Document Type

Case Note


In Metcalf v. Daley, a Congressman, various conservation organizations, and a member of the Makah Tribe brought an action against government officials of the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) alleging that their actions violated the National Environmental Policy Act (NEPA). The Makah Tribe joined as intervenor. Both parties filed cross motions for summary judgement on the merits. The Defendants' motion was granted. The Plaintiffs appealed to the Ninth Circuit Court of Appeals. The appeal invited the court to determine if the Environmental Assessment (EA) of the proposed Makah Tribe whaling along with the subsequent issuance of a Finding of No Significant Impact (FONSI) was adequate and in compliance with NEPA regulations. The court determined that the EA was untimely, not in compliance with NEPA, and thereby had to be redone. The court declined, however, to rule on the adequacy of the EA. What must now be determined is whether the new EA will result in a FONSI or an Environmental Impact Statement (EIS). This Note considers the cumulative and indirect impacts the Makah whaling proposal may have on the gray whale population. The impacts from present actions and reasonably foreseeable future impacts are discussed. This Note concludes that the agencies should issue an EIS. Finally, the public policy advantages to a thorough EIS are presented.



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