## Facts

- The Makah Tribe’s 1855 Treaty of Neah Bay reserved a right to whale on the tribe’s accustomed offshore grounds.
- The Makah ceased whaling in the 1920s and later sought to resume whaling for cultural and ceremonial purposes.
- The Marine Mammal Protection Act (MMPA) generally prohibits the “taking” of marine mammals in U.S. waters absent statutory authorization.
- By 1994, Eastern North Pacific gray whales had recovered and were delisted under federal endangered species protections.
- Federal agencies worked through the International Whaling Commission (IWC) to obtain an aboriginal subsistence quota and entered into a cooperative agreement and domestic plan authorizing up to five gray whales annually for the Makah.
- NOAA/NMFS completed an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI), but did not prepare an Environmental Impact Statement (EIS).
- Environmental and animal-protection plaintiffs sued, alleging NEPA noncompliance (EIS required) and MMPA violations (treaty right did not exempt whaling from MMPA permitting/waiver requirements).
- The district court granted summary judgment to the federal defendants and the intervening Makah Tribe.

## Issues

1. Whether NEPA required an EIS, rather than an EA/FONSI, before federal approval of the Makah gray whale hunt.
2. Whether the MMPA applies to the Makah’s treaty-based whaling, requiring MMPA authorization before any takes occur.
3. Whether the case became moot after the relevant IWC quota expired.

## Decision

- The Ninth Circuit reversed the summary judgment for defendants and intervenor and remanded.
- The court held NEPA required preparation of an EIS because substantial questions existed whether the hunt might significantly affect the environment, including localized effects on whales near the Strait of Juan de Fuca.
- The court held the MMPA applies to Makah treaty whaling and that MMPA waiver/permit procedures must be satisfied before any gray whales may be taken.
- The court rejected mootness based on quota expiration because plaintiffs challenged ongoing governmental procedures for obtaining and allocating whaling quotas and implementing the cooperative arrangement.

## Legal Principles

- An EIS is required under NEPA when substantial questions exist as to whether a proposed federal action may significantly affect the environment; the threshold for requiring an EIS is low.
- An EA and FONSI are insufficient when the agency does not adequately address plausible localized or cumulative impacts, even if broader population data suggests limited stock-wide risk.
- Generally applicable federal conservation statutes, including the MMPA’s prohibition on taking marine mammals, apply to treaty-based activities absent a clear congressional exemption.
- Treaty rights may be exercised subject to nondiscriminatory federal conservation regulation; compliance with statutory permitting/waiver processes can be required before the activity occurs.
- A controversy is not moot where the challenged conduct concerns recurring governmental procedures and agreements that continue to affect the parties beyond the life of a single quota or authorization.

## Conclusion

The Ninth Circuit set aside federal approval for the Makah gray whale hunt because NEPA required an EIS and because the MMPA applies to treaty whaling, requiring statutory authorization before any taking; the dispute remained live despite expiration of the specific IWC quota.


Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004)