ELR Citation: ELR 20167
No(s). J84-011 CIV (D. Alaska Jan 18, 1985)

The court holds that the National Marine Fisheries Service (NMFS) violated the National Environmental Policy Act (NEPA) by failing to prepare an Environmental Impact Statement (EIS) prior to issuing a Marine Mammal Protection Act (MMPA) §104 permit for the taking of orca whales. The court first holds that NEPA claims are not barred by the sixty-day statute of limitations in MMPA §104(d) because NEPA itself provides an independent source of jurisdiction.

The court next rejects the argument that there is a statutory conflict between MMPA and NEPA, in which case NEPA must give way under the Flint Ridge doctrine, 6 ELR 20528. Although MMPA §104(d)'s requirement that a permit be issued within ninety days after initial Federal Register publication of the application indeed poses an impracticable time frame for EIS preparation, the court defers to NMFS' position that no conflict exists. For the vast majority of permit applications, no EIS will be required. When an EIS is required, NMFS can create preparation time by delaying initial Federal Register publication or by extending the hearing and comment times.

After finding that plaintiffs' failure to raise the EIS issue before NMFS does not preclude its consideration of the issue, the court holds that the agency directive that implements NEPA and incorporates Council on Environmental Quality regulations required the preparation of an EIS. NMFS' determination that the issuance of the permit did not fall within a provision in the directive calling for EIS preparation for actions involving controversial or uncertain environmental impacts was unreasonable. The court rejects the argument that no EIS is required because the permit is conditioned on the performance of certain studies and therefore NMFS retains discretion to assure that no significant effects will occur. Acceptance of such an argument would allow agencies to avoid the public discussion of effects and alternatives that are at the heart of NEPA.

Finally, the court holds that NMFS' evaluation of the permit application was not the functional equivalent of an EIS. This EIS exception is extremely narrow and has only been applied to EPA action.

Counsel for Plaintiffs
Laurie J. Adams
Sierra Club Legal Defense Fund
Suite 321, 419 6th St., Juneau AK 99801
(907) 586-2751

Counsel for Plaintiffs-Intervenors
Laura L. Davis, Ass't Attorney General
Pouch K, Juneau AK 99811
(907) 465-3600

Counsel for Defendants
Eileen Sobeck
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7377

Counsel for Defendant-Intervenor
Michael T. Thomas
Robertson, Monagle, Eastaugh & Bradley
P.O. Box 679, Anchorage AK 99510
(907) 277-6693