Metcalf v. Daley

Decision Date08 February 2000
Docket NumberNo. 98-36135,98-36135
Citation214 F.3d 1135
Parties(9th Cir. 2000) 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. Office of the Circuit Executive
CourtU.S. Court of Appeals — Ninth Circuit

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: Stephen S. Trott, Andrew J. Kleinfeld, and Barry G. 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. S 1291, and we REVERSE and REMAND to the district court.


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 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. S 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. S 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. S 916 et seq.; 50 C.F.R. S 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 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...

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