of the one-year quota, whose length is determined by the agency alone in the ad hoc manner described above, was nothing more than the government's voluntary cessation of challenged conduct. The party asserting mootness bears the burden of proving that "`there is no reasonable expectation that the wrong will be repeated,'" City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (citation omitted), i.e., that it is "`absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Friends of the Earth, 528 U.S. at 189, 120 S.Ct. 693 (citation omitted). Here, there is no assurance that the challenged action will not again take place. On the contrary, the government has declared that it will recur, and that the government expects to grant the Tribe further permission to whale without complying with the NEPA or MMPA, should this court's edict that the government comply with the law be vacated. At oral argument, the government said that a "quota will probably be given to the Makah whalers again next year," with a "similar" environmental assessment and "pretty much the same management plan" as that used in the 2001-2002 allocation. See also Department of Commerce/National Oceanic and Atmospheric Administration, Marine Mammals; Notice of Intent to Prepare an Environmental Impact Statement for Issuing Annual Gray Whale Subsistence Quotas to the Makah Indian Tribe for the years 2003 through 2007, 68 Fed.Reg. 10,703, 10,703 (March 6, 2003).

Fourth, even if the claims were otherwise moot, the "capable of repetition, yet evading review" doctrine applies. In Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1174 (9th Cir.2002), we applied the evading-review doctrine where the "duration of the controversy is solely within the control of the defendant." The exception applies even more aptly here in light of the history of protracted challenges to the 1997 and 2001 allocations. One cannot assume that the government will tailor any new permit to be long enough for effective review. Instead, there is every reason to believe that further administrative delays and piecemeal litigation will continue to make even a five-year whaling quota unreviewable. See Honig v. Doe, 484 U.S. 305, 322, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). We retain jurisdiction under Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), and its progeny.

Fifth, even if the only basis for ongoing controversy were the Cooperative Agreement, which expired after we filed our opinion, we have concluded that we should not exercise our discretion to vacate the opinion. See U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994).

Our opinion is not moot and we decline to vacate it.

Judge Gould and Judge Berzon have voted to deny the renewed petitions for rehearing en banc and Judge Hill took no position on whether the case should be heard en banc. The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The call failed to receive a majority vote of the active, non-recused judges. The petitions for rehearing en banc are DENIED.

No further petition for rehearing or rehearing en banc will be accepted in this case.

IT IS SO ORDERED.

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's leaders 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") ...