Plaintiffs brought suit against the Secretary of Commerce, the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service (NMFS) (collectively "Federal Defendants"), alleging that they violated the National Environmental Policy Act (NEPA)[1] by approving an agreement with the Makah Indian Tribe to resume whaling before considering its environmental consequences. The Makah Indian Tribe intervened as a defendant. Plaintiffs also moved to compel production of documents redacted from the administrative record and to supplement the record with documents discovered under the Freedom of Information Act.[2] The Western District of Washington denied both motions and granted summary judgment in favor of the Makah Tribe and the Federal Defendants.[3] The Ninth Circuit reversed, holding that the Federal Defendants violated NEPA by making an irreversible and irretrievable commitment of resources when they entered into the whaling agreement with the Makah Tribe before issuing an environmental assessment.

The Makah have a long tradition of whaling. The cultural importance of whaling is reflected in the Makah's 1855 Treaty of Neah Bay with the United States.[4] In the treaty, the Makah ceded most of their aboriginal territory on the Olympic Peninsula to the United States in exchange for a small land reservation and "[t]he right of taking fish and of whaling or sealing at usual and accustomed stations."[5] The Makah continued to exercise their treaty reserved whaling right until the California gray whale population collapsed in the 1920s as a result of widespread commercial whaling by non-Indians. In 1946, the United States signed the International Convention for the Regulation of Whaling (Convention)[6] because the gray whale had become virtually extinct. The Convention established a schedule of whaling regulations (Schedule) and the International Whaling Commission (IWC), which is composed of one member from each signatory nation. Later that year, IWC amended its Schedule to impose a ban on taking gray whales, except for aboriginal subsistence.[7] In 1949, Congress passed the Whaling Convention Act[8] to implement IWC's regulations domestically. The Secretary of Commerce, through NOAA and NMFS, was charged with carrying out the Act's requirements, including issuing any regulations necessary to implement IWC's Schedule.[9] The gray whale received additional protection in 1970 when the United States listed the species as endangered under the Endangered Species Conservation Act of 1969,[10] predecessor to the Endangered Species Act of 1973 (ESA).[11] In 1994, NMFS removed the North Pacific stock of gray whales from the endangered species list after determining it was no longer in danger of extinction.[12]

The Makah Tribe decided to resume its ancient custom of whaling after the gray whale was delisted. In 1995, the Tribe requested assistance from the Department of Commerce, NOAA, and NMFS to seek approval for obtaining an aboriginal subsistence quota from IWC. NMFS agreed to work with the Makah, but informed the Tribe that it was too late to present a formal request at IWC's 1995 annual meeting. Nonetheless, in 1995, U.S. officials informed the Commission of the Makah's desire to harvest up to five gray whales per year for ceremonial and subsistence purposes.

After the 1995 IWC meeting, NOAA prepared an internal memorandum that documented the Makah's historic dependency on whaling and concluded "that a return to whaling could benefit the Tribe [but] also that allowing the Makah to whale could set a precedent for other tribes . . . interest[ed] in whaling."[13] Despite this concern, NOAA did not initiate the NEPA process, but instead entered into a formal written agreement with the Makah Tribe.[14] NOAA agreed to make a formal proposal to IWC after the Makah prepared an adequate statement of need. The agreement also provided for cooperation between the Makah Tribal Council and NOAA in managing the gray whale harvest. Finally, the agreement required NOAA to revise its regulations to address subsistence whaling by the Makah and required the Makah Tribal Council to adopt a management plan and regulations governing the harvest.

In June 1997, plaintiffs sent a letter to NOAA and NMFS alleging NEPA violations in promoting the Makah whaling proposal without first preparing an environmental assessment (EA) or environmental impact statement (EIS). Twenty-eight days later, NOAA and NMFS distributed a draft EA for public comment, and five weeks later NOAA and the Makah Tribe entered into a new written agreement. The second agreement confined the whale hunt to only migratory gray whales, rather than "summer residents" of the Olympic Coast National Marine Sanctuary. In October 1997, NOAA and NMFS issued a final EA and a finding of no significant impact (FONSI). That same day, Congressman Metcalf filed a complaint against the Federal Defendants alleging violations of NEPA, the Whaling Convention Act and the Administrative Procedure Act.[15] On April 6, 1998, NOAA set the domestic subsistence whaling quotas for 1998,[16] and the Makah commenced whaling.

The Ninth Circuit held that the Federal Defendants violated NEPA by making an irreversible and irretrievable commitment of resources when they entered into the whaling agreement with the Makah Tribe before issuing an EA. The court noted that while NEPA does not impose substantive environmental standards, it does "require agencies to take a 'hard look' at environmental consequences."[17] Because NEPA is primarily procedural, the court emphasized that proper timing is one of NEPA's central themes, requiring that EAs be "prepared early enough [to] serve practically as an important contribution to the decision making process [and not] be used to rationalize or justify decisions already made."[18] The court concluded that NOAA and NMFS prepared the EA too late in the decision-making process.

The Ninth Circuit suggested that NOAA could have made its Agreement conditional upon a NEPA determination that the Makah whaling proposal would not significantly affect the environment. However, by making a formal agreement with the Tribe before preparing an EA, the court concluded that NOAA was predisposed to issue a FONSI: "By making such a firm commitment before preparing an EA, the Federal Defendants failed to take a hard look at the environmental consequences of their actions and, therefore, violated NEPA."[19] Declining to evaluate the adequacy of the EA or determine whether an EIS should have been issued rather than a FONSI, the Ninth Circuit directed the district court to order the Federal Defendants to set aside the FONSI, suspend the Makah whaling agreement, and prepare a new EA. The court warned the Federal Defendants to take a hard look at the proposal's consequences as required by NEPA and stated that if a new EA came under additional judicial scrutiny, the burden would be on the Federal Defendants to demonstrate their objective evaluation, free of the previous taint.

Judge Kleinfeld wrote a dissenting opinion based on three perceived errors in the majority opinion: the objectivity requirement, the timing, and the remedy. As to objectivity, Judge Kleinfeld argued that the agency's policy choice to allow the Tribe to whale did not slant the EA, especially since the Ninth Circuit refused to evaluate the district court's determination that the EA was adequate. Judge Kleinfeld argued that the majority's concern with NOAA's "'institutional bias' does not vitiate the environmental assessment's 'objectivity.'"[20] As to timing, Judge Kleinfeld disagreed that NOAA's agreement was an irreversible and irretrievable commitment of resources because there was a subsequent regulatory process before the Makah began whaling. This appeared to satisfy the statute because it only required the agency to prepare an EA before the Tribe was allowed to whale--which it did. Judge Kleinfeld argued there was no point in wasting public resources on an EA until and unless IWC allowed the Makah to resume whaling. NOAA's hands were not tied because it was free to adopt regulations contrary to the Agreement, even if IWC approved the application. Finally, Judge Kleinfeld took exception to the majority's remedy requiring a new EA. The majority had ordered a new EA without considering the substantive adequacy of the current EA, even though the district court carefully examined the substantive challenges to the EA and found no fault. Therefore, the dissent argued, it would be pointless to require another EA, especially in light of the value EAs have after the agency settled on a policy choice to allow the Makah to resume whaling. Because none of these policy decisions were subverted by the Federal Defendants' commitment to the Makah Tribe, Judge Kleinfeld would not have required reinitiating the NEPA process.