Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 1 of 71

No. 15-15695
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT__________________CENTER FOR BIOLOGICAL DIVERSITY et al.,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, No. 3:03-cv-04350
Honorable Edward M. Chen, District Judge___________________ANSWERING BRIEF OF APPELLEES___________________
JOHN C. CRUDEN
Assistant Attorney General
Of Counsel:
JONATHAN C. McKAY
Office of General Counsel
Department of the Navy
Washington, D.C.
PHILLIP J. RIBLETT
Office of the Legal Adviser
U.S. Department of State
Washington, D.C.

ANDREW C. MERGENPETER KRYN DYKEMAMARK R. HAAG
Attorneys,
Environment & Natural Res. Div.
U.S. Department of Justice
P.O. Box 7415
Washington, D.C. 20044(202) 514-5391
mark.haag@usdoj.gov

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TABLE OF CONTENTS
PAGESTATEMENT OF JURSIDICTION ................................................................. 1
STATEMENT OF ISSUES ............................................................................... 1
STATEMENT OF THE CASE ......................................................................... 2
A. Nature of the Case ....................................................................... 2
B. Legal and Factual Background .................................................... 5
1.

Post-War Administration of Okinawa ............................... 5

2.

The Security Treaty, the Status of Forces Agreement,
and the Japan-U.S. Security Consultative Committee ...... 6

3.

The Futenma Replacement Facility ................................... 84.

The dugong........................................................................ 12

C. The National Historic Preservation Act ..................................... 13
D. Proceedings Below – 2003 through 2012 .................................. 16
E. The Secretary’s Section 402 Process .......................................... 19
F. Proceedings Below – 2014 through 2015.................................. 26
SUMMARY OF ARGUMENT ....................................................................... 27
STANDARD OF REVIEW ............................................................................ 29
ARGUMENT ................................................................................................. 29
I.

CBD’s claims for injunctive and declaratory relief are
barred by the political question doctrine .................................. 29iCase: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 3 of 71

II.

A.

The relief CBD seeks raises political questions under
the first Baker test – a constitutional commitment of
the issue to the political branches ................................... 32

B.

CBD’s claims for relief are political questions under
the second Baker test – lack of manageable standards... 40

C.

The relief sought by CBD is barred under the fourth,fifth and sixth Baker tests ................................................ 46

CBD lacks standing to assert its claims for declaratory relief .. 49

CONCLUSION .............................................................................................. 60
STATEMENT OF RELATED CASESCERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

ii

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TABLE OF AUTHORITIESCASES:
Allen v. Wright,
468 U.S. 737 (1984) ............................................................................ 50
Alperin v. Vatican Bank,
410 F.3d 532 (9th Cir. 2005) ................................................... 31, 45-47
Baker v. Carr,
369 U.S. 186 (1962) ............................... 27, 29, 31-33, 37, 40, 45-47, 49
Bancoult v. McNamara,
445 F.3d 427 (D.C. Cir. 2006) .................................................41, 42, 49Center for Biological Diversity v. Hagel,
80 F. Supp. 3d 991 (N.D. Cal. 2015) ..................................................... 5
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp.,
333 U.S. 103 (1948)............................................................................. 32
City of L.A. v. Santa Monica BayKeeper,
254 F.3d 882 (9th Cir. 2001) .............................................................. 38
Corrie v. Caterpillar, Inc.,
503 F.3d 974 (9th Cir. 2007) ................................ 29, 31, 35, 42, 48, 49
Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000) ........................................................................... 32
Defenders of Wildlife v. U.S. EPA,
420 F.3d 946 (9th Cir. 2005).............................................................. 52
Dep’t of Navy v. Egan,
484 U.S. 518 (1988) ............................................................................ 33
Earth Island Institute v. Christopher,
6 F.3d 648 (9th Cir. 1993) ............................................................ 35, 36iii

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El-Shifa Pharm. Indus. Co. v. United States,
607 F.3d 836 (D.C. Cir. 2010) ...................................................... 30, 41
Ex parte McCardle,
7 Wall. 506 (1868)............................................................................... 42
Gilligan v. Morgan,
413 U.S. 1 (1973) .................................................................................. 46
Haig v. Agee,
453 U.S. 280 (1981) ............................................................................ 32
Harbury v. Hayden,
522 F.3d 413 (D.C. Cir. 2008).............................................................. 31
Jensen v. National Marine Fisheries Service,
512 F.2d 1189 (9th Cir. 1975) .............................................................. 33
Los Angeles Haven Hospice v. Sebelius,
638 F.3d 644 (9th Cir 2011) ................................................................ 50
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992).................................................................. 49, 50, 51
Marbury v. Madison,
5 U.S. 137 (1803) ................................................................................. 29
Mayfield v. United States, (“Mayfield I”)
504 F. Supp. 2d 1023 (D. Or. 2007) ....................................................57
Mayfield v. United States, (“Mayfield II”)
599 F.3d 964 (9th Cir. 2010) ......................................................... 57-60
Mingtai Fire & Marine Ins. Co. v. United Parcel Serv.,
177 F.3d 1142 (9th Cir. 1999) .............................................................. 33
Oetjen v. Cent. Leather Co.,
246 U.S. 297 (1918) ............................................................................. 33iv

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Okinawa Dugong v. Rumsfeld,
2005 WL 522106 (N.D. Cal. 2005) .................................... 13, 16, 47, 48
Okinawa Dugong v. Gates,
543 F. Supp. 2d 1082 (N.D. Cal. 2008) ................... 8-12, 15, 17, 18, 38
Powell v. McCormack,
395 F.2d 577 (D.C. Cir. 1968) ............................................................. 47
Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999)....................................................... 30, 33
Salmon Spawning & Recovery Alliance v. Gutierrez,
545 F.3d 1220 (9th Cir. 2008) ................................ 36, 37, 51-56, 58-60
San Carlos Apache Tribe v. United States,
417 F.3d 1091 (9th Cir. 2005) .............................................................. 15
Schneider v. Kissinger,
412 F.3d 190 (D.C. Cir. 2005) .......................... 29, 31, 32, 41, 42, 46, 49
Sierra Club v. Morton,
405 U.S. 727 (1972) ............................................................................. 30
Sierra Forest Legacy v. Sherman,
646 F.3d 1161 (9th Cir. 2011) ............................................................... 41
Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26 (1976)............................................................................... 50
Steel Co. v. Citizens for a Better Environment,
523 U.S. 83 (1998) ......................................................................... 42, 51
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ........................................................................... 49
Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Department of
the Interior,
608 F.3d 592 (9th Cir. 2010) ......................................................... 13, 14v

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Tyler v. Cuomo,
236 F3d 1124 (9th Cir. 2000) ............................................................. 54
United States v. Washington,
969 F.2d 752 (9th Cir. 1992) ............................................................... 29
Vieux Carre Property Owners v. Brown,
948 F.2d 1436 (5th Cir. 1991) ........................................................54, 55
Warth v. Seldin,
422 U.S. 490 (1975) ............................................................................ 50
Winter v. Natural Resources Defense Council,
555 U.S. 7 (2008) ................................................................................ 42
Zivotofsky ex rel. Zivotofsky v. Clinton, (“Zivotofsky I”),
132 S. Ct. 1421 (2012) .................................................. 31, 39, 40, 43, 46
Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ......................................................................... 40
Zivotofsky v. Secretary of State,
571 F.3d 1227 (D.C. Cir. 2009) ........................................................... 39
U.S. CONSTITUTION:
U.S. Const. art. I, § 8 and art. II, § 2 ............................................................ 32
U.S. Const. art. I, § 8 and art. II, § 3 ............................................................ 32
STATUTES:
Endangered Species Act:
16 U.S.C. § 1536, § 7(a)(2) ........................................................ 51, 52, 53
Administrative Procedure Act:
5 U.S.C. § 701(a)(1) ............................................................................. 33viCase: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 8 of 71

5 U.S.C. § 701(a)(2) ............................................................................. 33
5 U.S.C. § 702(1) ................................................................................. 33
5 U.S.C. §§ 701-706 ................................................................................ 1
16 U.S.C. § 470 et seq..................................................................................... 13
16 U.S.C. § 470a-2 ................................................................................... 15, 44
16 U.S.C. § 470f .......................................................................................14, 44
28 U.S.C. § 1331 ............................................................................................... 1
28 U.S.C. § 1291 ............................................................................................... 1
National Historic Preservation Act:
54 U.S.C. § 300101, § 402 ......................... 3, 4, 13-17, 26, 28, 32, 44, 54
54 U.S.C § 306108..........................................................................14, 44
54 U.S.C. § 307101(e) ..................................................................... 15, 44
Pub. L. 113-287, 128 Stat. 3094 (Dec. 19, 2014) ........................................... 13
TREATIES AND AGREEMENTS:
Agreement Between the United States of America and Japan Concerning
the Ryukyu Islands and the Daito Islands,
23 U.S.T. 446......................................................................................... 6
Agreement Under Article VI of the Treaty of Mutual Cooperation and
Security Between Japan and the United States of America Regarding
Facilities and Areas and the Status of United States Forces in Japan(“Status of Forces Agreement” or “SOFA”),
11 U.S.T. 1652 ..................................................... 6, 7, 8, 9, 10, 27, 34, 37
Treaty of Peace with Japan,
3 U.S.T. 3169 ......................................................................................... 5vii

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Treaty of Mutual Cooperation and Security Between the United States ofAmerica and Japan (“Security Treaty”),
11 U.S.T. 1632 ....................................................................................6, 7
REGULATIONS:
68 Fed. Reg. 70185 (Dec. 17, 2003) .............................................................. 12Fed. R. App. P. 4(a)(1) ..................................................................................... 1
Fed. R. Civ. P. 54(b) ...................................................................................... 38
36 C.F.R. pt 800 ................................................................................ 14, 17, 54viii

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GLOSSARY
APA

Administrative Procedure Act

ER

Excerpts of Record

CBD

Appellants Center for Biological Diversity et al.

EIA

Environmental Impact Assessment

ESA

Endangered Species Act

FISA

Foreign Intelligence Surveillance Act

FRF

Futenma Replacement Facility

MCAS

Marine Corps Air Station

NEPA

National Environmental Policy Act

NHPA

National Historic Preservation Act

Security Treaty

Treaty of Mutual Cooperation and Security Between the
United States of America and Japan

SER

Supplemental Excerpts of Record

SOFA

Status of Forces Agreement (Agreement Under Article VIof the Treaty of Mutual Cooperation and Security Between
Japan and the United States of America Regarding
Facilities and Areas and the Status of United States Forces
in Japan)ix

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STATEMENT OF JURISDICTION
Plaintiffs-Appellants Center for Biological Diversity et al. (collectively“CBD”) alleged jurisdiction in the district court under 28 U.S.C. § 1331
(federal question) and 5 U.S.C. §§ 701-706 (Administrative Procedure Act).
Excerpts of Record (“ER”) 46.
The district court entered final judgment dismissing for lack ofsubject matter jurisdiction on February 13, 2015. ER 5. CBD filed its noticeof appeal on April 9, 2015, within the 60 days required by Fed. R. App. P.
4(a)(1). ER 2. This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF ISSUES
I.

Courts lack jurisdiction to decide political questions, which

include issues committed by the Constitution to the political branches ofgovernment (such as decisions relating to foreign policy and national
defense), and issues where there are no discoverable and manageable
standards for a court to apply. In this case, CBD challenges actions of theSecretary of Defense in connection with a decision by the United States andthe Government of Japan to replace an existing overseas military base witha new base. The new base is being built by the Government of Japan, at
Japanese expense, on sovereign Japanese territory, for use by the United

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States under longstanding agreements between the two countries. Do
CBD’s claims raise non-justiciable political questions?
II.

To establish Article III standing, a plaintiff must demonstrate(among other things) that her injury is likely to be redressed by a favorable
decision. Assuming arguendo that CBD’s claims for declaratory relief are
not barred by the political question doctrine, has CBD met its burden to
demonstrate standing, where its assertions of redressability areunsupported and speculative?
STATEMENT OF THE CASE
A.

Nature of the Case

This case arises out of the joint efforts of the United States and theGovernment of Japan, under a series of bilateral agreements andcommitments, to build a new Marine Corps air base (the Futenma
Replacement Facility or “FRF”) to replace the existing Marine Corps Air
Station Futenma in Okinawa, Japan. The Government of Japan has
determined that the existing base has become incompatible with its
surroundings due to significant urbanization and population growth since
the base was first established after World War II. As a replacement for the
existing base, the new base is essential to sustain U.S. forces in Japan in
their mission to contribute to the peace and security in the Pacific region.

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Accordingly, completion of the FRF has long been a matter of great
importance to both the United States and the Government of Japan.
CBD’s original complaint alleged that the Secretary of Defense andDepartment of Defense (collectively “the Secretary”) violated Section 402 of
the National Historic Preservation Act, 54 U.S.C. § 300101 (“NHPA”), by
failing to take into account the effects of the FRF on the Okinawa dugong, amanatee-like marine mammal that is designated a “cultural property”
under Japanese law. In 2008, the district court held, among other things,
that Section 402 applied and that the Secretary was obliged to undertake an
NHPA analysis. The court declined to issue a final remand order, however,and held the case in abeyance pending further action by the Secretary.
In response to the court’s 2008 decision, the United States
Department of the Navy (on behalf of the Secretary) undertook an NHPA
analysis. That analysis included the commissioning of an independent
study on the potential effects of the FRF on the Okinawa dugong, active
engagement with the Government of Japan, and review of multiple
biological, environmental, and historical studies relating to the impact on
the dugong. The Navy considered the Environmental Impact Assessment(“EIA”) prepared under Japanese law by the Government of Japan, thecomments collected by the Government of Japan during its EIA process,3Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 14 of 71

and all the materials provided by CBD in the course of the litigation,
including the declaration of CBD’s expert, Dr. Hines. The Navy also
consulted with sixteen experts on the dugong drawn from the fields ofarcheology, biology, history, and folkloric and traditional knowledge, whowere chosen after consideration of CBD’s list of recommended experts andinterested parties. As part of its NHPA analysis, the Navy recommended
mitigation measures for the Government of Japan to consider during its
design and construction of the FRF. The Navy also identified mitigation
measures it would consider in operating the completed FRF. The Navy
concluded its analysis and issued its NHPA Findings in April 2014, findingthat FRF will have no adverse impact on the dugong. The Government ofJapan reached the same conclusion in its EIA.
CBD then filed its Supplemental Complaint challenging the adequacyof the Navy’s NHPA analysis. The Supplemental Complaint sought
declaratory relief and an injunction barring the Secretary from undertaking“any activities in furtherance of the FRF project, including granting permits
or approvals” allowing the Government of Japan’s contractors to enter
Camp Schwab – the existing U.S. base where Japan is building the FRF –until the Secretary “complies with” NHPA § 402.

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The district court dismissed the action. The court held that CBD’s
claim for an injunction raised non-justiciable political questions. And while
the court determined that CBD’s claims for declaratory relief did not raise
political questions, it concluded that CBD lacked standing to raise thoseclaims because the declaratory relief CBD sought would not redress CBD’s
alleged injuries. As we demonstrate below, the court’s determinations that
CBD’s claim for injunctive relief was barred by the political question
doctrine and that CBD lacked standing for its claims for declaratory relief
are correct. In addition (and contrary to the district court’s finding), CBD’s
claims for declaratory relief raise non-justiciable political questions.
Accordingly, the judgment of dismissal should be affirmed.
B.

Legal and Factual Background1.

Post‐War Administration of Okinawa

The United States has maintained military bases on Okinawa, Japan– including Marine Corps Air Station Futenma (“MCAS Futenma”) – since
the end of World War II. ER 9, Center for Biological Diversity v. Hagel, 80
F. Supp. 3d 991, 995 (N.D. Cal. 2015). From 1945 through 1971, the UnitedStates administered Okinawa pursuant to the Treaty of Peace with Japan,
signed at San Francisco on September 8, 1951, 3 U.S.T. 3169 (also known as
the San Francisco Peace Treaty), while Japan retained residual sovereignty.

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The United States relinquished its post-war administration of Okinawa andrestored the island to Japanese administration in 1972, pursuant to theAgreement Between the United States of America and Japan Concerning
the Ryukyu Islands and the Daito Islands, signed at Washington and Tokyo
on June 17, 1971, 23 U.S.T. 446, (also known as the Okinawa Reversion
Treaty). That treaty provides for the continued use of “facilities and areas”
in the islands by the United States in accordance with two other treaties:
the Treaty of Mutual Cooperation and Security Between the United Statesof America and Japan, signed at Washington on January 19, 1960, 11 U.S.T.
1632 (the “Security Treaty”), and the Agreement Under Article VI of theTreaty of Mutual Cooperation and Security Between Japan and the UnitedStates of America Regarding Facilities and Areas and the Status of UnitedStates Forces in Japan, signed at Washington on January 19, 1960, 11
U.S.T. 1652 (the “Status of Forces Agreement” or “SOFA”).
2.

The Security Treaty, the Status of Forces Agreement,
and the Japan‐U.S. Security Consultative Committee

The Security Treaty has “lasted longer than any other alliance
between two great powers since the 1648 Peace of Westphalia.” George R.
Packer, The United States-Japan Security Treaty at 50, Foreign Affairs,Mar./Apr. 2010. Among other things, the Security Treaty provides that“[e]ach Party recognizes that an armed attack against either Party in the
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territories under the administration of Japan would be dangerous to its
own peace and safety and declares that it would act to meet the common
danger in accordance with its constitutional provisions and processes.”
Security Treaty, art. V, 11 U.S.T. 1632. It also provides that “[f]or the
purpose of contributing to the security of Japan and the maintenance ofinternational peace and security in the Far East, the United States ofAmerica is granted the use by its land, air and naval forces of facilities andareas in Japan.” Id., art. VI.
The use of facilities and areas granted by the Security Treaty isgoverned by the Status of Forces Agreement, two provisions of which are ofparticular relevance here. First, SOFA Article III provides that “[w]ithin thefacilities and areas, the United States may take all the measures necessary
for their establishment, operation, safeguarding, and control.” Art. III, 11
U.S.T. 16532. This authority generally includes the authority to control
access of individuals to United States facilities and areas. SER 3. Second,
SOFA Article XXV establishes a “Joint Committee” composed of one
representative of the United States and one representative of theGovernment of Japan as the means for consultation between the two
governments on “all matters requiring mutual consultation regarding the7Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 18 of 71

implementation of [the SOFA],” including “determining the facilities andareas in Japan which are required for the use of the United States.” See
SER 4.
The Security Treaty and SOFA are implemented through various
bilateral entities, including the Japan-U.S. Security Consultative
Committee (also known as the “2 + 2”), which consists of four members:
the Japanese Minister of Foreign Affairs, the Japanese Minister of Defense,
the United States Secretary of Defense, and the United States Secretary ofState. SER 4; Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082, 1084-85(N.D. Cal. 2008) (“Gates”).
3.

The Futenma Replacement Facility

The United States and Japan have been working toward theconstruction of the FRF for two decades. SER 10. In 1995, in recognition of
the impact of U.S. bases on the growing population on Okinawa, the UnitedStates and Japan began a review of the U.S. military presence on Okinawa.
Id. In 1996, the Security Consultative Committee concluded that MCAS
Futenma should be replaced with a sea-based facility off the less-populated
eastern coast of Okinawa. Id. Thereafter, President Clinton and Prime
Minister Hashimoto approved a plan to close MCAS Futenma and relocate
many of its functions. ER 10.

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Work began on engineering and construction plans, but due to local
opposition and the complexities of constructing an offshore facility, there
were significant delays in executing the plan. SER 10. The two governments
eventually began developing alternative proposals for the FRF. This work
culminated in the Security Consultative Committee’s adoption, in 2006, of
the “Roadmap for Realignment Implementation.” Id.
The Roadmap has three critical components: (1) location of the FRF
at Camp Schwab and adjacent water areas, including two runways aligned
in a V-shape; (2) relocation of approximately 9,000 of Marines and theirdependents from Okinawa to Guam and other locations; and (3) the UnitedStates’ return to Japan of the land now used for MCAS Futenma and otherbases following completion of the first two components. SER 10. The new
FRF V-shape design took into account both U.S. operational requirements
and the need to limit impacts on the environment and local communities.
Id. The decision to locate the updated configuration of the FRF at Camp
Schwab followed consideration of a broad range of alternative locations,
including smaller islands and mainland Japan. SER 10-11.
Consistent with SOFA Article XXIV, 11 U.S.T. 1672, which provides
that “Japan will furnish . . . without cost to the United States . . . all facilities
and areas,” Japan is responsible for the siting, design and construction of9

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the FRF, including any necessary reconfiguration of facilities at Camp
Schwab and any construction in the waters surrounding Camp Schwab.
SER 4. To carry out these responsibilities, Japan and its contractors must
access Camp Schwab. SER 4-6.
In 2007, the Joint Committee1 formed the Alliance Transformation
Implementation Panel to make recommendations on matters related to
Alliance Transformation projects, including construction of the FRF. SER 5.
The Joint Committee also approved the Alliance Transformation
Implementation Panel Guidance, which states that the U.S. ArmyEngineering District of Japan and the Service Components “will extend fullcooperation regarding necessary measures for entry, construction of
temporary field offices, warehouses, utilities, etc. which are required forconstruction projects.” Id. The FRF is being constructed under this bilateral
guidance. Id.
Since 2007, coordination and planning for the FRF have continued.
At the April 2012 meeting of the Security Consultative Committee, thenSecretaries Clinton and Panetta reiterated their “resolve to continue towork toward the relocation of MCAS Futenma in a way that meets the

As noted above, the Joint Committee is a bilateral entity establishedunder SOFA Article XXV.
1

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criteria: operationally viable, politically feasible, financially responsible,
and strategically sound” SER 11, 20. They also “reconfirmed their view that
the FRF . . . remains the only viable solution that has been identified todate.” SER 20. Finally, they “confirmed their commitment to resolve theissue of the FRF as soon as possible in order to avoid the indefinite use of
MCAS Futenma, while maintaining Alliance capabilities.” Id.
In March 2013, the Japanese government requested a landfill permit
from the Governor of Okinawa. SER 11. Approval of the permit was
required for construction of the FRF to proceed. Id. At the Security
Consultative Committee meeting in October 2013, Secretaries Kerry andHagel and their Japanese counterparts reiterated their support for the FRF.
Id. Additionally, “[t]he United States welcomed recent developments
including the submission of the request for approval of public water
reclamation permit to Okinawa Prefecture by the Government of Japan[.]”SER 29. In December 2013, the Governor of Okinawa, Hirokazu Nakaima,
issued the permit, thus clearing the most significant remaining hurdle toconstruction. SER 11.2 After over twenty years of negotiation, design, andAs CBD notes (Br. 11), in October, 2015, Governor Nakaima’s
successor, Takeshi Onaga, purported to revoke the permit. Onaga’s action
has since been overturned. See Eric Johnson, Okinawa Sues Japan Again
Over U.S. Base Relocation, Japan Times (Feb. 1, 2016),2

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study, construction of the FRF by the Government of Japan is now
underway.
4.

The dugong

The dugong is an herbivorous marine mammal related to themanatee. ER 8. It is listed as “endangered” under the U.S. Endangered
Species Act, “vulnerable” by the World Conservation Union, and “criticallyendangered” under Japanese law. Id. It inhabits warm coastal waters fromthe western Pacific Ocean to the Persian Gulf, Red Sea, and the eastern
coast of Africa. 68 Fed. Reg. 70185-86 (Dec. 17, 2003). The dugong islargely dependent on seagrass communities for subsistence and is thus
restricted to coastal habitats that support seagrass meadows. Id. Worldwide
dugong populations have declined due to fishing-related fatalities, habitat
degradation and hunting. Id.
The Okinawa dugong, the northernmost dugong population in theworld, is not a genetically-distinct subspecies but an isolated relict
population. Once common, its numbers declined in the early twentiethcentury due to traditional hunting (which is now illegal) and fisheries

http://www.japantimes.co.jp/news/2016/02/01/national/crimelegal/okinawa-sues-japan-again-over-u-s-base-relocation/#.VrjvNf8UW4Q

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bycatch. The primary threat to the Okinawa dugong today remains bycatch,followed by habitat destruction from coastal development and soil runoffthat pollutes or kills seagrass beds. ER 8. In 1997, the MammalogicalSociety of Japan estimated that fewer than 50 Okinawa dugongs survive inthe wild. The Okinawa dugong is listed as a “cultural property” under theJapanese Law for the Protection of Cultural Properties based on its
importance in native Okinawan mythology and culture. Okinawa Dugong
v. Rumsfeld, 2005 WL 522106 at *6,*7 (N.D. Cal. 2005).
C.

The National Historic Preservation Act

The NHPA, 54 U.S.C. § 300101 et seq.,3 generally requires federal
agencies to “take into account the effect” of their “undertakings” on certain
properties. Like the National Environmental Policy Act (“NEPA”), the
NHPA is a procedural statute. It does not prohibit the approval ofundertakings that result in adverse effects; rather, it requires agencies “to‘stop, look, and listen’ before proceeding with agency action.” Te-Moak

The NHPA, previously codified at 16 U.S.C. § 470 et seq., was recently
recodified in title 54. Pub. L 113-287, 128 Stat. 3094 (Dec. 19, 2014). When
discussing individual provisions of the statute, we follow the district court’s
practice of using the section numbers of the original public law – forexample, “NHPA § 402” or “Section 402” – with parallel citations to the
U.S. Code as necessary.

3

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Tribe of Western Shoshone of Nevada v. U.S. Department of the Interior,
608 F.3d 592, 610 (9th Cir. 2010).
Within the United States, federal undertakings are governed by
NHPA § 106, 54 U.S.C § 306108 (formerly 16 U.S.C. § 470f). Section 106
requires federal agencies to “take into account the effect” that a federal
undertaking will have on any historic property and “afford the [Advisory
Council on Historic Preservation] a reasonable opportunity to comment
with regard to the undertaking.” Id.
Implementing regulations establish a detailed four-step procedure tocomply with Section 106. 36 C.F.R. pt 800. First, the agency identifies“consulting parties,” including the State Historic Preservation Office andinterested Indian Tribes. Second, the agency identifies historic properties
that might be affected by the undertaking. Third, the agency assesses
whether there are adverse effects on those historic properties. Fourth, theagency endeavors to resolve any adverse effects. These steps occur in
consultation with the consulting parties identified by the agency. See, e.g.,
36 C.F.R. §§ 800.4(3), 800.5(a).
Extraterritorial undertakings are addressed in NHPA § 402, which
was added to the NHPA in 1980 to implement the U.N. Convention
Concerning the Protection of the World Cultural and Natural Heritage.

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H.R. Rep. 96-1457, 96th Cong., 2d Sess. 1980, 1980 USCCAN 6378. Section
402 provides:
Prior to the approval of any Federal undertaking outside theUnited States which may directly and adversely affect aproperty which is on the World Heritage List or on theapplicable country’s equivalent of the National Register, thehead of a Federal agency having direct or indirect
jurisdiction over such undertaking shall take into accountthe effect of the undertaking on such property for purposesof avoiding or mitigating any adverse effects.
54 U.S.C. § 307101(e) (formerly 16 U.S.C. § 470a-2).
Unlike Section 106, Section 402 does not require the federal agency
to afford the Advisory Council on Historic Preservation an opportunity tocomment. Likewise, the regulations governing the take-into-accountprocess for domestic undertakings under Section 106 do not apply to
extraterritorial undertakings under Section 402. No separate implementing
regulations for extraterritorial undertakings have been promulgated. Gates,
543 F. Supp. 2d at 1089.
The NHPA does not contain a provision authorizing judicial
review. Agency compliance with NHPA § 106 is generally subject to judicial
review under the Administrative Procedure Act. San Carlos Apache Tribe v.
United States, 417 F.3d 1091, 1099 (9th Cir. 2005).

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D.

Proceedings Below – 2003 through 2012

CBD commenced this litigation in 2003. Its First Amended Complaintsought declaratory and injunctive relief based on the Secretary’s alleged
failure to comply with NHPA § 402 in connection with the “design,development and approval of the FRF.” See ER 53. In an unpublished 2005
decision, the district court (Judge Patel) held, among other things, that: (1)Japan’s “Law for the Protection of Cultural Properties . . . is an ‘equivalentof the National Register’ within the meaning of” Section 402; (2) the
Dugong is a “property” within the meaning of Section 402; and (3) factualissues precluded findings on whether the FRF is a federal “undertaking”
under Section 402 and whether Japan’s degree of control over the siting of
the FRF required judicial abstention under the act of state doctrine.
Rumsfeld, 2005 WL 522106 at *8, *10-11, *19-20. The court withheld
decision as to whether the FRF would “directly and adversely” affect thedugong and whether the Secretary had completed the take-into-accountprocess required by Section 402. Id. at *16-18.
As the litigation continued, the United States and the Government ofJapan continued their efforts to find a mutually acceptable solution to the
Futenma relocation issue. In 2006, the two governments approved theRoadmap for Realignment Implementation (described above pp. 9-10).

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In response to the Roadmap, CBD filed its Second Amended
Complaint. ECF No. 69. In a 2008 decision, the court (again, Judge Patel)
held that: (1) the Roadmap constituted “final agency action” under the APA,
(2) most but not all of the Plaintiffs had standing, and (3) Plaintiffs’ claims
were ripe. Gates, 543 F. Supp. 2d at 1091-97.
In addition, based on the purposes of Section 402 and the 36 C.F.R.
pt 800 regulations (which describe the take-into-account process fordomestic undertakings), the court held that to satisfy the requirements ofSection 402, the take-into-account process must include, at a minimum,(1) identification of protected property, (2) generation,collection, consideration, and weighing of information
pertaining to how the undertaking will affect the historic
property, (3) a determination as to whether there will be
adverse effects or no adverse effects, and (4) if necessary,development and evaluation of alternatives or modifications
to the undertaking that could avoid or mitigate the adverse
effects.
Id. at 1104. The court noted that “a federal agency does not complete thetake into account process on its own, in isolation, but engages the hostnation and other relevant private organizations and individuals in acooperative partnership.” Id. The court held that the Secretary had failed tosatisfy these requirements and ordered that the Secretary “comply with
NHPA section 402.” Id. at 1107-1112. But rather than remanding to the17Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 28 of 71

agency, the court ordered that the case be “held in abeyance until theinformation necessary for evaluating the effects of the FRF on the dugong is
generated, and until defendants take the information into account for the
purpose of avoiding or mitigating adverse effects to the dugong.” Id. at 1112.
The court further ordered the Secretary to submit to the court certain
information and “documentation describing what additional information isnecessary to evaluate the impacts of the FRF on the dugong[.]” Id.
In response, the parties submitted briefs and a series of status reports
setting out their competing positions and seeking further guidance on thescope of the Secretary’s duties under the court’s decision. Both parties also
requested that the court issue an appealable final order. ECF No. 130 at 4,
6. In particular, CBD requested that the court issue an order requiring Navyto follow detailed procedures similar to those required by section 106. The
court declined to issue such a remand order. Instead, in 2012, based onnews reports that the future of the FRF was uncertain, the court sua sponte
directed the clerk to administratively close the case and provided that“when plans for [the FRF] become more finalized or are abandoned, theparties may seek reopening of the proceedings by letter without thenecessity of a motion.” Center for Biological Diversity v. Panetta, February
10, 2012, Order re Status (ECF No. 147) at 1-2, 5.

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E.

The Secretary’s Section 402 Process

With the district court litigation in limbo, the Secretary (acting
through the Navy and the Marine Corps) undertook an NHPA take-intoaccount process in accordance with the district court’s 2008 decision. ER
62. The Navy reviewed the declarations on file in the litigation and theinformation and documentation prepared by the Government of Japan,
including both the draft and final environmental impact assessment
prepared by the Government of Japan under Japanese law. ER 65-66, 8386. The Navy also commissioned a study of potential effects on the dugong,
and independently evaluated the results of that study. ER 73-78. The study
team included an ethnographer, an archaeologist, archival researchers, anda marine biologist. ER 65. The study was initiated in July 2009 and a draft
report was completed in March 2010. Id. Consultation between thecontracted experts and Navy staff began in December 2009, and the Navy
accepted the study from the contractors in April 2010. Id. The Marine
Corps then commenced preparation of the Recommended Findings, whichwere approved in April 2014. ER 88, 90.
The Navy began by analyzing the Government of Japan’s rationale fordesignating the Okinawa dugong as a natural monument. ER 70. Through areview of the historical designation documents, the Navy concluded that the

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intrinsic elements of the dugong’s cultural significance are biological, andthat the cultural property of the dugong would be affected if the dugong
itself or its population in Okinawa is harmed. Id. The Navy also evaluatedthe results of archival and ethnographic research, concluding that
historically, the dugong was featured in myths and songs, and had a
traditional role in Okinawa culture that included use of its meat for foodand its bones for tool-making. ER 70-71. In modern times, after hunting
dugongs was outlawed, these associations have largely faded, and myths,
songs and traditional practices related to the dugong are encountered only
within very small segments of the Okinawa population rather than society
as a whole. ER 71-72.
The Navy defined the area of potential effect of both construction andoperation of the FRF. ER 63. The affected area during construction would“include the construction footprint (inclusive of work yards and sea yards)
and those portions of Henoko and Oura Bays around the construction site
subject to vessel traffic, acoustic disturbance, runoff, or turbidity associatedwith the construction effort.” Id. The potentially-affected area during
operations was deemed to include “those portions of Henoko Bay subject tovessel traffic to/from the FRF, acoustic disturbance from FRF operations,and discharge of effluent and storm water runoff from the FRF.” Id.

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The Navy then reviewed studies conducted by the Government ofJapan in 2000, 2001, 2003, 2008 and 2009, and monthly surveys
conducted by the Government of Japan between June 2009 and December
2013, to determine whether the dugong was present within the area of
potential effect. Id. The Navy concluded that individual dugongs arepresent only sporadically or intermittently within the affected area. ER 64,
70, 73.
To determine the potential of the FRF to affect the dugong, the Navyreviewed in detail the activities involved in the construction of the facilityby the Government of Japan, and, in equal detail, the operations at the FRF
once construction is complete and functions are transferred from theexisting Futenma base. ER 66-68. Specifically, the Navy reviewed available
information on the vulnerability of dugongs to human activities, including“(1) hunting; (2) bycatch/incidental catch; (3) vessel strikes; (4) acoustic
disturbance resulting in injury to hearing systems, interference withacoustic communication signals, or causing behavioral changes; (5) habitat
loss/degradation; and (6) chemical pollution.” ER 70.
The Navy concluded that construction of the FRF would have noadverse effects on the dugong. ER 74. Regarding potential vessel impacts,
the Navy found that “[m]onitoring and mitigation measures such as

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standoff and speed limits” would prevent potential adverse effects of vessel
movements on the dugong. Id.
Regarding seagrass bed habitat loss due to land reclamation, the Navy
concluded:[W]hile the seagrass beds in Henoko and Oura bays are apotential natural habitat and food source for the Okinawa
dugong, because these seagrass beds are not consistently or
routinely used by resident dugong and there are otherseagrass beds sufficient to maintain the current populationof Okinawa dugong, the loss of some of the seagrass beds in
Henoko and Oura bays is not considered an adverse effect on
the Okinawa dugong . . . .
Id.
The Navy also analyzed the potential for chemical contamination
resulting from soil runoff. It concluded that while the Navy “has noevidence that red soils at Camp Schwab contain [relevant] toxins,” theGovernment of Japan plans to implement a number of measures to reducerunoff, including: “[i]nstallation of contamination prevention covers andframeworks”; the use of seawalls covered with waterproof canvas to enclose
reclamation areas and prevent soils from leaching out of the reclamation
areas; storm water filtration; and the use of washed stone for break walls.
ER 74-75. The Navy’s Findings continue:
Despite these measures, some runoff is possible that could
contribute to decline in the health of local seagrass beds. The
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Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 33 of 71[Government of Japan] recognizes this potential and . . . hascommitted to establishing a monitoring system that enables
swift implementation of environmental protection measures.
[It] has also committed to conducting ongoing surveys ofseagrasses and, based on the results of these surveys, willtake appropriate action such as consulting with experts to
identify methods for expanding the habitat of seagrasses andimplementing those measures deemed to be feasible. With
implementation of these avoidance, minimization andmitigation efforts, combined with very low and infrequent
presence of Okinawa dugong in the [affected area, the Navy]finds there will be no adverse effects to the Okinawa dugong.
ER 75.
On the subject of acoustic or visual disturbances, the Navy reviewed
the numerous “best management practices” that the Government of Japanplanned to implement during construction. The Navy noted that theGovernment of Japan has committed to daytime construction only, which
would minimize any adverse effects on the dugong because dugongs spend
their days in deep waters and feed over the reef in shallow waters at night.
ER 69, 75. In addition, the Navy concluded “that no adverse effects will
occur due (1) to the limited use of Henoko and Oura bays by dugongs, (2)the implementation . . . of noise minimization techniques during
construction, (3) the suspension . . . of noise-generating activities when
Okinawa dugongs are present, and (4) the tendency for Okinawa dugongs
to move to deeper waters when exposed to such noise.” ER 75-76.

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Similar analyses were applied to the potential impacts from base
operations leading to the conclusion of no adverse effects. In addition toreviewing Japan’s plan to minimize runoff during construction, the Navyreviewed Japan’s stormwater system design for the FRF, which is designed
to release stormwater to the sea areas south and east of the FRF to avoid
the seagrass areas in Henoko and Oura Bays. The analysis also considered
the Navy’s commitment to adopting best management practices after
receiving the FRF, such as silt fencing, trench covers, and geo-textile
matting to mitigate erosion, and routine inspections and monitoring toprevent any sediment runoff. ER 77. Vessel impacts were found “highly
unlikely” due to limited vessel traffic. Id. The Navy concluded that there
will be no adverse impacts from overflights because a dugong would have to
be directly under the flight path of an aircraft to receive any significant
sound exposure. ER 77-78. Lighting at night on the FRF will be limited toapproach lights along the runway, and minimal impacts are expected
because this lighting is generally low wattage and typically points upward
and away from the water to facilitate viewing by aircraft conducting night
operations. Id.
Summarizing the total impact on the dugong population in Okinawa,
the Navy acknowledged the limitations of the available total population

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data, but emphasized that it “do[es] have current and valid population data
for Henoko and Oura bays,” ER 78, and that this information was
sufficient to determine that there was only sporadic dugong activity
observed directly in the area of potential effects. ER 70, 73. Based on the“current and valid population data” it possessed for dugong in Henoko andOura bays,4 and the analyses summarized above, the Navy concluded that“the construction and operation of the FRF will not have adverse effects on
the local Okinawa dugong population and consequently will not
substantially contribute to the extinction of the entire Okinawa dugong.”
ER 78. The Navy noted that this conclusion is consistent with theconclusions reached by the Government of Japan in its EIA. Id.
The Navy also considered in detail potential mitigation measuresboth for the Government of Japan to implement during construction andfor the Navy to implement during operations.

Noting that the most recent study of the entire population of the
Okinawa dugong dated back to 1997, the Navy recommended that theGovernment of Japan conduct a new comprehensive study andrecommended expansion of surveys into Oura Bay. ER 78-79.
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ER 79-81. Finally, the Findings describe the several methods the Navy
used to engage the host nation and other relevant private organizations andindividuals. ER 81-82.
F.

Proceedings Below – 2014 through 2015

In April 2014, the Navy notified the court and CBD that it hadcompleted its Section 402 process. ECF 151. In response, CBD moved toreopen the case and filed its First Supplemental Complaint seeking reviewof the agency’s take-into-account process and no-effect finding. The
Supplemental Complaint requests (1) a declaration that “DoD’s Findings
and failure to involve Plaintiffs and the public” in the take-into-accountprocess violate Section 402 and the APA, (2) an order setting aside DoD’s
findings, and (3) “an order that DoD not undertake any activities infurtherance of the FRF project, including granting permits or approvals forcontractor entry to Camp Schwab and/or the proposed FRF project area,
and that DoD rescind any such permits or approvals already granted, until
it complies with” NHPA § 402. ER 58-59.
The parties moved for summary judgment, and on February 13, 2015,
the district court (Judge Chen, who was assigned the case due to Judge
Patel’s retirement) granted the Secretary’s motion to dismiss. ER 5, 6. As
described in more detail below, the court held that CBD’s claim for26Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 37 of 71

injunctive relief presents a non-justiciable political question and thedeclaratory claims are non-justiciable for want of redressability.
SUMMARY OF ARGUMENT
I. CBD’s claims for injunctive and declaratory relief are barred by thepolitical question doctrine. The injunction CBD seeks would block the
Secretary’s implementation of the FRF project and require the Secretary to
bar the Government of Japan and its contractors from accessing sovereign
Japanese territory, effectively requiring the United States to violatebilateral commitments with the Government of Japan negotiated under the
Security Treaty and the Status of Forces Agreement. Further, CBD’s claims
for declaratory relief seek to require the Secretary to reconsider
commitments and decisions on the design and operation of the FRF thatare part of the bilateral 2006 Roadmap, negotiated at the highest levels of
the two governments. Thus, the relief CBD seeks would directly intrude
upon issues of foreign policy and national defense – quintessential politicalquestions – that are constitutionally committed to the political branches ofgovernment. CBD’s claims for injunctive and declaratory relief are therefore
barred under the under the first test of Baker v. Carr.
The relief CBD seeks also runs afoul of the second Baker test – theneed for judicially discoverable and manageable standards. There are no27Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 38 of 71

manageable standards by which the court can determine whether thebalance of hardships tips in CBD’s favor and whether the public interest
would be served by an injunction against the implementation of a bilateralcommitment for the construction of an overseas military base. Further,
NHPA § 402 provides no substantive standards by which a court can review
the procedures and conclusions of the Secretary’s take-into-accountprocess.
CBD’s claims for relief are also barred under the fourth, fifth, andsixth Baker tests, because they would require the court to express a lack ofrespect for the Secretary’s decision to enter into the bilateral arrangementwith the Government of Japan. That is a “decision already made” on anissue on which there is an unusual need for deference to the Executive.
II. In the alternative, CBD lacks standing to assert its claims fordeclaratory relief, because it cannot demonstrate that the declaratory relief
it seeks could redress its alleged injury. While a court could in theory set
aside the Secretary’s allegedly flawed NHPA Findings and take-intoaccount process, a court cannot set aside the Secretary’s decision to commit
to the 2006 Roadmap, or order the Secretary to withdraw from theRoadmap, or order the Secretary to negotiate a different understanding
with the Government of Japan. As a result, CBD cannot demonstrate that

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the declaratory relief it seeks could protect its concrete interest inprotecting the dugong from the alleged impacts of the FRF.
STANDARD OF REVIEWThis Court reviews the district court’s dismissal for lack of subject
matter jurisdiction de novo. Corrie v. Caterpillar, Inc., 503 F.3d 974, 979(9th Cir. 2007). The Court may affirm on any basis fairly supported by therecord. United States v. Washington, 969 F.2d 752, 755 (9th Cir. 1992).
ARGUMENTI.

CBD’s claims for injunctive and declaratory relief are barred by thepolitical question doctrine.
The political question doctrine originated in Chief Justice Marshall’s

observation that “[q]uestions, in their nature political, or which are, by theconstitution and laws, submitted to the executive, can never be made in thiscourt.” Marbury v. Madison, 5 U.S. 137, 170 (1803). The doctrine is“primarily a function of the separation of powers.” Baker v. Carr, 369 U.S.
186, 210 (1962); see also Schneider v. Kissinger, 412 F.3d 190, 193 (D.C.
Cir. 2005). And it is jurisdictional: “if a case presents a political question,[courts] lack subject matter jurisdiction to decide that question.” Corrie,
503 F.3d at 980-82.

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Political questions are not justiciable even where a statute, such as the
APA, would otherwise provide for judicial review. “[A] statute providing for
judicial review does not override Article III’s requirement that federal
courts refrain from deciding political questions.” El-Shifa Pharm. Indus.
Co. v. United States, 607 F.3d 836, 843 (D.C. Cir. 2010) (en banc). See also
Sierra Club v. Morton, 405 U.S. 727, 732 n. 3 (1972) (“Congress may not
confer jurisdiction on Art. III federal courts . . . to resolve ‘politicalquestions,’ because suits of this character are inconsistent with the judicial
function under Art. III”) (internal citations omitted); Saavedra Bruno v.
Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999) (no presumption ofreviewability applies “[w]hen it comes to matters touching on national
security or foreign affairs”).
Baker sets out six independent tests for determining whether a casepresents a political question:
Prominent on the surface of any case held to involve a
political question is found [1] a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially discoverable
and manageable standards for resolving it; or [3] the
impossibility of deciding without an initial policy
determination of 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 needfor unquestioning adherence to a political decision already30

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made; or [6] the potentiality of embarrassment frommultifarious pronouncements by various departments on one
question.
369 U.S. at 217.
As this Court has noted, the Baker tests “are more discrete in theory
than in practice, with the analyses often collapsing into one another.”
Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005). The first two
tests – a textual commitment to another branch of government and a lackof judicially manageable standards – are “the most important,” Harbury v.
Hayden, 522 F.3d 413, 418 (D.C. Cir. 2008), but in order for a case to be
nonjusticiable, the court “need only conclude that one factor is present, notall.” Schneider, 412 F.3d at 194.
To be sure, not every case or controversy that touches on politicalmatters lies beyond judicial cognizance. Baker, 369 U.S. at 211. The
political question doctrine applies to “‘political questions,’ not . . . ‘politicalcases,’” id. at 217, and must be applied narrowly based on careful case-bycase analysis of the claims at issue. Zivotofsky ex rel. Zivotofsky v. Clinton,
132 S. Ct. 1421, 1427 (2012) (“Zivotofsky I”); Corrie, 503 F.3d at 982.
Here, CBD’s Supplemental Complaint seeks declaratory andinjunctive relief, including an order setting aside the Secretary’s Findings
and “[a]n order that DoD not undertake any activities in furtherance of the

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FRF project, including granting permits or approvals for contractor entry toCamp Schwab and/or the proposed FRF project area, and that DoD rescind
any such permits or approvals already granted” until the Secretary complies
with Section 402 by taking various steps that CBD contends are required bythat section. ER 58-59. As we demonstrate below, application of the Baker
tests demonstrates that these claims for relief are non-justiciable.
A.

The relief CBD seeks raises political questions under the first
Baker test – a constitutional commitment of the issue to thepolitical branches.

No areas of federal activity are more firmly committed to the politicalbranches than foreign policy and national defense. Schneider, 412 F.3d at
194-95 (discussing U.S. Const. art. I, § 8 and art. II, §§ 2, 3). Indeed, thepolitical question doctrine is universally recognized to apply with uniqueforce where matters of foreign policy and national security are at play.
Crosby v. National Foreign Trade Council, 530 U.S. 363, 386 (2000) (“thenuances of the foreign policy of the United States . . . are much more theprovince of the Executive Branch and Congress than of this Court”)(citations omitted); Haig v. Agee, 453 U.S. 280, 292 (1981) (“Mattersintimately related to foreign policy and national security are rarely proper
subjects for judicial intervention”); Chicago & S. Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (“Waterman”) (“the very
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nature of executive decisions as to foreign policy is political, not judicial.
Such decisions are wholly confided by our Constitution to the political
departments of the government, Executive and Legislative”); Oetjen v.
Cent. Leather Co., 246 U.S. 297, 302 (1918) (“The conduct of the foreign
relations of our Government is committed by the Constitution to the
executive and legislative [branches] . . . and the propriety of what may bedone in the exercise of this political power is not subject to judicial inquiry
or decision”); see also Mingtai Fire & Marine Ins. Co. v. United Parcel
Serv., 177 F.3d 1142, 1144 (9th Cir. 1999).5
The relief sought by CBD runs afoul of the first Baker test. This isparticularly apparent with respect to CBD’s request for an injunction
prohibiting the Secretary from undertaking “any activities in furtherance of

The Constitution’s commitment of foreign policy and national
security issues to the political branches is also reflected in decisions
applying the APA’s limitation on judicial review of agency actions that are“committed to agency discretion by law,”5 U.S.C. § 701(a)(2). See, e.g.,
Jensen v. National Marine Fisheries Service, 512 F.2d 1189, 1191 (9th Cir.
1975) (Secretary of State’s decision to approve fishing regulation adopted
under a bilateral treaty with Canada not subject to APA review); Saavedra,
197 F.3d at 1162 (visa determinations are unreviewable under 5 U.S.C.
§ 701(a)(1) and § 702(1); no presumption of reviewability applies to“matters touching on national security or foreign affairs”); Dep’t of Navy v.
Egan, 484 U.S. 518, 528-29 (1988) (whether granting security clearance
would be “consistent with the interests of national security” wasunreviewable under 5 U.S.C. § 701(a)(2)).
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the FRF project” until the Secretary complies with Section 402 in themanner CBD contends is required. ER 59. This injunction would effectively
require the United States to violate its bilateral commitments with theGovernment of Japan regarding the FRF – commitments negotiated at thehighest levels of the two governments under the Security Treaty and the
Status of Forces Agreement. Not only would the injunction block the
Secretary’s implementation of the FRF project, it would also require theSecretary to bar the Government of Japan and its contractors fromaccessing sovereign Japanese territory. Thus, as the district court found(ER 7, 32-36), the injunction CBD seeks would directly implicate foreign
policy and national defense issues that are constitutionally committed tothe political branches of government.
CBD’s argument to the contrary (Br. 41-54) is not persuasive. CBD
acknowledges that “political [and] national security decisions . . . areproperly the domain of the executive or legislative branches,” but contends
that its claim “does not require the court to second-guess or supplant suchdecisions.” Br. 41. CBD maintains that it does not seek review of “DoD’s
ultimate policy decisions concerning the location, design, construction, or
operation of a military base,” but only seeks review of the Secretary’s“consultation, information-gathering, and evaluation process pursuant to34Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 45 of 71

the National Historic Preservation Act’s ‘take into account’ requirement[.]”Br. 43-44; see also Br. 52 (“Plaintiffs’ claims and the relief they request do
not ask the court to opine on the decision to build the FRF.”). But thesecharacterizations of the case are not credible. CBD’s challenge to theSecretary’s NHPA procedures and Findings may not be a direct challenge to
the Secretary’s “ultimate policy decisions” concerning the FRF, but therelief CBD seeks strikes at the heart of those policy decisions. An injunction
blocking the Secretary’s implementation of the FRF project and requiring
the Secretary to bar the Government of Japan and its contractors fromaccessing sovereign Japanese territory would be a gross intrusion into
issues of foreign relations and national defense – issues committed to thepolitical branches. See Corrie, 503 F.3d at 984 (“Plaintiffs may purport tolook no further than Caterpillar itself, but resolving their suit will
necessarily require us to look beyond the lone defendant in this case andtoward the foreign policy interests and judgment of the United States
government itself.”).
Earth Island Institute v. Christopher confirms this conclusion. 6 F.3d
648 (9th Cir. 1993). In Earth Island, plaintiffs sought to compel the State
Department to comply with a congressional mandate “to initiate

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negotiations with foreign countries to develop treaties to protect sea
turtles[.]” 6 F.3d at 650. This Court held that it
has not and cannot lawfully order the Executive to comply
with the terms of a statute that impinges upon power
exclusively granted to the Executive Branch under theConstitution. Plaintiffs here ask us to compel the Secretaryof State to initiate negotiations with foreign nations on theprotection of sea turtles. Because “the Constitution plainly
grants the President the initiative in matters directly
involved in the conduct of diplomatic” affairs, we cannot
enforce the statute.
Id. at 653 (quoting Laurence H. Tribe, American Constitutional Law § 4–4,
at 219 (2d ed. 1988)). For the same reasons that the Court could not“compel the Secretary of State to initiate negotiations with foreign nations”
in Earth Island, the Court cannot prohibit the Secretary of Defense from
implementing the FRF project – and allowing the Government of Japanand its contractors access to Camp Schwab, sovereign territory of Japan –in accordance with the United States’ commitments under the 2006
Roadmap and related joint announcements by cabinet-level national
security officials. Cf. Salmon Spawning & Recovery Alliance v. Gutierrez,
545 F.3d 1220, 1226 (9th Cir. 2008) (decision whether to enter into or

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withdraw from a fisheries treaty with Canada “is a decision committed to
the Executive Branch” and thus nonjusticiable).6
Likewise, the first Baker test also bars CBD’s claims for declaratory
relief. 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 theGovernment of Japan regarding the FRF.7 The issues raised by CBD’srequested declaratory relief are thus inextricably intertwined with theimplementation of the Security Treaty, the Status of Forces Agreement, the2006 Roadmap, and other bilateral commitments – matters of foreign
policy and national security that are the province of the political branches,
not the courts. Thus, like the injunctive relief, the declaratory relief that
CBD seeks is non-justiciable.

As discussed below, Salmon Spawning also supports the district
court’s holding that CBD lacks standing to assert its claims for declaratory
relief.

6

For example, CBD argues (Br. 32, 38) that a remand is required sothat the Navy may consider altering flight paths, despite the fact that flightpaths are a function of the V-shaped runway and configuration of the FRF,
which have been bilaterally approved since 2006.
7

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CBD contends (Br. 47-49) the declaratory relief it seeks would not
require the court to supplant the Secretary’s foreign policy decisions andwould not interfere with relations between the United States and Japan. In
support of those propositions, CBD quotes the district court’s statement, in
its 2008 decision, that “[r]elief requiring DOD to [carry out a take-intoaccount process] . . . in no way invalidates Japan’s decision to locate the
FRF in the particular area and configuration it has chosen and in no way
interferes with Japan’s ability to conduct its own environmental assessment
according to Japanese law.” Br. 48, quoting CR 119 at 24 (Gates, 543 F.
Supp. 2d at 1099). CBD’s reliance on the 2008 decision is misplaced,however. The 2008 decision pre-dates the Navy’s NHPA Findings andJapan’s EIA, and has been superseded by the 2015 Order that is the subjectof this appeal.8 Further, there is now substantial evidence in the record

At pages 4-5 of its brief, amicus curiae National Trust for HistoricPreservation describes the district court’s 2005 and 2008 orders as “law of
the case.” Those orders are not law of the case, however, because they werepartial, not final, and were superseded by the court’s February 13, 2015
Judgment (ER 5) and Order (ER 6) dismissing for lack of jurisdiction. See
City of L.A. v. Santa Monica BayKeeper, 254 F.3d 882, 888-889 (9th Cir.
2001); Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims . . . may be revised at
any time before the entry of a judgment adjudicating all the claims”).
Accordingly, if the case is remanded, Appellees may ask the district court toreconsider that issue and any other issues addressed in the interlocutory838

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documenting that vacatur and remand would cast doubt on the Secretary’s
ability to fulfill the United States’ commitments regarding the FRF in
accordance with our bilateral agreements and commitments with theGovernment of Japan. SER 6, 12-14.
CBD’s reliance (Br. 48-49) on Zivotofsky I is misplaced as well.
Zivotofsky I involved a statute providing that Americans born in Jerusalem
may elect to have “Israel” listed as their place of birth on their passports.
The State Department declined to follow the law, citing its longstanding
policy of not taking a position on the political status of Jerusalem. Whensued by the parents of a child born in Jerusalem who invoked the statute,
the Secretary of State argued that the courts lacked authority to decide thecase because it presented a political question. The Court of Appeals agreed,
but the Supreme Court reversed. Zivotofsky v. Secretary of State, 571 F.3d
1227 (D.C. Cir. 2009), vacated by Zivotofsky I, 132 S. Ct. 1421. The Court
held that the question presented was not whether Jerusalem should berecognized as part of Israel (as the lower courts had reasoned), but whether
the statute was constitutional – which, of course, is a decision for the
courts. Zivotofsky I at 1428.

orders that are not resolved in this appeal, and to seek appellate review if
warranted.
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Discussing Zivotofsky I, CBD asserts that “[d]espite the Secretary’s
assertions of the foreign policy and national security effects of an order
requiring the agency to implement the statute, the Court did not find thatthe interpretation and application of the statute was barred by thepolitical question doctrine.” Br. 49 (emphasis added). This is true but
beside the point. There was no dispute in Zivotofsky I regarding theinterpretation of the statute. 132 S. Ct. at 1427 (“Moreover, because theparties do not dispute the interpretation of § 214(d), the only real question
for the courts is whether the statute is constitutional.”) Moreover, in a
subsequent decision, the Supreme Court held the statute unconstitutional
because it infringed on the President’s exclusive power to recognize foreign
sovereigns. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). Ultimately,
Zivotofsky I’s holding – that determining whether the passport statute wasconstitutional was a question for the courts – has no bearing on thequestion presented in this case: whether the injunctive and declaratory
relief that CBD seeks against the Secretary’s implementation of the FRF
project raises a political question.
B.

CBD’s claims for relief are political questions under thesecond Baker test – lack of manageable standards.

CBD’s requested relief also implicates the second Baker test: a lack of
judicially discoverable and manageable standards. To obtain an injunction,
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CBD would have to prevail on the merits and show that (1) it suffered an
irreparable injury; (2) its remedies at law are inadequate; (3) the balance ofhardships tips in its favor; and (4) the public interest would not be
disserved by the injunction. Sierra Forest Legacy v. Sherman, 646 F.3d
1161, 1184 (9th Cir. 2011). Yet as the district court explained (ER 32),
“there are no judicially administrable standards” by which a court could
decide whether CBD satisfied the third and fourth elements of the
injunction test. To evaluate the balance of hardships and the public
interest, the court would have to weigh the harms asserted by CBD against
the United States’ foreign policy and national security interests. As the D.C.
Circuit has explained, there are “no standards by which [a court] canmeasure and balance” such foreign policy considerations. Bancoult v.
McNamara, 445 F.3d 427, 436 (D.C. Cir. 2006). See also Schneider, 412
F.3d at 196; See also El-Shifa Pharma. Indus., 607 F.3d at 845 (“We could
not decide this question [whether U.S. attack on Sudanese pharmaceuticalplant was mistaken] without first fashioning out of whole cloth somestandard for when military action is justified. The judiciary lacks thecapacity for such a task.”).9

In Bancoult, the plaintiffs alleged torture and genocide in connection
with their forced relocation from an island in the Indian Ocean to make way
for a military base. 445 F.3d at 430-31. In Schneider, plaintiffs brought

9

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In response to the district court’s well-founded concern about the lackof judicially administrable standards, CBD blithely asserts (Br. 51-52) that“the district court is fully capable” of weighing the balance of harms and the
public interest, and that the court can do so after it decides the merits of
CBD’s NHPA claim. But that approach is backwards. The political question
doctrine is jurisdictional, Corrie, 503 F.3d at 982, and “‘[w]ithout
jurisdiction the court cannot proceed at all in any cause.’” Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (quoting Ex
parte McCardle, 7 Wall. 506, 514 (1868)). And while CBD notes (Br. 51) the“inherent flexibility of the courts’ equitable jurisdiction,” CBD does noteven attempt to proffer a substantive standard that the district could use toclaims against the United States and the former National Security Advisor
for the alleged kidnapping, torture, and death of their decedent, a Chilean
general. 412 F.3d at 191. Yet despite the weighty nature of the plaintiffs’
asserted interests in these cases, their claims were held non-justiciable.
Here, the interests asserted by CBD are not nearly so weighty: proceduralrights under the NHPA to protect asserted aesthetic, cultural, andrecreational interests in the conservation of the dugong in Japan as anhistoric property under Japanese law. As a result, there is even less need forthe courts to step in here than in Bancoult and Schneider. See Bancoult,445 F.3d at 437 (“[W]hile the presence of constitutionally-protected
liberties could require [a court] to address limits on the foreign policy andnational security powers assigned to the political branches, no such
constitutional claims are at issue in this case.”). Indeed, under any
conceivable standard, the United States’ foreign policy and national
security interests would trump CBD’s claimed interests. See, e.g., Winter v.
Natural Resources Defense Council, 555 U.S. 7, 24-27 (2008).
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decide whether the balance of harms and the public interest require that
the Secretary be enjoined from carrying out “any activities in furtheranceof” the bilateral FRF project.
This lack of manageable standards also extends to CBD’s claims fordeclaratory relief. As noted, CBD seeks (1) a declaration that the Secretary’s
take-into-account process was unlawful, (2) an order setting aside theFindings that were the product of that process, and (3) a remand to theagency for further proceedings. Ordinarily, interpreting legislation andreviewing agency action are “familiar judicial exercise[s].” ER 22 (district
court decision, quoting Zivotofsky I, 132 S. Ct. at 1427). But here, NHPA
§ 402 provides no substantive standard by which to review either theprocedures the Secretary used to consider the impacts of the FRF or thesubstance of his conclusion.10 Section 402 merely provides that the head ofan agency “shall take into account the effect” of its overseas undertakings

As described above (pp. 3-4, 19-20) the Secretary’s Findings are theproduct of a robust process that included active engagement with theGovernment of Japan and consideration of multiple studies, reports, andcomments, including the Government of Japan’s EIA, the comments
collected by the Government of Japan, and the declaration of CBD’s expert.
10

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on certain types of historic property “for purposes of avoiding or mitigating
any adverse effects.” 54 U.S.C. § 307101(e) (formerly 16 U.S.C. § 470a-2).
Neither Section 402 nor any other provision of the NHPA defines therequirements of that take-into-account process for foreign undertakings.
Indeed, unlike Section 106, Section 402 does not even require the federal
agency to afford the Advisory Council on Historic Preservation an
opportunity to comment on the undertaking. Compare 54 U.S.C. § 306108(formerly 16 U.S.C. § 470f) with 54 U.S.C. § 307101(e) (formerly 16 U.S.C.
§ 470a-2).
Moreover – and contrary to the reasoning of the district court’s
superseded 2008 decision – the regulations implementing the take-intoaccount process for domestic undertakings under NHPA § 106 areinapposite to foreign undertakings under Section 402. For example, theSection 106 regulations contemplate a consultation process that includes(in addition to the Advisory Council) the relevant (1) State HistoricPreservation Officer, (2) Indian tribes and Native Hawaiian organizations,(3) representatives of local governments, and (4) “the public.” 36 C.F.R.
§ 800.2. The first two are, by definition, domestic organizations, see 36
C.F.R. §§ 800.16(m), (s), (s), (w), and thus generally have no role to play inforeign undertakings. They are certainly irrelevant in this case. And the

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requirements to consult with representatives of local governments and “thepublic” are highly problematic in the context of foreign undertakings.
Action of the United States in a foreign jurisdiction is subject to diplomaticconstraints and the requirements of foreign law. Traditionally, theExecutive Branch determines the activities of Executive Branch officials
overseas, in consultation with foreign governments as appropriate.
As the district court observed, the second Baker test asks whether the
court “has the legal tools to reach a ruling that is principled, rational andbased upon reasoned distinctions.” ER 23 (quoting Alperin, 410 F.3d at552). And though the district court concluded otherwise with respect to
CBD’s claims for declaratory relief (ER 23-24), those legal tools are lacking
here, because there are no applicable statutory or regulatory standards bywhich a court can review the Secretary’s implementation of Section 402 inthis case. Moreover, the process the Secretary used to take into account theeffects of the FRF on the dugong is inextricably linked to theimplementation of the bilateral arrangements with the Government ofJapan to carry out the FRF project. CBD’s request for declaratory relief
would require the court to supplant the Secretary’s national security andforeign policy judgments with “the court’s own unmoored determination”
of how the Secretary should conduct a take-into-account process where the45Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 56 of 71

relevant undertaking is a bilateral project on foreign territory and involves
sensitive matters of national defense and foreign policy. See Zivotofsky I,
132 S. Ct. at 1427; cf. Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (“[I]t isdifficult to conceive of an area of governmental activity in which the courts
have less competence” than “[t]he complex, subtle, and professional
decisions as to the composition, training, equipping, and control of amilitary force”). Accordingly, CBD’s claims for declaratory relief are nonjusticiable political questions under the second Baker test. See Schneider,
412 F.3d at 197.
C.

The relief sought by CBD is barred under the fourth, fifth,
and sixth Baker tests.

CBD’s claims for relief implicate the final three Baker tests as well.
Those tests address “[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 forunquestioning adherence to a political decision already made; or [6] thepotentiality of embarrassment from multifarious pronouncements by
various departments on one question.” Baker, 369 U.S. at 217. On the facts
here, these three tests overlap with one another and confirm the
problematic nature of CBD’s claims under the first Baker test. See Alperin,

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410 F.3d at 544 (Baker’s tests “are more discrete in theory than in practice,with the analyses often collapsing into one another”).
Both the injunction and the declaratory relief sought by CBD would
express a lack of respect for the Secretary’s decision to enter into thebilateral arrangement with the Government of Japan to implement the FRF
project – a decision made in the exercise of the Executive’s broad foreign
policy and national security powers. The decision to build the FRF is also a“political decision already made” on an issue of foreign policy – an area
where it is imperative that the government speak consistently and with one
voice. See Baker, 369 U.S. at 211 (many question touching on foreign
relations “uniquely demand single-voiced statement of the Government's
views”). And there is an “unusual need” to defer to the Executive Branch
here. See Powell v. McCormack, 395 F.2d 577, 594 (D.C. Cir. 1968) (the“unusual need” test will typically involve “a specific foreign policy
determination within the scope of Executive power”) (citations omitted),
aff’d in part, rev’d in part, 395 U.S. 486 (1969). The understanding reachedby the two governments on the location and layout of the FRF was
exceptionally difficult to achieve, has been decades in the making, and has
absorbed the energies of several Presidents and their Secretaries (State andDefense) and their counterparts in Japan. SER 10-12; Dugong, 2005 WL

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522106 at *1-2. The United States has made commitments to facilitate
Japan’s construction of the FRF, and any failure to live up to thosecommitments “would be called into question by the [Government of Japan]
as a significant failure of the alliance and a departure from the establishednorms of the relationship of the two Governments.” SER 6. An injunction
or declaratory relief setting aside the Secretary’s decision could “seriously
damag[e]” the U.S.-Japan relationship and harm the United States’ broader
foreign policy interests.” SER 14.
This Court addressed similar concerns in Corrie, which involved asuit by Palestinians for injuries sustained when Israel used bulldozers, built
and sold by defendant Caterpillar, to demolish homes in the occupied
territories. The bulldozers were paid for by the United States. Even though
the United States was not a defendant and plaintiffs were not seeking relief
against the United States, this Court held that the suit raised a politicalquestion beyond the courts’ jurisdiction:
Allowing this action to proceed would necessarily require thejudicial branch of our government to question the politicalbranches’ decision to grant extensive military aid to Israel. It
is difficult to see how we could impose liability on Caterpillar
without at least implicitly deciding the propriety of theUnited States’ decision to pay for the bulldozers which
allegedly killed the plaintiffs’ family members.

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Corrie, 503 F.3d at 980-82; see also id. at 983 (“Plaintiffs’ action also runs
head-on into the fourth, fifth, and sixth Baker tests because whether tosupport Israel with military aid is not only a decision committed to thepolitical branches, but a decision those branches have already made.”(citation omitted)).
Here, as in Corrie, allowing CBD’s suit to proceed would “necessarily
require the judicial branch . . . to question the political branches’ decision”
to go forward with the bilateral FRF project. See also Bancoult, 445 F.3d at
436 (“the policy and its implementation constitute a sort of Mobius stripthat we cannot sever without impermissibly impugning past policy andpromising future remedies that will remain beyond our ken”); Schneider,
412 F.3d at 198.
II.

CBD lacks standing to assert its claims for declaratory relief.
A party seeking to invoke the jurisdiction of a federal court bears theburden of establishing that it has Article III standing. Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009). To demonstrate standing, a plaintiff
must establish that it has suffered “injury in fact” – that is, the “invasion ofa legally protected interest which is . . . concrete and particularized” and“actual or imminent, not conjectural’ or hypothetical.” Lujan v. Defendersof Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and49Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 60 of 71

citations omitted). The injury must be fairly traceable to defendant’s
challenged action, and not the result of “the independent action of somethird party not before the court.” Id. at 561 (quoting Simon v. Eastern Ky.
Welfare Rights Organization, 426 U.S. 26, 41–42 (1976)). And it must be
likely (as opposed to merely speculative) that a favorable judicial decision
will prevent or redress the injury. Id. These elements “are not mere
pleading requirements but rather an indispensable part of the plaintiff’scase.” Id.
Furthermore, “[a] plaintiff must demonstrate standing separately foreach form of relief sought.” Los Angeles Haven Hospice v. Sebelius, 638
F.3d 644, 655 (9th Cir 2011) (citation omitted). “[W]hen the plaintiff is nothimself the object of the government action or inaction he challenges,
standing is not precluded, but it is ordinarily ‘substantially more difficult’ toestablish.” Defenders of Wildlife, 504 U.S. at 562 (quoting Allen v. Wright,
468 U.S. 737, 758 (1984), Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 44-45 (1976), and Warth v. Seldin, 422 U.S.
490, 505 (1975)).
In cases where the plaintiff alleges procedural injury, the standard forestablishing causation and redressability is somewhat relaxed. “The person
who has been accorded a procedural right to protect his concrete interests

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can assert that right without meeting all the normal standards for
redressability and immediacy.” Defenders of Wildlife, 504 U.S. at 572 n. 7.
Plaintiff must show “only that the relief requested – that the agency follow
the correct procedures – may influence the agency’s ultimate decision ofwhether to take or refrain from taking a certain action” that impacts theirconcrete interests. Salmon Spawning, 545 F.3d at 1226-27 (emphasis
added). Nevertheless, “the redressability requirement is not toothless inprocedural injury cases.” Id. at 1227. Parties do not have standing to insist
that procedural rules be followed simply for the sake of enforcing
conformity with legal requirements. Id. “Relief that does not remedy the
injury suffered cannot bootstrap a plaintiff into federal court; that is thevery essence of the redressability requirement.” Steel Co., 523 U.S. at 107.
As the district court recognized (ER 38-39), this case closely parallels
Salmon Spawning. There, plaintiffs challenged actions of the National
Marine Fisheries Service and the Secretary of State in connection with theUnited States’ decisions to enter into, and remain a party to, a fisheries
treaty with Canada. Plaintiffs’ first claim, a procedural claim, alleged that
the Fisheries Service violated the Endangered Species Act, 16 U.S.C. § 1531
et seq., (“ESA”) when it conducted a consultation with the State
Department and issued a biological opinion finding that entry into the

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treaty would not jeopardize listed species. 545 F.3d at 1225-27. This Court
held that that claim was not redressable, explaining that while a court
could, in theory, set aside the allegedly flawed ESA consultation andbiological opinion,a court could not set aside the next, and more significant,link in the chain – the United States’ entrance into theTreaty. While the United States and Canada can decide towithdraw from the Treaty, that is a decision committed to
the Executive Branch, and we may not order the State
Department to withdraw from it. . . . So, while the groups
correctly allege that they have a right to a procedurallysound consultation, they cannot demonstrate that “thatright, if exercised, could protect their concrete interests.”
Id. at 1226 (quoting Defenders of Wildlife v. U.S. EPA, 420 F.3d 946, 957(9th Cir. 2005)) (emphasis in Defenders).
Plaintiffs second claim in Salmon Spawning was substantive: that theagencies’ continued participation in the implementation of the treaty
jeopardized listed salmon in violation of ESA § 7(a)(2) and the APA.
Plaintiffs argued that a court order declaring that the agencies violated the
ESA and APA would require the agencies to exercise their authority to
reduce take by U.S. fisheries. Id. at 1228. After noting the higher showing
required to establish redressability for claims for substantive rather thanprocedural injury, this Court held that this claim, too, was unredressable.
“[T]his claim hinges on agency action vis-à-vis the Treaty. The court cannot
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order renegotiation of the Treaty, and discretionary efforts by the agencies
are too uncertain to establish redressability.” Id. at 1228.
The plaintiffs’ third claim was procedural: that the State Department
and the Fisheries Service were required by ESA § 7 to reinitiate consultationon the biological opinion due to new information. The Court held thatplaintiffs had standing to raise this claim in part because “a court order
requiring the agencies to reinitiate consultation would remedy the harm
asserted. Unlike the other claims, this claim is a forward-looking
allegation whose remedy rests in the hands of federal officials and does
not hinge on upsetting the Treaty.” Id. at 1229 (emphasis added).
CBD’s claims in this case are indistinguishable from the first claim in
Salmon Spawning. As the district court explained (ER 42), while a court
could in theory set aside the Secretary’s allegedly flawed Findings and takeinto-account process, a court cannot set aside the Secretary’s decision tocommit to the 2006 Roadmap, or order the Secretary to withdraw from theRoadmap, or order the Secretary to negotiate a different understanding
with the Government of Japan. Nor, of course, could a court order theGovernment of Japan to halt its implementation of the FRF. The locationand design of the FRF have been established through the bilateralcommitments of the two governments. The Government of Japan has

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completed its environmental analysis and finalized its stormwater
management design, and is in the process of constructing the FRF. As aresult, even assuming that CBD has a cognizable right under Section 402 to
a procedurally sound take-into-account process, CBD cannot demonstratethat that procedural right, if exercised, could protect its concrete interest inprotecting the dugong from the alleged impacts of the FRF. 11 See Salmon
Spawning, 545 F.3d at 1226-27; ER 42.
CBD argues that the district court erred by “limiting the possible
results of the NHPA process to ‘the extremes’ of either the status quo (theFRF continuing under existing plans) or a total halt to the project” andfailing to recognize the possibility that “DoD could make alterations to theproject or its operational plans.” Br. 32, citing Tyler v. Cuomo, 236 F3d1124, 134 (9th Cir. 2000), and Vieux Carre Property Owners v. Brown, 948

For purposes of its justiciability analysis, the district court assumed
that CBD has procedural rights under NHPA § 402. See ER 37. We do notconcede that Section 402 creates such procedural rights; in any event,
Section 402 certainly does not create procedural rights comparable to thosecreated by Section 106 and the 36 C.F.R. pt. 800 regulations. As describedabove (pp. 14-15), Section 402 merely provides that the head of the relevant
agency must “take into account” the effect of certain foreign undertakings.
In contrast, Section 106 expressly requires the responsible federal agency toafford the Advisory Council on Historic Preservation an opportunity tocomment on domestic undertakings. In addition, the consultation
procedures for domestic undertakings set out in the Section 106
implementing regulations do not apply to foreign undertakings.
11

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F.2d 1436, 1447 (5th Cir. 1991). The district court made no such error. To
the contrary, the court recognized the theoretical possibility that the
Secretary might seek modification of the FRF as a result of additional
NHPA procedures. But the court correctly concluded that that outcome was“highly unlikely”:
As in Salmon Spawning, the “ultimate agency decision” toagree to the Roadmap and build the FRF at Camp Schwab
has already been made, and it is highly unlikely that anorder requiring the DoD to revise or reconsider its NHPA
Findings will change that decision. . . . And for the reasonsstated above, this Court cannot issue an injunction ordering
the Government to pull out of the Roadmap or otherwise
alter its plans for the FRF.
ER 42 (emphasis added).
Nor is there merit to CBD’s assertion (Br. 33) that the court erred infinding it “highly unlikely” that a new NHPA process would lead to a change
in the Secretary’s decision to commit to the Roadmap with the Governmentof Japan. To the contrary, the district court’s decision is consistent with
Salmon Spawning. The district court correctly recognized that, like thedecision to enter into the fisheries treaty in Salmon Spawning, the decision
to undertake the FRF project is a bilateral decision that has already been
made and cannot be undone by court order, and thus is highly unlikely to55Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 66 of 71

be altered by further NHPA procedures. ER 42; see Salmon Spawning, 545
F.3d at 1226-27.
The record supports the court’s finding. The Government of Japanand the United States have been working towards a solution to the Futenma
issue “[f]or almost 20 years.” SER 12. In December 2013 the mostsignificant roadblock to the FRF was lifted through the “historic” step of the
Okinawa Governor’s approval of the landfill permit. SER 11. Work by theGovernment of Japan is finally underway. SER 11-12. “If, after all these
efforts, the United States is prevented from fulfilling its end of the bargain– even temporarily – as a result of a court order preventing DoD frommoving forward, [the United States’] relationship with Japan will be
seriously damaged.” SER 12-13; see also SER 6, 14.12

CBD argues that on remand the Navy could “make adjustments to itsrole in the design and operation of the FRF that would mitigate harms to
the dugong,” Br. 29, 54, by “making changes to aircraft flight paths,
protocols for controlling run-off and other discharge into Henoko Bay, orlevels of night-time illumination.” Br. 32. But flight paths are largely
dictated by the location and design of the FRF – factors that are controlled
by the 2006 Roadmap. SER 36, 38. Any adjustment of air traffic patterns
outside U.S. facilities would have to be negotiated with the Government ofJapan. ER 67. Likewise, stormwater management and night-time
illumination are part of the Government of Japan’s design, and wereanalyzed by Japan in its EIA after consideration of the mitigation measures
the Navy submitted to Japan during the Navy’s Section 402 consultation
process. As a result, it is extremely unlikely that a remand for“reconsideration” of these issues would redress CBD’s alleged injury.
12

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The district court also relied on Mayfield v. United States, 599 F.3d
964 (9th Cir. 2010) (“Mayfield II”). The plaintiff in that case (Mayfield) was
identified as a suspect in a terrorist attack based on an erroneous
fingerprint match. After Mayfield was exonerated, he sued the UnitedStates seeking damages, injunctive relief, and a declaration that certain
provisions of the Foreign Intelligence Surveillance Act (“FISA”) wereunconstitutional. Id. at 967-86. After Mayfield and the government settled
all but the declaratory judgment claims, the district court held that
Mayfield had standing to pursue his declaratory relief claim. The district
court reasoned that the government’s continued retention of “derivative
materials” – that is, copies of documents seized from Mayfield’s home andbusiness under FISA – was a constitutionally significant ongoing injury.
Mayfield v. United States, 504 F. Supp. 2d 1023, 1034 (D. Or. 2007)(“Mayfield I”). The district court found that that injury was likely to be
redressed by a declaration that FISA was unconstitutional, because it was“reasonable to assume” that the United States would make all reasonable
efforts to return or destroy the derivative materials if the statute were
declared unconstitutional. Id.
This Court reversed. A declaration that the challenged portions of
FISA are unconstitutional would be of “no direct consequence” to Mayfield,

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because the government would not necessarily be required by a declaratory
judgment to destroy or otherwise abandon the derivative materials.
Mayfield II, 599 F.3d at 971-72. Accordingly, Mayfield lacked standing tomaintain his declaratory judgment claim, because there was no reasonable
likelihood that the relief he sought would redress his injury. Id. at 971.
CBD argues that Mayfield is distinguishable for three reasons, but its
arguments are unpersuasive. First, CBD notes (Br. 35) that the injury
alleged by Mayfield was substantive, and thus the standard fordemonstrating redressability was higher than in a case alleging procedural
injury. But the district court here recognized this difference and applied thecorrect standard in its analysis. See ER 37, 42. Moreover, the fact that
Mayfield involved a claim of substantive injury does not render its analysisof redressability irrelevant. When a plaintiff alleges procedural injury, thestandard for demonstrating redressability is relaxed, but it is not
eliminated: plaintiff still must show that the requested relief may influence
the agency’s ultimate decision on the action that impacts the plaintiff’s
concrete interests. Salmon Spawning, 545 F.3d at 1226-27.
Second, CBD notes that in Mayfield the government had “no legal
obligation” to return or destroy the derivative materials that Mayfieldsought, whereas here “the government has a legal obligation to comply with

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the ‘take into account’ requirement of the NHPA.” Br. 35. But the question
for purposes of redressability is not whether the Secretary has an obligation
to comply with the NHPA; it is whether it is likely that the relief CBD seeks– that is, the additional NHPA procedures that CBD contends are required– could result in changes to the FRF’s alleged impacts on CBD’s members’ability to observe and study the dugong. See Salmon Spawning, 545 F.3d at
1226 (“while [plaintiffs] correctly allege that they have a right to aprocedurally sound consultation, they cannot demonstrate that that right, if
exercised, could protect their concrete interests.”) (internal quotation
marks omitted, emphasis in original). As the district court found, theanswer to that question is a resounding no. ER 42.
Third, CBD notes (Br. 35-36) that in Mayfield, the only remedy
available was declaratory relief, whereas here the district court(purportedly) has the authority under the APA to set aside the Secretary’s
Findings and remand to the agency for further proceedings. But again, that
distinction does not alter the analysis here. The district court recognizedthat CBD seeks vacatur and remand in addition to a declaratory order, see
ER 20-21, but correctly concluded that CBD’s assertion that its injury could
be redressed if the Secretary were ordered to “conduct a renewed and more59Case: 15-15695, 02/19/2016, ID: 9871371, DktEntry: 31, Page 70 of 71

fulsome inquiry under the NHPA” was “completely unsupported andspeculative.” ER 42.
In sum, like the plaintiffs in Salmon Spawning and Mayfield, CBD
lacks standing because it has failed to demonstrate that the relief it seeks
could remedy its alleged injury.
CONCLUSION
For the foregoing reasons, the judgment of the district court shouldbe affirmed.
Respectfully submitted,
JOHN C. CRUDEN
Assistant Attorney General
ANDREW C. MERGENPETER KRYN DYKEMA
s/MARK R. HAAG
Attorneys,
Environment & Natural Res. Div.
U.S. Department of Justice
Washington, D.C. 20044(202) 514-5391
Of Counsel:
JONATHAN C. McKAY
Office of General Counsel
Department of the Navy
Washington, D.C.
PHILLIP J. RIBLETT
Office of the Legal Adviser
U.S. Department of State
Washington, D.C.
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STATEMENT OF RELATED CASES
Appellees are unaware of any related cases within the meaning ofNinth Circuit Rule 28-2.6 that are pending in this or any other court.
s/Mark R. Haag
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the requirements of Fed.
R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point
Georgia, 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)
because it contains 13,120 words, excluding the parts of the brief exempted
under Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word.
s/Mark R. Haag

CERTIFICATE OF SERVICE
I hereby certify that on February 19, 2016, I electronically filed theforegoing brief with the Clerk of the Court for the United States Court ofAppeals for the Ninth Circuit using the appellate CM/ECF system.
I further certify that all participants in this case are registered
CM/ECF users who will be served by the appellate CM/ECF system.
s/Mark R. Haag

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