## Facts

- The Makah Indian Tribe has a longstanding tradition of gray whale hunting and reserved in an 1855 treaty “the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.”
- The Tribe voluntarily ceased whaling in the 1920s after gray whales were severely depleted.
- After the Eastern North Pacific gray whale population recovered and international regulators considered limited subsistence hunts, federal agencies (NOAA and NMFS) agreed to support a proposal seeking an International Whaling Commission quota for Makah subsistence and ceremonial whaling.
- The proposed hunt implicated the Olympic Coast National Marine Sanctuary, including a small gray whale group that resides there year-round.
- Only after committing in writing to support the quota effort, NOAA and NMFS prepared a NEPA Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI), concluding an Environmental Impact Statement (EIS) was unnecessary.
- Environmental organizations, individuals, and a Makah member sued, arguing NEPA review was untimely and inadequate.
- The district court granted summary judgment for the federal defendants and the Tribe and denied requests to compel or supplement the administrative record.

## Issues

1. Whether NEPA was violated because the agencies began environmental review only after committing to support the whaling proposal.
2. Whether the EA and FONSI were legally sufficient, or whether NEPA required preparation of an EIS.
3. Whether the district court improperly refused to compel production of additional administrative materials or allow supplementation of the record.

## Decision

- The Ninth Circuit reversed the summary judgment for the federal defendants and the Tribe and remanded.
- The court held the agencies violated NEPA by failing to initiate environmental review at the earliest practicable time, instead evaluating impacts only after committing to support the proposal.
- The court found the EA inadequate and concluded the FONSI and decision not to prepare an EIS were improper.
- The court ordered the district court to direct the agencies to set aside the FONSI, suspend implementation of the agreement with the Tribe, restart the NEPA process, and prepare a new EA.

## Legal Principles

- NEPA requires agencies to take a “hard look” at environmental consequences early enough to inform decisionmaking, not after an agency has effectively chosen a course of action.
- An agency’s pre-NEPA commitment to a project can bias later analysis and render an EA unreliable as an objective assessment.
- A FONSI is unlawful when the underlying EA does not adequately analyze potential significant effects or otherwise fails to support the conclusion of no significant impact; in such circumstances an EIS may be required.
- The proper remedy for a NEPA violation commonly includes vacating the FONSI or similar approval and requiring renewed, timely NEPA review before implementation proceeds.

## Conclusion

The Ninth Circuit held that federal agencies violated NEPA by committing to support Makah whaling before conducting environmental review and by issuing an inadequate EA and FONSI; it set aside the FONSI, halted implementation of the agreement, and required the agencies to restart the NEPA process.


Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000)