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

  • A tribe of Native Americans (the Makah) wanted to hunt some whales off the coast of Washington. Since the US was a party to the International Convention for the Regulation of Whaling, they had to get a waiver from the International Whaling Commission (IWC).
    • The National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) requested a waiver.
  • The National Environmental Policy Act (NEPA) required that NOAA prepare an Environmental Assessment (EA).
    • Under NEPA, since the whales the Makah wanted to hunt had previously been an endangered species, an EA (or an Environmental Impact Statement (EIS)) was required.
  • NOAA prepared a draft EA, and released it for public comment. However, before it was finalized, NOAA signed agreements with the IWC and the Makah to resume hunting.
    • After the agreements were signed, NOAA released a final EA that included a finding of no significant impact (FONSI).
  • A number of environmental groups (led by Metcalf) sued, claiming that NOAA had violated NEPA.
    • Metcalf argued that since NOAA didn't wait for a final EA before granting the Makah approval, they obviously didn't seriously consider the environmental impact of the hunt. That's a violation of NEPA.
  • The Trial Court dismissed the case. Metcalf appealed.
  • The Appellate Court reversed.
    • The Appellate Court found that NOAA's issuance of the EA regarding decision to support tribe's proposal was untimely.
      • The Court found that the EA was nothing more than a rubber stamp on a decision that had already been made.
      • The Court noted that NEPA explicitly says that "agencies shall integrate that NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays, and to head off potential conflicts."
        • See 40 C.F.R. 1501.2.
    • The Court found that the proper remedy was to put the project on hold and have NOAA write a new EA.
  • In a dissent it was argued that it would be unfair to hold up the process while the EA was being written, there was no evidence that the EA was slanted or biased, and that the remedy (writing a new EA) was dumb since no one was suggesting that there was anything wrong with the analysis in the old EA.
    • The dissent felt that it was a waste of money to write an EA before they found out if the IWC was going to give them permission, so in effect, the EA was written at the "earliest possible time."
    • No actual whaling had been done before the EA was finalized, so the Makah hadn't jumped the gun. If the EA had come out the other way, then the US could have refused to give the final permits even though the IWC had approved the hunt.
  • NOAA went back and rewrote the EA. In a followup lawsuit, the Court found that an EA was insufficient and that NOAA was required to write a comprehensive EIS instead.
    • That case was National Parks and Conservation Assn. v. Babbitt (241 F.3d 722 (9th Cir. 2001)).