Metcalf

Opinion by Judge TROTT; Dissent by Judge KLEINFELD.

Appellants Jack Metcalf et al. appeal the district court’s grant of summary judgment in favor of appellees William Daley, Secretary of Commerce; James Baker, Administrator of National Oceanic and Atmospheric Administration; Rolland A. Schmitten, Director of National Marine Fisheries Service (collectively “Federal Defendants”); and the Makah Indian Tribe (“Makah” or “Tribe”). Appellants argue that in granting the Makah authorization to resume whaling, the Federal Defendants violated the National Environmental Policy Act (“NEPA”) by (1) preparing an Environmental Assessment (“EA”) that was both untimely and inadequate, and (2) declining to' prepare an Environmental Impact Statement (“EIS”). In addition, appellants challenge the district court’s denial of their motion to compel production of administrative record material, as well as their motion to supplement the administrative record. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we REVERSE and REMAND to the district court.

I

FACTUAL BACKGROUND

The Makah, who reside in Washington state on the northwestern Olympic Peninsula, have a 1500 year tradition of hunting…

dissenting:

I respectfully dissent.

The federal government reconciled two policies, one favoring aboriginal Indian interests and another favoring preservation of sea mammals, by choosing to advance *1147 the Indian whale-hunting interests. But before allowing the Indians to hunt whales, the government took the “hard look” at environmental consequences that was required by law. Nothing more was required. The majority opinion errs in three respects: (1) it imposes a novel version of the “objectivity” requirement that cannot be applied in a predictable, consistent manner by other panels in other cases; (2) it misconstrues the regulation that controls the time when an environmental assessment ought to be prepared; (3) it requires that a new environmental assessment be prepared without finding anything wrong with the old one. Obviously the agency did not prepare the environmental assessment until its officials had already decided that they wanted to let the Makah Indians hunt whales. Why else would they have gone to the trouble of preparing an environmental assessment? But without identifying something wrong with the environmental assessment (and we have not), we have no warrant for…