Anderson v. Evans

Opinion by Judge BERZON for sections I and II; Opinion by Judge GOULD for sections III and IV.

The panel majority opinion, as amended, appearing at 350 F.3d 815 (9th Cir.2003), is AMENDED as follows:

On Page 844, in Part IV, after the sentence that ends "they must do so before any taking of a marine mammal", insert the following footnote:

In connection with petitions for rehearing en banc, the Appellees urged that this case is moot because the whaling quota expired before we filed our opinion. We disagree. First, Appellants' complaint sought relief broader than invalidation of the then-existing whaling quota, including invalidation of the procedures used to obtain the IWC permit and of the Cooperative Agreement as violative of NEPA and the MMPA. The government activity challenged is not an ordinary, time-limited regulatory permit, but rather the way the government has gone about contracting with the Makah, obtaining "aboriginal subsistence" quotas from the IWC, and allocating them to the Tribe. The quotas are not assigned pursuant to a statutory or regulatory regime. The system by which the Department of Commerce has allocated a whale quota to the Makah Tribe is ad hoc; there is no requirement that quotas coincide with the five-year quotas assigned by the IWC. See 16 U.S.C. § 916d; 50 C.F.R. §§ 230.4-230.6. This remains an active controversy over the question of the procedures to be followed before permitting whaling by the Tribe, GATX/Airlog Co. v. U.S. District Court, 192 F.3d 1304, 1306 (9th Cir.1999), so our decision still governs the relations between the parties. See Friends of the Earth v. Laidlaw, 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569-70, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984).

Second, vacating our opinion would make the precedential harms from the 2001-02 permit irredressable. See Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851, 855 n. 3, 856-57 (9th Cir.1999). The precedential effects of past agency decisions must be considered when an agency determines whether an environmental impact statement (EIS) is required. See 40 C.F.R. § 1508.27(b)(6). Precedential harms continue to flow from the government's action. As there remains a continuing impact for NEPA purposes of the 2001-02 permit, the case is not moot.

Third, the expiration of the one-year quota, whose length is determined by the agency alone in the ad hoc manner described above, was nothing more than the government's voluntary cessation of challenged conduct. The party asserting mootness bears the burden of proving that "`there is no reasonable expectation that the wrong will be repeated,'" City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (citation omitted), i.e., that it is "`absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Friends of the Earth, 528 U.S. at 189, 120 S.Ct. 693 (citation omitted). Here, there is no assurance that the challenged action will not again take place. On the contrary, the government has declared that it will recur, and that the government expects to grant the Tribe further permission to whale without complying with the NEPA or MMPA, should this court's edict that the government comply with the law be vacated. At oral argument, the government said that a "quota will probably be given to the Makah whalers again next year," with a "similar" environmental assessment and "pretty much the same management plan" as that used in the 2001-2002 allocation. See also Department of Commerce/National Oceanic and Atmospheric Administration, Marine Mammals; Notice of Intent to Prepare an Environmental Impact Statement for Issuing Annual Gray Whale Subsistence Quotas to the Makah Indian Tribe for the years 2003 through 2007, 68 Fed.Reg. 10,703, 10,703 (March 6, 2003).

Fourth, even if the claims were otherwise moot, the "capable of repetition, yet evading review" doctrine applies. In Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1174 (9th Cir.2002), we applied the evading-review doctrine where the "duration of the controversy is solely within the control of the defendant." The exception applies even more aptly here in light of the history of protracted challenges to the 1997 and 2001 allocations. One cannot assume that the government will tailor any new permit to be long enough for effective review. Instead, there is every reason to believe that further administrative delays and piecemeal litigation will continue to make even a five-year whaling quota unreviewable. See Honig v. Doe, 484 U.S. 305, 322, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). We retain jurisdiction under Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), and its progeny.

Fifth, even if the only basis for ongoing controversy were the Cooperative Agreement, which expired after we filed our opinion, we have concluded that we should not exercise our discretion to vacate the opinion. See U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994).

Our opinion is not moot and we decline to vacate it.

Judge Gould and Judge Berzon have voted to deny the renewed petitions for rehearing en banc and Judge Hill took no position on whether the case should be heard en banc. The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The call failed to receive a majority vote of the active, non-recused judges. The petitions for rehearing en banc are DENIED.

No further petition for rehearing or rehearing en banc will be accepted in this case.

IT IS SO ORDERED.

BERZON, Circuit Judge.

"[W]hile in life the great whale's body may have been a real terror to his foes, in his death his ghost [became] a powerless panic to [the] world." Herman Melville, Moby Dick 262 (W.W. Norton & Co.1967) (1851). This modern day struggle over whale hunting began when the United States granted support and approval to the Makah Tribe's ("the Tribe's") plan to resume whaling.

The Tribe, a traditional Northwest Indian whale hunting tribe, had given up the hunt in the 1920s. In recent years, the Tribe's leaders came to regret the cultural impact on the Tribe of the lapse of its whale hunting tradition. As part of a general effort at cultural revival, the Tribe developed plans to resume pursuing gray whales off the coast of Washington State and in the Strait of Juan de Fuca. The worldwide hunt for whales in the years the real-life Captain Ahabs roamed the high seas, however, seriously depleted the worldwide stock of the cetaceans. As a result of the near extinction of some species of whales, what had been a free realm for ancient and not-so-ancient mariners became an activity closely regulated under both federal and international law. This case is the second in which we have considered whether the federal government's approval of the Tribe's plans to pursue once again the Leviathan of the deep runs afoul of that regulation. See Metcalf v. Daley, 214 F.3d 1135 (9th Cir.2000).

The plaintiffs, citizens and animal conservation groups,1 challenge, as did the plaintiffs in Metcalf, the government's failure to prepare an environmental impact statement ("EIS") pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. They also contend that the Tribe's whaling plan cannot be implemented because the Tribe has not complied with the Marine Mammal Protection Act of 1972 ("MMPA"), 16 U.S.C. § 1361 et seq. Having reviewed the environmental assessment ("EA") prepared by the government agencies and the administrative record, we conclude that there are substantial questions remaining as to whether the Tribe's whaling plans will have a significant effect on the environment. The government therefore violated NEPA by failing to prepare an EIS before approving a whaling quota for the Tribe. We also conclude that the MMPA applies to the Tribe's proposed whale hunt.

The record discloses that there are two genetically distinct North Pacific gray whale populations — an eastern stock, also known as the California gray whale, and a western stock, confined to East Asian waters. See Steven L. Swartz et al., Review of Studies on Stock Identity in the Gray Whale (Eschrichtius robustus) (hereinafter "Review of Studies") (written by scientists employed by National Marine and Fisheries Service ("NMFS") and National Oceanic and Atmospheric Administration ("NOAA"), at 1 (2000)). The California gray whales migrate annually between the North Pacific and the West Coast of Mexico. These whales were at one time nearing extinction and were therefore listed on the Endangered Species Act list. See Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.; Metcalf, 214 F.3d at 1138. Protected by the endangered species designation and by other conservation measures, the California gray whale stock revived, so that by 1994 the whale was removed from the endangered species list. See 59 Fed.Reg. 31,094 (Jun. 16, 1994). The NMFS has determined that the eastern North Pacific gray whale stock has now recovered to between 17,000 and 26,000 whales, a number near its carrying capacity.2 See 63 Fed.Reg. 16,701, 16,704 (Apr. 6, 1998); 58 Fed.Reg. 3121, 3122 (Jan. 7, 1993); John Calambokidis et al., Final Report, Range and Movements of Seasonal Resident Gray Whales from California to Southeast Alaska, at 11(Dec.2000); Review of Studies at 11, 14.3 Most of the migrating whales pass through the Olympic Coast National Marine Sanctuary ["Marine Sanctuary"],4 adjacent to the Makah Tribe's home territory on the coast of Washington State, on their way to the Bering and Chukchi Seas, and again when heading south for the winter.

Not all of the gray whales, however, make the entire journey to the Far North each summer. On this much the parties agree, although they disagree about the habits of the nonmigrating whales as they pertain to this case.

The plaintiffs contend that a separate group of gray whales remains in and around the Marine Sanctuary waters and within the Strait of Juan de Fuca (south of Vancouver Island and east of the Pacific Ocean) during the summer and early fall, rather than migrating to the Bering and Chukchi Seas with the other eastern stock North Pacific gray whales. See Appendix (map depicting area). This resident group, plaintiffs maintain, arrives in the late spring with the northward migration and remains in the area for the summer, leaving only when the larger contingent of behemoths migrate south for the winter.

The government, in contrast, posits that the whales in the Marine Sanctuary area and the Strait of Juan de Fuca are not a distinct group but rather a rotating one changing from year to year, albeit with some repeat visitors. See Environmental Assessment on Issuing a Quota to the Makah Indian Tribe for a Subsistence Hunt on Gray Whales for the Years 2001 and 2002, at 22-29 (July 12, 2001) ["Final EA"]. The government points to several studies that suggest that if there is any identifiable whale subgroup, it is a much larger one than the plaintiffs suppose. This larger subgroup is denominated by the government the Pacific Coast Feeding Aggregation ("PCFA"). The PCFA, the government maintains, does not migrate all the way north for the summer but ranges over a long stretch of the Pacific Coast from California to Southern Alaska. See id. According to this analysis, although some whales in the PCFA show a tendency to return to the same area along the Pacific Coast, most of them move around among different areas along the West Coast rather than staying in a particular area. Some frequent different locations throughout the summer, and others visit different places each year.

Despite this disagreement among the parties about the habits of the nonmigrating whales, there are some concepts that are not disputed. Scientists, including those relied upon by the government agencies, generally support the assessment that there is a fairly small number of whales who spend some or all of the summer in the general area of the planned Tribe hunt, and that some of these whales return to the area for more than one summer, albeit not necessarily in successive years. See, e.g., John Calambokidis et al., Final Report, Gray Whale Photographic Identification in 1999: Collaborative Research by Cascadia Research, the National Marine Mammal Laboratory, and Humboldt State University, at 8-10 (Dec.2000) (prepared for the National Marine Mammal Laboratory ["NMML"]); Calambokidis et al., Range and Movements, supra, at 3-4, 6-9, 11 (funded by NMML with participation of Dr. James Darling, the plaintiffs' main expert); Darling Decl. ¶¶ 2-3;5 Review of Studies at 10, 14-15 (NMFS and NMML study); Jennifer Leigh Quan, Univ. of Wash. Sch. of Marine Affairs, Thesis, Summer Resident Gray Whales of Washington State: Policy, Biological and Management Implications of Makah Whaling, at 1, 7-11 (2000).

Further, while the parties disagree in their assessment of the scientific literature as it pertains to many details regarding the behavior of these returning whales, they agree — and our review of the administrative record confirms — that overall, the best current scientific evidence indicates that each summer about sixty percent of the whales in the area around Neah Bay and the Strait of Juan de Fuca are returning whales. See Final EA at 24, 27; Review of Studies at 1,13-15, 20-21 (finding that there are "identifiable gray whales, termed `summer residents' [that] have been observed to return each summer to the same areas at various locations along the Pacific Northwest Coast" for at least part of the season) (citing studies done within the Tribe's hunting grounds off the Washington Coast and near Vancouver Island); Quan, supra, at 4, 9-10 (supporting the finding that approximately 61% of the whales found in the Tribe's whaling area were repeat visitors). See also, Darling Decl. ¶¶ 2-3, 7 (approximately sixty percent of the whales identified in a separate area, off central Vancouver Island in any one summer, are seen repeatedly over multiple years, with some whales having returned to the region each summer for more than twenty years).

The total number of whales frequenting the area of the planned Makah Tribe hunt each summer is not known. It is common ground, however, that the whales in the Tribe's proposed whaling area are a relatively small subgroup of the larger number of nonmigrating whales that forego the complete trip to the North. See Final EA at 26 (seventy whales sighted in the area in 2000); Calambokidis et al., Range and Movements, supra, at 6 (between forty and forty-five whales were spotted south of Vancouver Island in two summer months during 1998); Darling Decl. ¶¶ 2-3 (the number of whales south of Vancouver Island in the Strait of Juan de Fuca is likely to be similar to the thirty-five to fifty whales observed as residents off the central coast of Vancouver Island); Quan, supra, at 10 (from 1993-1998 ten to thirty-five individual whales were identified in the outer coast near Neah Bay and the Strait of Juan de Fuca).

B. The Makah Tribe and Its Efforts to Resume Whaling

The Tribe is composed of Native Americans whose traditional territory is in Washington State, on the northwestern Olympic Peninsula. In 1855, the United States entered into a treaty with the Tribe, the Treaty of Neah Bay, providing that the Tribe would give up most of its land on the Olympic Peninsula. See 12 Stat. 939, 940 (1855). In exchange, the Tribe was given, inter alia, the "right of taking fish and of whaling or sealing at usual and accustomed grounds and stations...." Id. That the Treaty of Neah Bay is the only treaty between the United States and a Native American tribe that specifically protects the right to hunt whales suggests the historic importance of whaling to the Makah Tribe.

Despite the central place of whaling in their lives, the Tribe ended their whaling expeditions in the late 1920s. Explanations regarding the reasons for the abandonment of this custom include: the federal government's discouragement and lack of assistance; a decline in demand for whale oil; social and economic dislocation within the Tribe; and the drastic decline of the gray whale population.

Then came, in the early 1990s, both a renewed interest within the Tribe in reviving its traditional whaling customs and the removal of the California gray whale from the Endangered Species Act list. The Tribe therefore determined to resume its traditional whale hunting. In the seventy years since the last hunt, however, whaling had become an activity tightly regulated internationally, through the International Whaling Commission, and domestically, through the Whaling Convention Act,6 and the MMPA, as well as through more general federal environmental legislation. Pursuant to the ICRW, aboriginal subsistence whaling is permitted,7 but such whaling must conform to quotas issued by the IWC for various whale stocks.

In 1996 the NOAA entered into a written agreement with the Tribe committing the NOAA to seek an aboriginal subsistence quota from the IWC. The United States presented a proposal for such a quota at the annual IWC meeting in June 1996. The proposal proved controversial, however, and some members of the IWC blocked its passage. The House of Representatives Committee on Resources also passed a unanimous bipartisan resolution opposing the Tribe's hunting proposal. In the face of this opposition the United States withdrew its request.

Before the United States began its next attempt to gain IWC approval, some animal conservation organizations, whale watching groups, and individual citizens wrote a letter to the NOAA expressing concern about the prospect of a renewed whale hunt in the waters off the continental United States. The letter charged that the government had violated NEPA by agreeing to help the Tribe obtain hunting rights without conducting an EA. The NOAA quickly produced for public comment a Draft EA, concluding that the Tribe's hunt would have no significant environmental impact.

A few months later, the NOAA and the Tribe entered into a new agreement similar to the prior one except that the new version required that the Tribe's management plan provide time and area restrictions "including ... confining hunting activities to the open waters of the Pacific Ocean outside the Tatoosh-Bonilla Line." Agreement Between the NOAA and the Makah Tribal Council, at 5 (1997). This provision sought to reduce the likelihood that the Tribe would take nonmigrating whales. Four days after this agreement was reached, the NMFS issued a final EA and a finding of no significant impact ("FONSI") concerning the proposed hunt.

The United States thereupon presented a joint proposal with the Russian Federation to the IWC's 1997 annual meeting. The joint proposal combined the desired Makah Tribe quota with the Russian request for a whaling quota for its Siberian aboriginal people, the Chukotka, into a single request for permission to take 620 whales over a five-year period. See IWC Chairman's Report of the 49th Annual Meeting, at 19 (Oct.1997).

Delegates at the IWC meeting again disagreed about whether the Tribe qualified under the aboriginal subsistence exception. Rather than resolving the disagreement, the delegates papered it over with ambiguous language: The new Schedule approved by a majority of IWC members limited use of the California gray whale quota to aboriginal groups "whose traditional aboriginal subsistence needs have been recognised," but did not say who was to recognize those needs, or how. See id. at 20. So it remained unclear whether a majority of the members considered the Tribe entitled to the aboriginal subsistence exception, or whether instead such recognition was to be conferred by the country issuing the quota. In March 1998, the NMFS announced a quota permitting the Tribe to take8 five gray whales in a one-year period and allowing no more than thirty-three strikes9 over a five year period. See 63 Fed.Reg. 16,701 (Apr. 6, 1998).

Meanwhile, on the day the 1997 FONSI was released and before the IWC and NMFS quotas were issued, a group of concerned citizens and animal conservation organizations filed a complaint in federal court against the federal defendants for violations of NEPA, the WCA, and the Administrative Procedure Act. The primary allegation was that the EA was a deficient effort, put together simply to justify the prior agreement allowing the Tribe to hunt whales. After the district court granted summary judgment for the defendants, the Tribe began whaling and in 1999 killed one whale.

The whale's demise did not bring this prolonged dispute to an end, for this court reversed the district court in Metcalf. We held that the EA was invalid because it was not produced until after the agreement with the Tribe had been consummated. Id. at 1143-46. A new EA must be drafted, we ordered,"under circumstances that ensure an objective evaluation free of the previous taint." Id. at 1146. Because we viewed the government defendants' actions as having been undertaken improperly, we stated that when the new EA was completed and returned to the courts for evaluation, it should be subject to "additional scrutiny [and] the burden shall be on the Federal Defendants to demonstrate ... that they have complied with [the] requirement" to evaluate the environmental impact of the proposal objectively and in good faith. Id.

After the decision in Metcalf, the federal defendants dissolved the agreement with the Makah Tribe (over the Tribe's protest) and began the EA process anew. The NMFS and the NOAA published a new Draft EA in January 2001. The Draft EA, like the 1997 EA, presented as the most desirable option a whale quota targeted at migrating whales. The restriction was to be accomplished by limiting the hunt to the area west of the Tatoosh-Bonilla line and to months when northward or southward migration was underway. Draft EA at 7. Similarly, the proposed Makah Management Plan only allowed whaling in the "open waters of the Pacific Ocean which are outside the Tatoosh-Bonilla Line." Management Plan for Makah Treaty Gray Whale Hunting for the Years 1998-2002 (pre-amendment), at 6.

Before the Final EA issued but after the comments period on the Draft EA had closed, the Tribe amended the Management Plan. The amended plan, in contrast to the earlier ones, does not contain any general geographic limitations on the whale hunt. Instead, the new plan allows for the taking of five whales in any one calendar year, with the aggregate number taken from 1998 to 2002 not to exceed twenty whales. See Makah Management Plan at 3. No more than thirty-three whales can be struck between 1998 and 2002, and the number of gray whales struck between 2001 and 2002 cannot exceed fourteen. Id. The amended plan does limit the number of strikes — but not the number of takes — likely to affect non-migrating whales: For 2001 and 2002, the plan limits to five the number of strikes (1) during the months of the migration, between June 1 and November 30; and (2) at all times in the Strait of Juan de Fuca. Id.

On July 12, 2001, the NOAA and NMFS published a Final EA, based on the amended Management Plan and once again found no significant environmental impact. The Draft EA did not evaluate the amended Management Plan, so there has been no opportunity for public comment on the important amendments. Nor did any of the scientific studies relied on in the EA specifically evaluate the impact of the revised Management Plan. Rather, to the extent those studies and comments discuss the proposed hunt at all, they assume a hunt limited to areas west of the Tatoosh-Bonilla line.

The final step in the administrative saga took place when the NOAA and the NMFS issued a Federal Register notice on December 13, 2001 announcing a quota for the "land[ing]" of five gray whales in 2001 and 2002 and approving the latest Makah Management Plan. 66 Fed.Reg. 64,378 (Dec. 13, 2001).

The plaintiffs filed this action in January 2002, alleging violations of both NEPA and the MMPA. The Tribe intervened. In April, the plaintiffs moved for a preliminary injunction to prevent an anticipated whale hunt, but the district court denied the motion. Concluding that the federal agencies had taken the requisite "hard look" at the risks associated with the whale hunt and that the court was required to defer to their decision, the district court determined that the plaintiffs did not have a probability of success on the merits. The district court also held that the Treaty of Neah Bay's preservation of the Tribe's whaling rights takes precedence over the MMPA's requirements; the plaintiffs therefore were unlikely to prevail on their MMPA claim as well. The plaintiffs appealed these rulings.

While the preliminary injunction decision was on appeal, the district court granted summary judgment to the defendants. The plaintiffs now appeal the summary judgment order. We consolidated the two appeals and dismissed the preliminary injunction appeal as moot. Now before us is the appeal from the summary judgment order.10

The Administrative Procedure Act governs judicial review of agency decisions under NEPA. If an agency decides not to prepare an EIS, the decision not to do so may be overturned only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir.2002) (quoting 5 U.S.C. § 706(2)(A)); Tillamook County v. U.S. Army Corps of Eng'rs, 288 F.3d 1140, 1143 (9th Cir.2002).

More specifically, this court must determine whether the agencies that prepared the EA took a "`hard look' at the environmental consequences" of the proposed action. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (citing Oregon Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997)). The court must defer to an agency conclusion that is "fully informed and well-considered," but need not rubber stamp a "clear error of judgment." Blue Mountains, 161 F.3d at 1211 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988) and Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)).11

NEPA is a statute that aims to promote environmentally sensitive governmental decision-making, without prescribing any substantive standards. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Tillamook County, 288 F.3d at 1143. Toward that end, the statute requires, with some exceptions, that all federal agencies consider the environmental impact of their actions. If a federal action "significantly [affects] the quality of the human environment," then the implementing agency or agencies must prepare an EIS providing a detailed and comprehensive analysis of the potential environmental impacts of the proposed action. See 42 U.S.C. § 4332(C); 40 C.F.R. § 1502 et seq. The EIS must also suggest and analyze the environmental impact of alternatives to the proposed action. 42 U.S.C. §§ 4332(C) & (E).

Regulations promulgated by the Council on Environmental Quality provide factors that agencies must consider in deciding whether to prepare an EIS and emphasize the importance of involving the public in NEPA evaluations. 40 C.F.R. §§ 1500.2, 1502.4(b). The public must be given an opportunity to comment on draft EAs and EISs, and public hearings are encouraged to facilitate input on the evaluation of proposed actions. See 40 C.F.R §§ 1503.1, 1506.6.

The CEQ regulations define the term "significantly" for purposes of NEPA as requiring analysis of both the "context" and the "intensity" of the action. Of great importance for purposes of this case, the context of the action includes "society as a whole (human, national), the affected region, the affected interests, and the locality." 40 C.F.R. § 1508.27(a) (emphasis added).

"Intensity" refers to the severity of the impact, and includes the following considerations:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts....

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law....

40 C.F.R. § 1508.27.

Before deciding whether to complete an EIS, government agencies may prepare a less formal EA which "briefly provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." Tillamook County, 288 F.3d at 1144 (citation omitted). See also Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 728, 730 (9th Cir.2001); 40 C.F.R. §§ 1501.3, 1501.4, 1508.9, 1508.27. If the EA results in a finding of no significant impact — a FONSI, in NEPA lingo — then no EIS need be completed. See 40 C.F.R. §§ 1500.3, 1500.4(q), 1500.5(l), 1508.13.

Critically for this case, to prevail on the claim that the federal agencies were required to prepare an EIS, the plaintiffs need not demonstrate that significant effects will occur. A showing that there are "`substantial questions whether a project may have a significant effect' on the environment" is sufficient. Blue Mountains, 161 F.3d at 1212