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UNITED STATES DISTRICT COURT8NORTHERN DISTRICT OF CALIFORNIA

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OKINAWA DUGONG (Dugong Dugon), etal.,

For the Northern District of California

UNITED STATES DISTRICT COURT

No. C 03-4350 MHP
12Plaintiffs,
v.

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ROBERT GATES, et al.,

MEMORANDUM & ORDER
Re: Cross-Motions for Summary
Judgment

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Defendants.
_____________________________________/

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Plaintiffs, consisting of the Okinawa dugong, three individual Japanese citizens, and six

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American and Japanese environmental associations, brought this action against defendants Robert

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Gates, Secretary of Defense, and the United States Department of Defense (“DOD”) for violations of

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section 402 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470a-2, and the21

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Plaintiffs allege that defendants have22

approved the plans for construction of the Futenma Replacement Facility (“FRF”)—a military air

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station off the coast of Okinawa Island—without taking into account the effect of the military24

facility on the Okinawa dugong, a marine mammal of cultural and historical significance to the25

Japanese people. Now before the court are the parties’ cross-motions for summary judgment.

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Having considered the arguments and submissions of the parties and for the reasons set forth below,

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the court enters the following memorandum and order.

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Case 3:03-cv-04350-MHP

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BACKGROUND

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I.

For the Northern District of California

UNITED STATES DISTRICT COURT

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The Okinawa Dugong
The dugong (Dugong dugon) is a species of marine mammal related to the manatee. Joint

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Statement of Undisputed Facts ¶ 2 (hereinafter “Undisputed Facts”). The waters surrounding

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Okinawa Island are habitat for the dugong whose range extends the costal and territorial waters of

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many countries in the Far East. Id. The greatest population concentrations occur in Australia, the7Philippines, and Thailand, and Japan is at the northern edge of the dugong’s range. Id. The dugong

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is classified as vulnerable by the World Conservation Union (IUCN) due to habitat destruction and9degradation, as well as human exploitation. Id. The Japan Ministry of the Environment recently

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listed the dugong as critically endangered in Japan. Id.

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Dugong are significant in Okinawan culture. Id. ¶ 3. They are associated with traditional

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Okinawan creation mythology, sometimes being considered the progenitor of the local people. Id.

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Because of its cultural significance, the dugong is listed as a protected “natural monument” on the

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Japanese Register of Cultural Properties, established under Japan’s “Law for the Protection of

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Cultural Properties.” Id. Henoko Bay, on the northeast coast of Okinawa Island, is dugong habitat.

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Id. ¶ 4. There are many species of seagrass found in the shallow waters of Henoko Bay. Id. These17

seagrass beds are dugong feeding grounds, and dugong have been observed to feed in and traverse18

Henoko Bay. Id. The U.S. military’s Camp Schwab—where defendants propose to construct a19

military facility to replace an existing air station—are located adjacent to and in Henoko Bay. Id.

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II.

The Futenma Replacement Facility (“FRF”)

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The United States has maintained a military presence on the Island of Okinawa, Japan, since23

the end of World War II in 1945. Undisputed Facts ¶ 5. After the U.S. military occupation of Japan24

ended, the Government of Japan permitted the United States to administer Okinawa pursuant to25

international agreements, while Japan retained residual sovereignty over Okinawa. Id. In

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November 1969, President Nixon and Prime Minister Sato agreed to terminate the United States’

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administrative control of Okinawa without detriment to the mutual defense interests of both28
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1governments. Defs.’ Mem. at 7. United States administration of Okinawa officially ended in 19722

when the two governments signed the “Agreement Between the United States and Japan Concerning

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the Ryukyu Islands and the Daito Islands” (“Agreement”). Undisputed Facts ¶ 6. Okinawa is one

4island in the Ryukyu Island chain that now comprises the Prefecture of Okinawa. Id. Under the5

Agreement, the United States relinquished to Japan all administrative rights and interests it had over6

the Okinawa Islands. Id. Japan assumed full responsibility and authority for the exercise of any and7

all powers of administration, legislation, and jurisdiction over the territory and inhabitants of the8

Islands, and Okinawa regained its pre-World War II status as Japan’s 47th prefecture. Id.

9Under Article III of the Agreement, Japan granted the United States exclusive use of

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facilities and areas in the Islands in accordance with the “Treaty of Mutual Cooperation and

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Security” (“Treaty”) and the “Status of Forces Agreement” (“SOFA”). Id. The Treaty and SOFA

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were both signed in 1960, but did not take effect until U.S. administration of Okinawa ended in

131972. Defs.’ Mem. at n.5. SOFA is a bilateral agreement between the United States and Japan

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entered into pursuant to Article VI of the Treaty which states, “[f]or the purpose of contributing to15

the security of Japan and the maintenance of international peace and security in the Far East, the16

United States of America is granted the use by its land, air and naval forces of facilities and areas in

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Japan.” Pls.’ Exhs. 14, 15. The Treaty and SOFA create the bilateral Security Consultative

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Committee (“SCC”) consisting of four members—the Japanese Minister of Foreign Affairs, the19Japanese Minister of Defense, the United States Secretary of Defense, and the United States

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Secretary of State. Id.; Defs.’ Mem. at n.7. SOFA instructs that the SCC “shall serve as the means

21of consultation in determining the facilities and areas in Japan which are required for the use of the

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United States in carrying out the purposes of the [Treaty].” Pls.’ Exh. 15, SOFA, Art. XXV.

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The United States Department of Defense (“DOD”) maintains and controls a number of24

military bases on Okinawa, including the Marine Corps Air Station Futenma (“MCAS Futenma”)

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which provides services and materials to support Marine Corps aircraft operations. Undisputed

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Facts ¶ 7. MCAS Futenma is located in Ginowan City and due to social and economic changes, is27

now completely surrounded by urban development. Moriya Dec. ¶ 3. Japanese officials have called28
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for its closure and relocation to a more suitable site in order to ease the health and safety burdens on2

the citizens of Ginowan City. Id. ¶ 3, 5. At the same time, American officials have also called for3

the relocation of MCAS Futenma citing a desire to relocate military activities to a less congested

4area. Lawless Dec. ¶ 4. The project to relocate and replace MCAS Futenma is referred to as the5

Futenma Replacement Facility (“FRF”) project. Under the auspices of the SCC, the United States

6and Japan formed the bilateral Special Action Committee on Okinawa (“SACO”) to develop

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recommendations for the SCC on ways to consolidate, realign, and reduce U.S. military facilities

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and to adjust operational procedures of U.S. forces in Okinawa. Undisputed Facts ¶ 8. SACO

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recommendations can only be adopted with bilateral SCC approval. Id. In December 1996, the10

SCC members approved the SACO recommendation to replace MCAS Futenma with an offshore,

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sea-based facility somewhere off the east coast of Okinawa. Id.; Pls.’ Exh. 13, SACO Final Report.

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For the Northern District of California

UNITED STATES DISTRICT COURT

Case 3:03-cv-04350-MHP

13The final site selection and design of the FRF depended upon, among other considerations,

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U.S. operational requirements which the DOD established in September 1997. Undisputed Facts ¶¶15

8, 10; Pls.’ Exh. 16. The operational requirements were developed with the involvement of

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representatives of at least eight DOD sub-agencies and were approved by high-ranking officials in

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the U.S. Army, Navy, and Marines. Undisputed Facts ¶ 10. The 1997 operational requirements

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established parameters for any replacement facility Japan would construct and provide to the U.S. in

19accordance with the Treaty and SOFA. Id. While Japan would select the ultimate site of the FRF

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and fund and carry out its construction, DOD would oversee and monitor its design, engineering,21

and construction to ensure that the FRF met U.S. operational requirements. Id. ¶¶ 10, 11, 13.

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In August 2000, the Consultative Body of Futenma Relocation, composed of local and23

national officials from the Government of Japan, was established to produce a “Basic Plan” to24identify the location, size, construction method, and runway orientation of the FRF. Id. ¶ 11. The

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Basic Plan, issued by the Consultative Body in July 2002, approved the decision to relocate MCAS

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Futenma to Nago City’s Henoko District, immediately offshore from Camp Schwab. Id. As already2

mentioned, the U.S. military’s Camp Schwab is located adjacent to and in Henoko Bay which is a3

dugong habitat.

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UNITED STATES DISTRICT COURT

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Although SACO’s initial recommendation called for the construction of the FRF as a sea-

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based facility, those plans were officially abandoned on October 29, 2005 when the SCC issued the6“Alliance Transformation and Realignment Agreement” (“ATARA”). Id. ¶ 12; Pls.’ Exh. 18. The

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ATARA stipulated that the U.S. and Japan would locate the FRF in an “L-shaped” configuration that8

combined the shoreline areas of Camp Schwab and adjacent water areas of Henoko and Oura Bays.

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Undisputed Facts ¶ 12. Although Japan suggested locating the FRF entirely on the land area of

10Camp Schwab and/or the adjacent Central Training Area, DOD’s operational requirements made11

such an arrangement impossible. Id. The site selected to locate the FRF, as described in the

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ATARA, did meet DOD operational and safety concerns. Id. The ATARA also directed the13respective staffs of both governments to develop plans for the initiatives agreed upon, including

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implementation schedules, no later than March 2006. Id.

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On May 1, 2006, following a meeting of the SCC that included U.S. Secretary of Defense

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Donald Rumsfeld in addition to U.S. Secretary of State Condoleezza Rice and the other SCC

17members, Japan and the United States issued an agreement entitled “United States-Japan Roadmap

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for Realignment Implementation” (“2006 Roadmap”). Id. ¶ 13; Pls.’ Exh. 19. The 2006 Roadmap is19

a joint plan of action between the United States and Japan and reflects bilateral agreement on the20

initiatives set forth in the ATARA, including the plans for the Futenma Relocation Facility.

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Undisputed Facts ¶ 13. The Roadmap establishes that Japan will construct the FRF in a location and22

configuration that combines the Henoko-saki (Henoko Point) portion of the Camp Schwab

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installation and adjacent water areas of Oura and Henoko Bays. Id. Instead of an “L-shaped”

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runway as stipulated in ATARA, the Roadmap stipulates a “V-shaped” runway which will be

25partially built on landfill extending into Oura and Henoko Bays. Id. Each runway will be 1,600

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meters in length plus 200 meters as “overrun” areas. Id.

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The 2006 Roadmap, like the ATARA, is a bilateral executive agreement between two

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sovereign nations which covers a number of restationing and military realignment issues in addition3

to the planned closure, return, and relocation of MCAS Futenma. Id. ¶ 14. The agreements reached4in the Roadmap have received needed approvals at the national levels of both governments, but the5

Government of Japan is still working to obtain needed approvals from affected local and prefectural

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governments. Id. Both the U.S. and Japanese governments are now cooperating to implement the7

Roadmap, and construction of the FRF is targeted for completion in 2014. Id. The process has

8already begun in the form of surveys and testing by the Japanese government which, under Japanese

9law, is required to conduct an environmental impact assessment before construction of the FRF

10begins. Moriya Dec. ¶¶ 13–18.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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III.

Procedural History

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Plaintiffs filed their complaint on September 25, 2003 and amended the complaint on

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November 24, 2003. Defendants filed an answer on December 9, 2003 and moved to dismiss the15

first amended complaint on May 17, 2004 for failure to state a claim and for lack of subject matter

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jurisdiction. Because both parties submitted matters beyond the pleadings, the court converted

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defendants’ motion to dismiss into a motion for summary judgment. The court issued its order on

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March 2, 2005, addressing the narrow issue of whether the National Historic Preservation Act

19(“NHPA”) applies to the circumstances of this case. Dugong v. Rumsfeld, 2005 WL 522106. In

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that order, the court denied defendants’ motion and held that the Okinawa dugong is “property”

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protected under Japan’s equivalent of the National Register. Id. at 12. The court withheld judgment

22and ordered additional discovery on the issues of whether defendants’ activities related to the23

Futenma Replacement Facility constitute an “undertaking,” whether the activities “may directly and24

adversely affect” the dugong, and whether defendants have “taken into account” the effects of the25

replacement facility on the dugong. Id. at 16, 7, 18.

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Following the announcement of the 2006 Roadmap for the FRF, plaintiffs filed a second
amended complaint on July 19, 2006. Defendants filed an answer on August 1, 2006. To avoid a28
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dispute over pre-trial discovery, the DOD compiled four separate administrative records, each2

covering a different aspect of the planning effort for the FRF. Now before the court are the parties’3

cross-motions for summary judgment on the issue of whether defendants have taken into account the4effects of the Futenma Replacement Facility on the Okinawa dugong, as required under section 402

5of the National Historic Preservation Act.

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LEGAL STANDARD

8I.

For the Northern District of California

UNITED STATES DISTRICT COURT

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Summary Judgment
Summary judgment is proper when the pleadings, discovery and affidavits show that there is

10“no genuine issue as to any material fact and that the moving party is entitled to judgment as a11matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the

12case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

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genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

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party. Id. The party moving for summary judgment bears the burden of identifying those portions

15of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material

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fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party

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will have the burden of proof at trial, the moving party need only point out “that there is an absence18

of evidence to support the nonmoving party’s case.” Id.

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Once the moving party meets its initial burden, the nonmoving party must go beyond the20

pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a21

genuine issue for trial.” Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving

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party’s allegations. Id.; Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.

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1994). The court may not make credibility determinations, and inferences to be drawn from the24

facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New

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Yorker Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.

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The moving party may “move with or without supporting affidavits for a summary judgment27

in the party’s favor upon all or any part thereof.” Fed. R. Civ. P. 56(a). “Supporting and opposing

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affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in2

evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated3

therein.” Fed. R. Civ. P. 56(e).

45For the Northern District of California

UNITED STATES DISTRICT COURT

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II.

National Historic Preservation Act
Congress enacted the NHPA in 1966 with the goal of preserving the “historical and cultural

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foundations of the Nation . . . in order to give a sense of orientation to the American people.” 16

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U.S.C. § 470(b)(2). The Act establishes that “[i]t shall be the policy of the Federal Government, in

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cooperation with other nations and in partnership with the States, local governments, Indian tribes,

10and private organizations and individuals to . . . provide leadership in the preservation of the11prehistoric and historic resources of the United States and of the international community of

12nations.” Id. § 470-1(2).

13Under section 106 of the NHPA, federal agencies are required, when undertaking any

14federally assisted action within the United States, to “take into account the effect of the undertaking

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on any district, site, building, structure, or object that is included or eligible for inclusion in the16

National Register.”1 Id. § 470f. The NHPA delegates to the Secretary of the Interior authority to17

expand and maintain a National Register of Historic Places. Id. § 470a(a)(1)(A). The NHPA also18

establishes the Advisory Council on Historic Preservation (“ACHP”), Id. § 470i, and delegates to the19

ACHP authority to promulgate regulations necessary to implement the section 106 take into account20

process, Id. § 470s. The section 106 regulations promulgated by the ACHP set forth a multi-step

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process by which an agency takes into account the effects of an undertaking. A basic review process22

includes: (1) identification of historic properties and consulting parties, see 36 C.F.R. §§ 800.2,

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800.4; (2) notice to consulting parties, including the public, of initiation of consultation, see id. §§24

800.2(d), 800.3(e)–(f); (3) assessment as to whether the project will or will not have an adverse

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effect on the historic property, see id. § 800.5(a)–(b); (4) notice to consulting parties of finding of no26

adverse effect and opportunity for consulting parties to respond, see id. § 800.5(c); and, if adverse

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effects are found, (5) continued consultation with the public and other parties to develop and28
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1evaluate alternatives or modifications to the undertaking that could avoid or mitigate the adverse

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effects, see id. §§ 800.5(d)(2), 800.6. An agency’s findings and determinations must be sufficiently

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documented to enable reviewing parties to understand their basis, see id. § 800.11, and must

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describe, for example, the undertaking, id. § 800.11(d)(1); its effects on the historic property, id. §5800.11(e)(4); and if appropriate, any conditions or future actions to avoid, minimize or mitigate the6adverse effects, id. § 800.11(e)(5).

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UNITED STATES DISTRICT COURT

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In 1980, Congress amended the NHPA to implement the United States’ participation in the8

Convention Concerning the Protection of the World Cultural and National Heritage (“World

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Heritage Convention”). Pub. L. 96–515. The amendment added to the NHPA section 402

10governing undertakings outside the United States. Section 402, therefore, is the international

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counterpart to section 106 governing domestic undertakings. The full text of section 402 is as

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follows:

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Prior to the approval of any Federal undertaking outside the United States which
may directly and adversely affect a property which is on the World Heritage Listor on the applicable country’s equivalent of the National Register, the head of aFederal agency having direct or indirect jurisdiction over such undertaking shalltake into account the effect of the undertaking on such property for purposes of
avoiding or mitigating any adverse effects.

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16 U.S.C. § 470a-2. The Secretary of the Interior is charged with directing and coordinating United
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States participation in the World Heritage Convention, and Congress has delegated authority to the18
Secretary to nominate properties to the World Heritage List. Id. § 470a-1. The ACHP regulations
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implementing section 106 domestic undertakings were first adopted in 1974, and thus, were in effect20
at the time Congress passed section 402 governing foreign undertakings. The domestic regulations,21
however, do not apply directly to section 402 and no separate implementing regulations have been
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promulgated for that section.
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Under NHPA section 110 each federal agency “shall establish, . . . in consultation with the24
Secretary [of the Interior], a preservation program for the identification, evaluation, and nomination25
to the National Register of Historic Places, and protection of historic properties.” Id. § 470h-2(a)(2).
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An agency’s preservation program under section 110 “shall ensure,” among other things, “that the27
preservation of properties not under the jurisdiction or control of the agency, but subject to be28
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potentially affected by agency actions are given full consideration in planning.” Id. § 470h-

22(a)(2)(C). Section 110 also requires that an agency’s preservation program include procedures for3compliance with the domestic section 106 take into account process, id. § 470h-2(a)(2)(E), and that4

the agency’s section 106 procedures are consistent with the ACHP regulations discussed above, id. §5470h-2(a)(2)(E)(I). The Secretary of the Interior is authorized to promulgate guidelines to assist

6other federal agencies in fulfilling responsibilities under section 110. Id. § 470a(g). Under this7

authority, the Secretary in 1998 published guidelines which “have no regulatory effect,” but8

nevertheless provide “formal guidance to each Federal agency on meeting” their responsibility under9

section 110 to establish a preservation program. 63 Fed. Reg. 20496–20508, 20496 (April 24,

101998).

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For the Northern District of California

UNITED STATES DISTRICT COURT

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III.

Administrative Procedures Act
Because the NHPA does not provide an independent basis for judicial review of agency

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actions, an aggrieved party must pursue its remedy under the Administrative Procedure Act

15(“APA”). San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005). The

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APA authorizes judicial review of final agency actions “for which there is no other adequate remedy

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in a court.” 5 U.S.C. § 704. Final agency actions are defined as actions which “mark the18

consummation of the agency’s decision making process,” defined as not “merely tentative or

19interlocutory [in] nature,” and which determine “rights or obligations” or from which “legal

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consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–178 (1997) (internal quotations and21

citations omitted). Ripeness of agency action for judicial review turns on the “fitness of the issue for22

judicial decision” and the “hardship to the parties of withholding court consideration,” but in close

23questions, courts are “guided by a presumption of reviewability.” Ciba-Geigy Corp. v. EPA, 801

24F.2d 430, 434 (D.C. Cir. 1986); Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 757 (D.C. Cir. 2003).

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An agency action or decision may be set aside if the court finds it to be “arbitrary, capricious, an26abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), and a court may

27“compel agency action unlawfully withheld or unreasonably delayed,” id. § 706(1). A court’s

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inquiry must be “searching and careful,” but the standard of review is ultimately narrow. Marsh v.

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Oregon Natural Resources Council, 490 U.S. 360, 378 (1989) (internal quotations and citations

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omitted).

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DISCUSSION

For the Northern District of California

UNITED STATES DISTRICT COURT

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Defendants assert five bases for barring the court’s review including: 1) lack of “final agency

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action” as required under the APA; 2) plaintiffs’ lack of standing; 3) non-ripeness of the claims for8

judicial review; 4) act of state doctrine; and 5) failure to join the Government of Japan as a necessary

9and indispensable party under Rule 19 of the Federal Rules of Civil Procedure. Plaintiffs argue that10

the court has a proper basis to review the matter and that they are entitled to summary judgment on

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the substantive issue of whether defendants have complied with the NHPA. They argue as a

12threshold matter that section 402 of the NHPA applies to the circumstances of this case because

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DOD’s involvement in the FRF constitutes a “federal undertaking” which “may directly and14

adversely affect” the Okinawa dugong, a “property” protected under Japan’s equivalent of the15

National Register. Compliance with section 402, plaintiffs argue, requires defendants to “take into

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account” the effects of the FRF on the Okinawa dugong by, among other things, consulting with the17

public and interested organizations and taking measures to mitigate or avoid adverse effects.

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Defendants assert that in the absence of any standards or regulations directly applicable to foreign

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undertakings, the DOD may determine, in the reasonable exercise of its discretion, what20

requirements are necessary to comply with section 402.

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I.

Limitations on Judicial Review
Final Agency Action Under the APA2

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A.

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Defendants argue that this case does not involve “agency action” that is “final” for purposes

25of triggering the court’s review under the APA. The APA authorizes a “person suffering legal

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wrong because of agency action, or adversely affected or aggrieved by agency action,” to bring suit27

seeking judicial review of that agency action. 5 U.S.C. § 702. Agency action is statutorily defined28
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to “include[] the whole or part of an agency rule, order, license, sanction, relief or the equivalent or2

denial thereof, or failure to act.” Id. §§ 551(13), 701(b)(2). According to the Supreme Court, the3five categories—rule, order, license, sanction and relief, as they are defined in 5 U.S.C. sections

4551(4), (6), (8), (10) and (11)—each involve “circumscribed, discrete agency actions.” Norton v.

5Southern Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) (hereinafter “SUWA”). The terms

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following those five categories—the “equivalent . . . thereof,” “denial thereof,” and “failure to

7act”—are not defined in the APA. Id. “But an ‘equivalent . . . thereof’ must also be discrete (or it

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would not be equivalent), and a ‘denial thereof’ must be the denial of a discrete listed action (and9perhaps denial of a discrete equivalent).” Id. “The final term in the definition [of agency action],

10‘failure to act,’ is in [the Supreme Court’s] view properly understood as a failure to take an agency

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action—that is, a failure to take one of the agency actions (including their equivalents) earlier

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defined in § 551(13).” Id. Thus, a claim under 5 U.S.C. § 706(1) to compel agency action

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unlawfully withheld or unreasonably delayed “can proceed only where a plaintiff asserts that an

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agency failed to take a discrete agency action that it is required to take.” Id. at 64. The requirement15

of discrete agency action “rule[s] out several kinds of challenges,” including “broad programmatic

16

attack[s],” that “entangle[]” a court in “abstract policy disagreements” requiring it to “enter general

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orders compelling compliance with broad statutory mandates.” Id. at 64, 66; see also Center for

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Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005).

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In this case, plaintiffs allege that DOD has approved the 2006 Roadmap, including plans to20

construct the Futenma Replacement Facility, without having taken into account the effects of the21

facility on the Okinawa dugong. Plaintiffs allege that this failure to take into account (1) is a failure22

to take agency action required under section 402 of the NHPA and (2) constitutes agency action that23

is unlawfully withheld and/or unreasonably delayed. Second Amended Complaint, Prayer for Relief24¶ 3. Plaintiffs ask this court, under its authority in 5 U.S.C. section 706(1), to compel defendants to25comply with the take into account procedures3. Id. The court agrees with plaintiffs that DOD’s

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obligation to take into account is a discrete agency action that is non-discretionary and specific.

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NHPA section 402 states that a federal agency “shall” take into account the effect of an undertaking

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specifically “for the purpose of avoiding or mitigating any adverse effects.” 16 U.S.C. § 470a-2.

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Taking into account is discrete, required agency action, and therefore, the failure to take into account3

is also agency action reviewable under the APA. Far from launching a “broad programmatic attack”

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that requires the court to enter a “general order compelling compliance with broad statutory

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mandates,” plaintiffs complain of a circumscribed, discrete agency action mandated by a specific6

provision of the NHPA. This duty to take into account relates to how a specific DOD facility,

7

located at a specific site on the coast of Okinawa and configured in a specific pattern, will adversely

8affect the Okinawa dugong, a specific property of cultural and historic significance.

9

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Document 119

Plaintiffs make a separate, but related argument that the 2006 Roadmap is also agency action

10

for purposes of APA review. See Pls.’ Motion to Strike. Although DOD’s participation in and11

approval of the 2006 Roadmap are, in a colloquial sense, “actions” taken by a federal agency, they12

are not “agency actions” for purposes of the APA. As the court explains in the standing analysis

13

that follows, plaintiffs do not “suffer[ ] a legal wrong” and are not “adversely affected or aggrieved”

14

simply by virtue of DOD’s approval of design plans for construction of the Futenma Replacement

15

Facility. Instead, plaintiffs’ injury is a procedural injury caused by DOD’s participation in and16

approval of the Roadmap, without having taken into account the effects of the facility construction

17

on the Okinawa dugong. The relevant agency action which causes plaintiffs to suffer a legal wrong

18

and which the court has authority to review, is the failure to take into account, not the approval of19

the Roadmap or the design and construction of the FRF.

20

DOD’s approval of the Roadmap, however, is relevant for the court’s analysis in determining

21

whether the failure to take into account is agency action that is “final.” In this case, the NHPA does22

not provide an independent basis for judicial review of agency action, and therefore, review is only

23

proper if the agency action plaintiffs complain of is final. 28 U.S.C. § 704; SUWA, 542 U.S. at

24

61–62 (“Where no other statute provides a private right of action, the ‘agency action’ complained of25

must be ‘final agency action.’”). “As a general matter, two conditions must be satisfied for agency

26

action to be final: First, the action must mark the consummation of the agency’s decisionmaking

27

process, . . . [and] it must not be of a merely tentative or interlocutory nature. And second, the28
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1action must be one by which rights or obligations have been determined, or from which legal

2

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–178 (1997) (internal quotations and3citations omitted). The finality requirement is to be applied in a “flexible” and “pragmatic” way,4

and courts are “guided by a presumption of reviewability.” Abbott Laboratories v. Gardner, 387

5

U.S. 136, 149–52 (1967).

6

UNITED STATES DISTRICT COURT

Document 119

That DOD has not taken into account the effects of the military facility on the dugong, yet

7

has already established operational requirements which the facility must satisfy and has also

8

approved the Roadmap containing final plans for the facility’s design and construction, implies that9

the failure to take into account is “final” for purposes of triggering review under the APA. Under10

the first prong of Bennett, the Roadmap is not tentative or interlocutory in nature. As already11

discussed, the Roadmap is the final agreement between the United States and the Government of

12Japan marking the consummation of years of negotiation and planning. Defendants argue that the13

Roadmap is merely a “general commitment of the [United States Government] to commence a series

14of planning efforts

15

Western Pacific Ocean.” Defs.’ Reply at 4. The court does not agree with this overly broad

16

characterization. Far from establishing a mere framework to commence planning efforts, the17Roadmap contains detailed specifications for the FRF including where and how it will be built, when18

it is expected to be completed, how much it will cost, and the number of personnel that will be

19

relocated there once it is operational. Planning efforts have not just recently commenced. Rather,20

those efforts have been underway for several years and have now been consummated in a formal

21

agreement to move forward with the construction of the FRF.

. . . to realign the United States-Japan military and security forces in the22

Under the second prong of Bennett, the Roadmap is an agreement by which rights and23

obligations are determined and from which legal consequences will flow. The Roadmap was24

approved by the Secretary of Defense and embodies DOD’s formal decision concerning final plans

25

for the FRF. In its March 2005 order, the court held that DOD’s actions in 1997 establishing26

operational requirements for the FRF provided finality triggering judicial review. Dugong, 2005

27

WL 522106 at 17. The court stated that the establishment of operational requirements “triggered28
14

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1

important legal consequences, because they established the benchmark by which” the ultimate

2

decision to approve or reject the final implementation plans would be judged. Id. Since the court’s

3

March 2005 order, the final implementation plans have in fact been approved and the earlier

4

established operational requirements have in fact been incorporated into those final plans. Just as

5

DOD’s earlier action establishing operational requirements provided finality triggering the court’s

6

review in 2005, DOD’s more recent action approving the 2006 Roadmap also provides finality

7

triggering the court’s review now.

8

Finally, then, as now, the court is “guided by the presumption of reviewability and the risk of9

irreparable harm.” Id. Any question regarding final agency action, therefore, should be resolved in

10

favor of the plaintiffs. Moreover, as the court explains in Part III below, NHPA section 402 imposes

11

an obligation to take into account within a certain time frame—that is, “[p]rior to the approval of

12any Federal undertaking.” 16 U.S.C. § 470a-2 (emphasis added). As explained in Part II below,

13

defendants concede that approval of the 2006 Roadmap constitutes approval of a federal undertaking

14

for purposes of triggering obligations under NHPA section 402. The failure to take into account,15

therefore, can never have any more finality than it does now. The court concludes that DOD’s

16

failure to take into account pursuant to NHPA section 402 is agency action, and that the failure to17

take into account is final.

18
19

B.

20

To demonstrate standing under Article III’s case-or-controversy requirement, a litigant must

Standing

21

show: (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or22

imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action

23of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be

24

redressed by a favorable decision. Nuclear Info. & Resource Service v. Nuclear Regulatory

25

Comm’n, 457 F.3d 941, 949 (9th Cir. 2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561

26(1992). In addition to the Article III constitutional requirements, a litigant must satisfy additional

27

prudential standing requirements which, under the APA, requires: (1) a final agency action (which

28
15

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the court has discussed above and has resolved in favor of plaintiffs); and (2) an injury falling within

2

the “zone of interests” protected by the statutory provision the plaintiff claims was violated. Nuclear

3

Info., 457 F.3d at 950. The party invoking federal jurisdiction bears the burden of establishing the4requirements for standing, which on a motion for summary judgment, must be supported by affidavit

5

or other evidence of specific facts the court assumes to be true. Lujan, 504 U.S. at 561. This action

6

involves three groups of plaintiffs—the Okinawa dugong, three individual Japanese citizens, and six

7environmental organizations. The court will address the standing of each group in turn.

9

For the Northern District of California

Filed 01/24/2008

1

8

UNITED STATES DISTRICT COURT

Document 119

1.

Okinawa Dugong

The lead plaintiff that lends its name to this action is the Okinawa dugong, a marine mammal

10

related to the manatee. The Ninth Circuit has held that although Article III does not prevent

11

Congress from authorizing suits in the name of an animal, Congress did not in fact do so under the12

APA. Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004). Standing under the APA is13

conferred on “persons” statutorily defined as “an individual, partnership, corporation, association, or

14

public or private organization other than an agency.” 5 U.S.C. §§ 551(2), 701(b)(2). The Ninth

15

Circuit in Cetacean declined to expand this basic definition to include animals such as whales,

16

porpoises and dolphins. Id. at 1178. Plaintiffs concede that under Cetacean, the Okinawa dugong is

17

an animal that does not have standing to assert this action under the APA for violations of the18

NHPA. Accordingly, the Okinawa dugong is dismissed.

19
20

2.

Individuals

The three individual Japanese citizens allege that they have been harmed by DOD’s failure to21

follow procedures required under the NHPA. Because procedural injury alone is insufficient to22establish an injury in fact for purposes of standing, a plaintiff must show that “the procedures in23

question are designed to protect some threatened concrete interest . . . that is the ultimate basis of his

24standing.” Lujan, 504 U.S. at 572–73 nn. 7–8; Ashley Creek Phosphate Co. v. Norton, 420 F.3d

25934, 938 (9th Cir. 2005) (“[a] free-floating assertion of a procedural violation, without a concrete

26

link to the interest protected by the procedural rules, does not constitute an injury in fact”). The

27

desire to use or observe an animal species, even for aesthetic or recreational purposes, is a concrete2816Case 3:03-cv-04350-MHP

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1interest for purposes of standing. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir.

22004); Lujan, 504 U.S. at 562–563 (citing Sierra Club v. Morton, 405 U.S. 727, 734 (1972)).

3

UNITED STATES DISTRICT COURT

Document 119

The three individual plaintiffs in this case are Okinawan citizens who have made and will4

continue to make ongoing trips to Henoko Bay to observe the dugong. See, e.g., Higashionna Dec.

5¶¶ 1, 5. These ongoing trips are concrete plans, not indefinite intentions to visit “some day” in the

6

future. Cf. Lujan, 504 U.S. at 564. Takuma Higashionna was born and raised near Henoko Bay and7has been visiting the area and observing the Okinawa dugong since his childhood. Id. ¶ 3. He leads

8

weekly snorkeling and scuba-diving tours to view dugongs and their habitat. Id. Yoshikazu

9Makishi was also born and raised in Okinawa and has been frequenting the Henoko coast and10

observing the Okinawa dugong for over a decade. Makishi Dec. ¶ 2. Anna Koshiishi moved to the11coast of Okinawa when she was eight years old and has lived there ever since. Koshiishi Dec. ¶ 2.

12

Like Higashionna, she also leads eco-tours to view the dugong. Id. ¶ 3. As averred in their13

affidavits, these plaintiffs have a concrete interest to preserve the dugong for cultural, educational,

14

aesthetic, inspirational and economic benefits to themselves and their descendants. For example,

15

Higashionna states that the dugong has particular cultural and historic significance because it is part16of the creation beliefs of the Japanese and especially the people of Okinawa. Higashionna Dec. ¶ 4.

17

He hopes to preserve the dugong so that it may enrich the lives of his descendants, as it has enriched18

his own life. Id.; see also Makishi Dec. ¶ 3, Koshiishi Dec. ¶ 5.

19

These concrete interests are directly linked to the procedural injury caused by defendants’

20

failure to comply with the NHPA because to the extent that compliance with the “take-into-account”

21

process leads to avoidance or mitigation of harm to the dugong, the very object of plaintiffs’ interest

22

may be preserved and protected. Morever, as required under the prudential standing requirements,

23

plaintiffs’ interest in the preservation of dugong as historical and cultural property is precisely the24zone of interests protected by the NHPA. In passing the NHPA, Congress declared that the purpose

25of the statute was to preserve a nation’s “irreplaceable heritage . . . so that its vital legacy of cultural,26

educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched27

for future generations.” 16 U.S.C. § 470(b)(4). While this preservation interest arguably is shared

28
17

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1by the public at large, it is held with particular acuteness by plaintiffs in this case, long-time2

residents of Okinawa who benefit from the dugong in direct and palpable ways. Cf. Lujan, 504 U.S.

3

at 573–574. The court concludes, therefore, that plaintiffs have alleged a sufficient injury in fact4

because they seek to “enforce a procedural requirement the disregard of which could impair a

5

separate concrete interest of theirs.” Id. at 572.

6

UNITED STATES DISTRICT COURT

Document 119

In cases involving procedural injuries, the person who has been afforded a procedural right to

7protect his concrete interests can assert that right without meeting the normal standards for8

redressability and causation. Nuclear Info., 457 F.3d at 950; Lujan, 504 U.S. at 573 n.7. Here,9plaintiffs’ showing of redressability and causation is not defeated by the fact that DOD’s compliance10with NHPA procedures would not necessarily prevent the construction of the military facility nor

11

result in a change in its design, and that the actual construction of the facility is several years in the

12

future. The NHPA itself does not require a particular outcome and it neither forbids destruction of a

13

protected property nor commands its preservation4. Coliseum Square Ass’n, Inc. v. Jackson, 465

14F.3d 215, 225 (5th Cir. 2006), cert. denied 128 S.Ct. 40. It simply regulates the process by which an

15

undertaking is approved, requiring a federal agency to “stop, look, and listen.” Id. The approval

16

process must involve “informed decision-making” the aim of which is “to make government

17

officials notice environmental [and other] considerations and take them into account.”

18

Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 28 (1st Cir. 2007). When an undertaking

19

is approved without such informed consideration, the procedural injury alleged by plaintiffs has

20

already occurred. Id. This is so even if informed consideration will not necessarily alter plans for21

the undertaking and even if the actual implementation of the undertaking is several years in the

22

future.

23

Defendants assert that because the Government of Japan bears ultimate responsibility for24

selecting the site of the military facility and funding and carrying out its construction, plaintiffs

25

cannot fairly trace their injuries to the activities of the defendants in order to show causation. As is26

apparent from the discussion above, however, DOD does not violate the NHPA by virtue of its

27

bilateral participation in the design, site selection, construction and operation of a military facility

28
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1that threatens a protected property. The NHPA violation arises instead from DOD’s failure to take2

into account information relevant for making a determination as to whether the military facility will3

adversely affect the dugong and if so, how those effects may be avoided or mitigated. In other4

words, the challenged activity is not the undertaking itself, but the process by which the effects of5

the undertaking are considered and assessed. As the court elaborates in Part III below, section 402

6of the NHPA places the responsibility to consider and assess on the DOD and the DOD alone.

7

Plaintiffs’ injury, therefore, is directly traceable DOD, not the Government of Japan.

8

In sum, the three individual plaintiffs have suffered a procedural injury linked directly to

9plaintiffs’ concrete interest in preserving the culturally and historically significant Okinawa dugong,

10

an interest that is within the “zone of interests” protected by the NHPA. Plaintiffs’ injury is caused

11by the failure of DOD to comply with procedures under NHPA section 402 and can be redressed by

12

a favorable decision requiring DOD to so comply. The court concludes that the three individual

13

plaintiffs have standing to assert this action.

14

3.

Associations

15

For an association to having standing to sue on behalf of its members, it must show that (1)16

its members would have standing to sue “in their own right”; (2) the interests at stake in the lawsuit

17

are “germane to the organization’s purpose”; and (3) neither the claim nor the relief sought requires

18

members to participate individually in the litigation. Friends of the Earth v. Laidlaw, 528 U.S. 167,19

181 (2000); Nuclear Info., 457 F.3d at 950. Plaintiffs, as required on a motion for summary

20

judgment, have provided affidavits related to four of the six environmental associations—Save the21

Dugong Foundation, Center for Biological Diversity, Turtle Island Restoration Network, and Japan

22

Environmental Lawyers Foundation. The two remaining two associations—Dugong Network

23

Okinawa and Committee Against Heliport Construction/Save Life Society—have not submitted any

24evidence concerning their standing to sue and are dismissed accordingly.

25

Save the Dugong Foundation member Takuma Higashionna is an individual plaintiff, and the26

court has already determined that Higashionna has standing to sue in his own right. Center for

27

Biological Diversity member Jeff Shaw lives in Okinawa, is married to an Okinawan family that28
19

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1

holds religious and spiritual beliefs based on the dugong, holds those same beliefs himself, has

2written articles and a book based on his research of the dugong, and is an avid scuba diver who has

3seen firsthand the seagrass beds on which the dugongs feed and hopes one day to view the dugong

4

itself. Shaw Dec. ¶¶ 1–4. Both Turtle Island Restoration Network member and director Todd

5

Steiner and Japan Environmental Lawyers Foundation member Masato Murata aver that they and6

their fellow members make regular trips to observe, study, photograph, and film the dugong. Steiner

7

Dec. ¶¶ 1–6; Murata Dec. ¶ 4. Like Higashionna, Shaw, Steiner, and Murata each have standing to8

sue in their own right. Moreover, the purpose of all four of these organizations is to preserve and9protect the dugong through research, fund-raising and advocacy, and thus the interests at stake in the10

lawsuit are germane to the organizations’ purposes. Higashionna Dec. ¶ 2; Galvin Dec. ¶ 2; Steiner

11

Dec. ¶ 2; Murata Dec. ¶ 2. Lastly, because the claim and injunctive and declaratory relief sought do

12

not require the individual participation of the members, the court finds that four of the six plaintiff

13

organizations have standing to assert this action.

14
15

C.

16

Whereas standing asks “who” may bring a claim, ripeness asks “when” a claim may be

Ripeness17

brought. Impson, 503 F.3d at 32. With respect to administrative decisions, the ripeness doctrine

18

seeks to “prevent the courts, through avoidance of premature adjudication, from entangling

19

themselves in abstract disagreements over administrative policies, and also to protect the agencies

20

from judicial interference until an administrative decision has been formalized and its effects felt in

21

a concrete way by the challenging parties.” Abbott Laboratories, 387 U.S. at 148–149. To

22

determine whether a claim is ripe, a court “evaluate[s] both the fitness of the issues for judicial

23

decision and the hardship to the parties of withholding court consideration.” Id. at 149.

24

Claims involving injury caused by a failure to comply with statutory procedure may be

25

brought at the time the failure takes place, for the claim can never get riper. Ohio Forestry Ass’n

26

Inc. v. Sierra Club, 523 U.S. 726, 737 (1998). In this case, plaintiffs allege that DOD has approved

27

plans for construction of a military facility without having complied with procedures set forth in the

28
20

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1

NHPA. As the court explained in the preceding analysis of final agency action, the 2006 Roadmap2

is not an abstract proposal. It sets forth detailed specifications regarding the location and3

configuration of the replacement military facility. Two runways aligned in a V-shape will be built

4largely on landfill adjacent to the existing Camp Schwab, but will also extend more than a mile into5

the waters of Oura and Henoko Bays. Moreover, where a statute, like the NHPA, “simply

6

guarantees a particular procedure, not a particular result,” a claim is ripe when the agency fails to

7comply with the procedure. Ohio Forestry, 523 U.S. at 737 (claim alleging violations of the8

National Forest Management Act was not ripe for review at the time of agency’s approval of logging

9plans because the statute, in guiding use of forests, was result driven, not procedure driven); see also10

Laub v. Dep’t of Interior, 342 F.3d 1080, 1089–1090 (9th Cir. 2003) (recognizing the distinction

11

between substantive challenges directed at a result and procedural challenges directed at a review

12and approval process). Plaintiffs allege that DOD has failed to comply with statutory procedure

13

required under the NHPA, and therefore “now is the appropriate time to complain that the agency

14

failed to do its duty.” Impson, 503 F.3d at 32. The court concludes that plaintiffs’ claims are ripe

15

for review.

16

DOD argues that the claim is not ripe because before construction of the military facility can

17

begin, Japan must obtain local approval and must complete an environmental impact assessment as18

required under Japanese law. Defendants in Impson asserted a similar argument. There, plaintiffs

19

challenged the failure of the Bureau of Indian Affairs (“BIA”) to comply with the NHPA prior to20

approval of a lease of tribal land to a developer for construction of a liquified natural gas terminal.

21

Id. at 25. The BIA argued that the claim was not ripe because implementation of the lease was22contingent upon multiple factors, including review and authorization by the Federal Energy

23

Regulatory Commission (“FERC”). Id. at 33. As a coordinating agency, the BIA would participate

24

in the FERC review process and would consider the impacts of the lease. Id. The court in Impson

25

stated that defendants’ points did not go to the issue of ripeness. Id. Instead, whether the BIA could

26

fulfill its statutory obligations by participating in the FERC process was a question on the merits. Id.

27

Likewise, whether DOD can fulfill its statutory obligations under the NHPA through Japan’s

28
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1completion of an environmental review process is a question on the merits of plaintiffs’ claims, not a2

question of ripeness.

3

D.

4

The act of state doctrine is “not a jurisdictional limit on courts,” but “reflects the prudential

Act of State

5

concern that the courts, if they question the validity of sovereign acts taken by foreign states, may be

6interfering with the conduct of American foreign policy by the Executive and Congress.” Siderman

7

de Blake v. Republic of Argentina, 965 F.2d 699, 707 (9th Cir. 1992). The doctrine bars judicial

8

review of an action “only if: (1) there is an ‘official act of a foreign sovereign performed within its

9

own territory’; and (2) ‘the relief sought or the defense interposed [in the action would require] a10

court in the United States to declare invalid the [foreign sovereign’s] official act.’” Credit Suisse v.

11

United States District Court, 130 F.3d 1342, 1346 (9th Cir. 1997). Defendants argue that the court is

12

asked to “adjudicate a claim that questions the validity of decisions and acts [made by Japanese]13

officials taken under Japanese law.” Defs.’ Mem. at 24. They argue that the court should not

14“enjoin—even indirectly by an order directed only at the defendants—the [Government of Japan’s]

15

ability and sovereign right to site and construct the FRF in satisfaction of its military and security

16

treaties with the United States,” and to conduct an environmental assessment of the replacement

17

facility as required under Japanese environmental laws. Id. at 6.

18

Defendants asserted similar arguments in connection with their earlier motion in 2005. In

19

ruling on that 2005 motion, the court found that the record at that time “[did] not currently describe20

an ‘official act of a foreign sovereign performed within its own territory,’ but rather a process

21intertwined with United States Department of Defense decision-making.” Dugong, 2005 WL

22522106 at 20. The court found that the planning process for the FRF was “a cooperative and23bilateral venture undertaken to satisfy American military needs.” Id. The court held that, at that

24

time, defendants were not entitled to summary judgment on the basis of the act of state doctrine

25

because “[w]here a court evaluates the actions of a federal agency, the act of state doctrine is not

26

implicated.” Id. The court did note, however, that further discovery would assist in resolving then-27

existing “disputed issues of material fact on the question of whether the United States Department of

28
22

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1

Defense instigated the Futenma relocation, established the requirements for fulfilling that relocation,2and continues to aid logistically, and potentially financially, in the implementation of the project.”3

Id. at 19. The court contemplated that additional discovery might ultimately reveal that “the scope

4of Japan’s involvement in locating the replacement air station may prove to exceed the prudential

5

limitations on this court’s authority under the act of state doctrine.” Id.

6

Since the court’s 2005 order, defendants have compiled four separate administrative records,

7

each covering a different aspect of the planning effort for the replacement facility. The facts in the8current record reinforce the court’s earlier finding of a cooperative and bilateral process of

9intertwined decision-making. For example, the court acknowledges that Japan had ultimate

10

responsibility for selecting the location of the replacement facility, and that Japan’s site selection11

was driven by its own concerns for environmental, engineering, political and cost factors. Lawless

12Dec. ¶ 10. Japan’s responsibility for selecting the site, however, was also constrained by operational13

requirements chosen and determined by the United States, and defendants’ own evidence supports

14

the fact that Japan’s decision to locate the proposed FRF was influenced by the DOD. The

15

Government of Japan initially preferred a plan that utilized the land area of Camp Schwab, rather

16

than placing the facility into the waters of Henoko Bay. But the facility was placed in its currently

17

proposed off-shore location because the United States preferred that location for operational reasons.

18

Moriya Dec. ¶ 8. Ultimately, the United States could not accept any plan proposed by the Japanese

19

government unless the plan conformed to U.S. operational requirements. Id. ¶ 10; Lawless Dec. ¶¶20

10, 13. As the court stated in its 2005 order, the activities involved in this case are not exclusively

21

those of foreign governmental bodies. Rather, the United States has been substantially involved in22

the design and site selection for the FRF, will continue to monitor and oversee the construction of23

the facility to ensure that it meets U.S. requirements, and will have exclusive authority to operate the24

facility once it is completed.

25

Japan’s involvement in the FRF project does not by itself implicate the act of state doctrine.

26

The Supreme Court has stated that “[i]n every case in which we have held the act of state doctrine

27

applicable, the relief sought or the defense interposed would have required a court in the United28
23

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1

States to declare invalid the official act of a foreign sovereign performed within its own territory.”

2

W.S. Kirkpatrick & Co. v. Environmental Tectonics Co., Int’l, 493 U.S. 400, 405 (1990). While this3case may involve various activities, some of which are the responsibility of Japan, e.g., siting and4

construction, and some of which are the responsibility of the United States, e.g., operational5requirements, the only activities upon which the court sits in judgment are those obligations placed

6

upon the United States under provisions of U.S. domestic law. The court’s jurisdiction in this case is7premised on the NHPA and the APA and therefore, the only activities which this court reviews are

8

DOD’s obligations related to the section 402 process of taking into account. As the court explains in

9Part III below, the obligation to take into account lies with the DOD and the DOD alone. Relief

10requiring the DOD to take into account, therefore, in no way invalidates Japan’s decision to locate

11

the FRF in the particular area and configuration it has chosen and in no way interferes with Japan’s

12ability to conduct its own environmental assessment according to Japanese law. Again, the court

13

reiterates that the NHPA compels a particular process, not a particular result. The NHPA requires

14

and the court can only mandate that the DOD engage in an information gathering process which may

15

eventually lead to such modifications and alterations if, as a result of the information gathering

16

process, it is determined that those changes may mitigate adverse effects on protected property. Just

17

as the court held in its 2005 order, the act of state doctrine is not implicated here because judicial

18

review does not require the court to invalidate the sovereign acts of the Government of Japan. This

19

court’s review is directed solely at DOD’s compliance with the NHPA.

20

Defendants raise additional concerns that merit discussion here. Defendants recognize that

21

NEPA Coalition of Japan v. Aspin, 837 F.Supp. 466 (D.D.C. 1993), does not stand for the22

proposition that extraterritorial application of the NHPA is barred as a matter of law. Indeed, the23

court so ruled in 2005 when it held that section 402 of the NHPA contains express Congressional

24

intent that the NHPA, unlike the National Environmental Protection Act at issue in NEPA Coalition,

25

apply abroad. Defendants argue, however, that NEPA Coalition stands for “the broader proposition

26

that a federal court should not apply a provision of United States environmental law in a manner that27

creates a ‘substantial likelihood that treaty relations will be affected.’” Defs.’ Mem. at 27.

28
24

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2
3
4
5
6

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Defendants argue further that
Any ruling requiring the [U.S. Government] to take action with respect to thedugong that is inconsistent with or contrary to the considered judgment of the[Government of Japan] regarding how best to protect one of Japan’s own cultural
resources would undermine the carefully negotiated allocation of sovereign
responsibilities agreed to by both nations in the Roadmap. . . . A court order
requiring the DOD to take premature, inconsistent, or contrary action to that being
taken by the [Government of Japan] . . . and compelling the DOD to conduct its
own assessment of potential impacts on cultural resources, apart from Japan’s
ongoing effort, would frustrate Japan’s exercise of its own legal procedures forprotecting and managing the environment and its cultural resources.

7
Id. at 28. The court recognizes that these are valid and important concerns. But these concerns do
8
not imply that the court must invoke the act of state doctrine and decline to rule on the merits of
9
plaintiffs’ NHPA claim. Rather, these concerns, as the court elaborates in Part III below, delineate
10
and give contour to the meaning and scope of the substantive requirement to take into account. As
11
For the Northern District of California

UNITED STATES DISTRICT COURT

the court explains below, the concerns articulated by the defendants are precisely the reasons why
12
the take into account process encourages and indeed requires cooperation and coordination with13
other agencies and governments.
14
15
E.

Necessary and Indispensable Party

16
Defendants’ final attempt to prevent the court from reaching the merits of this case rests on a17
failure to join the Government of Japan as a necessary and indispensable party under Rule 19 of the
18
Federal Rules of Civil Procedure (“FRCP”). But as the court has already discussed above, relief
19requiring DOD to take into account under section 402 can be fashioned without directly or indirectly
20interfering with any decision by the Government of Japan. Thus, the court’s review is not barred by
21
virtue of FRCP Rule 19.
22
23
F.

Conclusion

24
Defendants have asserted and the court has addressed five separate bases for barring the25
court’s review. The court holds that DOD’s failure to take into account the effects of the Futenma
26
Replacement Facility on the Okinawa dugong is agency action that is final in light of DOD’s
27
approval of the 2006 Roadmap and DOD’s establishment of operational requirements. The Okinawa
28
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1dugong and two of the environmental associations (Dugong Network Okinawa and Committee

2

Against Heliport Construction/Save Life Society) do not have proper standing and are dismissed3

accordingly. The three individual Japanese citizens, as well as the four remaining associations,4

however, do have proper standing to assert this action. In addition, plaintiffs’ claims are ripe, and5neither the act of state doctrine nor FRCP Rule 19 stand in the way of the court’s review. The court

6

will now proceed to address the substantive issues of whether the NHPA applies to the7

circumstances of this case, and if so, whether DOD has met its obligation to take into account.

8
9For the Northern District of California

UNITED STATES DISTRICT COURT

10

II.

Applicability of NHPA Section 402
As a threshold matter, a federal agency’s obligation to take into account under section 402 is

11

triggered only when there is (1) a federal undertaking outside the United States (2) which may

12

directly and adversely affect (3) a property which is on the applicable country’s equivalent of the13

National Register. 16 U.S.C. § 470a-2. The court, in its March 2005 order, previously addressed the14

issue of whether the NHPA applies to the circumstances of this case. In that order, the court held

15

that the Okinawa dugong is protected by Japan’s Law for the Protection of Cultural Properties, the16equivalent of the United States National Register, and is “property” within the meaning of section

17402. Dugong, 2005 WL 522106 at 6–12. The facts upon which that ruling was made remain the18same, and accordingly, the court reaffirms that the Okinawa dugong is protected property under the

19

NHPA. Because the record was undeveloped at the time of the court’s March 2005 order, the court

20

withheld judgment and ordered discovery on the two remaining issues of whether DOD’s

21

involvement in the military facility could constitute a (1) “federal undertaking” that (2) “may22

directly and adversely affect” the dugong. Given the more fully developed record now available, the23

court will proceed to address these two issues below, resolving both in favor of plaintiffs.

24
25

A.

“Undertaking”

26

Defendants concede that their involvement in the FRF including the provision of operational27

requirements for the FRF and the approval of the 2006 Roadmap, constitutes a federal undertaking

28
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1within the meaning of section 402. Defs.’ Mem. at 30, n.18. In its 2005 order, the court discussed at

2length the statutory definition and meaning of an “undertaking.” Dugong, 2005 WL 522106 at

3

12–17. It is therefore unnecessary to repeat that discussion here, but one point deserves mention. In

4

its 2005 order, the court surmised that “Congress may have intended a less restrictive definition of5

undertakings to apply to federal projects abroad.” Id. at 12. In light of the legislative history,

6

however, it is clear that Congress intended the meaning of “undertaking” in section 402 to have the7same meaning as the same term used in section 106. House Report No. 96–1457, Oct. 10, 1980,

8

U.S. Code Cong. and Adm. News, 6378, 6408 (“The Committee also notes that the term

9

‘undertaking,’ as it is used in other sections of the Act, is meant to be used in the same context as

10

described in Section 106. The [ACHP] has adopted an acceptable definition within its regulations,11published as 36 CFR 800.”).

12
For the Northern District of California

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Case 3:03-cv-04350-MHP

In light of defendants’ concession, the court will only briefly summarize plaintiffs’ extensive

13

arguments and evidence in support of demonstrating a federal undertaking. The project to design,

14

construct, relocate and operate the FRF is funded at least in part under the jurisdiction of the DOD,

15

is carried out by and on behalf of the DOD, and requires federal approval. 16 U.S.C. § 470w(7).

16

DOD has expended funds in the planning and design of the FRF and will bear the costs of relocating17

to and operating the facility once it is constructed. The FRF project is carried out by and on behalf

18

of DOD because although the Government of Japan bears the full cost of the FRF’s actual

19

construction, the facility is being constructed for DOD’s exclusive use, according to operational20

requirements determined by the DOD. Each phase of the FRF requires, and has in fact received,

21

federal approval. The initial decision to relocate the Futenma air station required and received DOD

22

approval through the U.S. Secretary of Defense’s role on the bilateral Security Consultative

23

Committee (“SCC”). At the intermediate phase, the establishment of operational requirements

24

received independent DOD approval. Finally, the ultimate decision to design and build the FRF as a25partially sea-based facility adjacent to Camp Schwab, with two runways aligned in a V-shaped

26

pattern, also received DOD approval when the bilateral SCC approved the 2006 Roadmap. As

27planning and construction moves forward, additional DOD approvals, such as entry permits for28
27

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1engineers to enter Camp Schwab to carry out technical surveys and to begin actual construction, will2

be required. The court concludes that there is no issue of material fact as to whether DOD activities

3

related to the Futenma Replacement Facility constitute a “federal undertaking” under NHPA section

4

402.

For the Northern District of California

UNITED STATES DISTRICT COURT

5
6

B.

7

The third and final issue related to the applicability of the NHPA to this case is whether

8defendants’ undertaking “may directly and adversely affect” the dugong. The statute requires a

9threshold showing that the undertaking may have direct and adverse effects on the dugong, not that10

the undertaking necessarily will have effects. The term “adverse effect” is not defined in the statute,11

but regulations implementing section 106 domestic undertakings set forth a meaning of adverse

12

effect that is instructive in this case. Under the domestic regulations, “an adverse effect is found13

when an undertaking may alter, directly or indirectly, any of the characteristics of a historic

14

property. . . . Adverse effects may include reasonably foreseeable effects caused by the undertaking

15

that may occur later in time, be farther removed in distance or be cumulative.” 36 C.F.R. §16

800.5(a)(1). An example of an adverse effect includes “physical destruction of or damage to all or

17part of the property.” 36 C.F.R. § 800.5(a)(2)(I).

18“May Directly and Adversely Affect”

It is undisputed that Henoko Bay is dugong habitat and that seagrass beds found in the Bay19

are dugong feeding grounds. Undisputed Facts ¶ 4. It is also undisputed that dugong have been

20

observed to feed in and traverse Henoko Bay. Id. The record contains considerable disagreement

21

among plaintiffs’ and defendants’ experts regarding the extent and degree to which the dugong

22

would be adversely affected. Compare Hines Dec. with Noah and Frankel Decs. But this does not

23

disturb the undisputed fact that Henoko Bay is dugong habitat and therefore, construction and24

operation of a military facility in and near the Bay could have potential adverse effects. These

25

potential adverse effects include physical destruction of the Okinawa dugong resulting from

26

contamination of seagrass feeding grounds and collisions with boats and vessels, as well as long-27

term immune and reproductive damage resulting from exposure to toxins and acoustic pollution.

28
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1

That the actual consequences may be currently unknown is precisely the reason the NHPA requires

2

defendants to gather, examine and assess information. Doing so allows the agency to determine,3

early in the process of an undertaking, whether potential consequences may crystalize into actual

4effects and whether the actual effects will exceed a de minimis threshold. Because it is undisputed

5that Henoko Bay is a dugong habitat, the court finds that there is no material issue of fact as to6whether the FRF may directly and adversely affect the dugong.

7

For the Northern District of California

UNITED STATES DISTRICT COURT

8

III.

“Take Into Account”

9

Having concluded that the court’s review is proper and that the NHPA is applicable to the10facts of this case, the court now turns to the merits of plaintiffs’ claim that DOD has violated the11

NHPA by failing to “take into account” the effect of their undertaking on the Okinawa dugong. In

12

its March 2005 order, the court reserved judgment on this issue until the record was more fully

13

developed, as it is now. First, the parties dispute the meaning of “take into account” as a matter of

14law. Second, the parties dispute whether defendants’ activities are sufficient to comply with the15

appropriate meaning of “take into account.” The court will address each of these issues in turn.

16
17

A.

Meaning of “Take Into Account”

18

The meaning of “take into account” under section 402 governing foreign undertakings is an

19

issue of first impression for the courts. The statute does not define the phrase “take into account,”20

there are no regulations that directly define or elaborate the phrase, and neither the parties nor the21

court are aware of any case law construing the phrase. Defendants argue that in the absence of

22

specific standards, criteria, or procedures, Congress delegated to the head of each federal agency the23

decision regarding how to comply with the “take into account” language of section 402. They argue

24

that because the statute is silent or ambiguous with respect to the meaning of “take into account,” the25issue for the court is whether DOD’s own interpretation of the statute—embodied in a series of26internal directives and standards—is a permissible construction. Plaintiffs argue that the statute is27

not silent or ambiguous and that alternatively, DOD’s interpretation of the statue is not a permissible

28
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For the Northern District of California

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2

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construction.
“When a court reviews an agency’s construction of the statute which it administers, it is3

confronted with two questions. First, always, is the question whether Congress has directly spoken

4

to the precise question at issue.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842

5(1984). “If a court, employing traditional tools of statutory construction, ascertains that Congress6

had an intention on the precise question at issue, that intention is the law and must be given effect”

7

by both the court and the agency. Id. at 842–843, n.9. If, however, the statute is silent or8

ambiguous, “the court does not simply impose its own construction of the statute.” Id. at 843.

9

Rather, “the question for the court is whether the agency’s answer is based on a permissible

10

construction of the statute.” Id. “The precise degree of deference warranted depends on the statute11

and agency action at issue.” Northwest Ecosystem Alliance v. United States Fish and Wildlife

12Service, 475 F.3d 1136, 1141 (9th Cir. 2007). “Under Chevron’s classic formulation, if . . . there is13

an express delegation of authority [by Congress] to the agency to elucidate a specific provision of14

the statute by regulation, [then] [s]uch legislative regulations are given controlling weight unless15

they are arbitrary, capricious, or manifestly contrary to the statute.” Id. “If Chevron deference is16

inapplicable because Congress has not delegated interpretative authority to the agency, the agency’s

17views still ‘constitute a body of experience and informed judgment to which courts and litigants may

18

properly resort for guidance.’” Id. “The ‘fair measure of deference’ may then range from ‘great19

respect’ to ‘near indifference,’ depending on ‘the degree of the agency’s care, its consistency,

20

formality and relative expertness, and . . . the persuasiveness of the agency’s position.’” Id.

21

Under Chevron step one, this court must determine, based on the statute’s language,

22

legislative history, structure and purpose, whether there is clear Congressional intent regarding the23

meaning of the phrase “take into account.” On its face, the phrase “take into account” means

24

consider, contemplate, study, and weigh. Webster’s Int’l Dictionary of the English Language (3rd25

ed. 1976) (defining the phrase “take into account” to be synonymous with “take into consideration,”26

and in turn, defining “consider” to be synonymous with “contemplate,” “study,” and “weigh”). This27

plain meaning of “take into account” is consistent with the purposes of the NHPA to “generat[e]2830For the Northern District of California

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1

information about the impact of federal actions on the environment,” and to “require[] . . . the2

relevant federal agency [to] carefully consider the information produced,” San Carlos Apache Tribe

3

v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005) (emphasis added), and to “weigh effects in

4

deciding whether to authorize” a federal undertaking, Save Our Heritage v. Fed. Aviation Admin.,5269 F.3d 49, 58 (1st Cir. 2001) (emphasis added). The statutory text also contains requirements

6

relating to who, when, and what shall be taken into account, as well as why an accounting is

7

necessary. The statute states that (1) “the head of a Federal agency having direct or indirect

8

jurisdiction over such undertaking” shall be the person charged with the task of taking into account,

9(2) the accounting shall occur “prior to approval” of the undertaking, and (3) the accounting shall10

consider the “effects of the undertaking” on the protected property. 16 U.S.C. § 470a-2. Finally, the11statute is clear regarding why the taking-into-account is required. It is conducted “for purposes of

12

avoiding or mitigating any adverse effects.” Id.

13

Although not evident from the plain language of section 402, related sections of the NHPA

14

indicate clear Congressional intent that the take into account process involves not a federal agency

15

acting alone, but instead, an agency acting in cooperation with relevant nations, parties, and

16organizations. When it enacted section 402 in 1980, Congress declared that “[i]t shall be the policy

17of the Federal Government, in cooperation with other nations and in partnership with the States,

18

local governments, and Indian tribes, and private organizations and individuals” to “provide

19

leadership in the preservation of the . . . resources of the United States and the international

20

community of nations.” 16 U.S.C. § 470-1(2) (emphasis added); Pub. L. 95–515 § 101(a), Sec. 2.

21

Similar Congressional intent is expressed in the legislative history of the 1980 amendments. The

22

House Report states that the purpose of the World Heritage Convention—which section 402

23

implements for the United States—“is to establish an effective system of collective protection of the24

cultural and natural heritage.” House Report No. 96–1457, Oct. 10, 1980, U.S. Code Cong. and25

Adm. News 6378, 6406. Section 402, therefore, should be read in conjunction with Congress’

26

declaration of policy requiring cooperation, partnership, and collective participation.

27

The plain language of section 402, combined with express legislative purpose, reveals clear

28
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1

Congressional intent regarding the basic components of a take into account process under section

2402. The process, at a minimum, must include (1) identification of protected property, (2)3generation, collection, consideration, and weighing of information pertaining to how the undertaking

4

will affect the historic property, (3) a determination as to whether there will be adverse effects or no5

adverse effects, and (4) if necessary, development and evaluation of alternatives or modifications to

6

the undertaking that could avoid or mitigate the adverse effects. The person charged with

7

responsibility for this basic process is the person with jurisdiction over the undertaking, and8compliance with the process must occur before the undertaking is approved. In addition, a federal

9agency does not complete the take into account process on its own, in isolation, but engages the host

10

nation and other relevant private organizations and individuals in a cooperative partnership.

11
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That Congress clearly intended a take into account process to include these basic components

12

is further supported by the context in which section 402 was enacted. In 1980 when Congress

13

amended the NHPA to add section 402 governing foreign undertakings, the same “take into account”

14phrase had been used fourteen years earlier when Congress enacted section 106 governing domestic

15

undertakings. 16 U.S.C. § 470f. Moreover, by the time Congress added section 402, the ACHP had

16already promulgated regulations elaborating what it means to take into account for purposes of17section 106 domestic undertakings. 36 C.F.R. Part 800. Although the ACHP has from time to time

18

amended the section 106 regulations, the essential elements—identification of protected properties,

19

gathering and weighing of information, determination of adverse effect or no adverse effect,20

evaluation of mitigation measures if necessary, and consultation with interested parties and21

organizations—were in place by 19805. When identical words are used in different parts of the same

22

act, the natural presumption is that Congress intended them to have the same meaning.

23

Environmental Defense v. Duke Energy Corp., 127 S.Ct. 1423, 1432 (2007). Moreover, “Congress’24

repetition of a well-established term carries the implication that Congress intended the term to be

25

construed in accordance with pre-existing regulatory interpretations.” Bragdon v. Abbott, 524 U.S.

26

624, 631 (1998). Here, the basic framework for a take into account process was well-understood at

27
28
32

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1

the time Congress used the identical phrase in section 402. This raises an inference that Congress2

intended the take into account process under section 402 to follow the basic structure the ACHP had

3already outlined for undertakings governed by section 106.

4

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The court does not suggest, and plaintiffs do not argue, that the ACHP’s regulations in 36

5

C.F.R. Part 800 apply verbatim to section 402 undertakings. It is clear that the section 106 process6

does not map directly onto the section 402 process. Congress did not include a statutory provision

7

expressly incorporating into section 402 the ACHP’s existing regulations. Cf. Bragdon, 524 U.S. at

8631. Moreover, the statutory text of section 106, unlike that of section 402, expressly requires a9federal agency to consult with the ACHP, 16 U.S.C. § 470f (a federal agency “shall afford the10[ACHP] . . . a reasonable opportunity to comment”), and while the ACHP is given express authority

11

to promulgate regulations implementing section 106, it does not have comparable authority for

12

section 402, see 16 U.S.C. § 470s. The differing role of the ACHP in the domestic and foreign

13

contexts, however, does not rebut the natural presumption that Congress intended the “take into

14

account” phrase in section 402 to follow the basic outline of section 106 set forth by the ACHP.

15

Granted, “[a] term in the same statute may take on distinct characters from association with distinct

16

statutory objects calling for different implementation strategies.” Environmental Defense, 127 S.Ct.

17

at 1432. But while Congress may have been silent on the regulatory specifics and implementation

18

details, allowing the precise letter of the statute to be filled in by a particular agency depending on

19

the agency’s mission and undertaking, Congress was clear on the basic spirit and framework of the20

take into account process. There is no reason to believe that Congress intended the basic framework21

to differ depending on the geographic location of the undertaking and the protected property.

22

Congress’ intent that the basic framework of the take into account process remain cohesive

23

across a multitude of agencies and undertakings is reflected in the fact that Congress provided for a24

mechanism to achieve that cohesiveness. NHPA section 110 directs each federal agency to develop25

a preservation program. 16 U.S.C. § 470h-2(a)(2). An agency’s preservation program “shall26

ensure” that properties are considered and taken into account during both foreign and domestic

27

undertakings pursuant to section 402 and section 106, respectively. Id. § 470h-2(a)(2)(C) (requiring

28
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1

an agency’s preservation program to consider the preservation of properties in general, whether or2

not they are under the jurisdiction or control of the agency, and whether or not they are affected by3

foreign or domestic agency actions); id. § 470h-2(a)(2)(E) (requiring an agency’s preservation

4

program to include procedures for compliance with section 106 domestic undertakings).

5

Significantly, NHPA section 110 directs that “[e]ach Federal agency shall establish . . . , in6

consultation with the Secretary [of the Interior], a preservation program.” Id. § 470h-2(a)(2)7(emphasis added). In addition, an agency’s procedures for complying with section 106 domestic

8

undertakings must be consistent with the regulations issued by the ACHP. Id. § 470h-2(a)(2)(E)(I).

9

In the domestic context, therefore, Congress provided for coherency in agency preservation10

programs by requiring consultation with the Secretary of the Interior, and by specifically mandating

11

consistency with the ACHP’s section 106 regulations. In the foreign context, Congress also

12

provided for coherency in agency preservation programs by requiring consultation with the13

Secretary of the Interior. Although there is no express mandate that an agency’s take into account14

procedures for foreign undertakings be consistent with the ACHP’s domestic regulations, there is no15

indication that Congress intended the basic framework of foreign and domestic take into account16

procedures to differ.

17

In developing a preservation program as required under section 110, a federal agency

18

consults with the Secretary of the Interior, and accordingly, Congress has delegated to the Secretary19

authority to promulgate guidance to assist agencies in fulfilling their responsibilities. Id. § 470a(g).

20Under this authority, the Secretary of the Interior, acting through the National Park Service, has

21

indeed issued such guidance, which “have no regulatory effect,” but nevertheless are “the22Secretary’s formal guidance.” 63 Fed. Reg. 20496–20508, 20496 (April 24, 1998). With respect to23foreign undertakings under section 402, the guidelines recommend that “[e]fforts to identify and24

consider effects on historic properties in other countries should be carried out in consultation with25

the host country’s historic preservation authorities, with affected communities and groups, and with26

relevant professional organizations.” 63 Fed. Reg. at 20504 (Standard 4, Guideline (o)). The

27

guidelines advise that such consultation should involve a “process of seeking, discussing and28
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1

considering the views of others, and where feasible, seeking agreement with them on how historic2

properties should be identified, considered, and managed.” Id. (Standard 5, Guideline (a)). “While3

specific consultation requirements and procedures will vary among agencies depending on their4

missions and programs, the nature of historic properties that might be affected, and other factors,

5

consultation should always include all affected parties.” Id. (Standard 5, Guideline (d)). The

6

guidelines also advise that consultation should occur “early in the planning stage of any Federal

7

action that might affect historic properties.” Id. (Standard 5, Guideline (c)).

8

As the Secretary of the Interior recognizes, “specific consultation requirements and9

procedures will vary among agencies depending on their missions and programs,” and therefore, an

10agency has some discretion in deciding exactly who will be consulted, to what extent, and at

11

precisely what time. Likewise, an agency has some discretion to decide exactly what information

12

regarding effects of the undertaking it will generate, gather, and consider, and if adverse effects are13

found, exactly what mitigation efforts it will evaluate and pursue. Under Chevron step two, an

14agency’s specific formulation of the take into account process is entitled to deference from a court.

15

Nevertheless, under Chevron step one, Congress’ intent that the section 402 take into account16

process contain basic elements—identification of protected properties, gathering and weighing of

17

information, determination of adverse effect or no adverse effect, evaluation of mitigation measures

18

if necessary, and consultation with interested parties and organizations—is evident. Congress

19

explicitly declared that preservation of historic properties would be carried out in cooperation and in

20

partnership with other nations, private organizations, and individuals. 16 U.S.C. § 470-1. Congress

21

enacted section 402 using the same take into account phrase used previously when Congress enacted22

section 106, and at the time, the ACHP had already promulgated regulations setting forth a basic

23

framework for the section 106 take into account process. 36 C.F.R. Part 800. Congress provided a24mechanism, through the formal guidance of the Secretary of the Interior, to achieve coherency and25

consistency across the various preservation programs of different agencies. 16 U.S.C. § 470a(g). It

26

is implausible, therefore, that Congress intended the essential elements of a take into account27

process—whether conducted in the context of a foreign or domestic undertaking—to differ widely.

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1

Finally, the fact that the Secretary of the Interior’s guidance for section 402 undertakings is2

consistent with the basic framework for section 106 undertakings supports the notion that the basic

3

framework is evident from express Congressional policy and the NHPA’s text, purpose, structure,4and history.

For the Northern District of California

UNITED STATES DISTRICT COURT

5
6

B.

Compliance With “Take Into Account”

7

Defendants assert that information about the Okinawa dugong was taken into account during

8bilateral discussions to select the site for the FRF, and will continue to be taken into account as

9Japan moves forward with its own environmental review process. Defendants provide the10declaration of Takemasa Moriya, the Japanese Administrative Vice Minister for Defense, who states

11

that potential impacts on the dugong and its feeding grounds were of utmost importance to him and12

the Japanese government in selecting the site and configuration of the FRF. Moriya Dec. ¶¶ 8, 11.

13

Because of concern for the dugong, the Japanese initially proposed a facility built completely on

14

land, but this option was not possible due to U.S. operational requirements. Id. ¶ 8. Rather than

15

shift the facility further into the shallow waters as the U.S. initially preferred, the Government of

16Japan developed a plan in such a way that the construction of the new facility would avoid shallow

17

water areas to the extent possible, thereby limiting the potential impact on dugong feeding grounds.

18

Id.

19

Defendants also assert that the Government of Japan will continue to “give careful20

consideration to impacts on the Okinawa dugong . . . as [Japan] proceeds with its environmental

21

review” process required under Japanese law. Defs.’ Mem. at 43. Moriya explains that the Japanese22

environmental assessment will include specific methods for surveying, predicting and assessing the23

impacts of the FRF on the dugong. Moriya Dec. ¶ 14. He explains further that the initial scoping

24

document as well as the final results of the review will be subject to public comments, and such

25

comments will be considered by Japanese officials as they prepare an environmental impact

26

statement. Id. ¶¶ 14–16. Based on the results of the review process, Moriya explains that the27

Government of Japan, in consultation with the United States, will take appropriate mitigation

28
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1measures, “taking comprehensively into account various factors including the opinions of the local

2

communities, the need to meet the operational requirements of the U.S. forces, and the need to give3

due consideration to the natural environment.” Id. ¶ 18.

4

Plaintiffs do not dispute and the court does not take issue with what Japan has or has not5done with respect to the environmental assessment required under Japanese law. Indeed, as the6

court has already explained in connection with the act of state doctrine, the court’s review is not7

directed at whether Japan has complied with Japanese law, but whether DOD has complied with its

8

obligations under the NHPA. Section 402 of the NHPA is clear on its face—it assigns the obligation

9

to take into account to “the head of a Federal agency having direct or indirect jurisdiction over such

10

undertaking.” 16 U.S.C. § 470a-2. It is undisputed that, in this case, the Secretary of the11

Department of Defense has direct jurisdiction over the FRF project. The obligation to take into

12

account, therefore, lies with the DOD and the DOD alone. While defendants insist that impacts on13

the dugong were taken into account, the court must ask not only whether the effects were taken into

14

account, but by whom—the Department of Defense? The fact that Japan will conduct an

15

environmental assessment pursuant to Japanese law does not relieve DOD of its independent

16

obligation to take into account under the NHPA.

17

The current record contains no evidence that a single official from the DOD with

18

responsibility for the FRF has considered or assessed the available information on the dugong or the19effects of the FRF. For example, defendants provide the declaration of Richard Lawless who is the20

DOD official responsible for bilateral negotiations concerning the FRF and who reports to the21

Secretary of Defense. Lawless Dec. ¶ 1. His declaration, while noting that the Government of Japan

22

placed particular emphasis on preserving seagrass beds and avoiding adverse impacts to the dugong,

23

is silent as to whether DOD also took similar concerns into account. See, e.g., id. ¶¶ 11–12. Indeed,

24

Lawless’ declaration indicates that DOD’s overarching, and perhaps only concern, was that the FRF

25comply with U.S. operational and safety requirements. See, e.g., id. ¶¶ 10, 13. Additional evidence

26

in the record supports this view. An October 2005 document summarizing the U.S.-Japan27

negotiations states, “[t]he U.S. side continued to maintain that while environmental impacts were28
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important, any FRF proposal must meet operational and safety requirements.” Shockey Dec., Exh. 52

at 5, Futenma Replacement Site Survey. The document continues, “the environmental issues are

3

primarily a question of political will since any option will affect the environment and4opponents will use environment-based arguments to advance their cause.” Id. (emphasis

5

added). Insofar as these statements suggest that DOD need not concern itself with environmental

6

impacts because they are unavoidable and are simply an expedient used by opponents to obstruct the

7

FRF, these statements evince at best, plain ignorance of, and at worst, complete defiance of DOD’s

8

obligation to consider the impacts of the FRF on the dugong. The court is unconvinced that DOD

9

has expressed concern for, let alone taken steps to consider the effects of the FRF on the dugong. As

10plaintiffs argue, “[i]t is disingenuous for DOD to now claim Japan’s environmental concerns as their11own.” Pls.’ Reply at 24.

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Case 3:03-cv-04350-MHP

To be sure, the fact that DOD, not the Government of Japan, has the obligation to take into

13

account under section 402 does not preclude DOD from considering information generated by Japan14and coordinating with Japan to gather and compile relevant information. Indeed, as the court has

15

already discussed, Congress’ intent that a basic review process involve coordination and16

consultation with the host nation, interested parties, and other organizations is evident from the17

language, purpose and structure of the statute. Moreover, as the court alluded to when discussing

18

the act of state doctrine, DOD need not take action that is inconsistent with or contrary to the actions

19of Japan. This is especially true given that, as defendants observe, the Okinawa dugong is Japan’s

20

cultural and historical property and therefore, Japan’s judgment regarding how best to protect that21

property should be of great concern to the DOD. Duplicative, inconsistent efforts are not required.

22

To the contrary, coordination and consultation are required in order to avoid such wasted efforts.

23

Ultimately, however, the NHPA imposes on the DOD a responsibility to consider and weigh. DOD

24must determine whether the available information is sufficient, and if not, what additional25

information must be gathered or produced. DOD must examine that information, whether it is26

generated by the Government of Japan, by the DOD itself, or by outside experts and organizations.

27

Based on that information, DOD must determine whether there will be adverse effects or no adverse

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effects. If there are adverse effects, DOD must consider and evaluate options to mitigate or avoid

2

those effects. Each of these steps can be accomplished with input and cooperation from the3

Government of Japan and other parties, but ultimately, the responsibility rests with the DOD.

4

Defendants have directed the court’s attention to a variety of documents and studies

5

purportedly showing a comprehensive analysis of all relevant considerations relating to potential

6

dugong impacts associated with the FRF. These documents include:7(1)

the declaration of Stephen Getlein, the Natural Resources Manager for
Marine Corps Base Camp Butler (“MCB Butler”) which encompasses
several facilities on Okinawa including Camp Schwab, Shockey Dec.,
Exh. 41;(2)

the initial and reply declarations of Michael Noah, who from October
2004 through April 2007, was the DOD Chief Supervisory Biologist
stationed in Okinawa;(3)

the initial and reply declarations of Adam Frankel, a private expert
consultant from the firm Marine Acoustics, Inc.;(4)

a December 2005 report prepared for the Department of the Navy by the
consulting firm Geo-Marine, Inc., Shockey Dec., Exh. 9 (hereinafter“December 2005 Report”); and(5)a June 2003 report conducted by the Facilities Engineer Environmental
Affairs Branch of MCB Butler, Shockey Dec., Exh. 6 (hereinafter “June2003 Report”).

8
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For a variety of reasons discussed below, these documents, contrary to defendants’ assertion, are18

inadequate to demonstrate defendants’ compliance with NHPA section 402.

19

Stephen Getlein attests that “there are viable seagrass areas in Henoko Bay that could be20

potential dugong feeding areas,” but that “in [his] professional and personal opinion, . . . Henoko

21

Bay is not attractive habitat for dugongs, . . . and there are several areas around Okinawa Island

22

where the Okinawa dugong is more likely to feed than Henoko Bay.” Getlein Dec. ¶¶ 8–9. The

23

same Getlein declaration was provided to the court when the court issued its prior order in 2005. In

24

that order, the court stated that “whether the bay provides active habitat for the species . . . is25

certainly a key issue for pursuit during discovery and future dispositive motions.” Dugong, 2005

26

WL 522106 at 18. Insofar as defendants re-submit Getlein’s declaration to support the proposition

27

that the FRF will have minimal or no adverse effects on the dugong because Henoko Bay is not an28
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attractive habitat relative to other locations, this conclusion is disputed by other evidence in the2

record. First, the conclusion is belied by the Government of Japan having placed particular3emphasis on avoiding damage to seagrass beds in Henoko Bay. See Moriya Dec. Second,4

defendants’ own declarant Michael Noah attests that any relative comparison of the suitability of5

Henoko Bay with alternative feeding locations around Okinawa Island lacks scientific foundation.

6

Noah Reply Dec. ¶¶ 10–13. Noah explains that this is because Henoko Bay has been the focus of7

most dugong and seagrass surveys, at the exclusion of other locations. Id. Therefore, there is8currently insufficient information to conclude that, relative to other locations, the quantity and9quality of seagrass found within the footprint of the FRF is either attractive or unattractive. In any

10event, the NHPA does not limit defendants’ obligation to take into account to only those areas

11

deemed to be the most attractive, important, or significant. Even if there exist habitats in other parts

12of Okinawa Island that are more desirable than Henoko Bay, it is undisputed that Henoko Bay is13

dugong habitat and therefore, the obligation to take into account has attached. Undisputed Facts ¶ 4.

14
15

Defendants “urge the court to examine with great care the detailed and comprehensive

16

declaration provided by [Michael] Noah,” and the court has done so. Defs.’ Mem. at 41. Like

17

Getlein’s declaration, Noah’s declaration also recognizes that viable seagrass areas exist in Henoko

18

Bay, but suggests that the area is not a “preferred” or “high quality” dugong habitat. Id. at 41, 42;

19

Noah Initial Dec. ¶ 51. As already discussed, Noah himself admits that there is currently insufficient

20

evidence to evaluate the importance of Henoko Bay relative to other dugong habitats. Noah also

21

observes that dugong populations are susceptible to harm from a variety of environmental stressors

22

including urban development, agricultural run-off, and commercial fishing ports. Noah Initial Dec.

23¶¶ 55–63. The presence of other sources of strain on dugong populations, however, does not change

24

the fact that construction and operation of the FRF may pose a separate and additional threat which

25

under the NHPA must be studied and evaluated. Finally, Noah also discusses potential mitigation

26

measures involving the creation of new seagrass beds through transplantation of existing beds to27

areas where seagrass has not become well established. Id. ¶ 64. He notes that the Government of

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Japan “will make decisions on, and develop required mitigation for, any significant adverse impacts

2

identified within the sovereignty of Japan.” Id. ¶ 65. As the court has already discussed, however,3

NHPA section 402 is clear on its face—it imposes an obligation on DOD to consider information

4“for purposes of avoiding or mitigating adverse effects.” 16 U.S.C. § 470a-2. While DOD may

5work in conjunction with Japan to evaluate mitigation measures, the NHPA imposes a responsibility

6on the DOD, not the Government of Japan.

7

The “bottom line” of Adam Frankel’s declaration is that currently there is not enough8

information to “make meaningful predictions about how much or how little dugongs will be affected

9by the operations of the FRF.” Frankel Reply Dec. ¶ 10. Frankel avers, “[t]he extent and duration

10of potential noise disturbance from aircraft would require quantification to determine any potential

11

adverse effect [on the dugong]; without such quantification, little can be accurately stated about the12level or effect of transmitted aircraft noise.” Frankel Initial Dec. ¶ 33. Similarly, with respect to13noise disturbance from boats, Frankel advises that “the number of boats resulting from the proposed

14

airport facility should be quantified before the suggestion of possible impacts to dugong behavior,

15

metabolic systems, and survivorship can be analyzed and discussed.” Id. ¶ 27. Defendants suggest

16

that it is plaintiffs’ burden to provide the necessary quantification, Defs.’ Mem. at 41, when in fact,

17

the NHPA places this burden on defendants.

18

Finally, the December 2005 and June 2003 Reports, like the declarations of Getlein, Noah

19and Frankel, are also insufficient to demonstrate defendants’ compliance with NHPA section 402.

20

The court notes that both reports incorporate input and information generated by interested parties

21

such as regional experts, academic and research institutions, U.S. and international agencies, and22

non-governmental organizations. See December 2005 Report at 1-10:1-11 (“a multitude of23

individuals, agencies, and databases were consulted during the search for data and information on24

the occurrence of marine resources” in Okinawa); June 2003 Report at 2 (seagrass identification

25

aided by personnel from Okinawa Seagrass Watch). Such consultation and cooperation from26

interested parties is encouraged and required as a basic element of the section 402 take into account27

process. The December 2005 Report, however, is limited to an inventory and basic scientific28
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description of the dugong and seagrass. See December 2005 Report at 2-33:2-34, 3-32:3-34. The

2report mentions that a seagrass-watch program, initiated in Okinawa in 2002, was tasked with3

addressing the impacts of the FRF construction on seagrass beds and dugongs, but does not provide

4

any further information on what conclusions were reached or whether the results of the program

5

were considered by the DOD. Id. at 2-34. It appears that the seagrass-watch program identified

6

seven species of seagrass within Henoko Bay, but stopped short of analyzing how the seagrass will7

be impacted by the FRF. Id. The June 2003 Report is also insufficient to satisfy DOD’s obligations

8

under section 402 because it is limited to assessing the effects of current Marine training activities

9and does not assess the effects of future construction and operation of the FRF. See also Shockey

10Dec., Exh. 7, February 2005 Marine Corps Briefing (describing the June 2003 Report as an

11

assessment of the effects of current U.S. Marine Corps training on habitats).

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Case 3:03-cv-04350-MHP

In sum, the current record reflects a failure by the DOD to comply with NHPA section 402.

13

This failure constitutes agency action that is unreasonably delayed and unlawfully withheld as

14

provided by the APA. Defendants have failed to produce, gather and consider information necessary

15

for taking into account the effects of the FRF on the Okinawa dugong and for determining whether

16

mitigation or avoidance measures are necessary and possible. The current record contains an

17abundance of basic scientific knowledge regarding dugong behavior, migratory movements, feeding

18

patterns, and seagrass habitats. But this information alone is insufficient because the statute is

19

clear—the information considered must bear on the “effects of the undertaking” on the protected20

property, and the information must be considered for the purpose of “mitigating or avoiding any

21

adverse effects.” 16 U.S.C. § 470a-2. Defendants’ own declarants admit that there is insufficient22

evidence to evaluate the effects of the undertaking, a necessary predicate for determining whether

23

mitigation is necessary and possible. If further information is needed in order to evaluate whether

24

adverse impacts to the dugong will be minimal because Henoko Bay is a marginal habitat relative to25other habitats around Okinawa Island, then DOD has a responsibility to ensure that such studies are

26

conducted. If more information is needed in order to evaluate whether noise disturbance from air

27

and water vessels during construction and subsequent operation of the FRF will adversely impact the28
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1dugong, then DOD has a responsibility to ensure that those studies are also conducted. Contrary to

2Noah’s understanding, DOD, not the Government of Japan, has the obligation to evaluate mitigation3

measures if it is determined that there are adverse effects, but such evaluation can occur parallel to4

and in conjunction with Japan’s own efforts.

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The court is troubled that the 2006 Roadmap embodying final plans for the construction of

6

the FRF has received the highest levels of approvals from the U.S. Secretaries of Defense and State.

7

Yet, the impacts of the FRF on the dugong are currently not well-understood, and other than Noah’s

8suggestion that seagrass beds might be transplanted to other locations, few mitigation measures have9

been studied and evaluated by the DOD. Defendants argue that insofar as the currently available

10

information is insufficient or incomplete, any deficiencies will be addressed by Japan as it conducts

11

a three-year environmental impact assessment pursuant to Japanese law. There is no doubt that, in

12

satisfying its own obligations under the NHPA, defendants may consider the information generated

13

by Japan’s assessment. The critical question, however, is one of timing. It is true that, as the court

14

stated in its 2005 order, construction of the facility has not yet begun, and the take into account15

process required by the NHPA can still occur. Dugong, 2005 WL 522106 at 15. Yet, it is also true

16

that, as the court has consistently held, the statutory text requires defendants to take into account17“prior to approval of an undertaking.” 16 U.S.C. § 470a-2. Congress’ express inclusion of a time

18

frame indicates that Congress intended the take into account process to occur early in the planning

19

stages of a federal undertaking when there is still a meaningful opportunity to consider adverse

20

impacts and mitigation measures. Satisfaction of defendants’ obligations under section 402,

21

therefore, cannot be postponed until the eve of construction when defendants have made irreversible

22

commitments making additional review futile or consideration of alternatives impossible.

23

Japan’s environmental assessment has already begun and now is the time for DOD to24

actively participate and coordinate with Japan. Will Japan’s assessment be sufficient for meeting

25

DOD’s obligations under section 402? If not, then how should Japan’s assessment be

26

supplemented? If supplemental information is necessary, then from what sources will the27

information be derived? These questions remain unanswered. If defendants wait to address these

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issues until the end of the three-year period when the Japanese environmental assessment is

2complete and when Japan is ready to move forward under the terms of the Roadmap, it will be too

3

late.

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CONCLUSION
Plaintiffs’ motion for summary judgment is GRANTED. Defendants’ motion for summary
judgment is DENIED. It is hereby ADJUDGED and ORDERED that:
1. Defendants have failed to comply with the requirements of NHPA section 402, 16 U.S.C.

5§ 470a-2, and this failure to comply is agency action that is unreasonably delayed and unlawfully

6

withheld, 5 U.S.C. § 706(1).

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Document 119

2. Defendants are ordered to comply with NHPA section 402, and this case is held in

8

abeyance until the information necessary for evaluating the effects of the FRF on the dugong is

9generated, and until defendants take the information into account for the purpose of avoiding or

10

mitigating adverse effects to the dugong.

11

3. Defendants are ordered, within ninety (90) days of the date of this order, to submit to the12

court documentation describing what additional information is necessary to evaluate the impacts of13

the FRF on the dugong; from what sources, including relevant individuals, organizations, and14

government agencies, the information will be derived; what is currently known or anticipated15

regarding the nature and scope of Japan’s environmental assessment and whether that assessment

16

will be sufficient for meeting defendants’ obligations under the NHPA; and identifying the DOD

17

official or officials with authorization and responsibility for reviewing and considering the18

information for purposes of mitigation.

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4. If plaintiffs desire to respond to this submission, they shall file their response within fortyfive (45) days of defendants’ filing.

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Dated: January 23, 2008_______________________________MARILYN HALL PATEL
United States District Court Judge
Northern District of California

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ENDNOTES

2

1. The full text of section 106 is as follows: “The head of any Federal agency having direct orindirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and thehead of any Federal department or independent agency having authority to license any undertaking
shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to theissuance of any license, as the case may be, take into account the effect of the undertaking on any
district, site, building, structure, or object that is included in or eligible for inclusion in the National
Register. The head of any such Federal agency shall afford the Advisory Counsel on HistoricPreservation established under part B of this subchapter a reasonable opportunity to comment withregard to such undertaking.” 16 U.S.C. § 470f.

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2. Plaintiffs have moved to strike defendants’ final-agency-action argument because defendants firstraised it in their reply brief, and it is well-established law that arguments not made in an opening
brief are deemed waived. United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006). Defendants
oppose plaintiffs’ motion to strike, arguing that the final-agency-action argument was directly raisedin their opening brief at footnote 18 and was indirectly referred to in various other places. The court
notes that burying in a footnote an argument that was eventually fleshed out to over two pages in the
reply brief does not give the opposing party fair and sufficient notice. The court’s subject matter
jurisdiction, nevertheless, is limited to final agency actions under the APA and therefore, the court isrequired as a matter of law to examine whether its review is proper. The court denies plaintiffs’
motion to strike defendants’ argument and will consider all supplemental briefing filed by the parties
in connection with this issue.

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3. Plaintiffs characterize DOD’s failure to take into account not only as agency action “unlawfully
withheld” and “unreasonably delayed” under 5 U.S.C. section 706(1), but also as agency action thatis “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under 5
U.S.C. section 706(2)(A). Second Amended Complaint, Prayer For Relief, ¶¶ 2–4. The court,
however, notes that the failure to take into account is more appropriately brought under section
706(1), rather than section 706(2)(A).
4. An exception exists when a project affects a National Historic Landmark. In that case, an agency
has an affirmative duty, “to the maximum extent possible, [to] undertake such planning and actions
as may be necessary to minimize harm to such landmark.” 16 U.S.C. § 470h-2(f); see also 36 C.F.R.
§ 800.10; Coliseum Square, 465 F.3d at 225, 243.
5. See generally 36 C.F.R. Part 800, revised as of July 1, 1980. Pertinent sections of the 1980
regulations are as follows: § 800.4(a) (identification of protected properties); § 800.4 (gathering andweighing of information); § 800.4(b), (c) (determination of adverse effect or no adverse effect); §800.6(b)(4), (5) (evaluation of mitigation measures if necessary); § 800.6(b) (consultation withinterested parties and organizations).

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