Anderson v. Evans
314 F.3d 1006 (9th Cir. 2002)

  • A tribe of Native Americans (the Makah) wanted to hunt some whales in a Marine Sanctuary off the coast of Washington. They petitioned the National Oceanic and Atmospheric Administration (NOAA) for a permit.
  • After a bunch of litigation (see Metcalf v. Daley (214 F.3d 1135 (2000))), NOAA wrote an Environmental Assessment (EA), that resulted in a Finding of No Significant Impact (FONSI). Environmental groups sued for an injunction.
    • The environmental groups argued that an EA was insufficient, and that NOAA should be required to prepare an Environmental Impact Statement (EIS).
      • The National Environmental Policy Act (NEPA) requires that an EIS be prepared whenever there is a "major Federal action significantly affecting the quality of the human environment."
    • NOAA argued that the proposed action wasn't significant, and therefore no EIS was required.
      • While the number of whales in the immediate area was very low, there were other pods of the same kind of whales in other areas. Therefore, NOAA concluded that the ones the Makah wanted to kill were not significant.
  • The Trial Court found for NOAA. The environmental groups appealed.
    • The Trial Court found that NOAA had taken the requisite "hard look" at the risks associated with the whale hunt and that the Court was required to defer to their decision.
      • The "hard look" standard comes from Robertson v. Methow Valley Citizens Council (490 U.S. 332 (1989)).
  • The Appellate Court reversed.
    • The Appellate Court looked to NEPA regulations (40 C.F.R. 1500-1508), and found that the term significantly should be considered in light of two factors, context and intensity.
    • The Court noted that a resource may be "locally significant" even if it is not significant from a regional or national perspective. Therefore the relatively small resident whale population in the area rendered the context significant.
    • The Court looked to a list of ten intensity criteria (40 C.F.R. 1508.27), and found that several were present:
      • The Court found that there was controversy, uncertainty, and precedent-setting effects to the proposed actions.
    • Based on all of that, the Court found that there was context and intensity sufficient to meet the level of significant in NEPA. Therefore an EIS was required.