Metcalf v. Daley
214 F.3d 1135, 2000 WL 732909 (2000)
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Rule of Law:
Under the National Environmental Policy Act (NEPA), a federal agency must complete its environmental review process, such as an Environmental Assessment (EA), before making an irreversible and irretrievable commitment of resources to a proposed action.
Facts:
- The Makah Indian Tribe, which has a 1500-year whaling tradition, holds a right to whale under the 1855 Treaty of Neah Bay.
- The Tribe ceased whaling in the 1920s due to the commercial devastation of the gray whale population.
- After the gray whale was removed from the endangered species list in 1994, the Makah sought to resume whaling and requested assistance from the U.S. government to secure an international quota.
- In March 1996, the National Oceanic and Atmospheric Administration (NOAA) entered into a formal agreement with the Makah, committing to make a formal proposal to the International Whaling Commission (IWC) for a whaling quota for the Tribe.
- The U.S. advanced this proposal at the 1996 IWC meeting but withdrew it due to insufficient international support.
- In July 1997, after being notified of a potential NEPA violation, NOAA began preparing an Environmental Assessment (EA).
- On October 13, 1997, NOAA signed a new, similar agreement with the Makah, renewing its commitment to support the whaling effort.
- Four days later, on October 17, 1997, NOAA issued a final EA and a Finding of No Significant Impact (FONSI), concluding an Environmental Impact Statement (EIS) was unnecessary.
- The following day, the IWC approved a joint U.S.-Russian proposal that included a whaling quota for the Makah.
Procedural Posture:
- Jack Metcalf et al. filed a complaint against the Federal Defendants in the U.S. District Court for the District of Columbia.
- The Makah Indian Tribe was granted leave to intervene as a defendant.
- The case was transferred to the U.S. District Court for the Western District of Washington.
- The district court denied Appellants' motions to compel production and supplement the administrative record.
- The district court granted summary judgment in favor of the Federal Defendants and the Makah Tribe, and denied Appellants' cross-motion for summary judgment.
- Appellants appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a federal agency violate the National Environmental Policy Act (NEPA) by entering into a formal agreement to support and implement a proposal before preparing an Environmental Assessment (EA) to analyze the proposal's environmental consequences?
Opinions:
Majority - Trott
Yes. A federal agency violates NEPA by making an irreversible and irretrievable commitment of resources before completing the required environmental analysis. NEPA's procedural requirements mandate that an agency take a 'hard look' at environmental consequences at the earliest possible time, ensuring that the analysis informs the decision-making process rather than rationalizing a decision already made. Here, the Federal Defendants made such a commitment when they signed the 1996 agreement with the Makah Tribe, contractually obligating themselves to support the whaling proposal. By entering into this binding agreement over a year before preparing the EA, the agency improperly predetermined the outcome, rendering the subsequent environmental review a post-hoc justification. This timing violated NEPA's core purpose of integrating environmental considerations into the initial stages of planning.
Dissenting - Kleinfeld
No. The Federal Defendants did not violate NEPA because the agreement with the Makah Tribe was not an 'irreversible and irretrievable commitment of resources.' The promise to support the Tribe was contingent upon several future events, including approval from the IWC and the promulgation of domestic regulations, meaning the agency retained the power to prevent the hunt. It is natural and expected for an agency to have a preferred policy before it dedicates significant resources to preparing an EA. The focus of judicial review should be on the substantive adequacy of the EA itself, not on the agency's pre-existing institutional bias. Since the majority identifies no substantive flaws in the EA, ordering the agency to prepare a new one is a 'vain or useless thing.'
Analysis:
This decision reinforces the procedural importance of NEPA's timing requirements, clarifying that the environmental review process must precede, not follow, an agency's formal commitment to a project. By defining a binding contract as an 'irreversible and irretrievable commitment of resources,' the court established a clear line that prevents agencies from using the NEPA process to simply rubber-stamp pre-determined outcomes. This holding significantly impacts how federal agencies must structure agreements and partnerships, particularly with sovereign entities like Native American tribes, ensuring that environmental considerations are a foundational part of the decision-making process, not an afterthought.
