Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 1 of 27

1
2

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISION

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

SARAH H. BURT (Cal. Bar No. 250378)
J. MARTIN WAGNER (Cal. Bar No. 190049)
Earthjustice
50 California Street, Suite 500
San Francisco, CA 94111
Tel: (415) 217-2000
Fax: (415) 217-2040
sburt@earthjustice.org
mwagner@earthjustice.org

Counsel for Plaintiffs Center for Biological Diversity, Turtle Island Restoration Network,
Japan Environmental Lawyers Federation, Save the Dugong Foundation, Anna Shimabukuro,
Takuma Higashionna, and Yoshikazu Makishi
CENTER FOR BIOLOGICAL DIVERSITY,
TURTLE ISLAND RESTORATIONNETWORK, JAPAN ENVIRONMENTALLAWYERS FEDERATION, SAVE THE
DUGONG FOUNDATION, ANNASHIMABUKURO, TAKUMAHIGASHIONNA, and YOSHIKAZUMAKISHI,

)
)
)
)
)
)
)
)
)
Plaintiffs,)v.
)
JAMES MATTIS, in his official capacity as the )Secretary of Defense, and U.S. Department of ))Defense,)Defendants.
))

Civil Action No. 3:03-cv-4350 (EMC)

Hearing Date: June 28, 2018
Time: 1:30 pm
Courtroom: 5
PLAINTIFFS’ NOTICE OF MOTION,
MOTION, AND MEMORANDUM IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT(National Historic Preservation Act,
54 U.S.C. §§ 300101 et seq.)

23
24
25
26
27
28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)iCase 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 2 of 27

1

TABLE OF CONTENTS

2

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ..........................................1

3

STATEMENT OF ISSUES TO BE DECIDED ....................................................................................1

4

INTRODUCTION .................................................................................................................................15

BACKGROUND ...................................................................................................................................36

I. Futenma Relocation and the FRF ..............................................................................................37

II. The Okinawa Dugong ................................................................................................................5

8

III. Procedural History .....................................................................................................................6

9

STANDARD OF REVIEW ...................................................................................................................810

ARGUMENT .........................................................................................................................................911

I. DoD’s Failure to Consult with Plaintiffs and the Lack of Transparency in the “TakeInto Account” Process Violate Section 402 of the NHPA.........................................................9

12
13
14
15
16
17
18

A. The NHPA’s “take into account” provision requires engagement with the publicand consultation with interested parties. ........................................................................9
B. DoD kept its section 402 process secret and did not consult with key interested
parties as required by the NHPA. ................................................................................12
II. DoD’s Finding that Construction and Operation of the FRF Will Have No Adverse
Effect on the Okinawa Dugong Is Arbitrary, Capricious, and Contrary to Law. ....................15
A. DoD based its Findings on information its own experts deemed not“scientifically and legally defensible.” ........................................................................15

19

B. DoD failed to consider the full range of impacts of the FRF project on
the dugong. ...................................................................................................................19

20

C. DoD’s finding of “no adverse effect” is not supported by the record. ........................20

21

CONCLUSION AND PRAYER FOR RELIEF ..................................................................................21

22
23
24
25
26
27
28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)ii

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 3 of 27

1

TABLE OF AUTHORITIES

2

Cases

3

Apache Survival Coal. v. United States,
21 F.3d 895 (9th Cir. 1994) ...........................................................................................................15

4
5
6
7
8
9

Page(s)Bonnichsen v. United States,
217 F. Supp. 2d 1116 (D. Or. 2002), aff’d, 357 F.3d 962 (9th Cir. 2004), amended by
367 F.3d 864 (9th Cir. 2004) .........................................................................................................18
Brower v. Evans,
257 F.3d 1058 (9th Cir. 2001) .........................................................................................................9
Celotex Corp. v. Catrett,477 U.S. 317 (1986) .........................................................................................................................8

10
11
12
13
14

Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency,
812 F. Supp. 2d 1089 (E.D. Cal. 2011)..........................................................................................12
Confederated Tribes & Bands of the Yakama Nation v. U.S. Fish & Wildlife Serv.,
2015 WL 1276811 (E.D. Wash. Mar. 20, 2015)............................................................................11
Ctr. For Biological Diversity v. Hagel,
80 F. Supp. 3d 991 (N.D. Cal. 2015) ...............................................................................................8

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Ctr. for Biological Diversity v. Mattis,
868 F.3d 803 (9th Cir. 2017) ...........................................................................................................8
Davis v. Latschar,
202 F.3d 359 (D.C. Cir. 2000) .......................................................................................................10
League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv.,
689 F.3d 1060 (9th Cir. 2012) .......................................................................................................15
Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001) .........................................................................................................12
Marsh v. Oregon Natural Res. Council,
490 U.S. 360 (1989) .........................................................................................................................9Montana Wilderness Ass’n v. Fry,
310 F. Supp. 2d 1127 (D. Mont. 2004) ....................................................................................13, 19
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .........................................................................................................................20
Muckleshoot Indian Tribe v. U.S. Forest Serv.,
177 F.3d 800 (9th Cir. 1999) .........................................................................................................10
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)iii

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 4 of 27

1
2
3
4
5
6
7
8
9
10
11
12
13

Okinawa Dugong v. Gates,
543 F. Supp. 2d 1082 (N.D. Cal. 2008) ................................................................................. passim
Okinawa Dugong v. Rumsfeld,
C 03-4350 MHP, 2005 WL 522106 (N.D. Cal. March 2, 2005) .....................................................6
Pit River Tribe v. U.S. Forest Serv.,
469 F.3d 768 (9th Cir. 2006) .........................................................................................................15
Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of Interior,
755 F. Supp. 2d 1104 (S.D. Cal. 2010) ..........................................................................................11
San Carlos Apache Tribe v. United States,
417 F.3d 1091 (9th Cir. 2005) .........................................................................................................8
San Luis & Delta-Mendota Water Auth. v. Locke,
776 F.3d 971 (9th Cir. 2014) ...........................................................................................................9
Save the Peaks Coal. v. U.S. Forest Serv.,
669 F.3d 1025 (9th Cir. 2015) .......................................................................................................15
Tri-Valley CAREs v. U.S. Dept. of Energy,
671 F.3d 1113 (9th Cir. 2012) .......................................................................................................15

14
15
16

Turtle Island Restoration Network v. United States Dep’t of Commerce,
878 F.3d 725 (9th Cir. 2017) .....................................................................................................9, 19

17

Tyler v. Cuomo,
236 F.3d 1124 (9th Cir. 2000) .......................................................................................................11

18

Statutes

19

5 U.S.C. §§ 701-706 ..............................................................................................................................820

5 U.S.C. § 706(1) ...................................................................................................................................6

21

5 U.S.C. § 706(2)(A)..........................................................................................................1, 6, 8, 15, 21

22
23

5 U.S.C. § 706(2)(D)....................................................................................................1, 6, 8, 12, 15, 21
16 U.S.C. §§ 1531 et seq........................................................................................................................524
54 U.S.C. § 300101(2) ...........................................................................................................................9
25
26
27
28

54 U.S.C. §304108 ...............................................................................................................................11
54 U.S.C. § 307101 ................................................................................................................................954 U.S.C § 307101(b) ..........................................................................................................................10

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

iv

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 5 of 27

1

54 U.S.C § 307101(e) .................................................................................................................. passim

2

Regulations

3

36 C.F.R. § 800 ..................................................................................................................................... 1145

36 C.F.R. § 800.2(c)(5) ......................................................................................................................... 1136 C.F.R. § 800.2(d)(1) ......................................................................................................................... 11636 C.F.R. § 800.2(d)(2) ......................................................................................................................... 11
7
8
9
10

Other Authority
63 Fed. Reg. 20,496 (Apr. 24, 1998) .............................................................................................. 11, 14
Letter from Takeshi Onaga, Governor of Okinawa, to James Mattis, U.S. Secretary of
Defense, Apr. 16, 2018 ................................................................................................................... 12

11
U.S. Dep’t of State Archive, SACO Final Report (Dec. 2, 1996) .......................................................... 3
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)v

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 6 of 27

1

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

2

To Defendants and their Attorney(s) of Record:

3

You are hereby given notice that Plaintiffs, Center for Biological Diversity, et al., hereby

4move for summary judgment in the above-referenced case. A hearing on this motion will be held

5

on June 28, 2018 at 1:30 pm before the Honorable Edward M. Chen, in Courtroom 5 of the United

6

States District Court for the Northern District of California, San Francisco Division, 450 Golden

7

Gate Avenue, San Francisco, CA.

8

Plaintiffs request that this Court hold unlawful and set aside Defendants’ finding, issued

9

pursuant to section 402 of the National Historic Preservation Act (NHPA), 54 U.S.C § 307101(e),10that construction of a military base off the coast of Okinawa, Japan would have “no adverse effect”

11

on the resident population of critically endangered Okinawa dugong. Plaintiffs also request that this12

Court order that DoD not undertake any activities in furtherance of the project until it complies with13

section 402 of the NHPA. This motion is filed pursuant to Fed. R. Civ. P. 56(c) and Civil L.R. 7-2

14

and is made on the grounds specified in Plaintiffs’ memorandum in support of the motion, the15complete record before the Court in this matter, and upon such other evidence as may be presented

16

to the Court.

17

STATEMENT OF ISSUES TO BE DECIDED

18

Whether Defendants’ finding pursuant to section 402 of the National Historic Preservation

19

Act (NHPA), 54 U.S.C § 307101(e), that construction of a military base off the coast of Okinawa,

20

Japan would have “no adverse effect” on the resident population of critically endangered Okinawa

21

dugong was “arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with

22

law,” 5 U.S.C. § 706(2)(A), and made “without observance of procedure required by law,” Id. §23706(2)(D), when the finding: (a) was made without public notification and consultation with24

affected stakeholders as required by section 402; (b) relied upon information that did not meet the25

agency’s own standards for scientific rigor; and (c) is unsupported by evidence in the record.

26
27
28

INTRODUCTION
The Okinawa dugong is an extremely endangered marine mammal that holds a central placein the culture of Okinawa, Japan, and is officially protected as a cultural icon under Japanese law.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

1

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 7 of 27

1

This case arises out of the obligation of the U.S. Department of Defense (DoD), pursuant to the2

NHPA, to respect and protect foreign cultural heritage by taking into account the effect on the3dugong of DoD’s participation in the construction and operation of a new Marine Corps air base—4

the Futenma Replacement Facility (FRF)—in Okinawa. Construction of the FRF will require5

landfilling portions of Henoko and Oura Bay off the coast of Okinawa that are feeding grounds for6

the dugong. Because construction and operation of the FRF may harm the dugong, section 402 of

7

the NHPA requires DoD to “take into account the effect [of the FRF on the dugong] for purposes of8

avoiding or mitigating any adverse effects.” 54 U.S.C. § 307101(e).

9In previous stages of this litigation, this Court held that section 402 applies to the Okinawa

10

dugong and that DoD had failed to comply with the obligations of the statute. The Court ordered

11

DoD to take into account the effect of the FRF on the dugong. In April 2014, DoD notified

12

Plaintiffs and the Court that it had completed “Findings” under section 402. However, the Findings

13

are procedurally and substantively flawed. For example, DoD did not afford any opportunity for

14

public comment or participation in its assessment of how the FRF might affect this culturally

15

significant species, which this Court has recognized to be a “basic element” of the section 402

16

process, and did not make its Findings, or any of the information on which they are based, publicly

17

available. 1

18

Substantively, although section 402 is intended to identify and address “any” adverse

19

effects, DoD inappropriately limited its inquiry into possible adverse effects to a non-exhaustive list

20

identified by this Court before DoD had undertaken any inquiry at all. DoD’s Findings conclude

21

that the FRF project will have “no adverse effect” on the dugong, but admit that available data are22“not sufficient” to evaluate essential questions such as the size, status and viability of the Okinawa

23

dugong population. Finally, DoD ignored substantial evidence in the record indicating that the FRF

24will, indeed, have an adverse impact on the dugong.
These flaws in DoD’s “take into account” process made it impossible for DoD to generate25
26

adequate information about the effects of the FRF on the dugong and render arbitrary and capricious

27

DoD’s conclusion that the FRF will have no adverse effect. Plaintiffs now move for summary28

1

At least not until they were compelled to compile the administrative record in this case.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

2

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 8 of 27

1

judgment and request that this Court set aside the Findings and enjoin DoD from taking actions in2furtherance of the FRF project until DoD remedies the flaws in its process.
BACKGROUND

3
4
5

I.

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

6

Japan, one of which is the Marine Corps Air Station Futenma. Okinawa Dugong v. Gates, 543 F.

7

Supp. 2d 1082, 1084-85 (N.D. Cal. 2008). The U.S. military presence in Okinawa has long been a8source of contention with the Okinawan civilian population. See Declaration of James P. Zumwalt

9in Support of Defendants’ Motion to Dismiss (Zumwalt Decl.), Sept. 29, 2014, ECF No. 164, ¶ 610(“there were significant delays in executing the plan first identified in 1996,” in part due to local

11

opposition); see also Emma Chanlett-Avery & Ian E. Rinehart, Cong. Research Serv., R42645, The

12

U.S. Military Presence in Okinawa and the Futenma Base Controversy, p. 6 (2016) (2016 CRS

13

Report), available at http://fas.org/sgp/crs/row/R42645.pdf.

14

In November 1995, the United States and Japan formed the bilateral Special Action

15

Committee on Okinawa (SACO) “to reduce the burden [of the U.S. military presence] on the people

16of Okinawa.” Yukihiko Ikeda et al., U.S. Dep’t of State Archive, SACO Final Report, (Dec. 2,171996), available at http://1997-2001.state.gov/www/regions/eap/japan/rpt-saco_final_961202.html.

18

On December 2, 1996, the SACO issued a Final Report recommending the return of the Futenma

19airbase to Japan after replacement facilities were constructed and operational. Id. In 1997, DoD

20

finalized its operational requirements, which detailed the design specifications for the replacement

21

facility that DoD required the Government of Japan to follow to proceed with the Futenma

22

relocation plan. Dugong v. Gates, 543 F. Supp. 2d at 1085.

23

On May 1, 2006, the Government of Japan and DoD issued a joint statement (the Roadmap)

24announcing final agreement on the plan for the Futenma Replacement Facility (FRF), which would25

relocate the facility to Cape Henoko, using landfill to extend the runways more than a mile into the26

waters and seagrass beds of Oura and Henoko Bays. Id. at 1086. The joint statement included a27

map of the proposed runway placement, showing that the proposed Cape Henoko runways would

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

3

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 9 of 27

1fill in areas of Henoko Bay that are currently rich in seagrass beds critical for dugong survival. Id.

2

at 1084, 1086.
The Government of Japan is responsible for funding and completing the construction of the

3
4

FRF. Id. at 1085. Nonetheless, the FRF is a federal undertaking, because “the United States has

5been substantially involved in the design and site selection for the FRF, will continue to monitor

6

and oversee the construction of the facility to ensure that it meets U.S. requirements, and will have

7

exclusive authority to operate the facility once it is completed.” Id. at 1098; see also id. at 1101

8

(setting out facts supporting finding that FRF is a “federal undertaking” under the National Historic

9

Preservation Act).
Pursuant to requirements under Japanese law, the Government of Japan released a draft

1011

environmental impact statement (EIS) for the FRF in 2009, and a final EIS in 2012. U.S. Marine

12

Corps Recommended Findings, April 2014 (Findings), Plaintiffs’ First Supplemental Complaint for

13

Declaratory and Injunctive Relief, July 31, 2014, ECF No. 152-1, Ex. 1 at 19. In December 2013,14

despite substantial local opposition, then-Governor of Okinawa Hirokazu Nakaima approved an

15

offshore landfill permit required for construction of the FRF to begin. Zumwalt Decl., ECF No.

16164, ¶ 6-8. 2
On December 27, 2016, the Japanese government resumed construction of sea walls in

17
18

Henoko-Oura Bay. Once construction of the sea-wall is completed, soil and rock will be dumped

19

into the enclosed area, completely destroying approximately 78.1 hectares of seagrass beds.

20

Findings, ECF No. 152-1 at 24. Construction of the FRF requires DoD work entry permits for21

access to Camp Schwab and to adjacent U.S.-controlled waters, Dugong v. Gates, 543 F. Supp. 2d22

at 1101, and the status of construction work suggests that DoD has already issued those permits.

23

The new base is expected to be completed no earlier than 2022. 2016 CRS Report at 3.

24
2

25
26
27
28

In 2015, Takeshi Onaga was elected on an anti-base platform to replace Nakaima as governor and,on October 13, 2015, Governor Onaga revoked the offshore landfill permit. 2016 CRS Report at 3.
On December 20, 2016, the Japanese Supreme Court ruled that Governor Onaga’s revocation of theland reclamation permit was illegal, and Governor Onaga withdrew his revocation. New US
Okinawa base backed by Japan Supreme Court, BBC, Dec. 20, 2016, available at
http://www.bbc.com/news/world-asia-38381107. However, Governor Onaga has continued to
oppose the base and the resulting administrative and legal processes “could create significant delays
for the project and dredge up doubts about the viability of the FRF plan.” 2016 CRS Report at 3.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

4

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 10 of 27

1
2

II.

The Okinawa Dugong
The dugong is a globally threatened marine mammal species that is listed as “endangered”

3

under the U.S. Endangered Species Act, 16 U.S.C. §§ 1531 et seq. The waters surrounding

4

Okinawa are home to the few remaining Okinawa dugong, a rare, genetically isolated, and unique5

population of the dugong species. See Declaration of Ellen Hines, PhD., in Support of Plaintiffs’

6

Motion for Summary Judgment (Hines Decl.), May 18, 2007, ECF No. 85, Ex. 14, ¶ 14. The

7

Japanese Ministry of the Environment has listed the Okinawa dugong as “critically endangered” in8Japan. Dugong v. Gates, 543 F. Supp. 2d at 1084. In 1997, the Mammalogical Society of Japan9

estimated the population at fewer than 50 individuals. Findings, ECF No. 152-1, Ex. 1 at 25. The

10

most recent surveys by the Government of Japan concluded that there are at least three remaining

11

Okinawa dugongs. Id. at 26.

12

Preservation of the Okinawa dugong depends entirely upon the preservation of its habitat.

13

See generally Hines Decl., ECF No. 85, Ex. 14. Despite the Okinawa dugong’s critically low

14numbers, some Japanese scientists believe that the dugong population around Henoko Bay can

15possibly recover if steps are taken to preserve: (a) deep areas off the outer edge of the coral reef16

where dugongs rest and avoid human activities during the day; (b) seagrass beds used for foraging;17

and (c) corridors used for dugong travel between the reefs and seagrass. Id. ¶ 29. However, the18

proposed construction and operation of the FRF will harm Okinawa dugong habitat and food19

sources, directly and adversely affecting the Okinawa dugong. Id. ¶¶ 30-35. Landfill from the20

construction of the facility, storm-water runoff, water pollution, air pollution, noise, and light from21

the operation of the FRF may directly and adversely affect the continued survival of the Okinawa

22

dugong. Id. ¶¶ 30-33.

23

Dugongs are deeply significant in Okinawan culture. Dugong v. Gates, 543 F. Supp. 2d at

241084. They are “associated with traditional Okinawan creation mythology, sometimes being

25

considered the progenitor of the local people.” Id. Because of its cultural significance, the26

Okinawa dugong is a protected “Natural Monument” under Japan’s “Law for the Protection of27

Cultural Properties.” The list of protected cultural properties under Japan’s Cultural Properties Law

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

5

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 11 of 27

1is the “equivalent” of the U.S. National Register of Historic Places and, as a result, the Okinawa

2dugong is protected under the NHPA. Id. at 1100; see also 54 U.S.C. § 307101(e).

3

III.

Procedural History

4

On September 25, 2003, Plaintiffs filed suit challenging DoD’s involvement in the design,5

development, and approval of the FRF, claiming that DoD’s failure to “take into account” adverse

6

effects of the proposed FRF on the Okinawa dugong violated the NHPA, 54 U.S.C. § 307101(e),7and the Administrative Procedure Act (APA), 5 U.S.C. §§ 706(1), (2)(A), and (2)(D). Complaint

8

for Declaratory and Injunctive Relief, ECF No. 1.

9On May 17, 2004, DoD moved to dismiss the case, arguing that Plaintiffs had failed to state

10

a claim upon which relief could be granted because the dugong is not “property” within the11meaning of the NHPA, in part because the Japanese Law for the Protection of Cultural Properties is

12

not “equivalent” to the U.S. National Register of Historic Places. ECF No. 24, 8-9. DoD also

13

argued that the Court lacked subject-matter jurisdiction because section 402 of the NHPA did not

14

authorize the extraterritorial application of the statute to “matters that involve sensitive questions of15

foreign affairs between the United States and Japan.” Id.

16

On March 2, 2005, this Court denied DoD’s motion, holding that the Japanese Law for the17

Protection of Cultural Properties is “equivalent” to the National Register and that the Okinawa

18

dugong is “property” protected under section 402 of the NHPA. Okinawa Dugong v. Rumsfeld, C

1903-4350 MHP, 2005 WL 522106 at *6, *12 (N.D. Cal. March 2, 2005). The Court also held that

20

section 402 applies extraterritorially because the NHPA expressly applies to federal undertakings

21

that “promise[] to have direct or adverse effects on protected foreign properties,” id. at *18, that

22

Plaintiffs’ complaint did “not thrust this court into issues of foreign affairs,” id. at *19, and that

23

DoD failed to show any act implicating the act of state doctrine. Id. at *19-20.

24

Following discovery as to whether DoD’s activities constituted a “federal undertaking”

25

under the NHPA, the parties filed cross-motions for summary judgment. On January 24, 2008, this26

Court granted Plaintiffs’ motion and denied DoD’s motion, Dugong v. Gates, 543 F. Supp. 2d 1082,

27

holding that because the FRF “may directly and adversely affect” the Okinawa dugong, id. at 1101-

28

02, section 402 of the NHPA requires DoD to “take into account” effects of the proposed FRF on

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

6

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 12 of 27

1

the Okinawa dugong. Id. at 1102-07. DoD’s failure to have done so constituted agency action2“unreasonably delayed and unlawfully withheld.” Id. at 1111.

3

The Court ordered DoD to comply with section 402 of the NHPA, including by

4“produc[ing], gather[ing], and consider[ing] information necessary for taking into account the5effects of the FRF on the Okinawa dugong and for determining whether mitigation or avoidance

6

measures are necessary and possible,” and held the case in abeyance “until defendants take the7

information into account for the purpose of avoiding or mitigating adverse effects to the dugong.”

8

Id. at 1102.

9

On April 16, 2014, DoD notified this Court that it had issued “U.S. Marine Corps

10

Recommended Findings” under section 402 of the NHPA and an “Action Memo,” and had thereby

11“completed the evaluation required by the Court’s January 28, 2008 Order.” See Defs’ Notice of

12Completing NHPA Section 402 Findings, ECF No. 151. The Findings conclude that “project

13

construction and operation will have ‘no adverse effect’ on the dugong.” Findings, ECF No. 152-1,

14

Ex. 1 at 45. This was the first time that Plaintiffs were notified that DoD had undertaken a “take15

into account” process concerning the FRF project. DoD did not consult with Plaintiffs and provided

16

no public notice that it intended to undertake the process at all. Plaintiffs’ First Supplemental

17

Complaint for Declaratory and Injunctive Relief (Pls. Suppl. Compl.), July 31, 2014, ECF No. 152-18

1, ¶ 40. DoD did not make the Findings or supporting documents public. In its Findings, DoD

19determined that its “undertaking” has “‘no adverse effect’ on the Okinawa dugong.” Findings, ECF

20

No. 152-1, Ex. 1 at 30. To reach this conclusion, DoD relied heavily on a 2010 study referred to as21“Welch 2010” and the Government of Japan’s EIS. Id. at 22-24.

22

On July 31, 2014, Plaintiffs filed their First Supplemental Complaint, challenging two

23

aspects of DoD’s compliance with the NHPA “take into account” process. Pls. Suppl. Compl., ECF

24

No. 152-1. First, Plaintiffs challenge DoD’s failure to satisfy the consultation and public

25

participation requirements of section 402. Id. at 15, ¶¶ 48-50. Second, because of numerous flaws

26

in DoD’s process of gathering and assessing information, Plaintiffs challenge DoD’s conclusion that27

the construction and operation of the FRF will not adversely affect the Okinawa dugong. Id. at 15,

28

¶ 51.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

7

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 13 of 27

1

On September 29, 2014, DoD filed a motion to dismiss Plaintiffs’ supplemental complaint,

2

arguing that, because this case concerns actions taken by the U.S. military in coordination with the3Japanese government, Plaintiffs’ claims are barred by the political question doctrine. ECF No. 163.

4

On February 13, 2015, this Court dismissed Plaintiffs’ action, holding that “Plaintiffs’ injunctive

5

relief claim clearly presents a non-justiciable political question.” Ctr. For Biological Diversity v.

6Hagel, 80 F. Supp. 3d 991, 1011 (N.D. Cal. 2015). Although “Plaintiffs’ requests for declaratory

7

relief and an order setting aside the NHPA Findings do not present political questions,” id. at 1003,

8

the Court held that Plaintiffs lacked standing to pursue these claims. Id. at 1014-19.

9

Plaintiffs appealed, and on August 21, 2017, the Ninth Circuit reversed the Court’s dismissal

10of Plaintiffs’ claims, holding that Plaintiffs have standing to seek both declaratory and injunctive

11

relief, and that the political question doctrine does not bar Plaintiffs’ claims. Ctr. for Biological

12

Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017). The panel remanded for further proceedings. Id.

13

Plaintiffs now move for summary judgment declaring that DoD’s Findings, and the process

14

DoD used to develop them, violate NHPA section 402 and the APA, 5 U.S.C. §§ 701-706.

15

Plaintiffs also request an order setting DoD’s Findings aside, and an order that DoD not undertake16

any activities in furtherance of the FRF project until it complies with section 402.

17

STANDARD OF REVIEW

18

Summary judgment must be granted where “there is no genuine issue as to any material fact

19and ... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex

20

Corp. v. Catrett, 477 U.S. 317, 322-27 (1986). The standard of review on the merits of the

21

Plaintiffs’ NHPA claim is governed by the APA and limited to final agency action for which there

22

is no other adequate remedy in a court. 5 U.S.C. §§ 701-706; San Carlos Apache Tribe v. United

23

States, 417 F.3d 1091, 1095 (9th Cir. 2005).

24

The Administrative Procedure Act provides that “[t]he reviewing court shall . . . hold25

unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an26abuse of discretion, or otherwise not in accordance with law; [or] without observance of procedure27

required by law.” 5 U.S.C. §§ 706(2)(A), (D). This inquiry, while narrow, must be “searching and28

careful.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, (1989). The Ninth Circuit

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

8

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 14 of 27

1“will strike down agency action as ‘arbitrary and capricious if the agency has relied on factors

2which Congress has not intended it to consider, entirely failed to consider an important aspect of the3

problem, offered an explanation for its decision that runs counter to the evidence before the4agency,’ or if the agency’s decision ‘is so implausible that it could not be ascribed to a difference in

5view or the product of agency expertise.’” Turtle Island Restoration Network v. United States Dep’t

6of Commerce, 878 F.3d 725, 732–33 (9th Cir. 2017) (citing Motor Vehicle Mfrs. Ass’n v. State

7

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The deference a court owes an administrative8

agency under the arbitrary and capricious standard of review of the APA is not unlimited; the court

9

may not automatically defer to an agency’s conclusions, even when those conclusions are scientific.

10

San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014). See also Brower v.

11

Evans, 257 F.3d 1058, 1067 (9th Cir. 2001) (“The presumption of agency expertise can be rebutted12

when its decisions, while relying on scientific expertise, are not reasoned.”) (citing Defenders of13

Wildlife v. Babbitt, 958 F. Supp. 670, 679 (D.D.C. 1997)).

14

ARGUMENT

15

I.

DoD’s Failure to Consult with Plaintiffs and the Lack of Transparency in the “TakeInto Account” Process Violate Section 402 of the NHPA.

16
A.
17
18

The NHPA’s “take into account” provision requires engagement with the publicand consultation with interested parties.

The National Historic Preservation Act establishes that “[i]t is the policy of the Federal

19

Government, in cooperation with other nations,” to “provide leadership in the preservation of the20

historic resources of the United States and of the international community of nations.” 54 U.S.C. §21300101(2). Congress enacted section 402 of the NHPA to comply with U.S. obligations under the22

Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage

23

Convention) and to mitigate the adverse effects of federal undertakings outside the United States.

24

See 54 U.S.C. § 307101. Section 402 requires that,

25
26
27
28

[p]rior to the approval of any Federal undertaking outside the United States which
may directly and adversely affect a property which is on … the applicable country’s
equivalent of the National Register, the head of a Federal agency having direct orindirect jurisdiction over such undertaking shall take into account the effect of theundertaking on such property for purposes of avoiding or mitigating any adverse
effects.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

9

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 15 of 27

1
2

54 U.S.C. § 307101(e).
In its 2008 Order, this Court held that Congress intended the “take into account process”

3
4

under section 402 to “follow the basic outline of [NHPA] section 106,” which governs the process5

for taking into account the effects of agency actions on properties listed on the U.S. National

6

Register of Historic Places. Dugong v. Gates, 543 F. Supp. 2d at 1105 (citing 54 U.S.C. § 306108

78(NHPA section 106); 36 C.F.R. § 800 (2004) (regulations implementing section 106)). The Court
explained that, “at a minimum, [the section 402 ‘take into account’ process] must include”:(1) identification of protected property, (2) generation, collection, consideration, andweighing of information pertaining to how the undertaking will affect the historic
property, (3) a determination as to whether there will be adverse effects or noadverse effects, and (4) if necessary, development and evaluation of alternatives ormodifications to the undertaking that could avoid or mitigate the adverse effects.

9
10
11
12

Id. at 1104. In completing this process, a federal agency must “engage[] the host nation and other13

relevant private organizations and individuals in a cooperative partnership.” Id.; see also id. at

14

1106.

15

“Congress’ intent that the section 402 take into account process [include] . . . consultation

16

with interested parties and organizations . . . is evident.” Id. at 1106. The U.S. Department of the

17

Interior (“DoI”), the agency with authority to “direct and coordinate” U.S. participation in the

18

World Heritage Convention, 54 U.S.C § 307101(b), issues guidance and bulletins, which the Ninth

19

Circuit considers authoritative interpretations of the NHPA. See, e.g., Muckleshoot Indian Tribe v.

20

U.S. Forest Serv., 177 F.3d 800, 807 (9th Cir. 1999) (DoI’s National Register Bulletin 38 “provides

21

the recognized criteria for the [agency’s] identification and assessment of places of cultural

22

significance”); Davis v. Latschar, 202 F.3d 359, 362, 370-371 (D.C. Cir. 2000) (National Park

23

Service complied with NHPA because it conducted analysis required by the “implementing

24

guidelines” contained in National Register Bulletin 40). Pursuant to DoI guidelines, “efforts to25

identify and consider effects on historic properties in other countries should be carried out in

26

consultation with the host country’s historic preservation authorities, with affected communities and27

groups, and with relevant professional organizations.” Standards and Guidelines for Federal

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

10

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 16 of 27

1

Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act (DoI

2

Guidelines), 63 Fed. Reg. 20,496, 20,504 (Apr. 24, 1998).

3

The Advisory Council on Historic Preservation (ACHP), the body tasked with promulgating4

regulations to implement the domestic “take into account” process, 54 U.S.C. §304108, has issued

5

regulations prescribing specific review and consultation requirements. See 36 C.F.R. § 800. These6

regulations emphasize that “[t]he views of the public are essential to informed Federal

7

decisionmaking in the section 106 process.” 36 C.F.R. § 800.2(d)(1). A federal agency “must . . .

8provide the public with information about an undertaking and its effects on historic properties and9seek public comment and input.” Id. § 800.2(d)(2). Beyond notification to the general public,

10“[c]ertain individuals and organizations with a demonstrated interest in the undertaking may

11participate as consulting parties due to the nature of their legal or economic relation to the12

undertaking or affected properties, or their concern with the undertaking’s effects on historic

13

properties.” 36 C.F.R. § 800.2(c)(5); see also Tyler v. Cuomo, 236 F.3d 1124, 1133–34 (9th Cir.

142000) (consultation required the plaintiffs and defendant government agency to “sit down together

15

in a face-to-face meeting,” so that the plaintiffs “could, conceivably, directly impact the City’s

16

decisions”). Given that the section 402 “take into account” process tracks the domestic process17

outlined in the ACHP regulations, section 402 requires engagement with the public and consultation

18

with interested parties.

19

Agency decisions made without adherence to these procedural requirements violate the20

NHPA and should be set aside. See Confederated Tribes & Bands of the Yakama Nation v. U.S.

21

Fish & Wildlife Serv., 2015 WL 1276811, at *9 (E.D. Wash. Mar. 20, 2015) (“[B]ecause the [Fish22and Wildlife] Service has not complied with the mandatory procedural requirements” for23

consultation under the NHPA, its findings were “necessarily ‘arbitrary and capricious’ or otherwise

24‘without observance of procedure required by law[’] and must be set aside.”); Quechan Tribe of25

Fort Yuma Indian Reservation v. U.S. Dep’t of Interior, 755 F. Supp. 2d 1104, 1119-20 (S.D. Cal.

262010) (because tribe not adequately consulted as required under NHPA, project “was approved

27‘without observance of procedure required by law’ [and] the Tribe [was] entitled to have the BLM’s

28

actions set aside under 5 U.S.C. § 706(2)(D)”).

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

11

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 17 of 27

1

B.

2

Plaintiffs have demonstrated specific interest in the FRF and its potential to harm the

3
4
5
6

DoD kept its section 402 process secret and did not consult with key interested
parties as required by the NHPA.

Okinawa dugong. See Dugong v. Gates, 543 F. Supp. 2d at 1094 (Plaintiffs have demonstrated“concrete interests to preserve the dugong for cultural, educational, aesthetic, inspirational andeconomic benefits to themselves and their descendants,” which are “directly linked” to DoD’s
failure to comply with the NHPA.); see also Declaration of Yoshikazu Makishi in Support of7
Plaintiffs’ Motion for Summary Judgment, August 8, 2007, ECF No. 107, ¶¶ 2-8. Yet Plaintiffs
8
were not notified of DoD’s process for taking into account the impact of the FRF on the dugong
9
until Defendants filed the Notice of Completing NHPA Section 402 Findings on April 16, 2014.
10

ECF No. 151. At no time did DoD notify the public, Okinawa state or local government, 3

11Plaintiffs, or other interested parties that DoD was undertaking this process, or invite public
12
participation.
13
DoD’s NHPA Findings state that
14[t]he USMC used several methods to engage the host nation and other relevant
private organizations and individuals. The USMC’s contracted experts contacted arange of interested Japanese and non-Japanese organizations and individuals tosolicit input regarding the cultural significance of the dugong and the potential
effects of the proposed Undertaking on the dugong as cultural property.

15
16
17
18
19
20
21
22

3

Indeed, on April 16, 2018, Governor Onaga sent a letter to Secretary Mattis and other DoD
officials formally requesting that DoD “consult with the Okinawa Prefectural Government
regarding the impact on the Okinawa dugong from the construction of the U.S. Marine Corps
Futenma Air Base Replacement Facility” and stating that DoD “did not consult with the Okinawa
Prefectural Government and Nago City” or “with experts and environmental organizations which
could have provided views contrary to those presented in the [Japanese] EIA.” See Letter fromTakeshi Onaga, Governor of Okinawa, to James Mattis, U.S. Secretary of Defense, Apr. 16, 2018,available at http://www.pref.okinawa.lg.jp/site/chijiko/henoko/documents/requesteng.pdf.

23
24
25
26
27
28

Under Federal Rule of Evidence 201(b), a court “may judicially notice a fact that is not subject toreasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction;or (2) can be accurately and readily determined from sources whose accuracy cannot reasonable bequestioned.” In particular, the Court may take judicial notice of public records, including facts
within them that are not subject to dispute. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.
2001). That extends to public documents downloaded from public agency websites. Coal. for a
Sustainable Delta v. Fed. Emergency Mgmt. Agency, 812 F. Supp. 2d 1089, 1093 (E.D. Cal. 2011).
The Onaga Letter is an official letter sent from the Okinawa government to the Secretary of Defenseof the United States, available on the Okinawa government’s official website. It is a public record
and is therefore judicially noticeable.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

12

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 18 of 27

1

ECF No. 152-1 at 38. However, nothing in the record shows that DoD solicited input regarding the2

FRF’s potential impacts on dugongs.

3

In response to this Court’s order that it take into account the effects of the FRF on the4dugong, DoD hired US-based contractors International Archeological Research Institute, Inc.

5

(IARII), to conduct an “Ethnographic Study” to “obtain information on the modern significance of6

the Okinawa dugong.” Welch, David J., An Anthropological Study of the Significance of the7

Dugong in Okinawa Culture (Welch 2010), Administrative Record (AR) 4163-66. This study

8

included a literature review, AR 4168-9, a review of archival data on the anthropological9

importance of the dugong, AR 4195-4219, a review of biological information, AR 4175-83, and10“informant interviews conducted for the ethnographic study.” Findings, ECF No. 152-1, Ex. 1 at

11

38. However, the informants were all academics, and did not include any local community

12

members or cultural practitioners for whom the dugong was culturally significant. Welch 2010, AR

134172. Defendants’ own political consultant, Mr. Hideo Henzan, recognized the relevance of local

14

elders and practitioners and advised “that if [DoD] really want[s] to learn about the role of Dugongs

15

in Okinawa life then they should go talk to the local ward mayors and/or the elders living around16

Henoko Bay.” E-mail from Ayako Kumura (U.S. Embassy) to Jason C. Hamm (The Pentagon),17

Aug. 27, 2009, AR 3207; see also E-mail from Dr. Goodfellow “FW: Dugong Additional Info,”

18

Feb. 4, 2010, AR 4149 (“As I’ve mentioned before, the one place where we are really weak is that19

we did not have sufficient time to contact and get meetings arranged with cultural practitioners.

20

And this is probably an area where the Marine Corps should expect to be challenged in any kind of

21

court case. To do this would have required the Marines to have radically altered the time allowed

22

for this project.”).

23

Moreover, the interviews that IARII conducted for the Welch 2010 report addressed the24significance of the dugong in Okinawan culture but did not address the impact that construction or25

operation of the FRF would have on the dugong or its habitat, and thus cannot be considered26

consultation for purposes of taking into account the impacts of the FRF on the dugong as required27

by the NHPA. Montana Wilderness Ass’n v. Fry, 310 F. Supp. 2d 1127, 1153 (D. Mont. 2004)28(“tribes known to have used the area should have been consulted to determine whether they had a

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

13

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 19 of 27

1

different view of potential adverse effects”). When IARII contacted “informants” to request

2

interviews for an “anthropological study” they did not disclose the context or purpose of the study.

3

In a “Letter of Introduction” to potential interviewees dated Oct. 1, 2009, AR 3252, David Welch

4writes that IARII is conducting research and interviews “concerning the role of the dugong in

5Okinawan culture” and states that “[t]he information collected through this research will be used6

strictly by the Marine Corps to further its understanding of the significance of the dugong in

7Okinawa” and “will help the Marine Corps carry out its mission and future planning in Okinawa in

8

way that will insure that the dugong is treated in accordance with its status as natural monument and9as rare and endangered species.” Id. at 1. This letter makes no mention of the federal

10

undertaking—the Futenma Replacement Facility—that may impact the dugong. Id. Nor does it

11

disclose that the purpose of the study is to determine whether the FRF will have an adverse impact

12or that an obligation to avoid or mitigate any adverse effects hinges on the determination. Id. Cf.

13

DoI Guidelines, 63 Fed. Reg. 20,504 (“Whether consulting on a specific project or on broader

14

agency programs, the agency should . . . [m]ake its interests and constraints clear at the15

beginning.”). Indeed, although transcripts of the interviews were not produced in the administrative

16

record, summaries of the interviews provide no evidence that the FRF and its impacts on the dugong

17

were ever discussed. Welch 2010, AR 4295-4329

18

Finally, DoD did not give any of the cultural experts interviewed an opportunity to review

19

drafts of DoD’s Findings or to comment on DoD’s conclusion that construction and operation of the20

FRF would not adversely affect the Okinawa dugong. The only people allowed to review a draft of21

the Findings were officials of the Japanese government, see Findings, ECF No. 152-1, Ex. 1 at 39;

22

AR 8073, and the contractors DoD hired to conduct an anthropological study of the importance of23

dugong in Okinawan culture. See, e.g., E-mail from Dr. Goodfellow to Civ Stephen Wenderoth and24

Senior Executive Service Paul C Hubbell, Mar. 1, 2010, AR 4442 (circulating draft findings with25

contractors and internal personnel).

26

Thus, although DoD’s contractors interviewed local academics about the historical27

significance of the dugong in Okinawan culture, DoD provided no evidence that it consulted with28

relevant private organizations and individuals, as ordered by this Court, or with affected

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

14

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 20 of 27

1

communities as recommended by DoI guidelines, about the FRF’s impacts on the dugong. DoD’s

2

failure to notify the public and to engage Plaintiffs, who have demonstrated specific interest in

3

impacts of the FRF on the dugong, violates the procedural requirements of section 402. Dugong v.

4Gates, 543 F. Supp. 2d at 1106. Thus, DoD’s Findings are “arbitrary, capricious, an abuse of5

discretion, or otherwise not in accordance with law” and “without observance of procedure required6

by law” and should be set aside. 5 U.S.C. §§ 706(2)(A), (2)(D).

7

II.

8

DoD’s Finding that Construction and Operation of the FRF Will Have No Adverse
Effect on the Okinawa Dugong Is Arbitrary, Capricious, and Contrary to Law.
A.

9
10

DoD based its Findings on information its own experts deemed not“scientifically and legally defensible.”This Court has held that the NHPA is a procedural statute “similar to NEPA except that it

11

requires consideration of historic sites, rather than the environment.” Pit River Tribe v. U.S. Forest

12Serv., 469 F.3d 768, 787 (9th Cir. 2006). “Both are ‘stop, look, and listen’ provisions, that are

13‘design[ed] to ensure that Federal agencies take into account the effect of Federal or Federally-14

assisted programs.’” Apache Survival Coal. v. United States, 21 F.3d 895, 906 (9th Cir. 1994)

15(citations omitted). Under NEPA, agencies have a duty to ensure the scientific integrity of their16

analysis of the impacts of a federal action. See Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d

171025, 1037-38 (9th Cir. 2015); League of Wilderness Defenders-Blue Mountains Biodiversity

18

Project v. U.S. Forest Serv., 689 F.3d 1060, 1073-75 (9th Cir. 2012). “At a minimum, an agency

19

must support its conclusions with studies that the agency deems reliable.” Tri-Valley CAREs v. U.S.

20

Dept. of Energy, 671 F.3d 1113, 1124 (9th Cir. 2012).

21

DoD relied primarily on two studies to support its conclusion that the FRF would have no22

adverse effect on the dugong: the Welch 2010 report and the Japanese Government’s

23

environmental impact statement (EIS) for the FRF project. Findings, ECF No. 152-1 at 40-43. As

24

discussed above, the Welch report examined only the cultural significance of the dugong in

25

Okinawa. While it did provide summary information on the “biological and ecological26

background” of the Okinawa dugong, AR 4175-84, it did not assess the impacts that construction27

and operation of the FRF would have on the biological aspects of the dugong and its habitat. AR

284254. DoD’s Findings acknowledge that “the dugong’s status as a natural monument could be
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

15

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 21 of 27

1

affected if the dugong itself is harmed. In the current context, the obligation is to ensure that the2Undertaking does not harm individual dugongs or prevent the survival of the Okinawa dugong as a3

local population.” Findings, ECF No. 152-1, Ex. 1 at 27.

4

DoD relied on the Japanese EIS for the critical information regarding the impacts that the5

FRF will have on the dugong itself. Id. at 40-43. However, DoD’s own experts cautioned that the

6Japanese EIS is scientifically flawed. In an email to the U.S. Marine Corps official overseeing the7

Welch 2010 report, the marine biologist that DoD hired to review the Japanese EIS (and who also

8

contributed to the Welch 2010 study) warned DoD the Japanese EIS lacked scientific rigor:

9

The quality of the EIA itself think it was extremely poorly-done and does notwithstand scientific scrutiny in my opinion am happy to change the wording in
the report to reflect this but as we discussed we need to do this in diplomatic
fashion.

10
11
12

E-mail from Dr. Thomas Jefferson to Dr. Sue Goodfellow, Mar. 24, 2010, AR 4706 (emphasis

13

added). Discussing “the need for a program of baseline biological and ecological studies of the14

dugong,” AR 4257, the Welch 2010 report concludes:

18

The studies conducted for the EIA (Okinawa Defense Bureau 2009) provide little ofvalue here, as there are questions about the experience of observers and thesuitability of specific survey methods, and the surveys were not used to provide
quantitative measures of the population’s status. Without such a program, it will bedifficult to impossible to assess the potential adverse effects of the FRF, develop
appropriate mitigation measures, and evaluate the success of mitigation measures

19

Id. DoD concedes that “the data are not sufficient to establish population size, status, and viability”

20of the Okinawa dugong, ECF No. 152-1, Ex. 1 at 30, and that “it would be beneficial for [the21Government of Japan] to conduct new systematic surveys or modeling” to develop valid

22

information about the total Okinawa dugong population. Id. at 33. Without a reasonable estimate

23of the total Okinawa dugong population, DoD cannot assess the significance of the destruction of24

seagrass meadows on the Okinawa dugong and cannot evaluate the significance for the entire

25

population of adverse effects on those dugongs that use Henoko and Oura bays.

15
16
17

26

These shortcomings were never cured. DoD’s Findings refer to a “bi-lateral Expert Study

27

Group” convened “to examine the FRF, including the impacts of the FRF on the environment,” ECF

28

No. 152-1, Ex. 1 at 39, but the group declined to make conclusions about impacts to the dugong,
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

16

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 22 of 27

1stating that “impact on animal and plant habitat remains to be assessed.” Futenma Replacement

2

Facility Experts Study Group Report, Aug. 31, 2010, AR 7311.
In 2011-2012, DoD undertook a Survey of Marine Mammals in Okinawa (SuMMO) to3
4

update the Integrated Natural Resources / Cultural Resources Management Plan for Marine Corps

5

Base Camp Smedley D. Butler (of which Camp Schwab is part). SuMMO, AR 9245. According to

6

one of the study’s authors, a Marine Resources Specialist at the Naval Facilities Engineering

7

Command—Pacific (NAVFACPAC),

11[t]he current focus of the project that has been requested is a general marine
mammal inventory of water surface areas around Okinawa, without a dugongspecific component, albeit with possible opportunistic detection of dugongs. …
However, we emphasize that the data will have a high likelihood of not being able
to conclusively tell us if, where, when, or how dugongs are using seagrass beds near
Henoko and Oura Bay.

12

Email from Morgan Richie, Marine Resources Specialist, Naval Facilities Engineering Command—

13

Pacific, Jul. 28, 2011, AR 8095. The Marine Resources Specialist went on to advise that “to gain

14

the information which will be scientifically and legally defensible we recommend a targeted dugong

15

monitoring project in the more rigorous manner which was proposed above. 4 We do not

16

recommend using data from the currently designed project to make legally defensible claims

17

regarding the presence or absence of dugongs.” Id. (emphasis added). Nonetheless, Dr. Sue

18

Goodfellow, the USMC official overseeing the process, declined to authorize a more robust study.

19

AR 8094 (“The USMC sees no need for the more elaborate [scope of work] that NAFACPAC is20

now proposing.”). Accordingly, the SuMMO report concluded that “[i]t is not possible to say

21

anything definitive about densities of dugongs,” AR 9269, because the study did not involve an

22“effective dugong monitoring program that would likely involve more focused dedicated surveys

23

involving one or more of the following aerial surveys diving surveys for detection of dugong

8
9
10

24
4

25
26
27
28

The “more rigorous” dugong monitoring project proposed but not completed included
a 2-phase approach in which a pilot phase was implemented in order to a)characterize the acoustic environment, b) ground truth feeding trail detection, and c)
determine the level of sampling necessary such that the results would be statisticallysignificant. The primary monitoring phase would therefore be better informed tosubsequently be developed and executed as a scientifically defensible project planfor monitoring dugongs in Okinawa.
AR 8095.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

17

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 23 of 27

1

feeding trails and passive acoustic monitoring with sensors specific to the low frequency sounds

2

made by dugongs.” Id. at 9288.

3

DoD’s disregard for the concerns of its experts regarding the scientific integrity of the4

Japanese EIS and its failure to overcome these flaws by conducting its own rigorous assessment of

5

the impacts of the FRF on the dugong is arbitrary and capricious and contrary to the requirements of

6

the NHPA. This conclusion is consistent with the decision affirmed by the Ninth Circuit in

7

Bonnichsen v. United States, in which a group of anthropologists sought judicial review of the8

Army Corps of Engineers’ decision to award the remains of an early human skeleton to a coalition

9of Indian tribes and deny the plaintiffs’ request to study those remains. 217 F. Supp. 2d 1116,

101163–64 (D. Or. 2002), aff’d, 357 F.3d 962 (9th Cir. 2004), amended by 367 F.3d 864 (9th Cir.

112004). Among other claims, the plaintiffs challenged the agency’s determination that the remains

12

were “Native American” under the Native American Graves Protection and Repatriation Act

13(NAGPRA), the agency’s failure to allow them to participate in the decision-making process under

14

NAGPRA and the NHPA, and the decision to bury the site of the discovery. Id. at 1131. The court

15

held that the record “does not support [the agency’s] contention that the Corps adequately

16

considered the effects of [burial of the site] and how the damage to the archeological value of the17site could be minimized.” Id. at 1163. In particular, the court noted that a Corps scientist

18
19
20
21

advised that “it would seem advisable to be cautious about long term deleterious
effects of engineering site protection measures.” Nevertheless, the project [to burythe site] proceeded without significant study to determine the characteristics of thesite, including what archaeological resources might exist, and there is little evidence
that alternative methods of erosions control that might mitigate potential data loss
were seriously considered.

22

Id. (citations omitted). As a result, the court found that “the potentially negative effects of the

23

project” were not fully and carefully considered for purposes of the NHPA. Id. at 1164. Similarly,

24

DoD’s failure to heed the warnings of its own experts regarding the scientific integrity of the25

Japanese EIS and determination to proceed with its Findings despite insufficient study of the26

impacts of the FRF on the dugong fatally undermine the integrity of DoD’s take into account27

process.

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

18

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 24 of 27

1
2
3
4
5
6

B.

DoD failed to consider the full range of impacts of the FRF project on thedugong.

DoD “failed to consider an important aspect of the problem,” Turtle Island Restoration
Network, 878 F.3d at 732, because it failed to consider the full range of impacts of the FRF on thedugong. See also Montana Wilderness Ass’n., F. Supp. 2d at 1153 (agency improperly limited
scope of NHPA analysis when it considered “just the narrow area where the pipeline is laid” insteadof the entire “affected area”). Important impacts of the FRF on the dugong that DoD did not7
consider include population fragmentation, the disruption of travel routes, and the loss of habitat
8
that may be required in the future to sustain a viable population, which would be larger than the9present population. Hines Decl., ECF No. 85, Ex. 14, ¶¶ 14, 29.
10Instead, DoD improperly limited its inquiry into the possible impacts of the FRF on the11
dugong to a list of potential impacts identified by this Court before DoD had undertaken any inquiry
12
at all. Findings, ECF No. 152-1 at 22. In considering whether the NHPA applies to DoD’s
13
activities with respect to the FRF, the Court made a “threshold” determination “that the undertaking
14
may have direct and adverse effects on the dugong.” Dugong v. Gates, 543 F. Supp. 2d at 1101.
15
The Court found that “[t]hese potential adverse effects include physical destruction of the Okinawa
16
dugong resulting from contamination of seagrass feeding grounds and collisions with boats and17
vessels, as well as long-term immune and reproductive damage resulting from exposure to toxins18
and acoustic pollution.” Id. Because the question before the Court did not require the Court to19
determine the full range of potential effects of the FRF on the dugong, the Court’s list was not
20
exhaustive. Indeed, section 402 requires DoD to conduct the “take into account” process “for
21
22
23
24
25
26

purposes of avoiding or mitigating any adverse effects,” 54 U.S.C. § 307101(e) (emphasis added),
and the process is intended to require the DoD, which has the best access to the relevant
information, to identify those effects. Dugong v. Gates, 543 F. Supp. 2d at 1105-06.
Despite the clear mandate to identify any potential adverse effects, DoD only “gathered andassessed information on those aspects of the proposed construction and operation of the FRF
identified by the Court as having the potential to affect the Okinawa dugong.” Findings, ECF No.

27
28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

19

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 25 of 271

152-1 at 22. DoD thus did not identify or consider the full range of possible adverse effects on the2dugong caused by the FRF project.

3

C.

DoD’s finding of “no adverse effect” is not supported by the record.

4

The Supreme Court has made clear that, in considering an agency’s explanation for its

5

action, courts “must consider whether the decision was based on a consideration of the relevant

6factors and whether there has been a clear error of judgment.” Motor Vehicle Mfrs. Ass’n, 463 U.S.

7

at 43. A “clear error of judgment” sufficient to constitute arbitrary and capricious agency action

8

includes when “the agency offer[s] an explanation that runs counter to the evidence before the9agency, or is so implausible that it could not be ascribed to a difference in view or the product of

10

agency expertise.” Id.

11

Contrary to DoD’s finding of “no adverse effect,” the record shows that the FRF project is

12likely to adversely impact the dugong. As the Welch 2010 Report notes, “[t]he most likely cultural13

impacts of the FRF will be indirect rather than direct and will stem from the biological harm that14

might be done to the dugong population as result of the construction and use of the airfield in an

15

area where dugongs feed or at least fed in the past.” AR 4254. “[O]ur conclusion, based on this16

study, is that the disappearance of the dugong population from Okinawa would have an adverse

17

cultural impact.” Id.

18

DoD determines that there will be “no adverse effect” on the Okinawa dugong “because of19

the extremely low probability of Okinawa dugongs being in the [area of potential impact].” ECF

20

152-1, Ex. 1 at 30. However, the Welch 2010 report states that although adequate monitoring data21

is not available, 19 dugongs and between 129 and 139 dugong feeding trails were observed by

22

Japanese government groups between 2000 and 2003, indicating that dugongs were still active in23

the area. Welch 2010, AR 4177. In particular, “Henoko village was a reported hotspot for dugongs

24

in Okinawa.” Id.

25

DoD uses the fact that dugongs will move away from disturbances to justify its conclusion

26

that it is unlikely that a dugong would enter the project area. ECF 152-1, Ex. 1 at 33 (“When27

exposed to human activities, dugongs are known to seek deeper waters away from that activity.”).

28

However, the Welch Report contradicts this reasoning, concluding that “the FRF has the potential to

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

20

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 26 of 27

1

impact the dugong population and could affect its recovery to sustainable numbers” because it “will2limit further the range and number of an already rare and endangered species and perhaps hinder

3

attempts to bring some recovery in the existing numbers.” AR 4254. Because the current

4

population is very small, effects on just a few dugongs could have substantial impacts on the5

population as a whole. The Findings’ reliance on the physical presence of dugong in the project

6

area during construction is misplaced, because “[r]egardless of whether they are currently being

7

used by dugongs, destruction of seagrass beds along Henoko Bay will limit areas that could provide

8

habitat in the event of recovery and increase in the current dugong populations.” AR 4254. Given

9

the Okinawa dugong’s endangered status and “precariously low” population numbers, Findings,

10

ECF 152-1, Ex. 1 at 25, destruction of this habitat adversely affects the population.
CONCLUSION AND PRAYER FOR RELIEF

11
12

DoD’s Welch 2010 Report describes the dugong as “an inalienable animal (one that cannot

13

be lost) to Japanese culture.” AR 4255. Its preservation “as a viable species in Japanese waters is

14essential to avoid adverse impacts to its cultural significance.” Id. at 4256. While other factors

15

contribute to the decline of the species and its possible extinction, “it is also clear that the FRF has

16

the potential to contribute to this decline.” Id. at 4254. The purpose of the extraterritorial provision

17of the NHPA is to ensure that DoD fully understand the impacts of the FRF on the dugong and not18

contribute to the extirpation of this inalienable animal.

19

DoD’s failure to consult with the Plaintiffs and engage the public as required by section 402

20of the NHPA, and its reliance on flawed scientific data, make it impossible for DoD to generate21adequate information to assess the effects of the FRF on the dugong. DoD’s finding that the FRF

22will have “no adverse effect” on the dugong is therefore without basis. Plaintiffs respectfully

23

request this Court to:

24
25
26

1) declare that DoD’s Findings and its failure to involve Plaintiffs and the public in the “takeinto account” process violate section 402 of the NHPA;
2) set aside DoD’s Findings as “arbitrary, capricious, an abuse of discretion, or otherwise

27

not in accordance with law” and made “without observance of procedure required by law” under the28

APA, 5 U.S.C. §§ 706(2)(A), (2)(D); andPLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)

21

Case 3:03-cv-04350-EMC Document 221 Filed 04/27/18 Page 27 of 27

13) order that DoD not undertake any activities in furtherance of the FRF project, including

2

granting permits or approvals for contractor entry to Camp Schwab and/or the proposed FRF project3

area, and that DoD rescind any such permits or approvals already granted, until it complies with4

section 402 of the NHPA, including by:

5a. Producing, gathering, and adequately considering the necessary information for

6

taking into account all the potentially adverse effects of the FRF on the Okinawa

7

dugong and for determining whether mitigation or avoidance measures are necessary

8and possible;

9
10
11
12

b. Making this information and other documentation relevant to the section 402 “takeinto account” process available to the public; andc. Consulting with all interested parties, including Plaintiffs, and inviting public
participation in the section 402 process.

13
14

Respectfully submitted this 27th day of April, 2018.

15

21__/s/ Sarah H. Burt_______________
SARAH H. BURT (Cal. Bar No. 250378)
J. MARTIN WAGNER (Cal. Bar No. 190049)
Earthjustice
50 California Street, Suite 500
San Francisco, CA 94111
Tel.: (415) 217-2000
Fax: (415) 217-2040
sburt@earthjustice.org
mwagner@earthjustice.org

22

Attorneys for Plaintiffs Center for Biological Diversity, et al.

16
17
18
19
20

23
24
25
26
27
28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 3:03-cv-4350 (EMC)22