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Case No. 15-15695

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITCENTER FOR BIOLOGICAL DIVERSITY, TURTLE ISLAND RESTORATIONNETWORK, JAPAN ENVIRONMENTAL LAWYERS FEDERATION, SAVE
THE DUGONG FOUNDATION, ANNA SHIMABUKURO, TAKUMAHIGASHIONNA, and YOSHIKAZU MAKISHI,
Plaintiffs-Appellants,v.
ASHTON CARTER, in his official capacity as Secretary of Defense;
and the UNITED STATES DEPARTMENT OF DEFENSE,
Defendants-Appellees.

On Appeal from the United States District Court
for the Northern District of California
PLAINTIFFS-APPELLANTS’ OPENING BRIEF
SARAH H. BURT
J. MARTIN WAGNER
Earthjustice
50 California Street, Suite 500
San Francisco, CA 94111
T: 415.217.2055
F: 415.217.2040
E: sburt@earthjustice.org
mwagner@earthjustice.org
Counsel for Plaintiffs-Appellants

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiffs-Appellants
Center for Biological Diversity, Turtle Island Restoration Network, Japan
Environmental Lawyers Federation, and Save the Dugong Foundation certify thatthey have no parent corporations and that no publicly held corporation owns morethan 10% of the Plaintiffs-Appellants.

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TABLE OF CONTENTSCORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iv
INTRODUCTION .....................................................................................................1JURISDICTIONAL STATEMENT ..........................................................................1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .............................2
STATEMENT OF THE CASE..................................................................................3
STATEMENT OF FACTS ........................................................................................8I.

Futenma Relocation and the FRF ....................................................................8II.

The Okinawa Dugong and the National Historic Preservation Act ..............11

III.

Procedural History .........................................................................................14

IV.

DoD’s 2014 NHPA “Findings” and Plaintiffs’ First Supplemental
Complaint ......................................................................................................16

SUMMARY OF ARGUMENT ...............................................................................20
STANDARD OF REVIEW .....................................................................................23
ARGUMENT ...........................................................................................................24
I.

II.

Plaintiffs Have Standing. ...............................................................................24
A.

Plaintiffs Assert a Procedural Injury. ..................................................25

B.

Plaintiffs’ Harms are Redressable. ......................................................28

The Political Question Doctrine Does Not Deprive The Federal Courtsof Jurisdiction to Decide this Case. ...............................................................41
A.

Plaintiffs’ NHPA Claim Is Not Barred by the Political Question
Doctrine. ..............................................................................................42ii

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B.

The Political Question Doctrine Does Not Barr The District
Court From Ordering the Relief Plaintiffs’ Request. ..........................46
1.

Statutory Remedies Do Not Present Political Question
Concerns....................................................................................47

2.

Injunctive Relief Does Not Present Political Question
Concerns....................................................................................49

CONCLUSION ........................................................................................................54
STATEMENT OF RELATED CASES ...................................................................56
CERTIFICATE OF COMPLIANCE .......................................................................56
CERTIFICATE OF SERVICE ................................................................................57iii

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TABLE OF AUTHORITIESPage(s)
Cases
Alperin v. Vatican Bank,
410 F.3d 532 (9th Cir. 2005) ..................................................................23, 42, 54
Am. Bioscience, Inc. v. Thompson,
269 F.3d 1077 (D.C. Cir. 2001) ..........................................................................46
Baker v. Carr,
369 U.S. 186 (1962) ................................................................................21, 42, 52
Cal. Wilderness Coal. v. U.S. Dep’t of Energy,
631 F.3d 1072 (9th Cir. 2011) ............................................................................46
Cantrell v. City of Long Beach,
241 F.3d 674 (9th Cir. 2001) ..............................................................................30
City of Sausalito v. O'Neill,
386 F.3d 1186 (9th Cir. 2004) ................................................................20, 25, 30
Corrie v. Caterpillar, Inc.,
503 F.3d 974 (9th Cir. 2007) ..............................................................................23
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.,
789 F.3d 1075 (9th Cir. 2015) ................................................................23, 36, 40
Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv.,
No. 12-cv-17530, 2015 WL 5451484 (9th Cir. Sept. 17, 2015)...................20, 25
El-Shifa Pharmaceutical Indus. Co. v. United States,
607 F.3d 836 (D.C. Cir. 2010) ......................................................................42, 43
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000) ............................................................................................24
Ground Zero Center for Nonviolent Action v. Dep’t of Navy,
918 F. Supp. 2d 1132 (W.D. Wash. 2013) .........................................................51iv

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Lemon v. Geren,
514 F.3d 1312 (D.C. Cir. 2008) ..........................................................................33
Levine v. Vilsack,587 F.3d. 986 (9th Cir. 2009) .............................................................................24
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................20, 25, 26
Massachusetts v. EPA,
549 U.S. 497 (2007) ............................................................................................25
Mayfield v. United States,
599 F.3d 964 (9th Cir. 2010) ..................................................................33, 34, 35
National Audubon Soc’y v. Dep’t of Navy,
422 F.3d 174 (4th Cir. 2005) ........................................................................51, 53
Ocean Advocates v. Army Corps of Engineers,
402 F.3d 846 (9th Cir. 2004) ........................................................................30, 33
Pit River Tribe v. U.S. Forest Serv.,
469 F.3d 768 (9th Cir. 2006) ........................................................................26, 29
Salmon Spawning & Recovery Alliance v. Gutierrez,
545 F.3d 1220 (9th Cir.2008) ......................................................................passim
Tyler v. Cuomo,
236 F.3d 1124 (9th Cir. 2000) ..........................................................24, 31, 32, 33
Weinberger v. Romero–Barcelo,
456 U.S. 305 (1982) ......................................................................................51, 52
Winter v. Natural Res. Def. Council,
555 U.S. 7 (2008) ....................................................................................46, 51, 53
Zivotofsky ex rel. Zivotofsky v. Clinton,
132 S. Ct. 1421 (2012) .................................................................................passim
Statutes
5 U.S.C. §§ 701-706...................................................................................................1
5 U.S.C. § 706 ..........................................................................................1, 14, 36, 46v

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16 U.S.C. §§ 470 et seq..............................................................................................1
16 U.S.C. § 470(f) ....................................................................................................15
16 U.S.C. §§ 1531 et seq..........................................................................................11
28 U.S.C. § 1331 ........................................................................................................1
54 U.S.C. §§ 300101 et seq........................................................................................1
54 U.S.C. § 300101(2) .............................................................................................13
54 U.S.C. § 306108 ..................................................................................................15
54 U.S.C. § 307101(e) ......................................................................................passim
Other Authorities
36 C.F.R. § 800 et seq. .............................................................................................15
36 C.F.R. § 800.2 .....................................................................................................33vi

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INTRODUCTION
This case, brought by Okinawan individuals and community groups and U.S.
groups with close ties to Okinawa, challenges the United States Department of
Defense’s (DoD’s) failure to comply with the requirements of the National HistoricPreservation Act (NHPA), 54 U.S.C. §§ 300101 et seq., 1 in designing, constructing
and operating a Marine Corps air base in Okinawa, Japan. The planned base, theFutenma Replacement Facility (FRF), will include large runways built on landfill
dumped into a pristine ocean bay. These waters are important habitat for a
critically endangered and culturally significant population of manatee-likecreatures, the Okinawan dugong.
JURISDICTIONAL STATEMENT
Plaintiffs-Appellants brought their case before the U.S. District Court for the
Northern District of California, asserting that DoD’s failure to comply with therequirements of section 402 of the NHPA, 54 U.S.C. § 307101(e), is arbitrary,capricious, and without observance of procedures required by law pursuant to the
Administrative Procedure Act (APA), 5 U.S.C. § 706(2), and therefore subject tojudicial review. Id. §§ 701-706. The district court had jurisdiction pursuant to 28
U.S.C. § 1331, as this action arises under the laws of the United States.
On February 13, 2015, the district court granted DoD’s motion to dismiss
Plaintiffs’ First Supplemental Complaint and entered final judgment dismissing all
1

Formerly codified at 16 U.S.C. §§ 470 et seq.
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Plaintiffs’ claims with prejudice. ER 6. On April 9, 2015, pursuant to Federal
Rule of Appellate Procedure 3(a) and within the time designated by Federal Ruleof Appellate Procedure 4(a)(1)(b), Plaintiffs filed their Notice of Appeal. ER 1.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEWDo Plaintiffs-Appellants have standing to pursue their claim that DoD has
failed to “take into account the effect” of the Futenma Replacement Facility on the
Okinawa dugong “for purposes of avoiding or mitigating any adverse effects,” asrequired by section 402 of the NHPA, 54 U.S.C. § 307101(e)?
Is Plaintiffs-Appellants’ request for relief to remedy the harms caused by
DoD’s failure to comply with the requirements of section 402 of the NHPA barredby the political question doctrine?
Pursuant to Ninth Circuit Rule 28-2.7, section 402 of the National HistoricPreservation Act provides as follows:
Prior to the approval of any undertaking outside the UnitedStates that may directly and adversely affect a property that ison the World Heritage List or on the applicable country’s
equivalent of the National Register, the head of a Federal
agency having direct or indirect jurisdiction over theundertaking shall take into account the effect of the undertaking
on the property for purposes of avoiding or mitigating any
adverse effect.
54 U.S.C. § 307101(e).

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STATEMENT OF THE CASE
The Okinawa dugong is a critically endangered marine mammal that holds acentral place in the culture of Okinawa, Japan, and is protected as a cultural icon
under Japanese law. This case arises out of the obligation of the U.S. Departmentof Defense (DoD), pursuant to the National Historic Preservation Act (NHPA), to
respect and protect foreign cultural heritage by taking into account the effect on thedugong of DoD’s participation in the construction and operation of a new Marine
Corps air base, the Futenma Replacement Facility (FRF), in Okinawa.
Construction of the FRF will require landfilling portions of two bays off the coastof Okinawa. These bays are important feeding grounds for the dugong. Because
construction and operation of the FRF may harm the dugong, section 402 of the
NHPA requires DoD to “take into account the effect [of the FRF on the dugong]for purposes of avoiding or mitigating any adverse effects.” 54 U.S.C. §307101(e).
In 2008, in earlier proceedings in this case, the district court held that
Plaintiffs have standing to bring this suit, see CR 119 at 15-20; and that DoD failed
to comply with the obligations of the NHPA. Id. at 36-44. The district court
ordered DoD to take into account the effect of the FRF on the dugong and held thecase in abeyance “until the information necessary for evaluating the effects of the
FRF on the dugong is generated, and until defendants take the information into3

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account for the purpose of avoiding or mitigating adverse effects to the dugong.”
Id. at 45.
On April 16, 2014, DoD notified the district court that it had completed the“U.S. Marine Corps Recommended Findings” (Findings) under section 402, and an“Action Memo.” CR 151. Although DoD provided Plaintiffs (but not the court) a
copy of its Findings, it did not make available an administrative record or any of
the information on which it based the Findings.
The Findings make evident numerous flaws in the process by which DoD
purported to “take into account” the effect of its actions on the dugong. For
example, DoD did not afford any opportunity for public comment or participationin the process, which the district court held was a “basic element” of the section
402 process, CR 119 at 35, and has not made public its Findings or any of theinformation on which they are based. Although section 402 is explicitly intended
to address “any” adverse effects, DoD inappropriately limited its inquiry to a nonexhaustive list of possible adverse effects identified by the district court in its 2008
ruling, before DoD had undertaken any inquiry at all. ER 64-65; Cf. CR 119 at 2829 (“These potential adverse effects include physical destruction of the Okinawa
dugong resulting from contamination of seagrass feeding grounds and collisions
with boats and vessels, as well as long-term immune and reproductive damage
resulting from exposure to toxins and acoustic pollution. That the actual

4

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consequences may be currently unknown is precisely the reason the NHPA
requires defendants to gather, examine and assess information.”).
DoD’s Findings conclude that the FRF project will have “no adverse effect”
on the dugong. ER 88. However, despite the absence of supporting information, it
is evident from the Findings alone that the factual basis for this conclusion isinadequate. DoD admits that available data are “not sufficient” to evaluate
essential questions such as the size, status and viability of the Okinawa dugong
population. ER 73. The Findings also underestimate the importance to the dugongof the bays where the base will be located, the extent of habitat loss likely to occur,and the significance of the loss of that important habitat. See ER 57-58 at ¶¶ 4546.
These flaws in DoD’s “take into account” process made it impossible for
DoD to generate adequate information about the effects of the Futenma
Replacement Facility on the dugong, to carefully consider that information, and toweigh these effects in making decisions concerning mitigation or avoidance ofadverse effects. For this reason, on July 31, 2014, Plaintiffs filed a supplemental
complaint seeking a judgment declaring that DoD’s Findings violate section 402,
setting aside the Findings, and enjoining DoD activities in furtherance of the
project until DoD remedies the flaws in its “take into account” process. ER 44

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On September 29, 2014, DoD moved to dismiss Plaintiffs’ supplemental
complaint, arguing that, because this case concerns actions taken by the U.S.
military in coordination with the Japanese government, Plaintiffs’ claim is barredby the political question doctrine, CR 163, and on February 13, 2015, the district
court entered an order dismissing Plaintiffs’ action with prejudice. ER 6.
The district court held that “Plaintiffs’ injunctive relief claim clearlypresents a non-justiciable political question.” ER 32. The district court further
held that although “Plaintiffs’ requests for declaratory relief and an order setting
aside the NHPA Findings do not present political questions,” ER 20, the Plaintiffs
lack standing to pursue these claims. ER 36-43. The district court reasoned that it
hadalready determined that no injunctive relief may be issued toprevent or halt construction of the FRF. Moreover, the NHPA
“take into account” process is only hortatory, mandating no
particular result. Hence, there is no likelihood that the UnitedStates government, in response to an adverse declaratory
judgment, will voluntarily halt construction of the FRF. As aresult, it cannot be said that declaratory relief “may” provide
redress to Plaintiffs.
ER 41-42 (internal citation removed).
The district court mischaracterized the procedural requirements of the
NHPA as “hortatory” and misapplied this Court’s standards for standing—particularly the redressability requirement—when a government agency fails tofollow procedures required by law. A declaration that DoD’s Findings fail to6Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 14 of 64

comply with the NHPA, vacatur of the Findings, and remand to the agency forreconsideration of the impacts of the FRF on the dugong with the benefit of
information provided by Plaintiffs through a procedurally sound “take into
account” process would provide DoD the opportunity to mitigate harms to thedugong. The possibility that compliance with the procedures required by the
NHPA would lead DoD to make adjustments to its involvement in the FRF is
sufficient to satisfy the redressability prong of this Circuit’s standing analysis.
The district court also erred in ruling that the political question doctrine bars
injunctive relief. Plaintiffs’ legal claim—that DoD violated the NHPA—involves
interpretation of a domestic statute, a practice which falls squarely within thecompetence of the federal courts. The declaratory and injunctive relief that
Plaintiffs request would not supplant DoD’s policy determination with the Court’s,
but instead would require DoD itself to revisit its Findings after gathering theinformation and following the procedures required by the NHPA. These remedies
can be applied on the basis of clear and judicially manageable standards provided
by the APA and the four-part standard for injunctive relief. Plaintiffs-Appellants
therefore ask this Court to vacate the district court’s order dismissing their NHPA
claims and remand to the district court for consideration of the merits.

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STATEMENT OF FACTS
I.

Futenma Relocation and the FRF
Since 1945, the United States has maintained military bases on the island of

Okinawa, Japan, one of which is the Marine Corps Air Station Futenma. CR 119
at 3. The U.S. military presence in Okinawa has long been a source of contention
with the Okinawan civilian population. See CR 164 at 3, ¶ 6 (Declaration of JamesP. Zumwalt in Support of Defendants’ Motion to Dismiss) (“there were significant
delays in executing the plan first identified in 1996” in part due to local
opposition).2
On December 2, 1996, the bilateral Special Action Committee on Okinawa
issued a Final Report recommending the return of the Futenma airbase to Japanafter replacement facilities were constructed and operational. CR 97-1 at 6. On
September 29, 1997, DoD presented its “Operational Requirements and Concept ofOperations for MCAS Futenma Relocation, Okinawa, Japan” (1997 Operational
Requirements) to the Government of Japan. CR 119 at 4. The 1997 Operational
Requirements detailed design specifications for the replacement facility that,
according to DoD, must be followed by the Government of Japan to facilitate the
Futenma relocation. Id.

2

See also E. Chanlett-Avery & I.E. Rinehart, Congressional Research Service, R
42645, The U.S. Military Presence in Okinawa and the Futenma Base Controversy
5-6 (2014) [hereinafter CRS Report].
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On May 1, 2006, the Government of Japan and DoD issued a joint statement(the Roadmap) announcing final agreement on the plan for the Futenma
Replacement Facility. The Roadmap calls for relocation of MCAS Futenma to
expanded facilities at Camp Schwab on Cape Henoko. The expansion would
extend runways with landfill more than a mile into the waters and seagrass beds ofOura and Henoko Bays. Id. at 5. The Roadmap included a map of the proposed
runway placement, showing that the proposed Cape Henoko runways would fill inareas of Henoko Bay that are rich in seagrass beds critical for dugong survival, id.,
and where tracks indicating ongoing dugong use have been found. ER 69-70.
The Government of Japan is responsible for funding and completing
construction of the FRF. CR 119 at 4. DoD exercises direct or indirect control
over the location, operation, size, and environmental impact of the FRF. DoD
develops design specifications for the FRF that must be met before return ofMarine Corps Air Station Futenma to Japanese control. DoD also approves
individual implementation decisions, funding for the relocation and subsequent
maintenance of the FRF, and other activities. Id. at 23 (“[T]he United States has
been substantially involved in the design and site selection for the FRF, willcontinue to monitor and oversee the construction of the facility to ensure that itmeets U.S. requirements, and will have exclusive authority to operate the facility
once it is completed.”); 27 (setting out facts supporting finding that FRF is a9Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 17 of 64“federal undertaking” under the National Historic Preservation Act). See also CR
165-3 at 5-6 (Memorandum for: The Joint Committee, Establishment of the
Alliance Transformation Implementation Panel (ATIP), 24 April 2007) (U.S.
safety standards take precedence over Japanese when they are more stringent, but
do not necessarily give way to Japanese standards when less stringent).
In December 2013, despite substantial local opposition, Okinawa governor
Hirokazu Nakaima approved an offshore landfill permit required for constructionof the FRF to begin. CR 164 at 4, ¶ 8; see also CRS Report, Summary (“MostOkinawans oppose construction of the new U.S. base for a mix of political,
environmental, and quality-of-life reasons.”).
On July 2, 2014, Okinawan media reported that the Okinawa Defense
Bureau had begun demolishing buildings within the proposed FRF area at Camp
Schwab, a first step in the FRF’s construction. 3 Construction of the FRF requires
DoD work-entry permits for access to Camp Schwab and to adjacent U.S.controlled waters, CR 119 at 27-28, and the demolition suggests that DoD has
already issued those permits. According to local media reports, the Okinawa
Defense Bureau planned to carry out undersea drilling in late July 2014 and to3

See Defense Bureau Starts Removing Buildings Within Camp Schwab in Henoko
to Build a New Air Base, Ryukyu Shimpo (July 2, 2014),
http://english.ryukyushimpo.jp/2014/07/09/14546/ (last visited Nov. 18, 2015).
10

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begin reclamation of the nearshore area early in 2015. ER 51 at ¶ 26.4 However,in 2015, Takeshi Onaga was elected to replace Hirokazu Nakaima as governor and,on October 13, 2015, Governor Onaga revoked the offshore landfill permit. 5
Before Governor Onaga’s revocation of the permit, the new base was expected tobe completed no earlier than 2022. CRS Report at 3.
II.

The Okinawa Dugong and the National Historic Preservation Act
The dugong (Dugong dugon) is a marine mammal similar to the manatee.

CR 119 at 2. The dugong is a globally threatened species listed as “endangered”
under the U.S. Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. The
waters surrounding Okinawa are home to the few remaining Okinawa dugong, arare, genetically isolated, and unique population of the dugong species. See CR
85-14 at 5-6, ¶¶ 14-15 (Declaration of Ellen Hines, PhD., in Support of Plaintiffs’
Motion for Summary Judgment ). The Okinawa dugong was already highly

4

See also Okinawa OKs Seafloor Drilling Survey for U.S. Base Relocation Work,
Kyodo News (July 17, 2014), http://www.globalpost.com/dispatch/news/kyodonews-international/140717/okinawa-oks-seafloor-drilling-survey-us-base-relocatio(last visited Nov. 15, 2015).
5

See Eric Johnston, Okinawa Elects Anti-U.S. Base Governor, In Rebuke To Abe,
Japan Times (Nov. 16, 2014),
http://www.japantimes.co.jp/news/2014/11/16/national/politicsdiplomacy/okinawa-elects-anti-u-s-base-governor-rebuke-abe/#.VkcNqYXyelh(last visited Nov. 15, 2015); Okinawa Governor Revokes Approval for U.S. Base
Relocation Work at Henoko, Japan Times (Oct. 13, 2015),
http://www.japantimes.co.jp/news/2015/10/13/national/okinawa-revokespredecessors-approval-u-s-base-relocation-work-henoko/#.VkogO3arTIX (lastvisited Nov. 15, 2015).
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endangered by the 1930s and has not substantially recovered. The Japanese
Ministry of the Environment has listed the Okinawa dugong as “criticallyendangered” in Japan. CR 119 at 2. In 1997, the Mammalogical Society of Japanestimated the population at fewer than 50 individuals. ER 68. The most recent
surveys by the Government of Japan concluded there are at least three remaining
Okinawa dugongs. See ER 51-52 at ¶ 27; ER 69.
Dugongs hold a deep significance in Okinawan culture. CR 119 at 2. They
are central to the creation mythology, folklore, and rituals of Okinawa, and aresometimes considered the progenitor of the local people. Id. Because of theircultural significance, the dugong is a protected “Natural Monument” under Japan’s
Law for the Protection of Cultural Properties. Id.
Preservation of the Okinawa dugong depends on the preservation of its
habitat. See generally CR 85-14. The proposed construction and operation of the
FRF will harm Okinawa dugong habitat and food sources, directly and adversely
affecting the Okinawa dugong. Id. at 12-15, ¶¶ 30-35. Specifically, landfill fromthe construction of the facility, stormwater runoff, water pollution, air pollution,
noise, and light from the operation of the FRF will directly and adversely affect thecontinued survival of the Okinawa dugong. Id. at12-14, ¶¶ 30-33.
Pursuant to the NHPA, it is “the policy of the Federal Government, incooperation with other nations” to “provide leadership in the preservation of the12Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 20 of 64

prehistoric and historic resources of the United States and of the international
community of nations.” 54 U.S.C. § 300101(2).6
As part of the NHPA Amendments of 1980, Congress enacted section 402,
54 U.S.C. § 307101(e), to comply with U.S. obligations under the Convention
Concerning the Protection of the World Cultural and Natural Heritage (World
Heritage Convention) and to mitigate the adverse effects of Federal undertakingsoutside the United States. Section 402 requires that[p]rior to the approval of any Federal undertaking outside theUnited States which may directly and adversely affect aproperty which is on … the applicable country’s equivalent of
the National Register, the head of a Federal agency having
direct or indirect jurisdiction over such undertaking shall take
into account the effect of the undertaking on such property for
purposes of avoiding or mitigating any adverse effects.”
54 U.S.C. § 307101(e). This requirement is intended to“generat[e] information about the impact of federal actions on
the environment,” and to “require[] ... the relevant federal
agency [to] carefully consider the information produced,” San
Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9thCir. 2005) (emphasis added), and to “weigh effects in deciding
whether to authorize” a federal undertaking, Save Our Heritage
v. Fed. Aviation Admin., 269 F.3d 49, 58 (1st Cir. 2001)(emphasis added).

6

On December 19, 2014, Public Law 13-287 moved the NHPA’s provisions fromtitle 16 of the United States Code to title 54, with minimal and non-substantive
changes to the text of the Act and a re-ordering of some of its provisions.
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CR 119 at 31. Because the list of protected cultural properties under Japan’s
Cultural Properties Law is the “equivalent” of the U.S. National Register ofHistoric Places, the Okinawa dugong is protected under the NHPA. CR 119 at 26.
III.

Procedural History
On September 25, 2003, Plaintiffs filed suit challenging DoD’s involvementin the design, development, and approval of the FRF, claiming that DoD’s failure
to “take into account” adverse effects of the proposed FRF on the Okinawa dugong
violated the NHPA, 54 U.S.C. § 307101(e), and APA, 5 U.S.C. §§ 706(1), (2)(A),and (2)(D). CR 1.
On May 17, 2004, DoD moved to dismiss the case, arguing that Plaintiffs
had failed to state a claim upon which relief could be granted because the dugong
is not “property” within the meaning of the NHPA, in part because the Japanese
Law for the Protection of Cultural Properties is not “equivalent” to the U.S.
National Register of Historic Places. CR 17 at 2-3.
On March 2, 2005, the district court denied the motion, holding that the
NHPA applies to protect the Okinawa dugong, CR 51 at 18, that section 402
applies extraterritorially, id. at 27, and that Plaintiffs’ complaint did “not thrust thiscourt into issues of foreign affairs; rather, it summons the court’s attention tomatters under the control of the United States Department of Defense.” Id.

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Following discovery on whether DoD’s activities constituted a “federal
undertaking” under the NHPA, the parties filed cross-motions for summary
judgment. CR 85, 90. On January 24, 2008, the district court granted Plaintiffs’
summary judgment motion and denied DoD’s motion. CR 119. The district court
held that because the FRF “may directly and adversely affect” the Okinawa
dugong, id. at 28-29, Section 402 of the NHPA requires DoD to “take into
account” effects of the proposed FRF on the Okinawa dugong. Id. at 29-36.
DoD’s failure to do so constituted agency action unreasonably delayed andunlawfully withheld. Id. at 42.
The district court further held that the “take into account” process under
section 402 should “follow the basic outline of [NHPA] section 106,” whichgoverns the process for taking into account the effects of agency actions on
properties listed on the U.S. National Register of Historic Places. Id. at 33 (citing
16 U.S.C. § 470(f) (NHPA section 106);7 36 C.F.R. § 800 et seq. (regulations
implementing section 106)). The district court explained that, “at a minimum, [thesection 402 ‘take into account’ process] must include”(1) identification of protected property, (2) generation,collection, consideration, and weighing of information
pertaining to how the undertaking will affect the historic
property, (3) a determination as to whether there will be adverse
effects or no adverse effects, and (4) if necessary, development

7

16 U.S.C. § 470(f) is now 54 U.S.C. § 306108.
15

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and evaluation of alternatives or modifications to theundertaking that could avoid or mitigate the adverse effects.
Id. at 32. In completing this process, the district court held, a federal agency must“engage[] the host nation and other relevant private organizations and individuals
in a cooperative partnership.” Id. See also id. at 35 (“Congress’ intent that thesection 402 take into account process [include] … consultation with interested
parties and organizations … is evident.”).
The district court ordered DoD to comply with section 402 of the NHPA,
including by “produc[ing], gather[ing], and consider[ing]” the necessary
information for “taking into account the effects of the FRF on the Okinawa dugong
and for determining whether mitigation or avoidance measures are necessary andpossible.” Id. at 43. The district court held the case in abeyance “until defendants
take the information into account for the purpose of avoiding or mitigating adverse
effects to the dugong.” Id. at 45.
IV.

DoD’s 2014 NHPA “Findings” and Plaintiffs’ First Supplemental
Complaint
On April 16, 2014, DoD notified the district court that it had completed its

Findings under the NHPA, as well as an “Action Memo.” CR 151. This was thefirst time Plaintiffs learned that DoD had undertaken a “take into account” processconcerning the FRF project. DoD did not consult with Plaintiffs during the process
and provided no public notice that it intended to undertake the process at all. ER

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55 at ¶ 40. Nor did DoD disclose how it selected those with whom it did consult or
whom it allowed to participate. Id. at ¶ 41. DoD did not make the Findings or
supporting documents public, or file them with the court.8 However, DoD
provided the Findings to Plaintiffs’ counsel, along with two memoranda from the
Deputy Assistant Secretary of the Navy approving the Findings. Plaintiffs attached
all three documents as exhibits to their supplemental complaint. ER 61-90.
In its Findings, DoD determined that its “undertaking” has “‘no adverse
effect’ on the Okinawa dugong.” ER 73. To reach this conclusion, DoD reliedheavily on a 2010 study referred to as “Welch 2010,” which DoD apparently
commissioned, ER 64, and the Government of Japan’s EIS. See ER 83-85 (tablecorrelating each topic in Findings with sections from “Welch 2010” study). DoD
also relied on “additional literature and informative data,” ER 65-66, and a “bilateral Expert Study Group,” convened in 2010 to examine environmental impactsof the FRF. ER 82. Although the Findings refer to the Welch 2010 study and the
additional information as “enclosures,” ER 64-65, DoD has not made these
documents public, has refused to provide them to Plaintiffs, and has refused todisclose the names of the experts or other contributors.

8

DoD also did not submit to the district court a copy of the final Japanese EIS,
which DoD relied on in its Findings, see ER 66, n.2, despite the district court’s
specific request that “a copy with a translation” be submitted once the EIS wascompleted. CR 140 at 1.
17

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On July 31, 2014, Plaintiffs filed their First Supplemental Complaint, inwhich they challenged two aspects of DoD’s compliance with the NHPA “take into
account” process. ER 44. First, Plaintiffs challenged DoD’s failure to satisfy the
consultation and public participation requirements of section 402, including byconsulting Plaintiffs as interested parties and by making the Findings andsupporting data public. ER 58 at ¶¶ 48-50. Second, because of numerous flaws in
DoD’s process of gathering and assessing information, Plaintiffs challenged DoD’s
conclusion that the construction and operation of the FRF will not adversely affect
the Okinawa dugong.
Plaintiffs argued that DoD did not consider the full range of possible adverse
effects on the dugong, and challenged the factual basis for DoD’s “no adverse
effect” conclusion. See ER 56-58 at ¶¶ 42-46. For example, DoD admitted thatthe available data “are not sufficient to establish population size, status, andviability” of the Okinawa dugong. ER 73. However, “[n]otwithstanding theabsence of recent total population data,” DoD found no adverse effect based on theunsupported claim that it had “current and valid population data for Henoko andOura bays.” ER 78. Plaintiffs also challenged DoD’s Findings as underestimating
both the value of the Henoko and Oura Bay habitat to the Okinawa dugong, ER 57
at ¶ 45, and the extent of habitat loss that construction and operation of the FRF
will cause. ER 57-58 at ¶ 46.

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In light of these concerns, Plaintiffs requested a judgment declaring that
DoD’s Findings, and the process used to develop them, violate NHPA section 402.
ER 58-59. Plaintiffs also requested an order setting aside DoD’s Findings, and anorder “that DoD not undertake any activities in furtherance of the FRF project …
until it complies with section 402.” Id.
On September 29, 2014, DoD moved to dismiss Plaintiffs’ supplemental
complaint, arguing that, because this case concerns actions taken by the U.S.
military in coordination with the Japanese government, Plaintiffs’ claim is barredby the political question doctrine. CR 163. Plaintiffs opposed the motion, CR 167,
and the district court held a hearing on December 12, 2014. CR 173. In January,
the parties submitted supplemental briefing on remedies. CR 181, 182.
On February 13, 2015, the district court dismissed Plaintiffs’ action withprejudice. The district court held that “Plaintiffs’ injunctive relief claim clearlypresents a non-justiciable political question.” ER 32. The district court further
held that although “Plaintiffs’ requests for declaratory relief and an order setting
aside the NHPA Findings do not present political questions,” ER 20, the Plaintiffs
lack standing to pursue these claims. ER 36-43. Plaintiffs now appeal the district
court’s ruling.

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Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 27 of 64

SUMMARY OF ARGUMENT
When a government agency fails to follow a procedure required by law, theresulting procedural injury is sufficient to confer Article III standing so long as theplaintiff also asserts a “concrete interest” that is threatened by the failure, such as
the use or observation of an animal species for cultural, aesthetic or recreational
purposes. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–563 (1992); Cityof Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004). Once a plaintiff
establishes a procedural injury, the causation and redressability requirements forstanding are relaxed and plaintiffs must only show that they have “a proceduralright that, if exercised, could protect [their] concrete interests.” Ctr. for Biological
Diversity v. U.S. Fish and Wildlife Serv., No. 12-cv-17530, 2015 WL 5451484 at*8 (9th Cir. Sept. 17, 2015) (emphasis in original).
DoD’s failure to comply with the “take into account” requirements ofsection 402 of the NHPA causes a procedural injury that threatens Plaintiffs’
concrete interests in observing the dugong for cultural, educational, aesthetic,
inspirational, conservation and economic purposes. At a minimum, Plaintiffs’
harms would be redressed by an order from the court (1) declaring that DoD has
failed to comply with the “take into account” requirement of section 402 of the
NHPA, (2) vacating the Findings, and (3) remanding to DoD to reconsider whether
the FRF would adversely affect the dugong following the procedures required by20

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the NHPA. Reassessing the impacts of the FRF on the dugong with the benefit of
information provided by Plaintiffs and others through a procedurally sound “takeinto account” process will give DoD the opportunity to make adjustments to thedesign and operation of the FRF that would mitigate harms to the dugong, thereby
redressing Plaintiffs’ injuries. These remedies are sufficient to confer standing on
the Plaintiffs to bring their NHPA claim.
Neither is Plaintiffs’ NHPA claim barred by the political question doctrine.
A case involves a political question “where there is a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or alack of judicially discoverable and manageable standards for resolving it.”
Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012) (emphasis
added). The district court correctly determined that the legal issue in this case—whether DoD’s Findings comply with the standards of the NHPA—does not raise
political question concerns, ER 20-32, but erroneously held that injunctive relief
would present nonjusticiable political questions. ER 32-35.
As the Supreme Court made clear in Baker v. Carr, “it is error to
suppose that every case or controversy which touches foreign relations lies
beyond judicial cognizance.” 369 U.S. 186, 211 (1962). Instead, thepolitical question doctrine is only implicated if the courts are called on “tosupplant a foreign policy decision of the political branches with the courts’21Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 29 of 64

own unmoored determination of what United States policy … should be.”Zivotofsky, 132 S. Ct. at 1427. Here, the Court is not being asked tosupplant DoD’s ultimate policy decisions concerning the location, design,and construction of a military base. Rather, this case concerns whether, informulating those policy decisions, DoD followed the proper procedures for
consultation, information gathering, and evaluation of the impacts on thedugong. Moreover, the “take into account” provision of the NHPA provides“judicially discoverable and manageable standards for resolving” thisquestion. Id. (quotations omitted). Because that provision provides “a basis
to adjudicate meaningfully the issue with which [the Court] is presented,” Id.
at 1435 (Sotomayor, J., concurring in part and concurring in judgment), thepolitical question doctrine does not bar the district court from resolving
Plaintiffs’ NHPA claim.
The relief Plaintiffs seek does not overstep the constitutional boundaries thatthe political question doctrine is intended to protect. Vacatur and remand to theagency for further action in compliance with the NHPA would not supplant DoD’s
policy decisions. Instead, it would require DoD itself to revisit its Findings aftergathering the information and following the procedures required by the NHPA.
Plaintiffs’ request for injunctive relief also does not raise political question
concerns. The standard for injunctive relief provides clear, judicially manageable

22

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standards for determining whether such relief is appropriate. The balance of harms
and consideration of the public interest that the standard entails allows courts toexercise their equitable powers judiciously, while observing the principles
underlying the separation of powers doctrine.
As this Court has recognized, even in the context of the political question
doctrine,
in our system of separation of powers, we should not abdicate
the court’s Article III responsibility—the resolution of ‘cases’
and ‘controversies’—in favor of the Executive Branch....
Although the parties have multiple procedural and substantive
challenges to overcome down the road, they are entitled to their
day—or years—in court on the justiciable claims.
Alperin v. Vatican Bank, 410 F.3d 532, 538 (9th Cir. 2005). Because Plaintiffs
have standing to bring this claim, and because the legal issue that the court is asked
to resolve in this case does not raise a political question, Plaintiffs are entitled totheir day in court.
STANDARD OF REVIEWThis Court reviews a district court’s decisions on standing and politicalquestion doctrine de novo. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789
F.3d 1075, 1079 (9th Cir. 2015) (standing); Corrie v. Caterpillar, Inc., 503 F.3d
974, 979 (9th Cir. 2007) (political question). “For purposes of ruling on a motion
to dismiss for want of standing, both the trial and reviewing courts must accept astrue all material allegations of the complaint, and must construe the complaint in
23

Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 31 of 64

favor of the complaining party.” Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir.
2000) (quoting Graham v. FEMA, 149 F.3d 997, 1001 (9th Cir.1998)). This Court
may affirm on any ground supported by the record. Levine v. Vilsack, 587 F.3d.
986, 991 (9th Cir. 2009) (quoting Pritikin v. U.S. Dep’t of Energy, 254 F.3d 791,
796 (9th Cir.2001).
ARGUMENTI.

Plaintiffs Have Standing.
To establish Article III standing “a plaintiff must show (1) it has suffered an‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative, thatthe injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000). An organization has
standing to bring suit on behalf of its members “when its members would
otherwise have standing to sue in their own right, the interests at stake are germaneto the organization’s purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Id. at
181.
When a government agency fails to follow a procedure required by law, aperson harmed by this failure has suffered a procedural injury. Such an injury is24

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sufficient to confer Article III standing “so long as the plaintiff also asserts a‘concrete interest’ that is threatened by the failure to comply with that
requirement.” City of Sausalito, 386 F.3d at 1197. The desire to use or observe an
animal species for cultural, aesthetic or recreational purposes is a concrete interestfor purposes of standing. See id. at 1197; Lujan, 504 U.S. at 562–563 (citing
Sierra Club v. Morton, 405 U.S. 727, 734 (1972)).
Recognizing that correcting a deficient procedure may not alter the outcomeof the agency’s underlying action, the Supreme Court has held that once injury infact has been established based on a procedural harm, the causation andredressability requirements for standing are relaxed. Massachusetts v. EPA, 549
U.S. 497, 517-18 (2007); Ctr. for Biological Diversity, 2015 WL 5451484 at *8(“A showing of procedural injury lessens a plaintiff’s burden on the last two
prongs of the Article III standing inquiry, causation and redressability.”) (citations
omitted). Thus Plaintiffs “‘must show only that [they have] a procedural right that,
if exercised, could protect [their] concrete interests.’” Ctr. for Biological Diversity,
2015 WL 5451484 at *8 (quoting Salmon Spawning & Recovery Alliance v.
Gutierrez, 545 F.3d 1220, 1226 (9th Cir.2008)) (emphasis in original).
A.

Plaintiffs Assert a Procedural Injury.

This Court has held that the NHPA is a procedural statute “similar to NEPA
except that it requires consideration of historic sites, rather than the environment.”25

Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 33 of 64

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 787 (9th Cir. 2006). Thus,
DoD’s failure to comply with the “take into account” requirements of section 402
of the NHPA causes a procedural injury that threatens Plaintiffs’ concrete interests.
The three individual Plaintiffs in this case are Okinawan citizens who havemade and will continue to make ongoing trips to Henoko Bay to observe thedugong. See, e.g., ER 111-12 at ¶¶ 1, 5 (Declaration of Takuma Higashionna ).
These ongoing trips are concrete plans, not indefinite intentions to visit “some day”
in the future. Cf. Lujan, 504 U.S. at 564. Takuma Higashionna was born andraised near Henoko Bay and has been visiting the area and observing the Okinawa
dugong since his childhood. ER 111 at ¶ 3. He leads weekly snorkeling andscuba-diving tours to view dugongs and their habitat. Id. Yoshikazu Makishi wasalso born and raised in Okinawa and has been frequenting the Henoko coast andobserving the Okinawa dugong for over a decade. ER 95 at ¶ 2 (Declaration of
Yoshikazu Makishi). Anna Shimabukuro 9 moved to the coast of Okinawa when
she was eight years old and has lived there ever since. ER 107 at ¶ 2 (Declarationof Anna Koshiishi). Like Higashionna, she also leads eco-tours to view thedugong. Id. at ¶ 3. As averred in their affidavits, these plaintiffs have a concreteinterest to preserve the dugong for cultural, educational, aesthetic, inspirational and

9

In previous proceedings, Ms. Shimabukuro was identified as Anna Koshiishi.
She has since married and changed her family name from Koshiishi to
Shimabukuro.
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economic benefits to themselves and their descendants. For example, Higashionna
states that the dugong has particular cultural and historic significance because it ispart of the creation beliefs of the people of Okinawa. ER 111 at ¶ 4. He hopes topreserve the dugong “so that it may enrich the lives of [his] descendants, as it hasenriched [his own] life.” Id. See also ER 95 at ¶ 3, ER 107-08 at ¶ 5.
Save the Dugong Foundation member Takuma Higashionna is an individual
plaintiff, and as described above, Higashionna has standing to sue in his own right.
Center for Biological Diversity member Jeff Shaw lives in Okinawa, is married toan Okinawan family that holds religious and spiritual beliefs based on the dugong,holds those same beliefs himself, has written articles and a book based on his
research of the dugong, and is an avid scuba diver who has seen firsthand theseagrass beds on which the dugongs feed and hopes one day to view the dugong
itself. ER 103-04 at ¶¶ 1-4 (Declaration of Jeff Shaw). Both Turtle Island
Restoration Network member and director Todd Steiner and Japan Environmental
Lawyers Foundation 10 member Masato Murata aver that they and their fellow
members make regular trips to observe, study, photograph, and film the dugong.
10

The purpose of each of these organizations—Save the Dugong Foundation,
Center for Biological Diversity, Turtle Island Restoration Network and Japan
Environmental Lawyers Federation—is to preserve and protect the dugong throughresearch, fund-raising and advocacy, and thus the concrete interests at stake in thelawsuit are germane to the organizations’ purposes. ER 111 at ¶ 2; ER 116 at ¶ 2(Declaration of Peter Galvin); ER 99 at ¶ 2; ER 92 at ¶ 2. Neither the NHPA claim
asserted nor the relief requested requires the participation of individual members in
the lawsuit.
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ER 99-100 at ¶¶ 1-6 (Declaration of Todd Steiner); ER 92 at ¶ 4 (Declaration of
Masato Murata).
These concrete interests are directly linked to the procedural injury caused
by DOD’s failure to comply with the NHPA because to the extent that compliancewith the “take into account” process leads to avoidance or mitigation of harm to
the dugong, the very object of Plaintiffs’ interest may be preserved and protected.
Therefore, as the district court held in a prior ruling in this case, the Plaintiffs“have alleged a sufficient injury in fact because they seek to ‘enforce a procedural
requirement the disregard of which could impair a separate concrete interest of
theirs.’” CR 119 at 18 (quoting Lujan, 504 U.S. at 572).
B.

Plaintiffs’ Harms are Redressable.

When Plaintiffs assert a procedural injury, they can establish redressability“with little difficulty, because they need to show only that the relief requested—that the agency follow the correct procedures—may influence the agency’s
ultimate decision of whether to take or refrain from taking a certain action. This is
not a high bar to meet.” Salmon Spawning, 545 F.3d at 1226-27 (citation omitted).
Here, the relief Plaintiffs request—a declaration that DoD has failed tocomply with the “take into account” requirement of section 402 of the NHPA,
vacatur of the Findings and remand to the agency to reconsider whether the FRF
would adversely affect the dugong following the procedures required by the28Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 36 of 64

NHPA—would redress Plaintiffs’ harms. See, e.g. Pit River Tribe, 469 F.3d at 779(quoting Beeman v. TDI Managed Care Servs., Inc., 449 F.3d 1035, 1040 (9th Cir.
2006)) (explaining that a “‘procedural injury would be redressed if the [agency]
followed proper procedures’”). By reassessing the impacts of the FRF on thedugong with the benefit of information provided by Plaintiffs and others through aprocedurally sound “take into account” process, DoD has the opportunity to makeadjustments to its role in the design and operation of the FRF that would mitigate
harms to the dugong. Of course, an injunction halting DoD’s actions infurtherance of the Futenma project until the agency has completed its new NHPA
process would provide further redress for Plaintiffs’ harms.
The district court, having ruled out the possibility of injunctive relief onpolitical question grounds, 11 held that declaratory relief and an order setting aside
DoD’s Findings would not provide an effective remedy for Plaintiffs’ harms. In
doing so, the district court fundamentally misunderstood redressability in cases,
such as this one, involving procedural harms. The district court characterized the
NHPA as “only hortatory” because it mandates no particular result, ER 41, andconcluded that even if it ordered DoD to comply with the (mandatory) proceduresprescribed in the NHPA “there is no likelihood that the United States government,

11

See Plaintiffs-Appellants’ argument on the district court’s political question
analysis below on pages 49-54.
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in response to an adverse declaratory judgment, will voluntarily halt constructionof the FRF.” ER 42.
However, it is no obstacle to establishing redressability for procedural
injuries that the “take into account” process does not mandate a particular result.
On the contrary, this Court has repeatedly held that procedural injuries can beredressed by satisfactory completion of the procedure required by law, regardlessof the result eventually reached. E.g., City of Sausalito v. O’Neill, 386 F.3d at
1197 (“For purposes of Article III standing, we do not require a plaintiff todemonstrate that a procedurally proper EIS will necessarily protect his or her
concrete interest....”); Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir.
2001) (“[W]e have held that to establish redressability plaintiffs asserting
procedural standing need not demonstrate that the ultimate outcome following
proper procedures will benefit them.”); see also Ocean Advocates v. Army Corpsof Engineers, 402 F.3d 846, 860 (9th Cir. 2004) (quoting Hall v. Norton, 266 F.3d
969, 977 (9th Cir. 2001) (“A plaintiff ... who asserts inadequacy of a government
agency’s [procedural analysis] need not show that further analysis by thegovernment would result in a different conclusion. It suffices that ... the[government’s] decision could be influenced by the environmental considerations
that NEPA requires an agency to study.”).
Tyler v. Cuomo, an NHPA case concerning construction of a low-income

30

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housing project in San Francisco, is instructive. There, the plaintiffs alleged thatthe city had failed to consult with the public as required by a Memorandum of
Agreement (MOA) entered into pursuant to NHPA regulations. 236 F.3d at 112930. The MOA required the city to “take ... into account” any objection by amember of the public concerning the manner in which the MOA is implemented,
and “consult as needed.” Id. at 1133. The district court decided that the plaintiffs’
injuries could not be redressed because there was “no reason to believe that
requiring ... the City to honor the consultation provisions ... would be likely toresult in a new color scheme, different landscaping or any other change to the …
Project.” Id. This Court reversed, holding that the district court wrongly “prejudged the outcome of consultation.” Id. (citing Beno v. Shalala, 30 F.3d 1057,
1065 (9th Cir.1994)) (“[T]he mere fact that, on remand, the Secretary might again[take the challenged action] does not defeat plaintiffs’ standing.”). In reaching thisdecision, this Court quoted approvingly from the Fifth Circuit’s “well-reasoned”
opinion in Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown:[I]t is impossible for us to know with any degree ofcertainty just what the end result of the NHPA process would
be . . . We find it inappropriate to pre-judge those results as
being limited to the extremes of either maintaining the statusquo or totally [abandoning the project].
Therefore, a district court should not pre-judge the resultof the NHPA process by concluding that no relief is possible....
Even though, in this NHPA case, Vieux Carre’s possible relief
may appear to some to be irrelevant, trivial, or prohibitively
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expensive, a district court should beware of shortcutting theprocess which has been committed in the first instance to the
responsible federal agency.
236 F.3d at 1134 (quoting Vieux Carre, 948 F.2d 1436, 1446–47 (5th Cir. 1991)(another NHPA challenge in which the contested project, a riverside park, wasalready completed)).
The district court in the present case made the same mistake when it
concluded that, because the “take into account” process “mandate[es] no particular
result,” there was “no likelihood” that DoD would “voluntarily halt construction.”
ER 42. Like the district court in Vieux Carre, the district court here erred first bylimiting the possible results of the NHPA process to “the extremes” of either the
status quo (the FRF continuing under existing plans) or a total halt to the project.
See 236 F.3d at 1134 (quoting Vieux Carre, 948 F.2d at 1447). But redress for
Plaintiffs’ injuries does not require complete abandonment of the FRF project. To
the contrary, DoD could make alterations to the project or to its operational plans,for example by making changes to aircraft flight paths, protocols for controlling
run-off and other discharges into Henoko Bay, or levels of night-time illumination.
These changes would not require DoD to abandon the project entirely, but would
meet the purpose of the statute by avoiding or mitigating adverse impacts on thedugong, see 54 U.S.C. § 307101(e), and would effectively redress the harms to
Plaintiffs’ concrete interests in the dugong. See Ocean Advocates, 402 F.3d at 875

32

Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 40 of 64(remanding to the agency to “prepare a full EIS” on the impacts of the projects’
operation so that it could modify the terms of operation, even though construction
was already complete); Lemon v. Geren, 514 F.3d 1312 (D.C. Cir. 2008) (holdingthat plaintiffs had standing to bring NHPA claim because compliance with thestatute might lead to conditions on a project that would protect plaintiffs interests
even if the project still goes forward).
The district court’s second error was its assertion that the government was
unlikely to change its mind based on an order to revise the NHPA findings. See
ER 42. Such an assumption is foreclosed by Tyler, described above, in which thisCourt makes clear that a district court should not “pre-judge” the outcome of anagency’s “take into account” process, 236 F.3d at 1134, particularly when the very
purpose of that process is to gather stakeholder input and relevant information thatwould inform and improve the agency’s decision. See CR 119 at 31; 36 C.F.R. §800.2 (“The views of the public are essential to informed Federal decision-making
in the [take into account] process.”); see also Lemon, 514 F.3d at 1315.
The district court relied on Mayfield v. United States, 599 F.3d 964 (9th Cir.
2010), to support its redressability analysis. See ER 42 (“Where an independent
actor ‘retains broad and legitimate discretion’ to act that the court ‘cannot presume
either to control or predict,’ the Court lacks constitutional power to adjudicate themerits of the controversy, Mayfield II, 599 F.3d at 972, especially where, as here,

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there is no likelihood the Government will change its conduct in response to a
declaratory judgment.”) However, the facts of Mayfield are distinguishable fromthe present case.
In Mayfield, the plaintiff brought statutory and constitutional claims against
the Federal government for conducting surveillance and searches before
imprisoning him for two weeks based on incorrect fingerprint identification. 599
F.3d at 966-68. After a settlement that resolved most of the claims, the plaintiff
could only seek a declaratory judgment that two provisions of the ForeignIntelligence Surveillance Act (FISA) were unconstitutional. Id. at 968. The
plaintiff’s asserted injury was the ongoing violation of his right to privacy causedby the government’s retention of materials derived from the seizures carried out
under FISA. This Court held that a declaratory judgment would not redress thisinjury because nothing in a declaratory judgment that the FISA provision is
unconstitutional “would make it unlawful for the government to continue to retain
the derivative materials.” Id. at 971. The plaintiff thus could not show a“substantial likelihood” that the relief would redress his injury when redress
depended on a voluntary action that was not legally required and which thegovernment had stated it did not intend to take. Id. at 971-72. Because thesettlement agreement left no other remedy open, and the district court had no34

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separate authority to insist that the government return or destroy the materials inquestion, this Court held that Mayfield did not have standing. Id. at 973.
Mayfield is distinguishable from this case for three important reasons. First,
the harms asserted in Mayfield were substantive constitutional injuries, notprocedural harms. Thus, Mayfield was required to show a substantial “likelihood”
that the declaratory judgment would relieve the harms he complained of. See id. at
971. Here, because Plaintiffs assert procedural injuries, they need only show “thatthe relief requested—that the agency follow the correct procedures—may influence
the agency’s ultimate decision of whether to take or refrain from taking a certain
action.” Salmon Spawning, 545 F.3d at 1226-27 (emphasis added). Second, in
Mayfield the government had “no legal obligation” to return or destroy thematerials the plaintiff sought, and it had stated its intent not to do so. 599 F.3d at
972. Here, however, the government has a legal obligation to comply with the“take into account” requirement of the NHPA. See CR 119 at 45. This is true
regardless of whether the district court could enjoin DoD from participating in theundertaking while it complies with the statute.
The third reason Mayfield does not apply here is that in Mayfield,
declaratory relief was the only remedy available to the plaintiff because of theterms of a settlement agreement. In the present case, the district court has theauthority under the APA to hold unlawful and set aside agency action, such as the35

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DoD’s NHPA Findings, that is arbitrary and capricious, or not in accordance withlaw. 5 U.S.C. § 706(2). Accordingly, Plaintiffs seek not only a declaration that
DoD has failed to comply with the law, but also an order setting aside DoD’s
Findings and remanding to the agency for further action in compliance with the
NHPA. See ER 58-59. Under these very different circumstances, Mayfield does
not support the district court’s conclusion.
Even if the district court had been correct that injunctive relief is notavailable, Plaintiffs would still have standing for claims based on procedural
violations. In Cottonwood Environmental Law Center, this Court affirmed the
district court’s denial of injunctive relief under the Endangered Species Act (ESA),
but held that the Forest Service was required to reinitiate ESA consultation
regardless of whether a different result would be reached. 789 F.3d at 1084-88(citing Salmon Spawning, 545 F.3d at 1229). The unavailability of injunctive relief
did not undermine the plaintiffs’ standing to bring claims based on the agency’s
failure to follow the procedures required by the ESA. Id. at 1088.
In Cottonwood, this Court relied heavily on Salmon Spawning in upholding
the plaintiffs’ standing. See id. at 1083. The district court in the present caserelied on the same case in support of its opposite conclusion. It is useful to discuss
Salmon Spawning in some depth to explain how the district court misapplied the
case.

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Salmon Spawning v. Gutierrez arose from a challenge to several federal
actions relating to the 1999 Pacific Salmon Treaty between the United States andCanada. 545 F.3d at 1222-23. The treaty set up annual management regimes forchinook salmon in the Pacific Northwest, a number of populations of which arelisted as threatened or endangered under the ESA. Id. at 1223. The plaintiffs
brought three distinct claims. First, plaintiffs challenged the adequacy of a 1999
Biological Opinion (BiOp) that informed the United States’ entry into the treaty.
Second, plaintiffs argued that the agencies violated the ESA by continuing to
implement the treaty while Canada’s “excessive” harvest levels jeopardized thelisted salmon. Third, plaintiffs asserted that the agencies had failed to fulfill aprocedural obligation under the ESA to reinitiate consultation when certain
conditions were met.
This Court held that the plaintiffs lacked standing to bring the first two
claims on grounds that are distinguishable from the present case. See id. at 12251229. This Court held that the plaintiffs’ first claim was not redressable because
the Pacific Salmon Treaty set Canadian salmon harvest levels for its duration, andthose levels could not “be re-visited except as may otherwise be agreed by bothcountries.” Id. at 1226. Thus, the agencies’ discretion to amend harvest levels as aresult of changes to a BiOp was limited by the terms of the treaty. While the court
could set aside the flawed BiOp, it “could not set aside the next, and more37

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significant, link in the chain”—the harvest levels set by the treaty itself. Id. In thepresent case, DoD has direct and unilateral control over aspects of design andongoing operation of the FRF. Plaintiffs’ challenge encompasses DoD’s actions inrelation to the entire FRF project including design, construction and ongoing
operation of the facility. See CR 119 at 27. Unlike in Salmon Spawning, where thetreaty simply set harvest levels that could not be unilaterally adjusted by either
nation, DoD retains oversight authority for the ongoing project. “DoD will oversee
and monitor the design, engineering, and construction of the new facility to ensurethat it meets U.S. operational requirements.” CR 112 at 6, ¶ 13 (Joint Statement ofUndisputed Facts ). Furthermore, operation of the FRF will be exclusively within
DoD’s control, id., which allows DoD to adjust many aspects of FRF operations
that could affect the dugong, such as flight paths and frequency. Whereas in
Salmon Spawning the U.S. government could not have adjusted salmon harvest
levels without renegotiating the treaty, undertaking a complete NHPA “take into
account” process or implementing changes to FRF operations as a result of such a
process does not require involvement of the Government of Japan.
The second Salmon Spawning claim is also distinguishable. The basis of the
Court’s decision that it could not redress the harm was, again, that it could notorder the agency to renegotiate the treaty with Canada, and that any remedialactions the agencies could take to regulate U.S. fisheries were discretionary and38

Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 46 of 64“too uncertain to establish redressability.” 545 F.3d at 1228-29. However, thisCourt pointed out the crucial distinction: that claim alleged a substantive violationof the ESA, not a procedural violation. Id. at 1227 (“[I]n contrast to its first claim,
which focused on alleged procedural flaws…, Salmon Spawning’s second claim
challenges the agencies’ decision to continue allowing excessive Canadian
harvesting….”). The plaintiffs therefore faced a higher bar on redressability.
This argument highlights the key difference between asserting
substantive and procedural violations of the ESA: a plaintiff
alleging procedural violations of the ESA must show only thatthe procedural right could protect their interest, whereas aplaintiff alleging a substantive violation must demonstrate thatits injury would likely be redressed by a favorable court
decision.
Id. at 1228. The present case alleges procedural, not substantive, injuries, andPlaintiffs are not required to meet this higher bar.
Although this Court held that the plaintiffs in Salmon Spawning did not havestanding to bring their first two claims, it held that the plaintiffs did have standing
to bring their third claim. Id. at 1229-30. The reasoning for this holding, which
the Court reiterated in Cottonwood, 789 F.3d at 1083, is important to the present
case, but was overlooked by the district court.
In the third Salmon Spawning claim, the plaintiffs argued that the agencies
had failed to fulfill a procedural obligation under the ESA to reinitiate consultation
when certain conditions were met. 545 F.3d at 1229. Although the factual context

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for the third claim was the same as for the first (involving a treaty, renegotiation ofwhich was committed to the executive), this Court held that reinitiating
consultation would remedy the procedural harm by putting information before theagency that it would be able to use as appropriate to make informed decisions. Id.
Applying the relaxed causation and redressability requirements for procedural
injuries, the Court held that the asserted injury—the risk of harm to a listed species
due to procedural lapses—was “not too tenuously connected” to the failure toreinitiate consultation. Id. An order to complete the procedure would provide a
remedy, so the plaintiffs had standing. Id.
Similarly, the injury alleged in the present case, the risk of harm to a listed
cultural property due to procedural lapses, is “not too tenuously connected” to thefailure to adequately complete the “take into account” process. Plaintiffs in thiscase seek the same thing as the plaintiffs in Salmon Spawning: for DoD to properly
complete the NHPA procedure so that it can decide the appropriate way to use theinformation and make informed decisions regarding its ongoing involvement in theconstruction and operation of the FRF. Like in Cottonwood and Salmon Spawning,
the possibility that the agency might make adjustments to the project’s
infrastructure or operations on the basis of information generated through suchprocedures is sufficient remedy to confer standing.

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II.

The Political Question Doctrine Does Not Deprive The Federal Courtsof Jurisdiction to Decide this Case.
The claims and requests for relief in Plaintiffs’ First Supplemental

Complaint are not barred by the political question doctrine. Resolving Plaintiffs’
NHPA claim does not require the court to second-guess or supplant political or
national security decisions that are properly the domain of the executive or
legislative branches. Instead, the court need only apply clear statutory
requirements, interpretable through sources familiar to this Court, to determine thelegal sufficiency of the processes DoD used to gather and consider information toassess the effects of its actions on the Okinawa dugong.
Nor does the relief Plaintiffs request require the Court to overstep its judicial
role. Vacating DoD’s findings and remanding to the agency for further action incompliance with the requirements of the NHPA leaves the ultimate policy decisionin the hands of DoD. The familiar standard for determining whether injunctive
relief is warranted allows for balancing of the hardships between parties andconsideration of the public interest, which ensures that the courts do not
improperly override the decisions of the political branches when those branches are
acting on matters within their constitutional jurisdiction. Plaintiffs’ claim and theirrequests for relief are justiciable.

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A.

Plaintiffs’ NHPA Claim Is Not Barred by the Political Question
Doctrine.

“The judiciary has a responsibility to decide cases properly before it.”
Zivotofsky, 132 S. Ct. at 1427. Nonetheless, there is a “narrow exception” forclaims that raise nonjusticiable political questions. Id. “[A] controversy involves apolitical question ... where there is a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it.” Id. (quotations omitted)(emphasis added). The political question doctrine must be applied carefully to
avoid overbroad application, and courts must “examine each of the claims withparticularity.” See Alperin, 410 F.3d at 544-45, 547(emphasis added); see also
Baker, 369 U.S. at 211 (requiring “a discriminating analysis of the particularquestion posed”); El-Shifa Pharmaceutical Indus. Co. v. United States, 607 F.3d
836, 842 (D.C. Cir. 2010) (applicability of the political question doctrine “turns noton the nature of the government conduct under review but more precisely on thequestion the plaintiff raises about the challenged action”).
Not every case that touches on foreign affairs or national security presents a
non-justiciable political question. See, e.g., Baker, 369 U.S. at 211 (“[I]t is error to
suppose that every case or controversy which touches foreign relations lies beyond
judicial cognizance.”).

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A court may not refuse to adjudicate a dispute merely because adecision may have significant political overtones or affect the conductof this Nation’s foreign relations. Nor may the courts decline toresolve a controversy within their traditional competence and proper
jurisdiction simply because the question is difficult, the consequences
weighty, or the potential real for conflict with the policy preferencesof the political branches.
Zivotofsky, 132 S. Ct at 1432 (Sotomayor, J., concurring in part and concurring injudgment) (quotations and citations omitted). See also id. at 1428 (quoting INS v.
Chadha, 462 U.S. 919, 943 (1983)) (“[C]ourts cannot avoid their responsibility
merely ‘because the issues have political implications’”). “Indeed, from the timeof John Marshall to the present, the [Supreme] Court has decided many sensitiveand controversial cases that had enormous national security or foreign policy
ramifications.” El-Shifa Pharmaceutical Indus. Co., 607 F.3d at 856 n.3(Kavanaugh, J., concurring) (citing numerous Supreme Court decisions).
The question before this Court is not whether this case arises in the context
of activities that fall within the broad categories of foreign relations or national
security, but rather whether the precise claim presented in Plaintiffs’ Supplemental
Complaint requires the Court “to supplant” DoD’s “foreign policy decision … withthe [Court’s] own unmoored determination of what United States policy … shouldbe.” Zivotofsky, 132 S. Ct. at 1427. DoD’s ultimate policy decisions concerning
the location, design, construction, or operation of a military base are not underreview in this case. Rather, this case concerns DoD’s consultation, information-

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gathering, and evaluation process pursuant to the National Historic Preservation
Act’s “take into account” requirement, which is intended to inform such decisions.
See 54 U.S.C. § 307101(e); CR 119 at 30-31, 34-35. Instead of supplanting DoD’s
decisions, enforcing the statute would simply ensure that DoD’s decisions are
informed by accurate information about the effect of its actions on the dugong.
Moreover, the NHPA provides “judicially discoverable and manageable
standards for resolving” Plaintiffs’ claim. 132 S. Ct. at 1427. In Zivotofsky, theCourt noted that the existence of “textual, structural and historical evidence …
regarding the nature of the statute” supported the conclusion that the politicalquestion did not pose a bar to judicial review of the case, because examining such
evidence “is what courts do.” Id. at 1430. When presented with such evidence, thequestion for a court is “whether that evidence in fact provides a court a basis to
adjudicate meaningfully the issue with which it is presented. The answer willalmost always be yes.” Id. at 1435 (Sotomayor, J., concurring in part andconcurring in judgment).
Applying the political question doctrine as oulined in Zivotofsky, the district
court correctly concluded that Plaintiffs’ claim—that DoD has violated the
NHPA—“presents a purely legal question of statutory application ... [and] does notwarrant dismissal” on political question grounds. ER 22. See also id. (citing
Zivotofsky, 132 S. Ct. at 1427) (“As the Supreme Court explained in Zivotofsky I,

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this type of statutory analysis—not dissimilar to more typical environmental casessuch as those brought under NEPA—is a ‘familiar judicial exercise.’”).
The district court also correctly held that “there is no reason to believe thestandards for the inquiry here would not entail judicially ‘discoverable’ or‘manageable’ standards.” ER 24. The court reasoned that resolution of Plaintiffs’
NHPA claim
would not require this Court to assess the Executive’s weighty
appraisal of such issues as how to best “maintain international
peace.” Instead, this Court would need to determine whether
the DoD’s specific NHPA findings violated the APA. At thisjuncture, neither party has demonstrated that the critical “takeaccount” requirement of NHPA is qualitatively different fromthe analysis of the adequacy of an environmental impact
statement under NEPA or the quality of biological assessments
under the Endangered Species Act. Although the NHPA isdifferent inasmuch as it applies to foreign sites and may involvethe obligation to secure the input of foreign agencies andcitizens (as Judge Patel assumed, see Okinawa Dugong, 543 F.
Supp. 2d at 1104), neither party has argued and established thatthe “take account” element of the NHPA incorporates any
political (as opposed to scientific and procedural) criteria andconcerns which would implicate justiciability questions.
ER 23-24. Because there is “a basis to adjudicate meaningfully the issue
with which [the Court] is presented,” 132 S. Ct. at 1435 (Sotomayor, J.,
concurring in part and concurring in judgment), the political question
doctrine does not bar the district court from resolving Plaintiffs’ NHPA
claim.

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B.

The Political Question Doctrine Does Not Barr The District Court
From Ordering the Relief Plaintiffs’ Request.

Remand and vacatur are the standard remedies for statutory violations
reviewed pursuant to the Administrative Procedure Act. See 5 U.S.C. § 706(2)(Authorizing the district courts to “hold unlawful and set aside” agency actions
found to be “arbitrary, capricious, an abuse of discretion, or otherwise not inaccordance with law” or “without observance of procedure required by law.”); Cal.
Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011)(“[W]here a regulation is promulgated in violation of the APA and the violation is
not harmless, the remedy is to invalidate the regulation.”); Am. Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001) (“If an appellant … prevails on
its APA claim, it is entitled to relief under that statute, which normally will be avacatur of the agency’s order. . . . ”). Equitable relief in the form of an injunction
is an alternative to statutory remedies but is not required. See Winter v. Natural
Res. Def. Council, 555 U.S. 7, 32 (2008) (“An injunction is a matter of equitablediscretion; it does not follow from success on the merits as a matter of course”).
Despite the district court’s conclusion that Plaintiffs’ NHPA claim does notraise political questions, the court found that injunctive relief is barred in this caseby the political question doctrine. As demonstrated below, neither statutory
remedies under the APA, nor injunctive relief would involve the court improperlyin the affairs of the Executive Branch.
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1.

Statutory Remedies Do Not Present Political Question
Concerns.

The statutory remedies that Plaintiffs request pursuant to the APA—adeclaration that DoD has violated the NHPA, vacatur of DoD’s Findings, andremand to the agency for a complete “take into account” process that meets therequirements of the statute—would not overstep the district court’s constitutional
authority. Vacatur and remand to the agency would not require the Court “tosupplant” DoD’s “foreign policy decision … with the [Court’s] own unmooreddetermination of what United States policy … should be.” Zivotofsky, 132 S. Ct. at
1427. The Court is not being asked to review DoD’s ultimate decisions concerning
the location, design, construction, or operation of a military base. Nor would thisCourt’s directive to complete the take into account process mandate a particular
result. Rather, the Court must determine whether the procedures that DoD used toassess the impacts on the dugong comply with the consultation, information
gathering, and evaluation requirements of the “take into account” provision of the
NHPA. Instead of supplanting DoD’s decisions, requiring DoD to implement thestatute would simply ensure that DoD’s decisions are informed by accurate
information about the effect of its actions on the dugong.
Nor would vacatur and remand interfere with relations between the UnitedStates and Japan. In its 2008 ruling, the district court correctly concluded thatthe only activities upon which the court sits in judgment are47

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those obligations placed upon the United States underprovisions of U.S. domestic law. The court’s jurisdiction in thiscase is premised on the NHPA and the APA and therefore, theonly activities which this court reviews are DoD’s obligations
related to the section 402 process of taking into account.
…[T]he obligation to take into account lies with the DoD andthe DoD alone. Relief requiring the DOD to take into account,
therefore, in no way invalidates Japan’s decision to locate the
FRF in the particular area and configuration it has chosen andin no way interferes with Japan’s ability to conduct its own
environmental assessment according to Japanese law. Again,
the court reiterates that the NHPA compels a particular process,not a particular result. The NHPA requires and the court can
only mandate that the DOD engage in an information gathering
process which may eventually lead to such modifications andalterations if, as a result of the information gathering process, it
is determined that those changes may mitigate adverse effects
on protected property.
CR 119 at 24.
Even if Plaintiffs’ claims or the relief requested had some effect on U.S.Japanese relations, the Supreme Court has recognized that such effect alone does
not compel the conclusion that an issue presents a nonjusticiable political question.
“A court may not refuse to adjudicate a dispute merely because a decision ‘may
have significant political overtones’ or affect ‘the conduct of this Nation’s foreign
relations.’” 132 S. Ct. at 1432 (Sotomayor, J., concurring in part and concurring injudgment) (citing Japan Whaling Assn. v. Am. Cetacean Soc’y, 478 U.S. 221, 230(1986)). In Zivotofsky, the Secretary of State attested that requiring thegovernment to list Israel as the place of birth on the passports of Americans born inJerusalem would have “significant[] adverse foreign policy effects” because it48

Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 56 of 64“would be interpreted as an official act of recognizing Jerusalem as being under
Israeli sovereignty” and “would critically compromise the ability of the UnitedStates to work with Israelis, Palestinians and others in the region to further thepeace process.” Id. at 1440 (Breyer, J., dissenting) (citations to the respondent’s
brief omitted).
Despite the Secretary’s assertions of the foreign policy and national security
effects of an order requiring the agency to implement the statute, the Court did not
find that the interpretation and application of the statute was barred by the politicalquestion doctrine. The same is true here, where any effect on U.S.-Japaneserelations of DoD’s implementation of the statutory requirement to “take into
account” the impacts of its actions on the dugong would be far less direct than the
explicit contradiction of U.S. policy regarding Jerusalem embodied in the statute atissue in Zivotofsky.
2.

Injunctive Relief Does Not Present Political Question
Concerns.

Plaintiffs requested a narrowly crafted injunction on any activities infurtherance of the FRF project until DoD remedies the shortcomings in its section
402 “take into account” process. ER 59 at ¶ 3. The district court held thatinjunctive relief is barred because there are no clear, judicially manageable
standards for determining whether injunctive relief is appropriate. ER 32-34.
However, as the district court acknowledged, there is a well-established legal
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standard that courts regularly apply to determine whether injunctive relief iswarranted. ER 32 (citing Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184
(9th Cir. 2011). “In order to obtain an injunction in this case, Plaintiffs concedethat they would have to prevail on the merits and then show that: (1) they sufferedan irreparable injury; (2) their remedies at law are inadequate; (3) the balance ofthe hardships tips in Plaintiffs’ favor; and (4) the public interest would not be
disserved by the injunction.”12 Id. This standard for injunctive relief allows courts
to exercise their equitable powers judiciously, while observing the principles
underlying the separation of powers doctrine.
The district court argued that applying the third and fourth injunctive relief
factors to the present case would require it to evaluate harms “for which the
Judiciary has neither aptitude, facilities nor responsibility.” Id. at 27-28(quotations omitted). However, courts regularly exercise their equitablejurisdiction to weigh hardships and consider whether injunctive relief would be in
the public interest, even in the context of cases that explicitly implicate foreign
affairs and national security. See, e.g., Winter, 555 U.S. 7, 20-31 (applying
standard for injunctive relief in case challenging the Navy’s use of sonar in training
12

Neither parties briefed remedies in their arguments on this motion to dismiss.
Plaintiffs had not requested preliminary injunctive relief and because there has not
yet been a decision on the merits of Plaintiffs’ NHPA claim, the question whether
injunctive relief was warranted was not yet ripe. The district court raised thequestion of the standard for injunctive relief sua sponte at oral argument. See CR
180 at 2-3(Hearing Transcript).
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exercises, where use of sonar is “essential to national security”); Weinberger v.
Romero–Barcelo, 456 U.S. 305, 312, (1982) (“the ability to deny as well as grant
injunctive relief, can fully protect the range of public interests at issue” in caseseeking to enjoin the Navy from carrying out training operations in Puerto Rico);
National Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 200-06 (4th Cir. 2005)(applying standard for injunctive relief in NEPA case against DoD concerning
construction of aircraft landing field within five miles of national wildlife refuge,
implicating “national security matters”); Ground Zero Center for Nonviolent
Action v. Dep’t of Navy, 918 F. Supp. 2d 1132, 1155-56 (W.D. Wash. 2013)(balancing harms and public interest in NEPA and ESA case seeking to enjoin the
Navy’s construction of an explosive-handling wharf to maintain submarines andservice missiles). The inherent flexibility of the courts’ equitable jurisdiction,
enshrined in the balancing of harms and the weighing of the public interest in thestandard for injunctive relief, allows courts to address concerns over appropriate
remedies in the application of that standard. See Weinberger, 456 U.S. at
312(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)) (“The essence ofequity jurisdiction has been the power of the Chancellor . . . to mould each decree
to the necessities of the particular case. Flexibility rather than rigidity has
distinguished it.”). Like in Winter and Weinberger, the district court is fully
capable of giving the appropriate weight and deference to DoD’s national security

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and foreign policy interests in the application of the standard for injunctive relief.
The standard itself provides clear, judicially manageable standards for determining
when a court should issue injunctive relief.
The district court also expressed concern that “an injunction that ascribes
more importance to saving the Okinawa dugong than the Executive has chosen toafford in the context of constructing a foreign military base would inevitably
express a lack of respect for the Executive Branch’s handling of U.S.-Japan
relations,” ER 34 (quotations omitted), and that “the decision to build the FRF is apolitical decision already made that requires an unusual need for unquestioning
adherence.” ER 35 (quotation omitted). However, Plaintiffs’ claims and the relief
they request do not ask the court to opine on the decision to build the FRF.
Moreover, these concerns, like the district court’s concern about its ability toweigh harms that implicate national security or foreign affairs, can—and should—
be factored into the general consideration of the public interest under the fourthfactor of the standard for injunctive relief. See Weinberger, 456 U.S. at 312,
(holding that a court should “pay particular regard for the public consequences of
employing the extraordinary remedy of injunction”) (quotation omitted.)); see also
Baker, 369 U.S. at 198 (“Beyond noting that we have no cause at this stage to
doubt the District Court will be able to fashion relief if violations of constitutionalrights are found, it is improper now to consider what remedy would be most52

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appropriate if appellants prevail at the trial.”). Indeed, in certain circumstances,such as when a case challenges wartime activity, the courts give particulardeference to the government’s alleged hardships or interests. See, e.g., Winter, 555
U.S. at 9 (“Military interests do not always trump other considerations, and the
Court has not held that they do, but courts must give deference to the professional
judgment of military authorities concerning the relative importance of a particular
military interest.”); National Audubon Soc’y, 422 F.3d at 203 (after ruling inplaintiff’s favor on the merits, rejecting request for injunction on ground that“[d]istrict courts should not substitute their own judgments for those of the
Executive Branch in such national security matters as pilot training, squadron
readiness, and safety.”). Thus, judicial practice in balancing the hardships between
parties ensures that the courts do not improperly override the decisions of thepolitical branches when those branches are acting on matters within theirconstitutional jurisdiction. Here, if Plaintiffs were to succeed on the merits of their
NHPA claim, the district court would give all due deference to DoD’s national
security concerns given DoD’s authority and expertise in the realm of military andforeign affairs. This would adequately preserve the appropriate allocation of
powers between the judiciary and the executive.
As this Court has recognized, even in the context of the political question
doctrine,

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in our system of separation of powers, we should not abdicate
the court’s Article III responsibility—the resolution of “cases”
and “controversies”—in favor of the Executive Branch....
Although the parties have multiple procedural and substantive
challenges to overcome down the road, they are entitled to their
day—or years—in court on the justiciable claims.
Alperin, 410 F.3d at 538. Because neither the legal claim nor the relief requested
are barred by political question concerns, the district court has a responsibility to
decide the merits of Plaintiffs’ NHPA claim. Any concerns about the propriety of
issuing an injunction (in addition to other forms of relief) can—and should—beaddressed in the application of the familiar four-part standard for injunctive relief
should Plaintiffs’ succeed on the merits.
CONCLUSION
The district court’s standing decision in this case runs counter to this Court’s
and the Supreme Court’s long-held redressability standard for procedural harms.
A declaration that DoD’s Findings fail to comply with the NHPA, vacatur of theFindings, and remand to the agency for reconsideration of the impacts of the FRF
on the dugong with the benefit of information provided by Plaintiffs and others
through a procedurally sound “take into account” process would provide DoD theopportunity to make adjustments to its role in the design and operation of the FRF
that would mitigate harms to the dugong. The possibility that compliance with theprocedures required by the NHPA could lead DoD to adjust its involvement in the
FRF is sufficient to satisfy the redressability prong of this Circuit’s standing54

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analysis. Moreover, such a remedy does not present any separation of powers
concerns. Neither standing nor the political question doctrine prevents the district
court from adjudicating Plaintiffs’ claim. Plaintiffs-Appellants therefore ask thisCourt to vacate the district court’s order dismissing their NHPA claims and remand
to the district court for consideration of the merits.

Dated: November 24, 2015/s/ Sarah H. Burt
SARAH H.BURT
J. MARTIN WAGNER
Earthjustice
50 California Street, Suite 500
San Francisco, CA 94111
T: 415.217.2000
F: 415.217.2040
E: sburt@earthjustice.org
mwagner@earthjustice.org
Counsel for Plaintiffs-Appellants
Center for Biological Diversity, et al.

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STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, Plaintiffs-Appellants Center for
Biological Diversity et al. state that they are unaware of any related case.

CERTIFICATE OF COMPLIANCE
I certify that pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C)and Ninth Circuit Rule 32-1, the foregoing opening brief is proportionately spaced,
has a typeface of 14 points, and contains 13,084 words, excluding the parts of thebrief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).

Dated: November 24, 2015/s/ Sarah H. Burt
SARAH H.BURT
J. MARTIN WAGNER
Earthjustice
50 California Street, Suite 500
San Francisco, CA 94111
T: 415.217.2000
F: 415.217.2040
E: sburt@earthjustice.org
mwagner@earthjustice.org
Counsel for Plaintiffs-Appellants
Center for Biological Diversity, et al.

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Case: 15-15695, 11/24/2015, ID: 9770101, DktEntry: 17, Page 64 of 64

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using theappellate CM/ECF system on November 24, 2015. I certify that all participants inthe case are registered CM/ECF users and that service will be accomplished by theappellate CM/ECF system.

Dated: November 24, 2015/s/ Sarah H. Burt
SARAH H.BURT
J. MARTIN WAGNER
Earthjustice
50 California Street, Suite 500
San Francisco, CA 94111
T: 415.217.2000
F: 415.217.2040
E: sburt@earthjustice.org
mwagner@earthjustice.org
Counsel for Plaintiffs-Appellants
Center for Biological Diversity, et al.

57