Multiple animal advocacy groups and several citizens challenged the federal government's approval of a whaling quota for the Makah Indian Tribe (the Tribe), claiming violations of both the National Environmental Policy Act (NEPA)[1] and the Marine Mammal Protection Act (MMPA).[2] The Tribe intervened as a defendant in the district court. The Ninth Circuit held that NEPA required the government to prepare an environmental impact statement (EIS) before approving a quota and that the Tribe was not exempt from MMPA requirements.

The gray whale, a species previously listed as endangered, was removed from the list in 1994 after its population rebounded from near extinction.[3] Migrating whales pass through waters near the Tribe's territory on the Olympic Peninsula of Washington State. Non-migratory whales are also in the region, although the parties disagreed on their number and habits. In exchange for ceding much of its land, the Tribe secured whaling rights in its 1855 Treaty with the United States,[4] but discontinued whaling in the 1920s. In 1996, however, the Tribe entered into an agreement with the federal government allowing it to begin harvesting whales again based on quotas established by the International Whaling Commission (IWC) and the National Marine and Fisheries Service (NMFS). Litigation ensued from a group of citizens and animal conservation groups, which resulted in a new environmental assessment (EA) by the government. During the same period, the Tribe members began hunting, killing one whale. The plaintiffs filed the instant action, and the district court granted summary judgment to the defendants. The plaintiffs appealed the summary judgment order to the Ninth Circuit.

The Ninth Circuit reviewed the case under the Administrative Procedure Act (APA),[5] which allows an agency decision to be overturned only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[6] The court first examined the alleged NEPA violation and then turned to the alleged MMPA violation.

NEPA requires federal agencies to prepare a detailed EIS if an agency action "significantly [affects] the quality of the human environment."[7] According to Council on Environmental Quality regulations, required factors for agencies to use in deciding whether or not an EIS is necessary address both the "context" and the "intensity" of the action. Context includes "society as a whole . . . , the affected region, the affected interests, and the locality."[8] Intensity of environmental impact is subject to a number of considerations, including the three focused on in the plaintiffs' arguments: impact on public safety, controversy and uncertainty, and precedential effect.[9] In order to prevail, the plaintiffs had to show there were "substantial questions whether a project may have a significant effect" on the environment.[10]

To support their assertion that the proposed whaling posed a danger to public safety, the plaintiffs argued that human safety was endangered by the Tribe's use of high-powered, long-range rifles as well as the possibility of wounded whales harming people and boats in the vicinity. The plaintiffs took issue with the government's reliance on an expert hired by the Tribe to discount such risks in the EA. The Ninth Circuit, however, had previously held that "[t]he government may rely on experts hired by other parties so long as the agency objectively evaluates the qualifications and analysis of the expert."[11] In the instant case, the Ninth Circuit held that "[t]he agencies' finding that public safety is not endangered is neither arbitrary nor capricious," and that the issue of public safety alone would not be enough to require federal defendants to prepare an EIS.[12]

To satisfy the controversy and uncertainty factor, the possible environmental effects of the Tribe's proposed hunt needed to be "likely to be highly controversial"[13] or "highly uncertain or involve unique or unknown risks."[14] While parties agreed that the Tribe's proposed hunt would have little effect on the larger California gray whale population, at issue was the possible effect such a hunt would have on the local whale population. The Ninth Circuit stated that "the answer to this question . . . is sufficiently uncertain and controversial to require the full EIS protocol[,]" and that substantial questions existed as to whether killing the number of whales allowed by the quota "could have a significant impact on the environment."[15]

Federal defendants attempted to downplay the impact of studies expressing concern over the impact of the Tribe's whaling on the local whale population, first by claiming that the summer (non-migratory) whale population was not genetically different from other California gray whales migrating from Mexico to the Arctic. The Ninth Circuit, however, held that this made no difference in determining whether the proposed hunt would have a significant environmental impact at a local level. The government also implied that whales from the larger Pacific Coast Feeding Aggregation would replace those killed by the Tribe, keeping the local population constant. The Ninth Circuit held that scientific uncertainty as to the likelihood of such replacement left "substantial questions" regarding the impact whaling would have on the local population, "because the EA does not adequately address the local impact of the Tribe's hunt, an EIS is required."[16]

Precedential effect occurs when a single approved action leads to ensuing actions that may have a cumulative effect on the environment.[17] The plaintiffs claimed that granting the Tribe's quota would have set a precedent for future IWC quotas. The Ninth Circuit noted that, due to the ambiguity of the IWC's quota language limiting aboriginal whaling to groups with "recognized" subsistence needs, other countries could "recognize" such a need and approve aboriginal whaling. This, the court held, could lead to an increase in whaling worldwide and have "a significant impact on the environment."[18] The court concluded that the possibility of broader use of the aboriginal subsistence exception by other IWC countries warranted the preparation of an EIS.

In addition to their NEPA arguments, the plaintiffs claimed that the federal defendants violated the MMPA, "which prohibits the taking of marine mammals absent a permit or waiver."[19] The Tribe did not apply for a permit or waiver, and defendants argued that the MMPA did not apply to the Tribe because of an exemption for the taking of marine mammals governed by international treaties, or, alternatively, because the MMPA did not apply to the Tribe's whaling rights under its treaty with the United States.

The defendants argued that the Tribe's whaling fell under an exemption in the MMPA for marine mammal hunting "expressly provided for by an international treaty, convention, or agreement to which the United States is a party and which was entered into before [1972] or by any statute implementing any such treaty, convention, or agreement."[20] The defendants maintained the 1997 IWC quota approval related back to 1946, when the United States signed the treaty empowering the IWC's regulation of whaling,[21] and the IWC's practice of omitting individual tribe names from its quota schedules prevented the Tribe from being listed in the 1997 schedule.

The Ninth Circuit detailed four inherent problems in applying this exemption to the Tribe's whale hunt: 1) Congress did not intend to exempt subsequent amendments to treaties from the MMPA, and one section of the MMPA required existing treaties to be amended to make them consistent with the MMPA;[22] 2) the 1997 Schedule did not specifically mention a quota for the Tribe, and "the MMPA unambiguously requires express approval for [the exemption] to apply";[23] 3) the IWC schedule provided quotas for aboriginal groups with "recognized" subsistence needs, but it remained unclear whether such needs were to be recognized by the United States or the IWC; and 4) the MMPA exemption did not apply through a statute implementing an international treaty because there was no such statute expressly mentioning the Tribe. As a result, the Ninth Circuit held that the MMPA exemption did not apply to the Tribe, and the federal defendants' statutory interpretation did not merit deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[24]

To determine whether it was necessary to apply the MMPA to the Tribe to achieve the statute's conservation purpose, the Ninth Circuit applied its own three-part test. According to the court's Fryberg test, the MMPA would only regulate the Tribe's treaty whaling rights if: 1) the United States has jurisdiction where the whaling occurs, 2) the MMPA applies in a non-discriminatory manner to treaty and non-treaty persons alike, and 3) the application of the statute to regulate treaty rights is necessary to achieve its conservation purpose.[25]

The Ninth Circuit determined that the first two prongs of the Fryberg test were clearly met: the MMPA applied to all people under United States jurisdiction[26] and to all waters within 200 nautical miles of the coastal boundaries of the United States,[27] and the MMPA was non-discriminatory because its moratorium on taking marine mammals applied equally to the Tribe and other persons. For the third prong, the necessity of applying the MMPA to the Tribe to achieve its conservation purpose, the Ninth Circuit examined the purposes of the MMPA: to keep marine mammal species at an "optimum sustainable population"[28] and as a "significant functioning element in the ecosystem."[29] The court held that, if the Tribe's whaling was not subject to MMPA requirements, there would be no way to ensure that the whaling practices would maintain the gray whales' role in the ecosystem. While defendants argued that the Tribe's treaty is the only treaty between the United States and an Indian tribe expressly granting whaling rights, the court speculated that subordinating the MMPA to the Tribe's treaty rights could cause other tribes to claim similar rights under treaties guaranteeing "hunting and fishing" rights.

The Ninth Circuit also rejected defendants' argument that the conservation prong of the Fryberg test was only needed when the preservation of a species is at issue, noting that the MMPA had a conservation purpose broader than species preservation. Finally, the court examined the treaty language itself, which allowed the Tribe to pursue fishing and whaling "in common with all citizens of the United States."[30] Such language, the court reasoned, gave the Tribe the right to kill its "fair share" of whales, which "must be considered in light of the MMPA through its permit or waiver process."[31]

In conclusion, the Ninth Circuit held that the government's EA was inadequate, that an EIS was required, that neither the federal government nor the Tribe satisfied the MMPA's permit or waiver requirements, and that any further whaling would require a permit or waiver.