Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page1 of 38

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UNITED STATES DISTRICT COURT6NORTHERN DISTRICT OF CALIFORNIA

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CENTER FOR BIOLOGICAL DIVERSITY,
et al.,

No. C-03-4350 EMC

9Plaintiffs,

AMENDED ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISSv.
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For the Northern District of California

United States District Court

10(Revisions in green highlight)
CHUCK HAGEL, et al.,

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Defendants.
___________________________________/(Docket No. 163)

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Plaintiffs are three Japanese individuals and four environmental groups that are challenging a

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U.S. Department of Defense (DoD)1 decision, made jointly with the Government of Japan, to18

construct a new military base on Okinawa. According to Plaintiffs, construction of two aircraft

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runways on landfill in Henoko Bay will destroy critical feeding grounds and habitat for the Okinawa

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dugong, a species of marine mammal similar to a manatee. It is undisputed that the Okinawa

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dugong is critically endangered.

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Plaintiffs originally filed this lawsuit in 2003, arguing that DoD failed to “take into account”

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any adverse effects that construction of the military base might have on the dugong. Plaintiffs

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contended that such action was necessary pursuant to section 402 of the National Historic

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Preservation Act (NHPA). This Court (Patel, J.) agreed with Plaintiffs, and in 2008 ordered the

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The Court refers to the Defendants in this case alternatively as DoD or “the Government.”

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page2 of 38

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DoD to comply with the NHPA. DoD completed a report intended to satisfy its NHPA obligations

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in April 2014.

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Now, with construction of the military base apparently underway, Plaintiffs seek to challenge

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the DoD’s NHPA findings under the Administrative Procedures Acts (APA). Specifically, Plaintiffs

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ask this Court for (1): a declaratory judgment that the DoD’s NHPA findings are arbitrary and6capricious, or otherwise violate the APA; (2) an order setting the Government’s NHPA findings

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aside; and (3) an injunction prohibiting the DoD from building the military base until it complies

8with its NHPA obligations.

For the Northern District of California

United States District Court

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The Government moves to dismiss Plaintiffs’ case pursuant to the political question doctrine.

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According to the Government, this Court lacks jurisdiction to grant any of the relief requested by

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Plaintiffs because the DoD’s decision to construct a military base overseas is an unreviewable

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Executive decision made at the apex of the President’s foreign policy and national defense powers.

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For the reasons explained below, the Court grants the Government’s motion to dismiss, albeit

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on slightly different grounds than the Government requests. The Government is correct that

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Plaintiffs’ claim for injunctive relief is barred by the political question doctrine. Put simply, this16

Court lacks the power or necessary competence to enjoin or otherwise interfere with the construction

17of a U.S. military facility overseas that is being built consistent with American treaty obligations and18

in cooperation with the Japanese Government. And while this Court does have the power to grant

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Plaintiffs’ request for declaratory relief that the DoD did not comply with the NHPA, and similarly

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has the power to order the DoD’s NHPA findings set aside, the Court will nevertheless grant the21

Government’s motion to dismiss these claims because any action the Court takes with respect to the

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NHPA findings will not redress Plaintiffs’ injuries. After decades of negotiations, the American and

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Japanese governments have made a final and (apparently) irreversible decision to construct the24

challenged military base, and as suggested above, this Court lacks the power to enjoin or otherwise

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alter that decision. Given that the military base will be built regardless of what this Court might

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determine regarding the DoD’s compliance with the procedural mandates of the NHPA, Plaintiffs

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cannot show that an order requiring the Government’s compliance with a purely procedural statute28

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Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page3 of 38

1will in any way redress their claimed injuries. Thus, for the reasons explained at length below,

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Plaintiffs’ entire lawsuit is hereby dismissed with prejudice.

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For the Northern District of California

United States District Court

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I.
A.

BACKGROUND

Factual Background

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1.

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The dugong is a species of herbivorous marine mammal related to the manatee. See

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Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082, 1083 (N.D. Cal. 2008).2 The dugong is listed as

8“endangered” under the United States Endangered Species Act (ESA), and is classified as vulnerable

9by the Word Conservation Union “due to habitat destruction and degradation, as well as human10

exploitation.” Id. at 1084. The dugong is also listed as “critically endangered in Japan.” Id.

The Okinawa Dugong

11“The Okinawa dugong (Dugong dugon) is a small, isolated population of the Dugong species

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found in the waters off the eastern coast of Okinawa.” Dugong v. Rumsfeld, No. 03-cv-4350-MHP,

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2005 WL 522106, at *3 (N.D. Cal. Mar. 2, 2005). As admitted by the Government, the Okinawa

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dugong population is quite small: it “was estimated at fewer than 50 by the Mammalogical Society

15of Japan in 1997.” Docket No. 152-1, Ex. 1 (Government’s NHPA Findings) at 7.

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Plaintiffs and the Government agree that dugong were once “significant in Okinawan

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culture.” Okinawa Dugong, 543 F. Supp. 2d. at 1084. “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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The dugong “was featured in myths and songs, and had a traditional role in Okinawan culture that20

included use of its meat for consumption and its bones for tool-making.” NHPA Findings at 7. The

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Government contends (and Plaintiffs dispute) that in modern times, the dugong’s cultural

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significance is acknowledged “by only very small segments of the Okinawa population rather than23

society as a whole.” Id. at 9-10. But what is not disputed is that the Okinawa dugong “is a protected24‘natural monument’ under [Japan’s] ‘Law for the Protection of Cultural Properties.’” Dugong, 2005

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WL 552106, at *3.

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Where feasible, the Court draws undisputed facts from Judge Patel’s earlier opinions in thiscase. Both of Judge Patel’s cited opinions contain detailed factual and procedural histories germaneto this motion.

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For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page4 of 38

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2.

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Plaintiffs in this case are three individual Japanese citizens and four international

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environmental organizations – Center for Biological Diversity, Turtle Island Restoration Network,

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Japan Environmental Lawyers Foundation, and Save the Dugong Foundation. See Docket No. 152-1

5(Plaintiffs’ Supplemental Complaint) at ¶¶ 8-14. Each of the three individual plaintiffs appears to6

live in Japan, and at least two appear to live on Okinawa. See id. at ¶¶ 12-14. Two of the individual

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plaintiffs lead “regular eco-tours to Okinawa dugong habitat,” and one guides tours that include “up-8

close snorkeling and scuba diving” in dugong habitat. Id. at ¶¶ 12-13. Each of the four plaintiff

9associations claims to have members with an interest in the preservation and/or enjoyment of the10

Okinawa dugong. Id. at ¶¶ 8-11. This Court previously ruled that all of the current plaintiffs have11

standing to bring this lawsuit. See Okinawa Dugong, 543 F. Supp. 2d at 1096-1097.

The Plaintiffs

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3.

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The United States has maintained military bases on Okinawa since the end of World War II.

The United States Military Presence on Okinawa

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Dugong, 2005 WL 552106, at *1. Between 1945 and 1972, the United States administered

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Okinawa pursuant to international agreements, while Japan retained residual sovereignty over the16island chain. Okinawa Dugong, 543 F. Supp. 2d at 1084. Full Japanese sovereignty was restored in

171972 pursuant to the “Agreement Between the United States Concerning the Ryuku Islands and the18

Daito Islands” (the Agreement), and the “United States relinquished to Japan all administrative

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rights and interests it had over the Okinawa Islands.” Id. The Agreement did, however, grant the20“United States exclusive use of facilities and areas [on Okinawa] in accordance with the ‘Treaty of21

Mutual Cooperation and Security’ (‘Treaty’) and the ‘Status of Forces Agreement’ (‘SOFA’).” Id.

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SOFA is a bilateral agreement between the United States and Japan governed by the Treaty, which

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provides that “for the purpose of contributing to the security of Japan and the maintenance of

24international peace and security in the Far East, the United States of America is granted the use by25

its land, air and naval forces of facilities and areas in Japan.” Id.

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One such military facility operated by the United States is the Marine Corps Air Station

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Futenma (MCAS Futenma), which “operates facilities and provides services and materials to support

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Marine Corps aircraft operations.” Dugong, 2005 WL 552106, at *1. “MCAS Futenma is located4Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page5 of 38

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in Ginowan City and due to social and economic changes [since it first opened], is now completely

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surrounded by urban development. Japanese officials have called for its closure and relocation to a3

more suitable site in order to ease the health and safety burdens on the citizens of Ginowan City.”

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Okinawa Dugong, 543 F. Supp. 2d at 1085. American officials have also sought to relocate MCAS

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Futenma, “citing a desire to relocate military activities to a less congested area,” and have been

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pursuing that goal jointly with the Japanese since at least 1996. Id; see also Docket No. 91-3

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(Declaration of Takemasa Motiya, Administrative Vice Minister for Defense, Japanese Ministry of

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Defense) at ¶ 3 (describing 1996 agreement between President Clinton and Prime Minister9

Hashimoto to close and relocate MCAS Futenma).

For the Northern District of California

United States District Court

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The relocation process since 1996 has been long and tortured, but significant headway was

11made in 2006 when then-Secretary of Defense Donald Rumsfeld and then-Secretary of State

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Condoleezza Rice agreed with their Japanese counterparts on a bilateral executive agreement

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entitled the “United-States-Japan Roadmap for Realignment Implementation” (Roadmap). See

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Okinawa Dugong, 543 F. Supp. 2d at 1086. The Roadmap “covers a number of restationing and15

military realignment issues in addition to the planned closure, return, and relocation of MCAS

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Futenma.” Id. Specifically with respect to MCAS Futenma, the Roadmap establishes that Japan17

will construct a replacement base, known as the Futenma Replacement Facility (FRF) offshore from

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Camp Schwab, an existing onshore military base located adjacent to Henoko and Oura Bays. See

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generally id.; see also Docket No. 163 (Motion to Dismiss), Exhibit 2 (May 1, 2006, U.S. State

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Department Press Release) (outlining details of the Roadmap agreement).3 Even more specifically,21

the Roadmap calls for the construction of the FRF with a “V-shaped” runway4 that will be “built on

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landfill extending into Oura and Henoko Bays. Each runway will be 1,600 meters in length plus 200

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The Government correctly argues that this Court may take judicial notice of official
Government press releases. See, e.g., Stepski v. M/V NORASIA ALYA, No. 06-cv-06194, 2010 WL
6501649, at *5 (S.D.N.Y. Jan. 14, 2010) (“[T]he Court may take judicial notice of a Governmentissued press release as a matter of public record”) (citation omitted); Perkins v. Linkedin Corp., -- F.
Supp. 3d --, 2014 WL 6618753, at *9 (N.D. Cal. 2014) (taking judicial notice of official press
release).
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The “V-shaped” runway (singular) is actually comprised of two separate runways
connecting at the middle, as one might expect from the “V-shaped” nomenclature.

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meters as ‘overrun’ areas.” Okinawa Dugong, 543 F. Supp. 2d at 1086. The Roadmap further calls

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for the relocation of a number of Marines and their dependents from Okinawa to facilities to be

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constructed in Guam, and provides for the United States’ complete return of the lands now occupied

4by MCAS Futenma (and other bases) to Japan once the FRF is fully operational. See Docket No.

5163, Declaration of James P. Zumwalt, Deputy Assistant Secretary of State for East Asian and

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Pacific Affairs (Zumwalt Decl.) at ¶6; see also Motion to Dismiss, Exhibit 3.

For the Northern District of California

United States District Court

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Although the Roadmap was approved in 2006, serious construction work on the FRF or its

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runways has yet to begin. See Plaintiffs’ Supplemental Complaint at ¶¶ 25-26 (citing Japanese

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media reports from 2014 indicating that certain “buildings within the proposed FRF runway

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footprint” have been demolished, and noting that “reclamation” work on the “nearshore area” is11

expected to begin in early 2015); Zumwalt Decl. at ¶ 8 (declaring that “boring sample surveys”

12began in August 2014). That does not mean, however, that the project has lied dormant since 2006.

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To the contrary, during this time the FRF project underwent “years of coordination and planning” at

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the highest levels of the U.S. and Japanese governments. Zumwalt Decl. at ¶ 7; see also Mot. to15

Dismiss, Exhibit 5 (December 2013 White House press release quoting Vice President Biden: “The16

President and I are determined, the United States is determined to implement our [R]oadmap to17

relocate the base for Futenma as quickly as possible”). Part of this planning involved completion by

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the Japanese government of both a draft environmental impact statement (in 2009) and a final

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environmental impact statement (in 2012), which statements address the various environmental

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impacts of the proposed construction of the FRF and its runways, including potential impacts on the21

dugong. See, e.g., NHPA Findings at 5. As will be discussed in significant detail below, the22Marine Corps also produced its own report during this time regarding possible impacts the Okinawa

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dugong might sustain from the construction and operation of the FRF. See generally NHPA

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Findings.

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In 2013, the FRF project gained significant momentum. In March of that year, the Japanese

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government submitted a landfill permit request to the Governor of Okinawa. Zumwalt Decl. at ¶ 8.

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In what the Government hails as a “historic moment for the U.S.-Japan Alliance,” the Governor

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approved the permit on December 27, 2013, clearing the last major hurdle to construction of the

6For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page7 of 38

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FRF. Id.; see also id. at ¶ 10 (describing approval of the landfill permit as “the most tangible,2

significant achievement” of the 20 year effort between the U.S. and Japan to build the FRF). As

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noted above, Plaintiffs allege that limited construction work has now begun on the FRF, with more

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significant construction to follow in the coming years. See Plaintiffs’ Supplemental Complaint at ¶¶525-26.

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B.

Procedural Background.

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Plaintiffs filed this lawsuit against the DoD and its then Secretary, Donald Rumsfeld

8(collectively, the Government), on September 25, 2003.5 See Docket No. 1. The crux of Plaintiffs’

9claims filed over a decade ago remains largely the same as it is now: The construction and operation

10of the FRF is likely to have serious adverse consequences for the Okinawa dugong. Compare

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Docket No. 1 with Plaintiffs’ Supplemental Complaint. Specifically, Plaintiffs’ most recent

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allegations state that “[t]he proposed construction and operation of the FRF will harm Okinawa

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dugong habitat and food sources, directly and adversely affecting the Okinawa dugong. Landfill

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from the construction of the facility, stormwater runoff, water pollution, air pollution, noise, and15

light from the operation of the FRF may directly and adversely affect the continued survival of the

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Okinawa dugong.” Plaintiffs’ Supplemental Complaint at ¶ 28. Plaintiffs note pointedly that17

Henoko Bay, where the FRF runways are slated to be constructed on landfill, contains seagrass beds

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that are “critical for dugong survival.”6 Id. at ¶ 20.

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Plaintiffs’ original complaint alleged that the Government violated section 402 of the NHPA

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by failing to “take into account” any adverse effects that the design, planning, or eventual

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construction of the FRF might have on the Okinawa dugong. See, e.g., Docket No. 13 (Plaintiffs’

22First Amended Complaint) at ¶ 39. Section 402 of the NHPA provides that:23

Prior to the approval of any Federal undertaking outside the UnitedStates which may directly and adversely affect a property which is on

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The Secretary of Defense was sued in his official capacity. This case was originallyassigned to (now retired) U.S. District Judge Marilyn Hall Patel. Docket No. 10.
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The Government agrees that seagrass beds exist in Henoko Bay near the proposed FRF site,
but dispute whether these feeding grounds are being actively used by any Okinawa dugong. See
Mot. to Dismiss at 13 (claiming that the “Navy concluded that individual dugongs are present only
sporadically or intermittently within the affected area”).

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the World Heritage List or on the applicable country’s equivalent of
the National Register, the head of a Federal agency having direct orindirect jurisdiction over such undertaking shall take into account theeffect of the undertaking on such property for the purposes of avoiding
or mitigating any adverse effects.

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16 U.S.C. § 470a-2 (emphasis added).7 Because the “NHPA does not provide an independent basis

5for judicial review of agency actions,” Dugong, 2005 WL 522106 at *5, Plaintiffs claimed that the6

Government’s failure to “take into account” any potential effects on the dugongs was a violation of7

the APA, and specifically section 706, which provides that a court may “compel agency action

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unlawfully withheld or unreasonably delayed,” and/or hold unlawful and set aside agency actions

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that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See

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5 U.S.C. §706(1)-(2)(A).

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For the Northern District of California

United States District Court

2“In a Civil Pretrial Order entered March 15, 2004, the court directed the parties to file [pre-12discovery] motions for summary judgment limited to the issue of the application of the NHPA to this13case.” Dugong, 2005 WL 522106 at *3. In its motion, the Government contended that the NHPA

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did not apply here because: (1) the Japanese Law for the Protection of Cultural Properties, which

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lists the dugong as a natural monument, is not “equivalent” to the National Register of Historic

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Places; (2) the dugong cannot constitute “property” under the NHPA; and (3) the DoD had taken no17

action that constitutes a “federal undertaking,” as each of those quoted terms are used in section 402.

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See Id. In a lengthy opinion, Judge Patel rejected the Government’s arguments, finding that the

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NHPA could apply to the Government’s conduct as alleged by Plaintiffs. Id. at *18. Specifically,

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the Court held that the dugong qualifies as a protected “property” under the NHPA, and further

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determined that DoD’s decision to relocate MCAS Futenma to Camp Schwab could qualify as a22“federal undertaking,” thereby triggering NHPA review.8 Id. at *8, 12, 18.

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As indicated, NHPA section 402 is codified at 16 U.S.C. § 470a-2. In this Court’s previous
orders, the Court sometimes referred to the two code sections interchangeably as section 402 or
section 470a-2. For sake of consistency and clarity in this Order, the Court will refer to the relevant
statutory language simply as “section 402.”
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The Court also rejected the Government’s contentions that it lacked subject matter
jurisdiction because the NHPA “does not apply extraterritorially” and that the case should bedismissed pursuant to the act of state doctrine. See id. at *18-20.

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Shortly following the May 2006 joint announcement of a final agreement to construct the2

FRF at Camp Schwab (i.e., the Roadmap), Plaintiffs filed a Second Amended Complaint. Docket3

No. 69-1 (Second Amended Complaint). In that complaint, Plaintiffs once again alleged that the4

DoD had failed to comply with the “take into account” requirement of the NHPA, in violation of the5

APA. See id. at ¶¶ 42-45. Each side filed summary judgment motions in the summer of 2007. See

6Docket No. 85 (Plaintiffs’ Motion for Summary Judgment), Docket No. 90 (Defendant’s Cross-

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Motion for Summary Judgment).

For the Northern District of California

United States District Court

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On January 24, 2008, the Court granted Plaintiffs’ motion for summary judgment and denied

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the Government’s motion. See Okinawa Dugong, 543 F. Supp. 2d at 1112. In its order, the Court

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first explained that NHPA’s “take into account” requirement applied to the DoD because: (1) “there

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is no issue of material fact as to whether DoD activities related to the Futenma Replacement Facility

12[FRF] constitute a ‘federal undertaking’ under NHPA section 402,” and (2) “there is no material

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issue of fact as to whether the FRF may ‘directly and adversely affect’ the dugong.” Id. at 1101-02

14(quoting 16 U.S.C. § 470a-2).

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The Court next elucidated the “meaning of ‘take into account’ under section 402 . . . an issue

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of first impression for the courts.” Id. at 1102 (quoting 16 U.S.C. § 470a-2). The Court concluded

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that the take into account process must minimally include:

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(1) identification of protected property, (2) generation, collection,
consideration, and weighing of information pertaining to how theundertaking will affect the historic property, (3) a determination as towhether there will be adverse effects or no adverse effects, and (4) if
necessary, development and evaluation of alternatives or modifications
to the undertaking that could avoid or mitigate the adverse effects.

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Id. at 1104. The Court further noted that “a federal agency does not complete the take into account23

process on its own, in isolation, but engages the host nation and other relevant private organizations

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and individuals in a cooperative partnership.” Id.

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After analyzing copious exhibits and declarations in the record, Judge Patel ultimately

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concluded that DoD failed to comply with NHPA section 402 because the “record contains no27

evidence that a single official from DoD with responsibility for the FRF has considered or assessed28

the available information on the dugong or the effects of the FRF.” Id. at 1108-1111. Judge Patel

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For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page10 of 38

1then determined that DoD’s failure to comply with the NHPA was “agency action that is2

unreasonably delayed and unlawfully withheld,” in violation of the APA. Id. at 1112.

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Consequently, the Court ordered the Government to comply with NHPA section 402 by “evaluating4

the effects of the FRF on the dugong” and taking that “information into account for the purpose of5

avoiding or mitigating adverse effects to the dugong.” Id. The Court further ordered the case held

6in abeyance until the Government complied with the NHPA.9 Id.

7After the Court’s summary judgment ruling, the parties submitted a number of briefs and8status reports with the Court debating the specific steps DoD should take in order to comply with the9

Court’s Order. See, e.g., Docket Nos. 120, 126. Eventually, the dispute triggered the Court to10

request proposed orders from both parties regarding the compliance issues. Docket No. 131. The

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Government requested that any eventual order be final and appealable so that the Government could

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obtain appellate review of the Court’s NHPA determinations. Docket No. 130 at 4. For its part,

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Plaintiffs agreed to “consent to an interlocutory appeal on threshold legal questions regarding the14

applicability of the NHPA to the dugong and to the FRF project.” Id. at 6. Ultimately, the Court did

15neither. Instead, on February 10, 2012, the Court ordered the case administratively closed sua

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sponte. Docket No. 147 (Order re Status). The Court explained that it had been receiving status

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reports since 2008 regarding further proceedings, and acknowledged that the Government had

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requested the Court issue a final order remanding the case to the relevant agency for compliance19with the NHPA. Id. at 2. For their part, Plaintiffs had asked “the court to set forth the procedures

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necessary for defendants to satisfy their ‘take into account’ obligations under the NHPA.” Id. The

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Court found each request “premature,” and went on to note that recent news accounts “raise serious

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questions about where the FRF plans stand and whether they may, in fact, be modified, significantly

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cut back or abandoned.” See id. at 2-4. The Court concluded its order by noting that “this action

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remains in abeyance and the Clerk of Court is instructed to administratively close the file. When

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9

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Before the Court reached the merits of Plaintiffs’ NHPA argument, the Court also held thatthese Plaintiffs have standing to sue, and rejected a number of the Government’s other arguments,
including the Government’s contention that there was no “final agency action” under the APA, that
the Plaintiffs’ claims were not ripe, that Japanese construction of the FRF rendered the case nonjusticiable under the act of state doctrine, and that the Government of Japan was a necessary andindispensable party under FRCP 19. See Okinawa Dugong, 543 F. Supp. 2d at 1090.

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1plans for [the FRF] become more finalized or are abandoned, the parties may seek reopening of the2

proceedings by letter without the necessity of a motion.” Id. at 5.

For the Northern District of California

United States District Court

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On April 16, 2014, the Government filed a notice with the Court that it had completed the4

NHPA process for the FRF project. Docket No. 151. On July 31, 2014, Plaintiffs filed a motion for5

leave to file their First Supplemental Complaint. Docket No. 152. The Clerk of this Court officially6

reopened the case on August 5, 2014, and it was reassigned to the undersigned the same day in light7of Judge Patel’s retirement from the bench. Docket No. 154. The parties then reached a stipulation

8(later approved by this Court) that the Government would not oppose Plaintiffs’ motion to file its

9First Supplemental Complaint if it received extra time to prepare its responsive pleading. Docket

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No. 156. The Government filed its currently pending motion to dismiss for lack of jurisdiction on

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September 29, 2014. Docket No. 163 (Motion to Dismiss). As discussed in great detail below, the12Government argues that this case should be dismissed because it currently presents only non-13

justiciable “political questions” not appropriate for resolution by the judicial branch. See id. The

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Plaintiffs filed an opposition on October 27, 2014, and the Government replied November 10, 2014.

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Docket Nos. 167-68. The Court heard extensive oral argument on the Government’s motion on

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December 12, 2014. Docket No. 179.

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At oral argument, counsel for Plaintiffs raised for the first time the issue of whether Plaintiffs

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might be entitled to more “limited” relief than what they prayed for in their current complaint. See

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Docket No. 174. Specifically, Plaintiffs’ counsel suggested the Court might grant a “limited

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injunction” that would not halt the FRF project, but which would instead direct “the DoD to consult

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with, for instance, domestic agencies and experts without necessarily implicating the Japanese

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government” and which would require DoD to evaluate only responses to the FRF project from23

domestic sources. See Docket No. 180 (Oral Argument Transcript) at 39:21-41:3. The Court

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ordered supplemental briefing on the issue. In their supplemental brief, Plaintiffs abandoned their

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suggestion that such “limited” injunctive relief could (or should) be fashioned. Docket No. 182

26(Plaintiffs’ Supplemental Brief) at 1-3, 3 n. 2.

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For the Northern District of California

United States District Court

1

II.

DISCUSSION

2The Government argues that all of the Plaintiffs’ claims run afoul of the political question

3

doctrine, which “‘excludes from judicial review those controversies which resolve around policy

4choices and value determinations constitutionally committed for resolution to the halls of Congress

5or the confines of the Executive Branch.’” El-Shifa Pharmaceutical Indus. Co. v. U.S., 607 F.3d

6836, 840 (D.C. Cir. 2010) (en banc) (quoting Japanese Whaling Ass’n v. Am. Cetacean Soc’y, 478

7

U.S. 221, 230 (1986)). The Court agrees with the Government that Plaintiffs’ injunctive relief

8claim, which asks this Court to stop construction of a U.S. military facility overseas that has been

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approved by both the American and Japanese governments, and which is being built by the Japanese

10on their own sovereign soil, runs afoul of the political question doctrine. And while the Court

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disagrees with the Government that the political question doctrine bars consideration of Plaintiffs’

12declaratory judgment claims, the Court ultimately finds that these claims are nevertheless non-13

justiciable because Plaintiffs cannot satisfy the redressability requirement of Article III of the14

Constitution.

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A.

Overview of the Political Question Doctrine

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The political question doctrine was born by Chief Justice Marshall in Marbury v. Madison, 5

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U.S. (1 Cranch) 137 (1803), where the Court observed that “[q]uestions, in their nature political, or

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which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

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Id. at 170. “Although the principle behind the political question doctrine was announced over two

20

hundred years ago in Marbury, the Supreme Court has addressed the doctrine in surprisingly few

21cases.” Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005) (citations omitted). Perhaps for

22that reason, the doctrine has been labeled “‘the most confusing of the justiciability doctrines’” and23

one that seems to “‘diverge, combine, appear, and disappear in seeming disorderliness’ in various

24

settings.” Id. (quoting first Erwin Chemerinsky, Constitutional Law: Principles and Policies: § 2.8.1

25(1997) and then quoting Baker v. Carr, 369 U.S. 186, 210-211 (1962)).

26

At the outset, it is important to note that the political question doctrine is a “narrow

27

exception” to the typical rule that provides that the “Judiciary has a responsibility to decide cases

28

properly before it, even those it would gladly avoid.” Zivotofsky ex rel. Zivotofsky v. Clinton

12

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page13 of 38

1(Zivotofsky I), 132 S. Ct. 1421, 1427 (2012) (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821))2(internal quotation marks omitted). That responsibility will sometimes involve resolution of “issues

3[that] have political implications,” id. at 1428 (citations omitted), but this Court may not shirk its

4

duty to “say what the law is,” Marbury, 5 U.S. (1 Cranch) at 177, “merely because [its] decision

5

may have significant political overtones.” Japanese Whaling Ass’n, 478 U.S. at 230; see also Baker,

6369 U.S. at 211 (“[I]t is error to suppose that every case or controversy which touches foreign

7

relations lies beyond judicial cognizance.”).

For the Northern District of California

United States District Court

8

The Supreme Court provided its most comprehensive discussion of the application of the9political question doctrine in the landmark case of Baker v. Carr. 369 U.S. 186. “The Court

10

explained that the political question doctrine has its roots in the separation of powers and set forth11

six formulations for courts to consider in determining whether they should defer a case to the12political branches:

13
14
15
16
17
18
19
20

Prominent on the surface of any case held to involve a politicalquestion is found [1] a textually demonstrable commitment of theissue to a coordinate political department; or [2] a lack of judicially
discoverable and manageable standards for resolving it; or [3] the
impossibility of deciding without an initial policy determination of akind clearly for nonjudicial discretion; or [4] the impossibility of acourt’s undertaking independent resolution without expressing lack ofrespect due coordinate branches of government; or [5] an unusual needfor unquestioning adherence to a political decision already made; or[6] the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.”
Alperin, 410 F.3d at 544 (quoting Baker, 369 U.S. at 217).
“Dismissal on the basis of the political question doctrine is appropriate only if one of these21

formulations is ‘inextricable’ from the case.” Id. (quoting Baker, 369 U.S. at 217). To “find a22

political question, we need only conclude that one of these factors is present, not all.” El-Shifa

23

Pharmaceuticals, 607 F.3d at 841 (citing Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir.

242005)) (internal alterations omitted). That said, the first two Baker tests (i.e., a textually25

demonstrable commitment or a lack of judicial standards) are the most important, and are typically26

entitled to the most weight. See Alperin, 410 F.3d at 545-46, see also Zivotofsky I, 132 S. Ct. at

271427 (discussing only the first two Baker tests); Zivotofsky I, 132 S. Ct. at 1432-33 (Sotamayor, J.,

28

concurring) (expressing doubt that the final four Baker factors can support dismissal, except in rare13

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page14 of 38

1cases); Powell v. McCormack, 395 U.S. 486, 548-49 (1969) (dismissing five Baker formulations as2

inapplicable in two paragraphs after an extensive discussion of the first test).10

For the Northern District of California

United States District Court

3

Before turning to the merits of this case, it is absolutely critical to note one final doctrinal

4

caveat: The political question doctrine must be applied surgically – it is “incumbent upon [this5

Court] to examine each of the claims with particularity.” Alperin, 410 F.3d at 547. This is because6

the applicability of the political question doctrine “turns not on the nature of the government

7

conduct under review but more precisely on the question the plaintiff raises about the challenged

8

action.” El-Shifa Pharmaceuticals, 607 F.3d at 842 (citation omitted). Indeed, this point was most

9

recently illustrated in Zivotofsky I, where the Supreme Court reversed the lower courts’

10

determination that the claim at issue presented a political question because those courts

11“misunderst[ood] the issue presented.” 132 S. Ct. at 1427. In that case, the lower courts had

12understood the Plaintiff to “ask the courts to decide the political status of Jerusalem.” Id. (citation13

and internal quotation marks omitted). The Supreme Court noted that this frame was far too broad.

14“Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He

15

instead seeks to determine whether he may vindicate his statutory right . . . to choose to have Israel

16

recorded on his passport as his place of birth.” Id. As Zivotofsky I deftly illustrates, when applying

17

the political question doctrine it is crucially important to consider each claim individually and18

carefully, and not at a high level of abstraction. See id.; see also Alperin, 410 F.3d at 548-62

19(carefully considering each factually related claim and precisely determining that some present non-20

justiciable political questions, while others do not); People’s Mojahedin Org. of Iran v. U.S. Dept. of

21

State, 182 F.3d 17, 23-25 (D.C. Cir. 1999) (carefully parsing a three-part statute and holding that the22

court could assess compliance with two subsections while review of the third subsection raised a

23
10

24
25
26
27
28

Plaintiffs argue that the Supreme Court essentially abrogated or abandoned the final four
Baker factors in Zivotofsky I, because the Supreme Court only addressed the first two factors inholding that the case did not present a non-justiciable political question. See Docket No. 167(Plaintiffs’ Opposition) at 15 n.3. Plaintiffs are likely mistaken. It is not surprising that the Justices
only addressed the two Baker factors considered most dispositive, but this does not show that the
Court has abandoned the remaining factors, as Justice Sotomayor indicated in her concurrence. See
Zivotofsky I, 132 S. Ct. at 1432-33 (Sotomayor, J., concurring) (noting that only “[r]are occasions”
implicate Baker’s final factors). In any event, only the Supreme Court has “the prerogative ofoverruling its own decisions,” Agostini v. Felton, 521 U.S. 203, 237 (1997), and Zivotofsky I does
not express any intent to overrule a part of Baker.

14

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page15 of 38

1

non-justiciable political question). The Court now analyzes the Government’s contentions with the2above principles in mind.

3

B.

Plaintiffs’ Requests for Declaratory Relief and an Order Setting Aside the NHPA Findings4

do not Present Political Questions

5

The Government argues that Plaintiffs’ entire lawsuit must be dismissed because the issues

6in this case sit at the confluence of foreign policy and national defense, two matters where Executive

7

power is at its zenith and judicial power is at its nadir. See Motion to Dismiss at 1-2, 16-17. As the8

Government correctly points out, national security and foreign relations cases “serve as the9quintessential sources of political questions.” Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir.

102006). Thus, “‘[m]atters intimately related to foreign policy and national security are rarely proper

11

subjects for judicial intervention.’” Id. (quoting Haig v. Agee, 453 U.S. 280, 292 (1981)); see also12Alperin, 410 F.3d at 558 (noting that courts “should refrain from hearing those claims that require13

passing judgment on foreign policy decisions”); Smith v. Reagan, 844 F. 2d 195, 200 (4th Cir. 1988)

14(noting that “[t]he judiciary cannot oversee the conduct of foreign relations,” or “order the President

15

to take specific action” in the sphere of foreign relations).

16

Plaintiffs’ first claim seeks a declaration that the DoD’s NHPA Findings (that the FRF will17

have no adverse effect on the Okinawa dugong) are “arbitrary, capricious, and not in accordance18

with procedures required by law pursuant to the APA.” First Supplemental Complaint at ¶¶ 47-51,

19

Prayer for Relief at ¶ 1. Plaintiffs contend, among other things, that the DoD violated the APA by:

20

failing to consult “interested parties” or “seek public comment” before issuing its Findings; resting21

the Findings on faulty or incomplete data;11 and failing to take into account numerous additional

22

impacts the FRF may have on the dugong population.12 See, e.g., First Supplemental Complaint at

23
24
11

25
26
27
28

For instance, Plaintiffs call into question the DoD’s reliance on a 1997 population study of
the Okinawa dugong, which Plaintiffs allege even DoD acknowledges is “not sufficient to establish
population size, status, and viability of the Okinawa dugong.” First Supplemental Complaint at ¶44.
12

For example, Plaintiffs allege that DoD failed to properly consider “the full range ofpossible adverse effects on the dugong caused by the FRF project, including population
fragmentation, [and] the disruption of travel routes . . . .” First Supplemental Complaint at ¶ 43.

15

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page16 of 38

1¶¶ 43-51. Plaintiffs’ second claim seeks an order setting aside the Findings on the basis of these2

alleged APA violation(s). Prayer for Relief at ¶ 2.

3

1.

4

The Government vociferously argues that Plaintiffs’ declaratory judgment claims are non-Textually Demonstrable Commitment

5

justiciable because “this case involves the Executive’s performance of diplomatic and military

6functions in fulfillment of decisions made jointly with a foreign power.” Mot. to Dismiss at 23.

7

Stated more precisely, the Government argues this case “inextricably” implicates the first Baker

8

factor because the Court cannot adjudicate Plaintiffs’ declaratory judgment claims without passing

9

judgment on, or interfering with, the Executive’s final (and plenary) decision to site and build an

10overseas military base (the FRF) at Camp Schwab – a final decision also reached by the Japanese

11

government. See Bancoult, 445 F.3d at 436 (“[T]he decision to establish a miliary base [overseas] is

12

not reviewable.”). But as was the case in the lower courts in Zivotofsky I, this statement of the issues

13

is far too broad, and fails to focus on the specific rights that Plaintiffs’ declaratory judgment claims

14

seek to vindicate.

15

As Judge Patel correctly determined earlier in this case, the NHPA is a purely procedural

16

statute. Okinawa Dugong, 543 F. Supp. 2d at 1095. “It simply regulates the process by which an

17

undertaking is approved, requiring a federal agency to stop, look, and listen.” Id. (citation and

18

internal quotation marks omitted). As such, “DoD’s compliance with NHPA procedures would not19necessarily prevent the construction of the military facility nor result in a change in its design.” Id.

20

This is so because the NHPA “does not require a particular outcome and it neither forbids

21

destruction of a protected property nor commands its preservation.” Id. (citations omitted)

22(emphasis added). “In other words, the challenged activity is not the undertaking itself, but the23

process by which the effects of the undertaking are considered and assessed.” Id.

24

Given that the NHPA is purely a procedural statute, the Government errs when it claims that

25

Plaintiffs’ challenge to DoD’s compliance with the NHPA would very likely substantially26“interfere” with the Executive’s exercise of his national security and foreign relations powers. For

27even if this Court eventually determined that DoD violated the NHPA, or ordered the NHPA

28

findings set aside, that would have no direct effect on the Government’s decision to construct the16Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page17 of 38

1

FRF at Camp Schwab.13 Under such circumstances, even if declaratory relief were granted, the2Government would have no obligation to halt construction of the FRF, or otherwise alter its plans to3

mitigate any effects to the dugong.

For the Northern District of California

United States District Court

4

It is for this reason that Plaintiffs’ declaratory judgment claims do not even implicate Baker’s

5

first factor, “a textually demonstrable constitutional commitment of the issue to a coordinate

6

political department.” Baker, 369 U.S. at 217. As previously noted, the Government argues this test

7

is satisfied because in order to rule on the declaratory judgment claims, this Court would need to8consider (and potentially pass judgment on) the President’s discretionary decision to build the FRF

9at Camp Schwab. But that is simply not true. The only task this Court has in determining whether

10

the DoD complied with the NHPA is to determine whether DoD’s NHPA Findings are “arbitrary,11

capricious, an abuse of discretion, or otherwise not in accordance with law” under the APA.14 That

12

is, this Court is called on to apply the standards of the APA to the process employed by the DoD, not13

pass judgment on the wisdom of the Executive’s ultimate foreign policy or military decisions. As

14

the Supreme Court explained in Zivotofsky I, this type of statutory analysis – not dissimilar to more

15

typical environmental cases such as those brought under NEPA – is a “familiar judicial exercise.”

16

Zivotofsky I, 132 S. Ct. at 1427. Because “it goes without saying that interpreting congressional

17

legislation is a recurring and accepted task for the federal courts,” and any decision whether the DoD

18complied with the NHPA “presents a purely legal question of statutory” application, the first Baker

19

factor does not warrant dismissal of Plaintiffs’ declaratory judgment claims. Japan Whaling Ass’n,

20
21
22
23
24
25
26
27
28

13

It is for this reason, as explained below, that Plaintiffs’ declaratory judgment claims
nevertheless have to be dismissed because this Court cannot “redress” Plaintiffs’ claimed injuries.
See Section II.D.2, infra.
14

In its Motion to Dismiss, the Government alludes to an APA exclusion whereby “decisions
made pursuant to executive authority over foreign relations are ‘committed to agency discretion by
law.’” Mot. to Dismiss at 22 (quoting 5 U.S.C. § 701(a)(2). Because the issue was not truly raisedor asserted in the Government’s motion, the Plaintiffs do not respond to this argument, and the Court
declines to address it.

17

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page18 of 381

478 U.S. at 230. The mere fact that this Court’s ultimate decision “may have substantial political2

overtones,” does not change that calculus.15 Id.

3

2.

4

The second Baker factors requires this Court to determine whether it “has the legal tools to

Judicially Discoverable and Manageable Standards

5reach a ruling that is principled, rational and based upon reasoned distinctions.” Alperin, 401 F.3d at

6552. It is only where this Court is called on “to supplant a foreign policy determination of the7political branches with the court’s own unmoored determination of what United States policy . . .

8should be,” that Baker’s second factor is implicated. Zivotofsky I, 132 S. Ct. at 1427 (emphasis

9

added).

10

The Government argues that this Court lacks adequate standards (or competence) to evaluate

11

DoD’s ultimate decisions regarding how to “maintain international peace and security in the Pacific”

12

by building the FRF at Camp Schwab, or constructing the FRF with runways that may destroy

13

critical dugong habitat. Mot. to Dismiss at 29; see also Zumwalt Decl. at ¶ 10 (explaining that the14

decision to build the FRF required delicate “balancing [of] the need for the United States to maintain15

its deterrence capability with the need to sustain public support on Okinawa and elsewhere in

16

Japan”). But again, resolution of Plaintiffs’ declaratory judgment claims would not require this17

Court to assess the Executive’s weighty appraisal of such issues as how to best “maintain18

international peace.” Instead, this Court would need to determine whether the DoD’s specific

19

NHPA findings violated the APA. At this juncture, neither party has demonstrated that the critical

20“take account” requirement of NHPA is qualitatively different from the analysis of the adequacy of

21

an environmental impact statement under NEPA or the quality of biological assessments under the

22
15

23
24
25
26
27
28

The Government argues that the Plaintiffs do “not simply ask the court to interpret a
statute. Instead, [they] ask the court to adjudicate the adequacy of processes adopted by the Defense
Department in a militarily and diplomatically sensitive setting.” Reply Brief at 13. Quite right. But
the fact that the Court must evaluate DoD’s compliance with the NHPA in a politically sensitive
area simply does not mandate the Court abdicate its judicial function. If that were the test of thepolitical question doctrine, its narrow “exception” would completely swallow the rule. Zivotofsky I,
132 S. Ct. at 1427; see also Jewel v. Nat. Security Agency., 673 F.3d 902, 912 (9th Cir. 2011)(explaining that challenge to warrantless wiretapping involves “conduct that strikes at the heart of amajor public controversy involving national security and intelligence . . . That being said, although
the claims arise from political conduct in a context that has been highly politicized, they present
straightforward claims of statutory and constitutional rights, not political questions”) (citing Japan
Whaling Ass’n, 478 U.S. at 230).

18

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page19 of 38

1

Endangered Species Act. See, e.g., San Luis & Delta-Mendoza Water Authority v. Jewell, 747 F.3d

2581, 591 (9th Cir. 2014) (reviewing adequacy of a biological opinion under the APA’s arbitrary and3capricious standard). Although the NHPA is different inasmuch as it applies to foreign sites and4

may involve the obligation to secure the input of foreign agencies and citizens (as Judge Patel5

assumed, see Okinawa Dugong, 543 F. Supp. 2d at 1104), neither party has argued and established6that the “take account” element of the NHPA incorporates any political (as opposed to scientific and7

procedural) criteria and concerns which would implicate justiciability questions. Hence, on this8

record, there is no reason to believe the standards for the inquiry here would not entail judicially9“discoverable” or “manageable” standards. See generally Motor Vehicle Mfrs. Ass’n of United

10

States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining that an agency’s action

11

is arbitrary and capricious if it fails to consider an important aspect of a problem, offers an

12

explanation for the decision that is contrary to evidence, is wholly implausible, or is contrary to13law); see also Organized Village of Kake v. U.S. Dept. of Agriculture, 746 F.3d 970, 974 (9th Cir.

142014) (adjudicating APA challenge, and applying the arbitrary and capricious standard to15

Government rule change); Nat. Wildlife Federation v. U.S. Army Corps of Engineers, 384 F.3d

161163, 1172-75 (9th Cir. 2004) (adjudicating APA challenge, and applying the arbitrary and17capricious standard to the Government’s operation of dams).

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

19

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page20 of 38

1

Cases relied upon by the Government in arguing that this case involves a non-justiciable

2

political question are distinguishable.16 These cases share a common characteristic: the statutes the3courts were asked to apply lacked discoverable or manageable standards.17

4

In Flynn v. Shultz, the plaintiffs asked the court to interpret and apply The Hostage Act. 748

5F.2d 1186 (7th Cir. 1984). Specifically, plaintiffs asked the court to apply a statutory section that6

states:7

Whenever it is made known to the President that any citizen of theUnited States has been unjustly deprived of his liberty by or under theauthority of any foreign government, it shall be the duty of the
President forthwith to demand of that government the reasons of such
imprisonment; and if it appears to be wrongful and in violation of therights of the American citizenship, the President shall forthwith
demand the release of such citizen, and if the release so demanded isunreasonably delayed or refused, the President shall use such means,
not amounting to acts of war, as he may think necessary and proper toobtain or effectuate the release . . .

8911
For the Northern District of California

United States District Court

10

12
13

22 U.S.C. § 1732 (the Hostage Act).

14

The plaintiffs in Flynn alleged that their family member was being unjustly and wrongfully

15

detained by the Mexican government in violation of the Hostage Act. Flynn, 748 F.2d at 1187. The

16

plaintiffs sought two forms of relief: (1) an order enforcing the President’s duty of inquiry into the

17
18
19
20
21
22
23
24

16

Whether the political question doctrine should ever come into play where a court is asked
to interpret or apply a statutory command is a debated question. As Judge Kavanaugh recently
noted, the “Supreme Court has never applied the political question doctrine in a case involving
alleged statutory violations. Never.” El-Shifa Pharmaceuticals, 607 F.3d at 856 (Kavanaugh, J.,
concurring in judgment) (emphasis in original). According to Judge Kavanaugh, this is for “goodreason,” because if the political question doctrine applied in cases alleging statutory violations, thecourt would be implicitly “establishing that the asserted Executive power is exclusive andpreclusive, meaning that Congress cannot regulate or limit that power by creating a cause of action
or otherwise.” Id. at 857; but see Zivotofsky I, 132 S. Ct. at 1436 (Sotomayor, J., concurring)(acknowledging that the application of the political question doctrine in a statutory case would bevery “atypical,” but suggesting that “the foreclosure altogether of political question analysis instatutory cases is unwarranted”).
17

25
26
27
28

The below-cited authorities could have been addressed in the Court’s discussion of the first
Baker factor, because at least some jurists and commentators have forcefully argued that a Court’s
resolution of statutory arguments “is not [] ‘textually committed’ to another branch; to the contrary,
it is committed to this one.” Zivotofsky I, 132 S. Ct. at 1435 (Sotomayor, J., concurring); see also
Erwin Chemerinsky, Federal Jurisdiction § 1.3, at 15 (5th ed. 2007) (“Under current law, thepolitical question doctrine consigns certain allegations of constitutional violations to the otherbranches of government for adjudication and decision, even if all other jurisdictional andjusticiability requirements are met.”) (emphasis added).

20

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page21 of 38

1

reasons for the imprisonment; and (2) an order “in the nature of mandamus or injunction” to compel

2

the Executive branch to comply with the Hostage Act and provide assistance that could “obtain or3

effectuate” their family member’s release.18 Id. at 1889. The Seventh Circuit found the second4request barred by the political question doctrine, but not the first. The reasons for the court’s

5determinations are important. The court concluded that the plaintiffs’ first request (to enforce the6

President’s duty to “undertake a meaningful inquiry into the circumstances of [a citizen’s] detention

7

in order to determine whether the citizen is unjustly deprived of liberty”) was justiciable because

8“our enforcement of a duty of inquiry does not interfere with the President’s conduct of foreign

9

relations, nor does our review of the extent of the inquiry implicate standards that are beyond

10

judicial management or discovery.” Id. at 1195-96. Put differently, the Court knew how to

11determine whether the Executive Branch had ever investigated a detainee’s status, and similarly

12knew how to determine whether that investigation was sufficiently robust to satisfy the President’s

13

duty of inquiry under the Act.

14

By contrast, the plaintiffs’ second request could not be granted because the requested

15

injunction would not only “amount to directing the conduct of this country’s foreign relations,” id. at

161190, but would also require the “ascertainment of facts and standards of decision that are beyond

17

judicial discovery and management.” Id. at 1193. Namely, in order to determine whether the18

President violated the Hostage Act, the court would need to determine whether a detainee was

19“unjustly deprived” of his liberty by a foreign government. Id. This, the Seventh Circuit

20

determined, it could not do. Id. The Court explained: “Neither the terms of the Hostage Act nor its

21

legislative history give any indication of what is meant by the phrase ‘unjustly deprived,’” and “we22

simply lack the resources and competence to discover and resolve the questions of fact regarding

23

events surrounding Flynn’s incarceration and conviction in Mexico.” Id.; see also Smith, 844 F.2d

24

at 198-99 (dismissing a Hostage Act claim because the court could not reasonably determine who

25

was “unjustly deprived” of their liberty).

26
27
28

18

Specifically, they sought to compel an American consular officer based in Mexico toprovide a statement to the Supreme Court of Mexico on behalf of their detained family member. Id.
at 1189.

21

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page22 of 38

1

The Government’s reliance on Flynn with respect to Plaintiffs’ declaratory judgment claims

2

is misplaced; the case, if anything, supports Plaintiffs in this context. Notably, the Seventh Circuit

3

held that the political question doctrine did not bar it from enforcing the Executive’s duty of inquiry

4

under the Hostage Act or prohibit it from “review[ing] the extent of the inquiry” because neither

5

action would “implicate standards that are beyond judicial management or discovery” or otherwise

6“interfere with the President’s conduct of foreign relations.” Id. at 1195. The same reasoning

7

applies to Plaintiffs’ declaratory judgment claims here.

For the Northern District of California

United States District Court

8

The Court notes that the D.C. Circuit later applied similar reasoning to that employed by the9Seventh Circuit in Flynn. In People’s Mojahedin Organization of Iran, the court was called on to

10

interpret and apply section 1189 of the Antiterrorism and Effective Death Penalty Act of 199611

(AEDPA). 182 F.3d at 21. That section empowers “the Secretary of State to designate a foreign

12

terrorist organization if the Secretary finds three things: (A) the organization is a foreign

13

organization; (B) the organization engages in terrorist activity . . . and (C) the terrorist activity of the

14

organization threatens the security of United States nationals or the national security of the United

15

States.” Id. (internal quotation marks omitted). Section 1189 also provided “[i]n APA-like16

language” that the court shall “hold unlawful and set aside a designation” of a group as a foreign

17

terrorist organization that the court finds to be “arbitrary, capricious, an abuse of discretion,” or18otherwise unlawful. Id. at 22.

19

Both the People’s Mojahedin Organization of Iran and the Liberation Tigers of Tamil Eelam

20

filed suit, seeking judicial review of their designation as a foreign terrorist organization. Id. at 18-

21

19. The D.C. Circuit determined that the challenge was partially justiciable. Specifically, the court

22

concluded that it could apply the “APA-like” standard of review to the Secretary’s determinations

23

that the plaintiff organizations were “foreign” and that they “engaged in terrorist activity,” because

24those terms were defined by law, and thus there were judicially manageable and discoverable

25

standards to guide the court’s decision. Id. at 24-25. But, the panel concluded that it could not26

review the Secretary’s final determination that the plaintiff organizations “threaten[ed] the security27of United States nationals or the national security of the United States,” because such a judgment

28

would require the judiciary to made a decision “for which the Judiciary has neither aptitude,22

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page23 of 38

1

facilities nor responsibility.” Id. at 23 (citing Chicago & Southern Air Lines, Inc. v. Waterman

2

Steamship Corp., 333 U.S. 103, 111 (1948)).

3

Again, the same logic employed in People’s Mojahedin Organization of Iran applies here.

4

Consideration of the Plaintiffs’ declaratory judgment claims is not barred by the political question

5

doctrine because those claims merely require this Court to determine whether the DoD’s NHPA

6

process violated the APA’s familiar “arbitrary and capricious” standard.

For the Northern District of California

United States District Court

7

In sum, Plaintiffs’ declaratory judgment claims do not implicate either of the first two (and8most important) Baker factors because they ask this Court to perform the straightforward and9familiar task of applying the APA.

10

3.

11

Nor do the Plaintiffs’ declaratory judgment claims “inextricably” implicate the third Baker

12

factor. As Justice Sotomayor recently explained in her concurrence in Zivotofsky I, the second and13third Baker factors are largely overlapping, and “reflect circumstances in which a dispute calls for

14

decisionmaking beyond courts’ competence.” Zivotofsky I, 132 S. Ct. at 1432 (Sotomayor, J.,

15

concurring). “When a court is given no standard by which to adjudicate a dispute, or cannot resolve

16

a dispute in the absence of a yet-unmade policy determination charged to a political branch,

17

resolution of the suit is beyond the judicial role envisioned by Article III.” Id.

Initial Policy Determination18

As previously noted, the Court’s main task in resolving these claims is limited and19

straightforward (i.e., applying the APA and determining compliance with procedural requirements),

20

and would not in the first instance “require the court to make pronouncements of foreign policy.”

21

Alperin, 410 F.3d at 555. The Government, however, argues that this Court’s application of the22“arbitrary and capricious” standard of review might require the Court to engage in “policy

23

determination[s] of a kind clearly for nonjudicial discretion.” Baker 369 U.S. at 217. For instance,24

the Government argues that if this Court were to determine that DoD violated the APA by failing to25solicit public comment before issuing its NHPA Findings, the Court might then have to decide how

26

the Executive could appropriately receive public comment from citizens of Japan, a policy decision

27

that would unnecessarily “intrude into the Executive’s authority to determine . . . how to28

appropriately engage a foreign government’s citizens.” Mot. to Dismiss at 34.

23

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page24 of 38

For the Northern District of California

United States District Court

1

The problem with the Government’s arguments at this juncture is that they are hypothetical2and not ripe. There is no certainty that this Court would ever have to engage in the type of3“impermissible” policy analysis that animates the Government’s concerns. Indeed, it is entirely

4

possible that the NHPA findings would be upheld on the existing record. In any event, as noted

5

above, it is by no means clear at this juncture whether the “take account” requirements of the NHPA

6

will require close scrutiny of the Government’s effort to solicit input from Japanese officials and7

citizens, or otherwise involve the weighing of other political factors.

8

As the case stands, the third Baker test, which requires that a Court’s need to make an

9impermissible policy determination be “inextricable from the case at bar,” Baker, 369 U.S. at 217

10(emphasis added), is not implicated.

11

4.

12

The Government also argues that this Court would show a “lack of respect” for the Executive

Lack of Respect for Coordinate Branches

13

Branch were the Court to adjudicate the declaratory judgment claims and consider whether the

14

NHPA Findings fell short of statutory requirements. It is not immediately apparent how this might15

be, and the Government’s brief once again relies on speculative hypotheticals in an attempt to show

16

that APA review would be disrespectful of the President’s handling of U.S.-Japan relations. For

17

instance, the Government claims that were the Court to conclude that the DoD was wrong to rely on

18

the Japanese government’s environmental impact statements or dugong population studies, or, even19

worse, was to conclude that these Japanese government documents were somehow substantively

20

flawed, this could embarrass the Executive and undermine the U.S.-Japan relationship.

21

First, this argument suffers the same flaws as the Government’s other hypothetical

22“horribles.” There is currently no way to know that the Court would ever make such critical23

assessments of the Japanese government’s determinations, or the DoD’s reliance on those24

determinations. Nor is it evident that the NHPA will be construed to require scrutiny of the political

25

nature of the Government’s action. But even if this Court were, in applying the NHPA, to somehow

26

call the Japanese government’s competence or performance in providing sufficient environmental

27

input into doubt, it is unlikely that would be sufficient to trigger dismissal under the restrictive test28

set out in Baker.

24Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page25 of 38

For the Northern District of California

United States District Court

1

Defendants contend that continued adjudication of this case will harm the U.S.-Japan2

relationship. The views of the Executive regarding the foreign policy consequences of a given

3

lawsuit are entitled to some deference. Compare Zivotofsky ex rel. Zivotofsky v. Secretary of State

4(Zivotofsky II), 725 F.3d 197, 219 (D.C. Cir. 2013), cert. granted by 134 S. Ct. 1873 (2014) (holding

5

that the Executive Branch’s consistently held belief, supported by evidence, that enforcement of a6statute would cause adverse foreign policy consequences is “conclusive on us”) with Alperin, 410

7F.3d at 556 (noting that had the State Department expressed a view on the foreign policy

8consequences of the court’s decision, “that fact would certainly weigh in evaluating this fourth9

Baker formulation”) and Republic of Austria v. Altmann, 541 U.S. 677, 701-02 (2004) (indicating in

10

dicta that had the State Department chosen to “express its opinion on the implications of exercising11

jurisdiction over particular petitioners . . . that opinion might well be entitled to deference as the12considered judgment of the Executive on a particular question of foreign policy”) (emphasis

13

omitted). However, the declarations submitted by the Government in this case focus almost

14

exclusively on the harms an injunction, not declaratory judgment, would cause to U.S.-Japan15

relations. Indeed, the only opinion expressed by the Executive with regard to the Plaintiffs’

16declaratory relief claims reads (in its entirety) as follows: “For that matter, in light of the United

17

States’ close coordination with Japan on plans for FRF construction, a court order setting aside

18

DoD’s findings with respect to the impact of the FRF on the dugong would also be damaging.”

19

Zumwalt Decl. at ¶ 12.

20

Even crediting the State Department’s largely conclusory contention that an order granting

21

declaratory relief setting aside DoD’s NHPA Findings would be “damaging” to the U.S.-Japan

22

alliance, such collateral consequences alone would not necessarily warrant dismissal under Baker.

23

In Japan Whaling Ass’n, the Supreme Court was tasked with determining whether, under two

24

Congressional statutes, the Japanese government should be certified (and thereby face significant

25

economic sanctions) for violating the International Convention for the Regulation of Whaling. 478

26

U.S. at 226. The outcome of the case was extremely important to the Japanese government, so much

27

so that Japan officially agreed to withdraw its objections to the whaling moratorium imposed under28

the whaling treaty “provided that the United States obtained reversal of the District Court’s order,”25For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page26 of 38

1which had held that Japan must be certified. Id. at 228. Despite Japan’s expressed interest in the2litigation, and serious concern regarding an unfavorable Supreme Court ruling, the Court refused to3dismiss the case on political question grounds, holding that it could not “shirk” its responsibility to4“interpret statutes . . . merely because our decision may have significant political overtones.” Id. at

5230. Hence, the Supreme Court refused to invoke the political question doctrine in Japan Whaling

6

Ass’n, even where the potential harm to Japan (and the U.S.-Japan relationship more generally) that

7

could have stemmed from an adverse judgment was far more obvious than it is in this case.

8Consequently, the Court concludes that the fourth Baker factor is not met.

9

5.

10

The Government also argues that the fifth Baker factor warrants dismissal in this case, but as

Unquestioning Adherence to a Political Decision Already Made

11

with many of its arguments, this one fails because the Government misconstrues the scope of the

12

Plaintiffs’ declaratory judgment claims. The “political decision already made” that the Government

13

argues this Court should unquestionably adhere to is the decision to build and site the FRF at Camp

14

Schwab, a final decision that DoD emphasizes was “exceptionally difficult” to reach, “has been

15

decades in the making, and has absorbed the energies of several Presidents and their Secretaries

16(State and Defense) and their counterparts in Japan.” Mot. to Dismiss at 39 (citations omitted). But

17

the decision the Plaintiffs’ declaratory judgment claims seek to challenge is not the decision to build

18

the FRF, but DoD’s specific implementation of the NHPA “take into account” process for the

19

Okinawa dugong.

20

6.

21

The final Baker factor asks whether this Court’s adjudication of the declaratory judgment

Multifarious Pronouncements

22

claims would “cause the potentiality of embarrassment from multifarious pronouncements by

23

various departments on one question.” Id. Arguably, should this Court declare that Japan’s

24environmental impact studies were insufficient or otherwise of poor quality, that could cause

25

embarrassment for the Executive.

26

However, as the Ninth Circuit stated in Alperin, although the Court must be “mindful of27

stepping on the toes of the political branches,” not “any adjudication of the claims would implicate

28

this final test.” Alperin, 410 F.3d at 558 (emphasis in original). Declaratory relief would not be

26

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page27 of 38

1

directed towards criticizing the policy decisions of the American and Japenese governments to2

construct the new base; rather, if granted, it would hold only that statutory procedures were not3

followed.

4

In sum, the Plaintiffs’ declaratory judgement claims will not be dismissed pursuant to the5political question doctrine, for while they arise in the context of a political case they do not present a

6

non-justiciable political question, as seen by applying each of Baker’s six tests to these claims.

7

C.

Plaintiffs’ Injunctive Relief Claim Presents a Non-Justiciable Political Question

8

In contrast to the declaratory judgment claims, Plaintiffs’ injunctive relief claim clearly9presents a non-justiciable political question: Plaintiffs’ ask this Court for a “temporary” injunction

10

ordering the DoD to halt all construction of an overseas military base that is being paid for by the11Japanese government, built by Japanese workers, and erected on Japanese sovereign territory, until

12

the DoD adequately satisfies its obligations under the NHPA. Prayer for Relief at ¶ 3. Plaintiffs’

13

injunctive relief claim likely “inextricably” implicates a number of Baker factors.

14

Most importantly, Plaintiffs’ injunctive relief claim fails the second Baker test. This Court

15

has no judicially discoverable and manageable standard(s) to apply in deciding whether to grant or

16

deny the requested injunction. In order to obtain an injunction in this case, Plaintiffs concede that17

they would have to prevail on the merits and then show that: (1) they suffered an irreparable injury;

18(2) their remedies at law are inadequate; (3) the balance of the hardships tips in Plaintiffs’ favor; and19(4) the public interest would not be disserved by the injunction. See Sierra Forest Legacy v.

20

Sherman, 646 F.3d 1161, 1184 (9th Cir. 2011) (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S.

21

388, 391 (2006)); see also Plaintiffs’ Supplemental Brief at 3 n. 1. Even assuming that Plaintiffs

22

could satisfy the first two requirements, there are no judicially administrable standards available to23

this Court in evaluating the remaining factors.

24

For instance, in evaluating the balance of the hardships, this Court would be required to25

weigh the serious harm construction of the FRF will likely cause to the dugong (including possible

26

extinction) against claimed benefits of the FRF: e.g., maintaining the United States’ “deterrence27

capability” in Asia, “sustaining public support on Okinawa” for the United States military presence,28

addressing the “threat posed by a nuclear-armed North Korea” or defusing “tensions over competing27

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page28 of 38

1

territorial and maritime claims in the East China Sea and South China Sea.” See Zumwalt Decl. at2¶¶ 10, 13. Evaluating these types of harm is an exercise “for which the Judiciary has neither

3

aptitude, facilities nor responsibility,” and thus they “have long been held to belong in the domain of4

political power not subject to judicial intrusion or inquiry.” Waterman, 333 U.S. at 111; see also

5

Bancoult, 445 F.3d at 436 (“[W]e have no standards by which we can measure and balance the6foreign policy considerations at play in this case, such as the containment of the Soviet Union in the

7

Indian Ocean thirty years ago and the support of military operations in the Middle East today.”)8(internal quotation marks and modifications omitted); El-Shifa Pharmaceuticals, 607 F.3d at 843

9(“The conclusion that the strategic choices directing the nation’s foreign affairs are constitutionally

10committed to the political branches reflects the institutional limitations of the judiciary and the lack11of manageable standards to channel any judicial inquiry into these matters.”). As the D.C. Circuit

12

recently held en banc, “[i]t is not the role of judges to second-guess, with the benefit of hindsight,

13

another branch’s determination that the interests of the United States call for military action.” El-

14

Shifa Pharmaceuticals, 607 F.3d at 844.

15

In addition to the near impossibility of assessing the balance of hardships in the instant case16

which entail examination of fundamental foreign policy concerns, this Court would have to17

adjudicate the fourth injunctive factor – whether the public interest would be disserved by an

18

injunction. This presents yet another task the Judiciary is ill-suited to adjudicate. Government

19

declarants make what appears to be a compelling case that even temporary injunctive relief would

20“have a significant negative impact on U.S. foreign policy interests in the region.” Zumwalt Decl. at

21¶ 4; see also Docket No. 163, Declaration of Brigadier General Mark R. Wise, Deputy Commander,

22

United States Forces, Japan (Wise Decl.) at ¶ 14 (concluding that any failure to “live up to political23

commitments made . . . would inject not only uncertainty into the process of implementing the24

SOFA, [it] would also undermine the strength of the U.S.-Japan alliance more generally”). For

25

instance, General Wise notes that any injunction of the FRF project “would be called into question

26

by the GOJ [Government of Japan] as a significant failure of the alliance and a departure from the27

established norms of the relationship of the two governments.” Wise Decl. at ¶ 14. And Deputy

28

Assistant Secretary of State Zumwalt notes that an “injunction blocking construction of the FRF,

28

For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page29 of 38

1even temporarily, would have far-reaching consequences” on the U.S.-Japan alliance which is a2“central component of the United States’ broader rebalance to Asia, a major policy priority for the3

President.” Zumwalt Decl. at ¶¶ 13, 15. He also notes that an injunction would diminish “the4United States’ position as a reliable ally for its [other] partners.” Id. at ¶ 4; see also Mot. to Dismiss,5

Exhibit 3 (quoting Secretary Hagel as stating that “[o]ur strong relationship with Japan remains vital6

to the rebalance” of U.S. forces to the Asia-Pacific region, and further noting that the U.S. is7“committed to working with Japan to realize the expeditious construction of the FRF and8realignment of U.S. forces”). As noted above, these assertions are entitled to weight. See Alperin,

9410 F.3d at 556; Zivotofsky II, 725 F.3d at 219. Beyond that, this Court is ill-equipped to10meaningfully evaluate the Government’s contentions.

11

Because Plaintiffs’ request for injunctive relief “inextricably” implicates one of Baker’s most12

important tests – the lack of judicially discoverable and manageable standards (see Alperin, 410 F.3d

13

at 545) – the claim for injunctive relief presents a non-justiciable political question.

14

Issuance of an injunction would implicate other Baker factors as well. An injunction would

15

effectively countermand the Government’s decision to “establish a military base on [foreign soil],” a16

political decision generally not reviewable by the courts. Bancoult, 445 F.3d at 436. Such a choice17

is plainly “an exercise of the foreign policy and national security powers entrusted by the18Constitution to the political branches of our government.” Id. (emphasis added); see also Alperin,

19

410 F.3d at 559 (“It is axiomatic that the Constitution vests the power to wage war in the President

20

as Commander in Chief.”). See El-Shifa Pharmaceuticals, 607 F.3d at 844 (“[C]ourts cannot

21

reconsider the wisdom of discretionary foreign policy decisions.”) (emphasis added); Alperin, 410

22F.3d at 559 (explaining that “cases interpreting the broad textual grants of authority to the President

23

and Congress in the areas of foreign affairs leave only a narrowly circumscribed role for the24

Judiciary”) ( emphasis added).

25

Similarly, an injunction that ascribes more importance to saving the Okinawa dugong than26

the Executive has chosen to afford in the context of constructing a foreign military base would

27“inevitably express a lack of respect for the Executive Branch’s handling of” U.S.-Japan relations,

28

Alperin, 410 F.3d at 555, and would also likely “cause the potentiality of embarrassment from29

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page30 of 38

1

multifarious pronouncements by various departments on one question.” Id. at 558 (quotation

2

omitted).

For the Northern District of California

United States District Court

3

Moreover, the Government’s argument that the decision to build the FRF is a “political4decision already made” that requires an “unusual need for unquestioning adherence” appears well5taken. See Baker, 369 U.S. at 217. The United States and Japan signed a final executive agreement

6

to build the FRF in 2006 (the Roadmap). See Okinawa Dugong, 543 F. Supp. 2d at 1086 (“The72006 Roadmap . . . is a bilateral executive agreement between two sovereign nations . . . . The

8agreements reached in the Roadmap have received needed approvals at the national levels of both

9governments, but the Government of Japan is still working to obtain needed approvals from affected

10

local and prefectural governments.”);19 see also id. at 1092 (“[T]he Roadmap is the final agreement

11

between the United States and the Government of Japan marking the consummation of years of

12

negotiation and planning.”). Construction of the FRF has already begun, and both the American and

13

Japanese governments are committed to completing the FRF project expeditiously. See Zumwalt

14

Decl. at ¶ 8 (“I understand the Japanese government wants initial work on the FRF to proceed

15

expeditiously due to the desire to carry out the Realignment Roadmap in a timely manner”); Mot. to

16

Dismiss, Exhibit 1 (April 2014 White House press release “reaffirm[ing] our commitment to17

reducing the impact of U.S. forces on Okinawa” through the “early relocation of Futenma Marine

18

Corps Air Station to Camp Schwab”); Mot. to Dismiss, Exhibit 5 (December 2013 White House

19

Press release indicating that the “United States is determined to implement our roadmap to relocate

20

the base for Futenma as quickly as possible”). The Executive Branch (in consultation with the21

Japanese) has determined that there “are no viable alternatives to the FRF at Camp Schwab.”

22

Zumwalt Decl. at ¶ 12.20 The last Baker factor further counsels against justiciability.

23
19

24
25
26
27
28

As noted earlier in this Order, all necessary additional approvals have now been obtained,
and construction of the FRF has already begun. See Zumwalt Decl. at ¶ 10 (describing the Governorof Okinawa’s approval of the landfill permit as “the most tangible, significant achievement” of the
20 year effort between the U.S. and Japan to build the FRF); id. at ¶ 8 (averring that construction
surveys began in August); First Supplemental Complaint at ¶ 25 (alleging that “DoD has alreadyissued work entry permits to Camp Schwab for construction of the FRF project”).
20

Judge Patel foresaw just such a problem in her 2008 summary judgment order:“Satisfaction of defendants’ obligations under section 402 . . . cannot be postponed until the eve ofconstruction when defendants have made irreversible commitments making additional review futile30

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page31 of 38

For the Northern District of California

United States District Court

1

In conclusion, injunctive relief would inextricably implicate nearly all the tests of non-2

justiciability under Baker. Such a claim for relief must be dismissed.

3

D.

Plaintiffs’ Declaratory Judgement Claims Must be Dismissed Because This Court Cannot

4

Fashion any Effective Relief

5

The inability of this Court to fashion any injunctive or otherwise coercive relief to protect the6dugong is also conclusive of another issue – Plaintiffs’ standing to assert their remaining declaratory

7

judgment claims.21 If this Court cannot grant the Plaintiffs meaningful relief (i.e., cannot redress

8

their injuries), their claims for declaratory judgment must also be dismissed even if these claims do

9

not in themselves present a political question. See Defenders of Wildlife v. U.S. EPA, 420 F.3d 946,10957 (9th Cir. 2005) (holding that plaintiffs alleging procedural injury “must show only that they11

have a procedural right that, if exercised, could protect their concrete interests”) (emphasis in

12

original), overruled on other grounds by Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551

13

U.S. 644 (2007).

14

1.

15

To bring or maintain a lawsuit in federal court, a plaintiff must establish that she has Article

16

III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Specifically, a litigant must17

have “suffered an ‘injury in fact’” that is “‘concrete and particularized’” and “‘actual or imminent.’”

18

Mayfield v. United States (Mayfield II), 599 F.3d 964, 969 (9th Cir. 2010) (quoting Lujan, 504 U.S.

19

at 560). The plaintiff must also “establish a causal connection between the injury and the20

defendant’s conduct . . . [and] show a likelihood that the injury will be ‘redressed by a favorable

21

decision.’” Id. (quoting Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 43 (1976)).

Basics of Constitutional Standing

22
23
24
25

or consideration of alternatives impossible.” Okinawa Dugong, 542 F. Supp. 2d at 1112. Rather,“Congress’ express inclusion of a time frame [in section 402, requiring review to take place ‘prior toapproval of an undertaking’] indicates that Congress intended the take into account process to occur
early in the planning stages of a federal undertaking when there is still a meaningful opportunity toconsider adverse impacts and mitigation measures.” Id. (quoting 16 U.S.C. § 470a-2).
21

26
27
28

Judge Patel previously ruled that the Plaintiffs here have standing, but there was no
declaratory judgment claim regarding the adequacy of the DoD’s NHPA Findings pending at thetime, and so her previous ruling on standing (made in a far different procedural posture) is notbinding on this Court. See Youngberg, on Behalf of Scientific Atlanta, Inc. Long Term Disability
Plan v. Great West Life Assurance Co., 892 F.2d 85 (9th Cir. 1989) (noting that “a plaintiff may also
lose standing at any point during the litigation”).

31For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page32 of 38

1

Critically, a “plaintiff must demonstrate standing separately for each form of relief sought.”

2

Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. Inc., 528 U.S. 167, 185 (2000). “Thus, a plaintiff3

who has standing to seek damages for a past injury, or injunctive relief for an ongoing injury, does4

not necessarily have standing to seek prospective relief such as a declaratory judgment.” Mayfield5

II, 599 F.3d at 969 (citations omitted).

6

2.

7

In order to establish standing for their declaratory relief claims, Plaintiffs must show a8favorable decision may redress their injuries. Lujan, 504 U.S. at 560. Plaintiffs must show there is a9“direct relationship between the alleged injury” they seek to remedy “and the claim sought to be10

adjudicated.” Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973). Here, the ultimate injury

11

Plaintiffs seek to remedy is the construction of the FRF and its impact upon the Okinawa dugong.

12

Redressability of Plaintiffs’ Declaratory Relief Claims

Admittedly, Plaintiffs’ claim for declaratory relief seeks only a judgment that the DoD

13violated the procedures required under the NHPA and an order setting aside the DoD’s allegedly

14

flawed NHPA Findings. The declaratory judgment claims seek in the first instance to vindicate

15purely procedural injuries. However, parties do not have standing to insist that procedural rules be

16

followed simply for the sake of enforcing conformity with legal requirements. See, e.g., Citizens for

17

Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003). Instead, “a plaintiff

18

asserting a procedural injury must show that the procedures in question are designed to protect some19

threatened concrete interest of his that is the ultimate basis of his standing.” Id. Here, as noted

20

above, the concrete interest is the construction of the FRF and its possible impacts on the Okinawa

21

dugong. See id.; see also Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225-

22

26 (9th Cir. 2008) (recognizing that the “concrete interest” at the heart of a lawsuit to enforce

23

specific procedures of the Endangered Species Act is the preservation and protection of the24

endangered species). In order to maintain this lawsuit for a declaration that DoD violated the25

procedures of the NHPA, Plaintiffs must show a sufficient likelihood that the declaratory relief will

26

lead to the protection of this specific interest.

27

To be sure, where the statute allegedly violated prescribes rights and obligations of a28

procedural nature, plaintiffs do not face a “high bar” to establishing redressability. Plaintiffs are

32

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page33 of 38

1entitled to a presumption of redressability. Mayfield II, 599 F.3d at 971. A party alleging

2

procedural injury must show “only that the relief requested – that the agency follow the correct3

procedures – may influence the agency’s ultimate decision of whether to take or refrain from taking

4

a certain action.” Salmon Spawning, 545 F.3d at 1226-27 (emphasis added). That said, the Ninth

5

Circuit has emphasized that “the redressability requirement is not toothless in procedural injury

6cases.” Id. at 1227. Indeed, Salmon Spawning itself is instructive as to when the redressability

7

requirement in procedural injury cases has bite.

For the Northern District of California

United States District Court

8

In Salmon Spawning, three conservation groups challenged a National Marine Fisheries

9Service (NMFS) biological opinion22 under the APA. Id. at 1224. The “agency action triggering”

10

the NMFS to issue its biological opinion was the United States’ decision to enter into a treaty with

11

the Canadian government to manage threatened or endangered salmon populations “originating in

12

Alaska, Canada, and the Pacific Northwest.” Id. at 1223-24. The NMFS’ biological opinion

13“studied whether Canadian take under the levels permitted by the Treaty would jeopardize listed

14

salmon.” Id. at 1224. The agency concluded that the “Canadian take under the Treaty was not

15

likely to jeopardize the continued existence of threatened or endangered salmon stocks.” Id.

16

The environmental groups sued, claiming the NMFS’ biological opinion was “flawed” in17various respects that violate the APA, including section 706 (the same section invoked by Plaintiffs

18here). Id. The Ninth Circuit unanimously concluded that the environmental groups lacked standing

19

to pursue this claim.23 Specifically, the panel ultimately concluded that the “relationship between

20

the [challenged executive action] and the Treaty sets up a dichotomy of interests that sinks the effort

21

to establish Article III standing” for the appellants’ procedural injury claim. The Court explained:

22[I]f the groups were successful in establishing that NMFS failed tocomply with the procedural requirements of ESA § 7 in deciding

23
24

22

25

23

26
27
28

Sometimes referred to as a “BiOp.”

Although the Ninth Circuit opinion does not make the point clear, the plaintiffs in Salmon
Spawning brought both injunctive relief and declaratory relief claims. See Salmon Spawning &Recovery Alliance v. Carlos M. Gutierrez, No. C05-1877-RSM, at ECF No. 1 (“Plaintiffs
respectfully request that the Court: 1) Declare that the Defendants have violated the ESA and theAdministrative Procedures Act, and that the actions as set forth above are arbitrary, capricious, andnot in accordance with law; [and] 2) Enter appropriate injunctive relief to ensure that the defendants
comply with the ESA and the Administrative Procedures Act . . . .”)33

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page34 of 38

1whether the United States’ entrance into the Treaty would jeopardize
listed species, the procedurally flawed consultation and defective
BiOp could theoretically be set aside. But, a court could not set aside
the next, and more significant, link in the chain – the United States’
entrance into the Treaty. While the United States and Canada can
decide to withdraw from the Treaty, that is a decision committed to the
Executive Branch, and we may not order the State Department towithdraw from it. So, while the groups correctly allege that they havea right to a procedurally sound consultation, they cannot demonstratethat ‘that right, if exercised, could protect their concrete interests.’

2
3
4
5

For the Northern District of California

United States District Court

6
7

Id. at 1226 (first and second emphases added) (third emphasis in original) (citing Earth Island Inst.

8v. Christopher, 6 F.3d 648, 652-53 (9th Cir. 1993) and then quoting Defenders of Wildlife, 420 F.3d

9

at 957).

10

Salmon Spawning went on to note that “if a court were to give the groups the remedy that11

they seek – that NMFS and the State Department follow the proper procedures during a new § 7

12

consultation process – the ultimate agency decision of whether to enter the Treaty with Canada,

13

made nine years ago, could never be influenced.” Id. at 1227. Thus, “if we rule against the groups’

14

claim of procedural injury, they will continue to suffer injury; and, if we rule in their favor, they will

15

still suffer injury because we cannot undo the Treaty.” Id. (citation omitted). The panel therefore

16

affirmed the district court’s dismissal of the procedural (APA) claim for lack of standing because

17“although we can set aside the BiOp, we cannot remedy the harm asserted.” Id.

18

The Ninth Circuit reached a similar result in Mayfield II. 599 F.3d 964. Brandon Mayfield19

was a former suspect in the 2004 Madrid train bombings. Id. at 966. Mayfield was suspected20

because the FBI erroneously determined that his fingerprints matched those of the bomber. Id.

21

Mayfield was arrested, and his home and office were searched pursuant to warrants issued under the22

Foreign Intelligence Surveillance Act (FISA), as amended by the PATRIOT Act. Id. at 966-67.

23

Mayfield’s computer and other electronic files were also searched pursuant to the Government’s

24

authority under FISA. Id. at 967.

25

After he was exonerated, Mayfield brought suit against the Government alleging various

26

Fourth Amendment violations, including claims that he was subjected to unlawful searches, seizures,

27

and surveillance pursuant to the FISA warrants. Id. at 967-68. Mayfield sought monetary damages,

28

injunctive relief, and a declaration that certain provisions of FISA were unconstitutional. Id.

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1

Mayfield and the Government eventually settled all but the declaratory judgment claims.24 Id. at2968. The settlement agreement provided that “the sole relief Mayfield could seek or that the court

3

could award with regard to [his remaining claim that parts of FISA are unconstitutional] would be a4

declaratory judgment.” Id.

For the Northern District of California

United States District Court

5

Pursuant to the settlement agreement, Mayfield filed an amended complaint seeking only “a6declaratory judgment that 50 U.S.C. §§ 1804 and 1823, as amended by the PATRIOT Act, are7

facially unconstitutional.” Id. at 969. Mayfield alleged that the government used the challenged

8

statutory provisions of FISA “to conduct covert surveillance, searches of the family’s private

9quarters, and seizures of the family’s private materials. Mayfield further asserted that because the10government obtained these materials unlawfully, and even though the government returned the11physical materials [seized], the continued retention of any derivative material was also unlawful.”

12

Id. Thus, as the Ninth Circuit later explained, the purpose of Mayfield’s desired declaratory

13

judgment was “twofold: 1) to prevent future uses of FISA against Mayfield; and 2) to force the14

government to return or destroy all derivative materials in its possession obtained from Mayfield by

15

unconstitutional means.”25 Id.

16

The district court found that Mayfield had standing to pursue his declaratory relief claim

17

because the Government’s “continued retention of derivative material from the FISA seizure” was a18

constitutionally significant ongoing injury. Mayfield I, 504 F. Supp. 2d at 1034. The district court

19further concluded that it could adequately redress Mayfield’s claimed injury because, if the court

20

entered a declaratory judgment “finding the challenged portions of the Patriot Act unconstitutional,

21

it is reasonable to assume that the Executive Branch of the government will act lawfully and make22

all reasonable efforts to destroy the derivative materials when a final declaration of the

23
24
25

24

Among other things, Mayfield received $2 million in compensatory damages and an
apology from the Government. Id. at 968.
25

26
27
28

The “derivative material” at issue included such items as “photocopies or photographs of
documents from confidential files in Mayfield’s law office, summaries and excerpts from thecomputer hard drives from the Mayfield law office and plaintiff’s personal computer at home,analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office . . . [and]summaries of confidential conversations between husband and wife.” Mayfield v. United States(Mayfield I), 504 F. Supp. 2d 1023, 1034 (D. Or. 2007).

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For the Northern District of California

United States District Court

Case3:03-cv-04350-EMC Document188 Filed02/13/15 Page36 of 38

1

unconstitutionality of the challenged provisions is issued.” Id. (emphasis added). The Ninth Circuit

2

disagreed.

3

Although Mayfield was “entitled to a presumption of redressability,” the Ninth Circuit

4

concluded that Mayfield lacked standing to maintain his declaratory judgment action because there5

was no reasonable likelihood that the relief sought would redress his injury. Mayfield II, 599 F.3d at

6971. The panel noted that because the Government “would not necessarily be required by a7

declaratory judgment to destroy or otherwise abandon the [derivative] materials,” a declaration that8

the challenged portions of FISA are unconstitutional would be of “no direct consequence” to9Mayfield. Id. at 971-72. And as the panel explained, where any “prospective benefits” of a court

10order “‘depend on an independent actor who retains broad and legitimate discretion the courts

11

cannot presume either to control or predict,’” a plaintiff lacks standing to judicially seek those12

benefits. Id. at 972 (quoting Glanton ex rel. Alcoa Prescription Drug Plan v. AdvancePCS, Inc., 465

13F.3d 1123, 1125 (9th Cir. 2006)). The panel hence concluded:

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15
16
17
18

Having bargained away all other forms of relief, Mayfield is now
entitled only to a declaratory judgment. Although it is undisputed thatthe government retains materials derived from the FISA searches andsurveillance of Mayfield’s property, the only relief that would redress
this alleged Fourth Amendment violation is an injunction requiring thegovernment to return or destroy such materials. Under the terms of theSettlement Agreement, Mayfield cannot seek injunctive relief. Nor isit likely that the government will return the materials of its own
volition, as it is under no legal obligation to do so, and has stated in its
brief that it does not intend to take such action.

19
20

Id. at 972. Thus, the Ninth Circuit held that in light of the “limited remedy left open [to Mayfield]

21

and the absence of any authority on which the district court could rely to insist sua sponte that the22

derivative materials be returned or destroyed, we must conclude that Mayfield lacks standing to23

pursue his [declaratory judgment] claim.” Id. at 973.

24

Plaintiffs’ declaratory judgment claims are in a very similar posture to the claims the Ninth

25

Circuit dismissed in both Salmon Spawning and Mayfield. This Court has determined that no26

injunctive relief may be issued to prevent or halt construction of the FRF. Moreover, the NHPA

27

“take into account” process is only hortatory, mandating no particular result. Okinawa Dugong, 543

28

F. Supp. 2d at 1095 (explaining that the NHPA “does not require a particular outcome and it neither

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1

forbids destruction of a protected property nor commands its preservation”). Hence, there is no2

likelihood that the United States government, in response to an adverse declaratory judgment, will

3

voluntarily halt construction of the FRF. As a result, it cannot be said that declaratory relief “may”

4

provide redress to Plaintiffs. Salmon Spawning, 545 F.3d at 1226-27.

For the Northern District of California

United States District Court

5

As in Salmon Spawning, the “ultimate agency decision” to agree to the Roadmap and build

6

the FRF at Camp Schwab has already been made, and it is highly unlikely that an order requiring the7

DoD to revise or reconsider its NHPA Findings will change that decision. 545 F.3d at 1227. And

8for the reasons stated above, this Court cannot issue an injunction ordering the Government to pull9

out of the Roadmap or otherwise alter its plans for the FRF. See Section II.C, supra. Thus, “if we10

rule against the [Plaintiffs’] claim of procedural injury, they will continue to suffer injury; and, if we11

rule in their favor, they will still suffer injury because we cannot undo the [Roadmap].” Salmon

12

Spawning, 545 F.3d at 1227. Cf. Lujan, 504 U.S. at 569-71 (plaintiffs failed to establish

13

redressability because there was no reason to believe the funding agencies which had not been sued

14

would “be obliged to honor an incidental legal determination the suit [against the Secretary of the

15

Interior] produced; funding agencies not bound by any determination as to the Secretary’s duty of

16

consultation).26

17

Plaintiffs’ suggestion, echoed in the (later reversed) district court in Mayfield I, that their

18

injuries can be redressed because the Executive might change his mind with respect to the FRF’s

19

impacts on the dugong if this Court were to order DoD to conduct a renewed and more fulsome

20

inquiry under the NHPA is thus completely unsupported and speculative. Where an independent21

actor “retains broad and legitimate discretion” to act that the court “cannot presume either to control

22

or predict,” the Court lacks constitutional power to adjudicate the merits of the controversy,

23

Mayfield II, 599 F.3d at 972, especially where, as here, there is no likelihood the Government will

24

change its conduct in response to a declaratory judgment.

25
26
27
28

26

See also Linda R.S., 410 U.S. at 618 (affirming dismissal on redressability grounds of suitfor unpaid child support where the only relief a court could fashion would be to imprison thedelinquent parent, not order that he actually make child support payments).

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1

In sum, because any declaratory relief will not “influence the agency’s ultimate decision of2

whether to take or refrain from taking a certain action,” Salmon Spawning, 545 F.3d at 1226-27,

3

Plaintiffs lack standing to seek declaratory relief.

4

III.

CONCLUSION

5

Plaintiffs’ action is dismissed with prejudice. The injunctive relief claims present non-6

justiciable political questions, and Plaintiffs lack standing to pursue their remaining declaratory

7

relief claims. The Clerk is directed to enter judgment and close the file.

8

This order disposes of Docket No. 163.

9
IT IS SO ORDERED.

11
For the Northern District of California

United States District Court

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12

Dated: February 13, 201513_________________________EDWARD M. CHEN
United States District Judge

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