Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 1 of 36

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’ REPLY 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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TABLE OF CONTENTSTABLE OF CONTENTS ........................................................................................... ITABLE OF AUTHORITIES .................................................................................... IIINTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................3I.

II.

Political Question Doctrine Does Not Deprive the Courts of Jurisdiction to
Decide Plaintiffs’ Claim that DoD Has Not Followed the Procedures
Required by the NHPA. ...................................................................................3
A.

Resolution of Plaintiffs’ NHPA claim is not “constitutionallycommitted” to the political branches.....................................................5

B.

Clear, judicially manageable standards are available to resolve
Plaintiffs claims. ..................................................................................12

C.

Resolving Plaintiffs’ NHPA Claim Does Not Require the Court toSupplant DoD’s Policy Decision.........................................................21

Because Plaintiffs’ Claim is Redressable, Plaintiffs have Standing. ............25

CONCLUSION ........................................................................................................28
CERTIFICATE OF COMPLIANCE .......................................................................30
CERTIFICATE OF SERVICE ................................................................................31iCase: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 3 of 36

TABLE OF AUTHORITIESPage(s)
Cases
Alperin v. Vatican Bank,
410 F.3d 532 (9th Cir. 2005) ..............................................................................14
Baker v. Carr,
369 U.S. 186 (1962) .....................................................................................passim
Bancoult v. McNamara,
445 F.3d 427 (D.C. Cir. 2006) ............................................................................17
Cantrell v. City of Long Beach,
241 F.3d 674 (9th Cir. 2001) ..............................................................................27
Chevron v. Natural Res. Def. Council,
467 U.S. 837 (1984) ........................................................................................7, 16
City of Sausalito v. O'Neill,
386 F.3d 1186 (9th Cir. 2004) ............................................................................26
Ctr. for Biological Diversity v. Export-Import Bank of the United States,
No. 12-cv-06325 (N.D. Cal. filed Dec. 13, 2012) ..............................................12
D.C. Fed’n of Civic Ass’ns v. Volpe,
459 F.2d 1231 (D.C. Cir. 1971) ..........................................................................16
Don’t Tear It Down, Inc. v. Gen. Serv. Admin.,
401 F. Supp. 1194 (D.D.C. 1975) .......................................................................16
El-Shifa Pharm. Inds. Co. v. United States,
607 F.3d 836 (D.C. Cir. 2010) ........................................................................5, 18
Envtl. Def. Fund v. Tennessee Valley Auth.,371 F. Supp. 1004 (E.D. Tenn. 1973).................................................................16
Ground Zero Ctr. for Nonviolent Action v. Dep’t of Navy,
918 F. Supp. 2d 1132 (W.D. Wash. 2013) .........................................................19ii

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INS v. Phinpathya,
464 U.S. 183 (1984) ............................................................................................14
Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221 (1986) .....................................................................................passim
Jewel v. Nat’l Sec. Agency,
673 F.3d 902 (9th Cir. 2011) ................................................................................ 7
Muckleshoot Indian Tribe v. U.S. Forest Serv.,
177 F.3d 800 (9th Cir. 1999) ..............................................................................15
Nat’l Audubon Soc’y v. Dep’t of Navy,
422 F.3d 174 (4th Cir. 2005) ..............................................................................19
Ocean Advocates v. Army Corps of Eng’rs,
402 F.3d 846 (9th Cir. 2004) ..............................................................................27
Pit River Tribe v. U.S. Forest Serv.,
469 F.3d 768 (9th Cir. 2006) ..............................................................................25
Pub. Emps. for Envtl. Responsibility v. Beaudreau,
25 F. Supp. 3d 67 (D.D.C. 2014) ........................................................................15
Pueblo of Sandia v. United States,
50 F.3d 856 (10th Cir. 1995) ..............................................................................15
Quechan Tribe of Fort Yuma Indian Reservation v. Dep’t of Interior,
755 F. Supp. 2d 1104 (S.D. Cal. 2010)...............................................................16
Scenic Hudson Pres. Conference v. Fed. Power Comm’n,
453 F.2d 463 (2d Cir. 1971) ...............................................................................16
Schneider v. Kissinger,
412 F.3d 190 (D.C. Cir. 2005) ............................................................................17
Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Dep’t of Interior,
608 F.3d 592 (9th Cir. 2010) ..............................................................................28
Tyler v. Cuomo,
236 F.3d 1124 (9th Cir. 2000) ............................................................................27iii

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W.S. Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp., Int’l,
493 U.S. 400 (1990) ............................................................................................22
Weinberger v. Romero–Barcelo,
456 U.S. 305 (1982) ............................................................................................19
Winter v. Natural Res. Def. Council,
555 U.S. 7 (2008) ....................................................................................18, 19, 20
Zivotofsky ex rel. Zivotofsky v. Clinton,
132 S. Ct. 1421 (2012) .................................................................................passim

Statutes
54 U.S.C. § 306108 ..................................................................................................15
54 U.S.C. § 307101(e) ......................................................................................passim

Other Authorities
Department of Defense, Japan Environmental Governing Standards .....................10
U.S. Const. Art. III, § 2, cl. 1 ...................................................................................22iv

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INTRODUCTION
The question before this Court is whether Plaintiffs’ claim that the
Department of Defense (DoD) failed to comply with the “take into account”
procedure of the National Historic Preservation Act (NHPA) is justiciable. DoD
argues that the claim is barred by the political question doctrine and endorses the
district court’s ruling that Plaintiffs lack standing because their harms are notredressable. As Plaintiffs demonstrate in their opening brief, the political question
doctrine does not bar the district court from resolving Plaintiffs’ NHPA claim on
the merits and Plaintiffs have standing.
DoD’s political question argument makes the common error of failing todistinguish between a political case and a political question. See Baker v. Carr,
369 U.S. 186, 217 (1962). Although this case takes place in the context of themilitary alliance between the United States and Japan, Plaintiffs’ claims are notbarred by the political question doctrine. Adjudicating Plaintiffs’ NHPA claims
does not require this Court to second-guess or supplant political or national
security decisions properly within the domain of the executive or legislative
branches. Rather, the Court is asked only to apply clear statutory requirements todetermine the legal sufficiency of the processes DoD used to gather and consider
information to assess the effects of its actions on the Okinawa dugong. This
straightforward act of statutory interpretation falls squarely within the jurisdiction1

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and responsibility of the courts to interpret and apply U.S. statutes – a
responsibility that the Court “cannot shirk … merely because [its] decision[] may
have significant political overtones.” Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221, 229 (1986).
Nor does the relief Plaintiffs seek 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
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 Plaintiffs explain in their opening brief, the district court’s standing
decision misapplies this Court’s standards for standing – particularly theredressability requirement – when a government agency fails to follow procedures
required by law. DoD’s failure to comply with the “take into account”
requirements of section 402 of the NHPA causes a procedural injury that threatens2Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 8 of 36

Plaintiffs’ concrete interests in observing the dugong for cultural, educational,
aesthetic, inspirational, conservation, and economic purposes. Plaintiffs’
procedural harms would be redressed by an order vacating DoD’s Findings andremanding to the agency for compliance with the section 402 “take-into-account”
requirement. Reassessing the impacts of the Futenma Replacement Facility (FRF)
on the dugong with the benefit of information provided by Plaintiffs and others
through a procedurally sound “take into account” process will give DoD theopportunity to adjust the design 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 claims.
ARGUMENTI.

Political Question Doctrine Does Not Deprive the Courts of Jurisdiction
to Decide Plaintiffs’ Claim that DoD Has Not Followed the Procedures
Required by the NHPA.
The district court correctly held that Plaintiffs’ claim – that DoD has

violated the NHPA – “presents a purely legal question of statutory application ...
[and] does not warrant dismissal” on political question grounds, ER 22, but heldthat Plaintiffs’ request for injunctive relief is barred under the political question
doctrine. ER 32. DoD did not appeal the first part of that ruling, but nonethelessargues here that Plaintiffs’ NHPA claim and their request for both statutory
remedies (vacatur and remand pursuant to the Administrative Procedure Act, 53Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 9 of 36

U.S.C. § 706(2)) and injunctive relief are barred. That argument is based on theassertion that because this case concerns actions taken by the U.S. military incoordination with the Japanese government, Plaintiffs’ claim raises politicalquestions in the areas of foreign relations and national security that are notjusticiable by this Court. Appellees’ Br. 32-33. However, Plaintiffs’ claim is notnearly as far-reaching as DoD suggests. Plaintiffs do not ask the district court topass judgment on the decision to construct a new military base in partnership withJapan, but simply ask the court to determine whether DoD’s “take-into-account”
process and the resulting “Findings” comply with the requirements of section 402
of the NHPA. DoD makes the common error of failing to distinguish between apolitical case and a political question. See Baker, 369 U.S. at 217.
Adjudicating Plaintiffs’ NHPA claim would not require the court to supplant
political or national security decisions that are properly the domain of theexecutive branch with its own “unmoored determination of what United States
policy should be.” See Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421,
1427 (2012). Instead, it would simply require the application of clear statutory
requirements, interpretable through sources familiar to this Court, to determine thelegal sufficiency of the processes DoD used to gather and consider information
allowing it to assess the effects of its actions on the Okinawa dugong. The relief
Plaintiffs request does not ask this Court or the district court to determine the4Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 10 of 36

impacts of the FRF on the dugong, or place before the courts the ultimate policy
decision regarding where and how to construct the FRF and whether or how to
avoid or mitigate any adverse effect. To the contrary, remanding to DoD would
instead require DoD to revisit its decision, comply with proper procedures, andconsider the required information. The decision surrounding whether and how to
mitigate any adverse effects that the FRF may have on the dugong remains DoD’s
to make. For these reasons, Plaintiffs’ claims do not trigger any of the factors
identified by the Supreme Court in Baker v. Carr that would bar consideration of
Plaintiffs’ claims on political question grounds.
A.

Resolution of Plaintiffs’ NHPA claim is not “constitutionallycommitted” to the political branches.

The first Baker factor – a “textually demonstrable constitutional
commitment of the issue to a coordinate political department” – does not bar
consideration of Plaintiffs’ NHPA claims. Plaintiffs do not contest that foreign
policy and national defense fall within the competency of the political branches.
However, the Supreme Court has made clear that 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 orcontroversy which touches foreign relations lies beyond judicial cognizance.”); ElShifa Pharm. Inds. Co. v. United States, 607 F.3d 836, 856 n.3 (D.C. Cir. 2010)(Kavanaugh, J., concurring and citing numerous relevant Supreme Court decisions)5Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 11 of 36(“Indeed, from the time of John Marshall to the present, the [Supreme] Court has
decided many sensitive and controversial cases that had enormous national security
or foreign policy ramifications.”).
A court may not refuse to adjudicate a dispute merely because adecision “may have significant political overtones” or affect “theconduct of this Nation’s foreign relations,” Japan Whaling, 478 U.S.
at 230. Nor may the courts decline to resolve 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 preferences of the political branches.
Zivotofsky, 132 S. Ct. at 1432 (Sotomayor, J., concurring in part and concurring injudgment); see also id. at 1428 (citing INS v. Chadha, 462 U.S. 919, 943 (1983))(“[C]ourts cannot avoid their responsibility merely ‘because the issues havepolitical implications’”).
DoD errs in conflating the political implications of a decision that it failed tocomply with the requirements of the NHPA with the familiar judicial task ofdetermining what those statutory requirements are and whether they have been
met. DoD argues that “the declaratory relief that CBD seeks – a declaration that
the Secretary’s take-into-account process was unlawful and an order setting aside
the Secretary’s section 402 Findings – would, at a minimum, call into question the
United States’ ability to fulfill its commitments to the Government of Japan
regarding the FRF.” Appellees’ Br. 37. Given the procedural nature of the NHPA,
it is questionable whether an order vacating and remanding DoD’s Findings for6Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 12 of 36

compliance with the statute would in fact “call into question the United States’
ability to fulfill its commitments.” However, speculation about the political
implications of such an order is precisely what the Supreme Court and this Court
have made clear does not amount to a nonjusticiable political question. See
Zivotofsky, 132 S. Ct. at 1428; Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 912 (9thCir. 2011) (“[W]e understand the government’s concern that national security
issues require sensitivity. That being said, although the claims arise from politicalconduct and in a context that has been highly politicized, they present
straightforward claims of statutory and constitutional rights, not politicalquestions.”).
DoD tries to argue that Zivotofsky “has no bearing on this case” because thestatute at issue was ultimately declared unconstitutional, whereas Plaintiffs here
raise statutory claims. Appellees’ Br. 39-40. However, because statutory
interpretation is as squarely within the powers of the courts as constitutional
interpretation, that difference is meaningless. See, e.g., Japan Whaling Ass’n, 478
U.S. at 230 (“[I]t goes without saying that interpreting congressional legislation isa recurring and accepted task for the federal courts.”); Chevron v. Natural Res.
Def. Council, 467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final authority on
issues of statutory construction.…”).

7

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Moreover, the question presented to the Supreme Court in Zivotofsky –whether Mr. Zivotofsky’s claim that the State Department violated the passport
statute (and his request for declaratory and injunctive relief) presented a
nonjusticiable political question – is remarkably similar to the question before thisCourt: whether Plaintiffs’ claim that DoD violated the NHPA (and their request
for declaratory and injunctive relief) presents a nonjusticiable political question. In
Zivotofsky, the Supreme Court reasoned that[t]he existence of a statutory right … is certainly relevant to the
Judiciary’s power to decide Zivotofsky’s claim. The federal courts
are not being asked to supplant a foreign policy decision of thepolitical branches with the courts’ own unmoored determination ofwhat United States policy toward Jerusalem should be. Instead,
Zivotofsky requests that the courts enforce a specific statutory right.
To resolve his claim, the Judiciary must decide if Zivotofsky’s
interpretation of the statute is correct, and whether the statute isconstitutional. This is a familiar judicial exercise.
132 S. Ct. at 1427 (emphasis added). That reasoning is directly applicable here.
DoD argues that this case raises political issues because resolving Plaintiffs’
claims would “cast doubt on the Secretary’s ability to fulfill the United States’commitments regarding the FRF.” Appellees’ Br. 39. However, the only evidence
that DoD presents in support of this contention are two declarations prepared in2014 for this litigation: Declaration of Brigadier General Mark R. Wise (Sept. 26,
2014), and Declaration of James P. Zumwalt (Sept. 26, 2014). Id. (citing SER 6,
12-14). These declarations make general statements asserting that “a court order8

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setting aside DoD’s findings with respect to the impact of the FRF on the dugong
would … be damaging,” SER 14, and that failure of the U.S. government tocomply with “political commitments” such as the Roadmap and the decisions of
the Joint Committee would be a “departure from the established norms of therelationship of the two governments,” which would “undermine the strength of the
U.S.-Japan alliance.” SER 6. But the declarations do not explain how requiring
DoD to revisit its “take-into-account” procedure to ensure compliance withdomestic law would amount to such a failure. The minimal delay that remandmight cause would be small compared to the various delays that have postponedconstruction between 2006 and the present, 1 which have not derailed the U.S.Japan alliance.
DoD’s assertion that compliance with the NHPA would be a “departure fromthe established norms of the relationship of the two governments,” is belied by thefact that compliance with section 402 of the NHPA is encompassed in the1

For example, the Japanese EIS and domestic permitting processes took more thaneight years to complete due to legal procedures and political events in Japan. See
CR 147 at 2-5 (noting “multiple roadblocks” to the FRF, including opposition by
the Okinawa prefectural government). Further delays were caused when U.S.
government concerns about cost led DoD to ask for Japanese recommendations forcheaper alternative locations. See id. at 4. Subsequently, in 2014 the Okinawa
Governor revoked the reclamation permit, required under Japanese law for
construction to begin. See Opening Br. 10-11. Although this revocation is the
subject of ongoing litigation, neither uncertainty concerning the Japanesepermitting litigation nor changing political circumstances in Japan have fatally
undermined the alliance.
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agreements governing the U.S.-Japan alliance. The Japan Environmental
Governing Standards (JEGS), established “in accordance with DoD Instruction
4715.5 (‘Management of Environmental Compliance at Overseas Installations’),
the Status of Forces Agreement, and other applicable international agreements”
govern environmental compliance on U.S. bases in Japan, and explicitly
incorporate the “take-into-account” requirement of section 402. Department of
Defense, Japan Environmental Governing Standards at i (Dec. 17, 2012); 2 id. at
152 (“Installation commanders shall take into account the effect of any action on
any property listed on the World Heritage List or on the GoJ equivalent of the
National Register of Historic Places for purposes of avoiding or mitigating any
adverse effects.”). In addition, the cover memo distributing the revised JEGS
makes clear that “as environmental law continues to evolve, the JEGS may beamended in the future.” Salvatorre A. Angelella, Commander U.S. Forces Japan,
Memorandum re. 2012 Japan Environmental Governing Standards, (Dec. 17,
2012).3 Therefore, compliance with the requirements of the NHPA would not, in

2

Available at
http://www.navfac.navy.mil/content/dam/navfac/NAVFAC%20Pacific/NAVFAC%20Far%20East/PDFs/PWD_Yokosuka_EVfiles/2012%20JEGS.pdf.
3

Available with the JEGS at
http://www.navfac.navy.mil/content/dam/navfac/NAVFAC%20Pacific/NAVFAC%20Far%20East/PDFs/PWD_Yokosuka_EVfiles/2012%20JEGS.pdf.
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any meaningful way, violate or undermine the treaty arrangements or “politicalagreements” between the United States and Japan.
Moreover, as Zivotofsky makes clear, these concerns about the political
implications of the decision are not enough to bar the court from resolving thelegal question at issue in the case. Having determined that the central legal
question at issue in Zivotofsky was not political in nature, the Supreme Court heldthat injunctive relief would be proper assuming success on the merits, despite theState Department’s assertions of significant repercussions for foreign policy. 132
S. Ct. at 1428 (“If, on the other hand, the statute [is constitutional], then the
Secretary must be ordered to issue Zivotofsky a passport that complies with §214(d). Either way, the political question doctrine is not implicated.”); id. at 1440
(Breyer, J., dissenting) (requiring government to list Israel on passports ofAmericans born in Jerusalem would have “significant[] adverse foreign policy
effects” because it “would be interpreted as an official act of recognizing
Jerusalem as being under Israeli sovereignty” and “would critically compromise
the ability of the United States to work with Israelis, Palestinians and others in theregion to further the peace process” (citations to the State Department’s brief
omitted).). The fact that resolving a statutory claim and issuing the necessary relief– including injunctive relief – might have political implications does not render the
statutory claim at the heart of the case nonjusticiable. See also Japan Whaling11

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Ass’n, 478 U.S. at 230 (“We are cognizant of the interplay between [the Pelly andPackwood-Magnuson] Amendments and the conduct of this Nation's foreign
relations, and we recognize the premier role which both Congress and the
Executive play in this field. But under the Constitution, one of the Judiciary's
characteristic roles is to interpret statutes, and we cannot shirk this responsibility
merely because our decision may have significant political overtones.”).
B.

Clear, judicially manageable standards are available to resolve
Plaintiffs claims.

The second Baker factor – “lack of judicially discoverable and manageable
standards for resolving” the issue – also does not bar Plaintiffs’ NHPA claims.
The National Historic Preservation Act provides clear standards for the district
court to apply in reviewing whether DoD complied with the statutorily mandated“take into account” process. The district court4 discerned manageable standards
for evaluating whether DoD’s actions conform to the “take-into-account” standardof section 402. See CR 119 at 31-32 (considering “textual, structural and historicalevidence” and concluding that “[t]he plain language of section 402, combined withexpress legislative purpose, reveals clear Congressional intent regarding the basic
4

To the best of Plaintiffs’ knowledge, this case is the first to address the meaningof the “take-into-account” language in section 402 of the NHPA. There iscurrently another case pending that raises a section 402 claim, but the parties have
not yet briefed the merits of that claim. See Ctr. for Biological Diversity v. ExportImport Bank of the United States, No. 12-cv-06325 (N.D. Cal. Filed Dec. 13,
2012).

12

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components[5] of a take into account process”); 6 ER at 23-24 (no evidence that“the critical ‘take-into-account’ requirement of the NHPA is qualitatively different
from the analysis of the adequacy of an environmental impact statement under
NEPA or the quality of biological assessments under the Endangered SpeciesAct”).
5

The district court went on to describe those basic components as follows:
The process, at a minimum, must include (1) identification ofprotected property, (2) generation, collection, consideration, andweighing of information pertaining to how the undertaking will affectthe historic property, (3) a determination as to whether there will be
adverse effects or no adverse effects, and (4) if necessary,development and evaluation of alternatives or modifications to theundertaking that could avoid or mitigate the adverse effects. The
person charged with responsibility for this basic process is the personwith jurisdiction over the undertaking, and compliance with theprocess must occur before the undertaking is approved. In addition, afederal agency does not complete the take into account process on its
own, in isolation, but engages the host nation and other relevant
private organizations and individuals in a cooperative partnership.

CR 119 at 32.
6

DoD asserts that the district court’s 2008 decision “has been superseded by the2015 Order that is the subject of this appeal.” Appellees’ Br. 38. Plaintiffs contest
this assertion. The district court cites the 2005 and 2008 decisions approvingly inthe 2015 order. See, e.g., ER 8 n.2, 36 n.20. The only issue that the district court
ruled on in its 2015 order that was also addressed in the 2005 and 2008 decision isstanding and the court was careful not to overrule the 2008 standing decision. ER
36 n.21 (distinguishing the 2008 holding on the grounds that it was “made in a far
different procedural posture” and is therefore “not binding on this Court”).
Regardless, to the extent that the earlier decisions interpret and apply section 402
of the NHPA, they are authoritative and illustrative of the availability ofmanageable standards.

13

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Nonetheless, DoD argues that section 402 “provides no substantive standard
by which to review either the procedures the Secretary used to consider the impactsof the FRF or the substance of his conclusion” because “neither section 402 nor
any other provision of the NHPA defines the requirements of that take-intoaccount process for foreign undertakings.” Appellees’ Br. 43-44. However,familiar rules of statutory interpretation applied to the “take-into account” mandate
provide “the legal tools to reach a ruling that is principled, rational and based upon
reasoned distinctions.” Alperin v. Vatican Bank, 410 F.3d 532, 552 (9th Cir.
2005).
“[I]n all cases involving statutory construction, ‘our starting point must be
the language employed by Congress,’ ... and we assume ‘that the legislative
purpose is expressed by the ordinary meaning of the words used.”’ INS v.
Phinpathya, 464 U.S. 183, 189 (1984) (quoting Am. Tobacco Co. v. Patterson, 456
U.S. 63, 68 (1982)). The district court’s approach to interpreting the language ofsection 402 is thorough and well reasoned:
On its face, the phrase “take into account” means consider,contemplate, study, and weigh. Webster’s Int’l Dictionary of the
English Language (3rd ed. 1976). This plain meaning of “take into
account” is consistent with the purposes of the NHPA 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 (9th Cir. 2005) (emphasis added), and to “weigheffects in deciding whether to authorize” a federal undertaking, Save
Our Heritage v. Fed. Aviation Admin., 269 F.3d 49, 58 (1st Cir. 2001)
14

Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 20 of 36(emphasis added). The statutory text also contains requirements
relating to who, when, and what shall be taken into account, as well as
why an accounting is necessary. The statute states that (1) “the headof a Federal agency having direct or indirect jurisdiction over such
undertaking” shall be the person charged with the task of taking into
account, (2) the accounting shall occur “prior to approval” of theundertaking, and (3) the accounting shall consider the “effects of theundertaking” on the protected property. 16 U.S.C. § 470a-2. Finally,
the statute is clear regarding why the taking-into-account is required.
It is conducted “for purposes of avoiding or mitigating any adverse
effects.” Id.
CR 119 at 30-31. Thus, the district court demonstrated the manageability of the“take-into-account” standard in the context of section 402.
Indeed, courts have been applying an almost identical “take-into-account”
provision – section 106, 54 U.S.C. § 3061087 – based on the plain language of thestatute since it was passed in 1966. See, e.g., Muckleshoot Indian Tribe v. U.S.
Forest Serv., 177 F.3d 800, 807-08 (9th Cir. 1999); Pueblo of Sandia v. UnitedStates, 50 F.3d 856, 859-63 (10th Cir. 1995); Pub. Emps. for Envtl. Responsibility

7

Section 106 provides:
The head of any Federal agency having direct or indirect jurisdiction
over a proposed Federal or federally assisted undertaking in any Stateand the head of any Federal department or independent agency having
authority to license any undertaking, prior to the approval of theexpenditure of any Federal funds on the undertaking or prior to theissuance of any license, shall take into account the effect of theundertaking on any historic property. The head of the Federal agency
shall afford the Council a reasonable opportunity to comment withregard to the undertaking.

54 U.S.C. § 306108 (emphasis added).
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v. Beaudreau, 25 F. Supp. 3d 67, 119-21 (D.D.C. 2014); Quechan Tribe of Fort
Yuma Indian Reservation v. Dep’t of Interior, 755 F. Supp. 2d 1104, 1118-20 (S.D.
Cal. 2010). And, because implementing regulations were only issued in 1979,
courts have interpreted the “take into account” mandate without the assistance of
implementing regulations. D.C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231
(D.C. Cir. 1971) (holding that Secretary of Transportation failed to comply with“take-into-account” requirements before approval of bridge project); Scenic
Hudson Pres. Conference v. Fed. Power Comm’n, 453 F.2d 463 (2d Cir. 1971)(reviewing agency’s assessment of impacts of hydroelectric project for compliancewith section 106 “take-into-account” requirements); Don’t Tear It Down, Inc. v.
Gen. Serv. Admin., 401 F. Supp. 1194 (D.D.C. 1975) (same); Envtl. Def. Fund v.
Tennessee Valley Auth., 371 F. Supp. 1004 (E.D. Tenn. 1973) (same). Thus, theabsence of implementing regulations specific to section 402 does not prevent
judicial review. Rather, if “Congress has not directly addressed the precise
question at issue,” and there has been no administrative interpretation, the court
must construe the statute itself. Chevron, 467 U.S. at 842-43 (In reviewing anagency’s construction of a statute, if “Congress has not directly addressed theprecise question at issue, the court does not simply impose its own construction on
the statute, as would be necessary in the absence of an administrativeinterpretation.”) (emphasis added).)” The extraterritorial context of section 402

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does not alter the clear, judicially discoverable meaning of the same “take-intoaccount” standard.
Nor is the relief that Plaintiffs request barred due to a lack of judiciallycognizable standards. As Plaintiffs demonstrate in their opening brief, the fourpart standard for determining whether injunctive relief should issue is clear andmanageable, even when foreign policy and national security interests are at stake.
See Opening Br. 49-54 (reviewing inherent flexibility of standard for injunctive
relief, allowing courts to give appropriate weight and deference to thegovernment’s national security and foreign policy interests; and reviewing cases inwhich the Supreme Court and other courts in fact weighed hardships andconsidered whether injunctive relief would be in the public interest, even when
foreign affairs and national security considerations were involved).
DoD argues that a request for injunctive relief is nonjusticiable when foreign
affairs or national security are at stake,8 Appellees’ Br. 41, and challenges

8

The three D.C. Circuit cases DoD cites in support of its argument that the fourpart standard for injunctive relief is nonjusticiable in cases that touch on foreign
affairs or national security are not on point, because none of them considers
whether the political question doctrine bars the court from issuing injunctive relief.
Instead, the court in these cases held that resolving the merits of the legal claims
raised political questions. See Bancoult v. McNamara, 445 F.3d 427, 431 (D.C.
Cir. 2006) (Alien Tort Claims Act suit asserting that forced removal of residents
from Chagos Archipelago amounted to torture, racial discrimination, genocide andother torts under international law); Schneider v. Kissinger, 412 F.3d 190, 197(D.C. Cir. 2005) (Alien Tort Claims Act case alleging that U.S. actions in supportof military coup in Chile constituted summary execution, torture, wrongful death17Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 23 of 36

Plaintiffs to “proffer a substantive standard that the district court could use todecide whether the balance of harms and the public interest require that the
Secretary be enjoined from carrying out ‘any activities in furtherance of’ thebilateral FRF project.” Appellees’ Br. 42-43. But no additional substantive
standard is necessary; the balancing test itself provides the standard.
Inherent in the concept of “balancing” is the consideration and comparisonof harms that would result if an injunction were to issue and the harms to Plaintiffs
caused by DoD’s failure to comply with the statute. If the harm that would result
from an injunction outweighs the harm suffered by Plaintiffs, then the court would
not issue an injunction. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 24(2008) (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531 542 (1987))(“[C]ourts ‘must balance the competing claims of injury and must consider theeffect on each party of the granting or withholding of the requested relief’”). A per
se rule that any request for injunctive relief is nonjusticiable when foreign affairs
or national security are at stake would foreclose altogether any claims for
injunctive relief against the Department of Defense, State Department, and perhaps
other federal agencies. The many cases adjudicating such claims show the fallacy
and other torts under international law); El Shifa Pharm. Indus. Co. v. UnitedStates, 607 F.3d 836, 845 (D.C. Cir. 2010) (Federal Tort Claims Act suit alleging
that U.S. missile attack on a Sudanese pharmaceutical plant was “mistaken and notjustified”). These tort-based challenges to the military decisions themselves arevery different from Plaintiffs’ statutory claim that DoD’s “take-into-account”
process does not meet the clear procedural requirements of the NHPA.
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Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 24 of 36

of this argument. See, e.g., Winter, 555 U.S. at 20-31 (applying standard for
injunctive relief in case challenging Navy’s use of sonar in training exercises,
where use of sonar was “essential to national security”); Weinberger v. Romero–
Barcelo, 456 U.S. 305, 320, (1982) (in case seeking to enjoin Navy from carryingout training operations in Puerto Rico, “the ability to deny as well as grant
injunctive relief, can fully protect the range of public interests at issue”); Nat’l
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 constructionof aircraft landing field within five miles of national wildlife refuge, which
implicated “national security matters”); Ground Zero Ctr. 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 Navy’s
construction of explosives-handling wharf to maintain submarines and service
missiles).
The Supreme Court’s decision in Winter demonstrates that application of thebalancing test is possible in a case challenging the Navy’s use of sonar in training
exercises. There, the Court reviewed the evidence in the record concerning thevarious interests at stake and concluded that:the balance of equities and consideration of the overall public interestin this case tip strongly in favor of the Navy. For the plaintiffs, themost serious possible injury would be harm to an unknown number ofthe marine mammals that they study and observe. In contrast, forcing
19Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 25 of 36

the Navy to deploy an inadequately trained antisubmarine force
jeopardizes the safety of the fleet. Active sonar is the only reliable
technology for detecting and tracking enemy diesel-electricsubmarines, and the President—the Commander in Chief—hasdetermined that training with active sonar is “essential to national
security.”
The public interest in conducting training exercises with active
sonar under realistic conditions plainly outweighs the interests
advanced by the plaintiffs.
555 U.S. at 26.
Although DoD cites Winter in support of its assertion that “under any
conceivable standard, the United States’ foreign policy and national security
interests would trump CBD’s claimed interests,” Appellees’ Br. 42 (citing Winter,
555 U.S. at 24-27), Winter explicitly holds that “military interests do not always
trump other considerations, and we have not held that they do.” 555 U.S. at 26.
And DoD’s own assertion that the United States’ specific foreign policy andnational security interests trump CBD’s interests – which, although Plaintiffs
disagree with the conclusion, is precisely the analysis their request for injunctive
relief requires the district court to undertake –demonstrates that the relevantbalancing is possible in this case. Plaintiffs’ claims are not barred for want of clear
and judicially manageable standards.

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C.

Resolving Plaintiffs’ NHPA Claim Does Not Require the Court toSupplant DoD’s Policy Decision.

None of the remaining Baker factors 9 bars the Court from fulfilling its
constitutional responsibility to interpret statutes and decide cases properly before
it. See Zivotofsky, 132 S. Ct. at 1427. As Plaintiffs have made clear, Opening Br.
41, 43, 47, resolving Plaintiffs’ NHPA claims does not require the Court to pass
judgment on the political decision to implement the FRF project. See CR 119 at
30-31, 34-35. In fact, granting Plaintiffs the relief they request would remand thecase back to DoD to redo its own decision, according to the procedures required by
the NHPA.
Even granting a temporary injunction on U.S. activities in furtherance ofconstruction while DoD remedies the shortcomings in its “take into account”
process would not overturn “the understanding reached by the two governments on
the location and layout of the FRF” as DoD alleges. Appellees’ Br. 47. An
injunction staying any action by DoD that facilitates construction of the FRF until
9

The remaining Baker factors are:[3] the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or [4] the
impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government;or [5] an unusual need for unquestioning adherence to a politicaldecision already made; or [6] the potentiality of embarrassment frommultifarious pronouncements by various departments on one question.

369 U.S. at 217.
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DoD completes a legally adequate “take-into-account” process would not prevent
the United States from facilitating construction once it meets it obligations under
the NHPA. Nothing in the SOFA, Security Treaty or 2006 Roadmap requires
immediate action to construct the FRF and none of these agreement establish
timelines for the United States or Japan to take action. There is therefore no
danger that the Court would be expressing disrespect for DoD’s ultimate policy
decision or overturning a “political decision already made,” and no risk ofembarrassment from multifarious pronouncements of policy by various
departments. See Baker, 369 U.S. at 217. Indeed, DoD’s suggestion that the court
does not have jurisdiction to engage in a routine exercise in statutory interpretation
implementing the “take-into-account” provision of section 402 is contrary to thebalance of power established in the Constitution, which assigns the judiciary thepower to decide “all cases, in law and equity, arising under this Constitution, thelaws of the United States, and treaties.” U.S. Const. Art. III, § 2, cl. 1. See also
W.S. Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 409(1990) (“Courts in the United States have the power, and ordinarily the obligation,
to decide cases and controversies properly presented to them.”); Japan Whaling
Ass’n, 478 U.S. at 229 (“under the Constitution, one of the Judiciary’s
characteristic roles is to interpret statutes, and we cannot shirk this responsibility
merely because our decision may have significant political overtones”).

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In Japan Whaling, the Supreme Court held that the interpretation of a statute
did not present a nonjusticiable political question even though the relief requested
would have directly contradicted an agreement the Executive Branch had madewith Japan, as well as assurances given to the Japanese government by Executive
branch officials. 478 U.S. at 221. In that case, Japan had refused to comply withinternational prohibitions on sperm whale hunting under the International
Convention for the Regulation of Whaling. Id. at 227. The United States andJapan had subsequently agreed that Japan would limit the number of sperm whales
it would allow its nationals to catch and the United States would not certify Japan
under U.S. laws requiring certification – and consequent reduction in rights to fishin U.S. waters – of nations whose nationals are acting in way that diminished theeffectiveness of the Whaling Convention. Id. Conservation groups then sued tocompel the Secretary to certify Japan pursuant to the U.S. laws, for declaratory
judgment that the failure to certify violated the U.S. laws, and an injunction
prohibiting any executive agreement with Japan that would violate the statutory
certification and sanction requirements. Id. at 228 n.3.
The Supreme Court considered arguments that the claims were notjusticiable because a court cannot command the Executive Branch to repudiate aninternational agreement and the claims created a “danger of ‘embarrassment frommultifarious pronouncements by various departments on one question.’” 478 U.S.

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at 229. The Court concluded that the claims were justiciable:[C]ourts have the authority to construe treaties and executive
agreements, and it goes without saying that interpreting congressional
legislation is a recurring and accepted task for the federal courts. …
The Court must first determine the nature and scope of the duty
imposed upon the Secretary by the [statutes requiring certification], adecision which calls for applying no more than the traditional rules ofstatutory construction, and then applying this analysis to the particular
set of facts presented below. We are cognizant of the interplay
between these [statutes] and the conduct of this Nation’s foreign
relations, and we recognize the premier role which both Congress andthe Executive play in this field. But under the Constitution, one of the
Judiciary’s characteristic roles is to interpret statutes, and we cannot
shirk this responsibility merely because our decision may havesignificant political overtones.
Id.
Like in Japan Whaling, the central issue in the present case is one ofstatutory interpretation. In addition, as demonstrated above, there is no directconflict between the relief requested and any agreement with Japan. Any of theindirect effects that DoD asserts, such as “cast[ing] doubt on the Secretary’s ability
to fulfill the United States’ commitments regarding the FRF,” Appellees’ Br. 39,
risk far less disrespect or embarrassment than in Japan Whaling. Fulfilling thecourt’s obligation to decide cases and interpret statutes would not, in this case,require express disrespect for DoD’s ultimate policy decision or overturn a“political decision already made.” Separation of powers concerns do not preventthe court from resolving this case.

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Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 30 of 36

II.

Because Plaintiffs’ Claim is Redressable, Plaintiffs have Standing.
DoD argues that “while a court could in theory set aside the Secretary’s

allegedly flawed Findings and take-into-account process, a court cannot set aside
the Secretary’s decision to commit to the 2006 Roadmap, or order the Secretary towithdraw from the Roadmap.” Appellees’ Br. 53. Therefore, DoD concludes,“CBD cannot demonstrate that that procedural right, if exercised, could protect its
concrete interest in protecting the dugong from the alleged impacts of the FRF.”
Appellees’ Br. 54.
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. See Pit River Tribe v. U.S.
Forest Serv., 469 F.3d 768, 787 (9th Cir. 2006). At a minimum, Plaintiffs’ harms
would be redressed by an order from the court (1) declaring that DoD has failed tocomply 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 by the
NHPA. See id. at 779 (explaining that, in an NHPA case, a “‘procedural injury
would be redressed if the [agency] followed proper procedures’”) (quoting Beeman
v. TDI Managed Care Servs., Inc., 449 F.3d 1035, 1040 (9th Cir. 2006)).

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Reassessing 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 will give DoD the opportunity to make adjustments to the design andoperation 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.
DoD reiterates the district court’s conclusion that there is no redressability
because no matter what might arise in the course of the proper “take-into-account”
process, DoD has already decided that it will not change any element of the FRF
project to mitigate harms to the dugong and thus remedy Plaintiffs’ injuries. ER
41-42 (“there is no likelihood that the United States government, in response to an
adverse declaratory judgment, will voluntarily halt construction of the FRF”);
Appellees’ Br. 55. As Plaintiffs demonstrate in their opening brief, Opening Br.
30-34, the fact that the “take-into-account” process does not mandate a particular
result does not undermine redressability for procedural injuries. On the contrary,
this Court has repeatedly held that procedural injuries can be redressed bysatisfactory completion of the procedure required by law, regardless of the result
eventually reached. E.g., City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9thCir. 2004) (“For purposes of Article III standing, we do not require a plaintiff todemonstrate that a procedurally proper EIS will necessarily protect his or her

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Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 32 of 36

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 Corps ofEng’rs, 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.”).
Moreover, DoD does not have to decide to “voluntarily halt construction of
the FRF” in order comply with the statutory obligation to “avoid or mitigate”
adverse effects on the dugong, 54 U.S.C. § 307101(e), and remedy Plaintiffs’
injuries. As this Court held in Tyler v. Cuomo, “‘[I]t is impossible for us to know
with any degree of certainty just what the end result of the NHPA process would
be…. We find it inappropriate to pre-judge those results as being limited to theextremes of either maintaining the status quo or totally [abandoning the project].’”236 F.3d 1124, 1134 (9th Cir. 2000) (quoting Vieux Carre Prop. Owners,
Residents & Assocs., Inc. v. Brown, 948 F.2d 1436, 1446–47 (5th Cir. 1991)). The
district court’s presumption that DoD will not change any element of the FRF

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project to mitigate harms to the dugong regardless of the results of the “take-intoaccount” process violates this Court’s holding that a district court “should not prejudge the result of the NHPA process by concluding that no relief is possible.” Id.
The NHPA, like NEPA, is a “stop, look and listen” provision that “requires eachfederal agency to consider the effects of its programs.” Te-Moak Tribe of Western
Shoshone of Nevada v. U.S. Dep’t of Interior, 608 F.3d 592, 607 (9th Cir. 2010). It
would defeat the purpose of the NHPA (and NEPA) if an agency could defeat
standing simply by announcing a priori, that regardless of the information
generated through an EIS or consultation with stakeholders, it does not intend toalter its action in any way. The opportunity to persuade and the ability of theagency to change course are integral to the statute and sufficient to confer standingin cases of procedural harms.
CONCLUSION
For the foregoing reasons, and for the reasons contained in Plaintiffs’
opening brief, the judgment of the district court dismissing Plaintiffs’ NHPA
claims should be vacated and the case remanded to the district court forconsideration of the merits.
Dated: March 17, 2016/s/ Sarah H. Burt
SARAH H. BURT
J. MARTIN WAGNER
Earthjustice
50 California Street, Suite 500
San Francisco, CA 94111
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Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 34 of 36

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.

29Case: 15-15695, 03/17/2016, ID: 9905829, DktEntry: 35, Page 35 of 36

CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Fed. R. App. P. 32(5) and (6) because it
has been prepared in 14-point Times New Roman, a proportionally spaced font. I
further certify that this brief complies with the type-volume limitation of Fed. R.
App. P 32(a)(7)(B)(ii) because it contains 6,929 words, excluding the parts of thebrief exempted under Fed. R. App. P. 32(a)(7)(B)(iii).

Dated: March 17, 2016/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, 03/17/2016, ID: 9905829, DktEntry: 35, Page 36 of 36

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 March 17, 2016. I certify that all participants in thecase are registered CM/ECF users and that service will be accomplished by theappellate CM/ECF system.

Dated: March 17, 2016/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.

31