Court Blocks Oil Recovery, Indian Whaling

Published February 1, 2003

Also in December 2002, the Ninth Circuit Court of Appeals in San Francisco made two other controversial rulings affecting environmental laws.

Offshore Oil Recovery

The appellate court blocked the federal government from extending oil leases off the California coast without the consent of California state officials. The December 2 decision in State of California v. Norton nullifies actions by the Clinton and Bush administrations to extend offshore oil leases initially granted in the 1960s, 1970s, and 1980s.

Oil companies have paid more than $1 billion for the right to drill on the leases. The Clinton administration banned new oil leases off the California coast, but agreed at the time to honor the right to drill in preexisting lease tracts.

In its December 2 decision the appellate court ruled the federal government had not given enough deference to the California state government in its decision to renew existing leases. The Clinton and Bush administrations had taken the position that renewing existing leases was only fair because oil companies had paid substantial money to the government while under the impression they could drill for oil. Nevertheless, the appellate court determined California must have significant input in the decision whether or not to renew the leases due to the potential impacts of an oil spill. Additionally, the court ruled the federal government had failed to sufficiently study the environmental impact of offshore oil drilling before renewing the leases.

Although the renewed leases had the potential to add only a few new oil rigs off the coast of California, the appellate court determined the potential for even a single oil spill gave California the right to participate in the process.

“The issue is very narrow,” summarized U.S. Interior Department spokesman Hugh Vickery. “Our argument was that simply extending the life of these leases didn’t have any effect on the coastline.”

Indian Tribe Prohibited from Whaling

The appellate court also nullified the right of the Makah Indian Tribe to hunt gray whales off the waters of Washington State.

The Makahs were guaranteed the right to hunt whales in an 1855 treaty. As gray whale numbers declined, the tribe abstained from whaling for roughly 70 years. However, the Makahs resumed limited hunting, with the consent of the federal government, after the gray whales were taken off the Endangered Species List in 1994. Since they resumed limited hunting, the Makahs have killed a total of just one whale.

Activist groups had filed a lawsuit alleging renewed Makah whale hunting violated the Marine Mammal Protection Act (MMPA). Protection under the MMPA is easier to obtain than protection under the Endangered Species Act.

Overruling the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and a federal district court, the appellate court determined the federal government had not adequately studied the impact of Makah whale hunting before agreeing to renewed tribal hunting. Although just one whale was taken during the eight years of renewed hunting, the court ordered the NOAA and the NMFS to conduct a comprehensive environmental impact statement before considering whether to allow continued Makah whale hunting.

“The environmental assessment [previously conducted by the NOAA and NMFS] simply does not adequately address the highly uncertain impact of the tribe’s whaling on the local whale population and the local ecosystem,” stated the court in its December 20 decision in Anderson v. Evans.

John Arum, a lawyer for the Makah Indian Tribe, was disappointed the court subjugated treaty rights to environmental politics.

“It’s a very bad ruling for the tribe,” said Arum. “I think it has implications that go well beyond whaling and will affect all the tribes in the Northwest.”

For more information …

The Ninth Circuit Court of Appeals’ 30-page decision on offshore oil leases is available through PolicyBot. Point your Web browser to, click on the PolicyBot icon, and search for document #11376.

The appellate court’s 43-page decision on whale hunting is also available through PolicyBot. Search for document #11378.