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Case No. 15-15695

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

AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS-APPELLANTSELIZABETH S. MERRITTWILLIAM J. COOK
National Trust for Historic Preservation
2600 Virginia Ave., NW, Suite 1100
Washington, DC 20037
Tel: 202-588-6035; Fax: 202-588-6272
E-mail: emerritt@savingplaces.org
wcook@savingplaces.org

BRIAN R. TURNER
San Francisco Field Office,National Trust for Historic Preservation
5 Third Street, Suite 707
San Francisco, CA 94103
Tel: 415-692-8083
E-mail: bturner@savingplaces.org

Counsel for Amicus Curiae National Trust for Historic Preservation

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TABLE OF CONTENTSTABLE OF AUTHORITIES …………………………………………………… ii
CORPORATE DISCLOSURE STATEMENT ………………………………… 1
SUMMARY OF ARGUMENT ………………………………………………… 2
THE DUGONG AND THE NATIONAL HISTORIC PRESERVATION ACT…. 3
ARGUMENT……………………………………………………………………… 5
CONCLUSION ………………………………………………………………… 10
CERTIFICATE OF COMPLIANCE …………………………………………… 11iCase: 15-15695, 12/12/2015, ID: 9790262, DktEntry: 22-2, Page 3 of 17

TABLE OF AUTHORITIESCasesCity of Jersey City v. Consolidated Rail Corp.,
668 F.3d 741 (D.C. Cir. 2012) …………………………………………… 8
Dugong v. Rumsfeld,
2005 WL 522106 (N.D. Cal. Mar. 2, 2005) ……………………………… 4Federal Election Comm’n v. Akins,
524 U.S. 11 (1998) ……………………………………………………… . 9
Lemon v. Geren,
514 F.3d 1312 (D.C. Cir. 2008) ………………………………………… 7-8
Okinawa Dugong v. Gates,
543 F. Supp. 2d 1082, 1105 (N.D. Cal. 2008) …………………………… 5
Pye v. U.S. Army Corps of Engineers,
269 F.3d 459 (4th Cir. 2001) …………………………………………….. 9Sierra Club v. Jewell,
764 F.3d 1 (D.C. Cir. 2014) ……………………………………………… 8
Tyler v. Cuomo,
236 F.3d 1124 (9th Cir. 2000) ……………………………………………… 6
Vieux Carre Property Owners, Residents & Assoc’s, Inc. v. Brown,
948 F.2d 1436 (5th Cir. 1991) …………………………………………… 6-7
Statutes
42 U.S.C. § 4332(2)(C) ………………………………………………………… 2
54 U.S.C. § 306108 ……………………………………………………………… 3
54 U.S.C. § 307101(e) …………………………………………………………… 4ii

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Regulations
36 C.F.R. Part 800 …………………………………………………………… 3, 11
Other Resources
Blanchard, Guy, “National Historic Preservation Act § 402: Inception,
Interpretation and Future Use” (Masters Thesis, Vanderbilt University, 2006),
available at https://getd.libs.uga.edu/pdfs/blanchard_guy_v_201105_mhp.pdf…………………………………………………………………………………… 4iii

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the National Trust for
Historic Preservation states that it is a not-for-profit organization and has no parent
companies, subsidiaries, or affiliates that have issued stock to the public in the
United States or abroad. 1 The National Trust’s interests in this appeal are set forthin its Unopposed Motion for Leave to File an Amicus Curiae Brief in Support of
Plaintiffs-Appellants.

1

Pursuant to Fed. R. App. P. 29(c)(5), the National Trust certifies that its counsel
authored this amicus curiae brief in its entirety. No person—other than the amicus
curiae, its members, or its counsel—contributed money that was intended to fundthe preparation or submission of this brief.

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SUMMARY OF ARGUMENT
The district court improperly ignored applicable law on the issue of standingand “redressability” in cases arising under the National Historic Preservation Act(“NHPA”). Among other reasons discussed in Appellants’ Opening Brief [Dkt.
Entry 17], the district court erred by denying standing to Plaintiffs based on theunfounded assumption that the plans by the Department of Defense to constructand operate an expanded Marine Corps air base in Okinawa, Japan wereunalterable. To the contrary, compliance with Section 402 of the National HistoricPreservation Act (“NHPA”) has the potential to redress the Plaintiffs’ injuries,
because it has the potential to result in reducing or mitigating harm to the Okinawa
dugong, an imperiled cultural resource. As such, the district court’s ruling is wrong
as a matter of law, and is contradicted by precedent from the U.S. Supreme Court
and a number of federal appellate courts.
By setting an improperly high bar for standing, the district court’s decision,if adopted by other courts, has the potential to preclude or undermine judicial
enforcement of the NHPA and the National Environmental Policy Act (“NEPA”),
42 U.S.C. § 4332(2)(C), even when violations of the law are clear. The district
court adhered to a flawed assumption that, since the NHPA review process has no
guarantee of protecting a threatened resource, the injury is not redressable. This isinconsistent with accepted case law. Courts have long held that it is inappropriate
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to pre-judge the results of the NHPA review process, which depends on
consultation to develop alternatives and modifications to the project that could
avoid, minimize, or mitigate adverse effects.2 By ignoring the way Congress
intended the NHPA to operate, the district court disregarded the important function
served by this law and undermined congressional intent. Furthermore, the district
court’s decision is inconsistent with reported decisions involving standing to sue
and redressability under the NHPA. For these reasons, this Court should reverse
the district court’s decision.
THE DUGONG AND THE NATIONAL HISTORICPRESERVATION ACTThe NHPA, which Congress passed in 1966, is the leading federal historicpreservation law in the United States. Among other things, Section 106 of the
NHPA requires that federal agencies “take into account” the effects of theirundertakings on properties listed in or determined eligible for listing in the
National Register of Historic Places, and to find ways to avoid, minimize, or
mitigate adverse effects on those properties. 54 U.S.C. § 306108; 36 C.F.R. Part
800.

2In addition, the district court’s assumption that the undertaking would not bealtered under any circumstances has been called into question by the recent actionof the Okinawa Governor revoking the necessary offshore landfill permit. See
Appellants’ Opening Brief [DktEntry 17] at 11 & n.5.
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In addition, outside the United States, federal agencies must also “take into
account” the effects of their undertakings “for purposes of avoiding or mitigating
any adverse effects” to historic resources inscribed on the World Heritage List or
under another country’s equivalent of the National Register of Historic Places. 54
U.S.C. § 307101(e).3 Section 402 of the NHPA provides:
Prior to the approval of any undertaking outside the United States thatmay directly and adversely affect a property that is on the World
Heritage List or on the applicable country’s equivalent of the National
Register, the head of a Federal agency having direct or indirect
jurisdiction over the undertaking shall take into account the effect of
the undertaking on the property for purposes of avoiding or mitigating
any adverse effect.
Id. (emphasis added).
Here, it is the law of the case that the Okinawa dugong qualifies as “ananimal protected for cultural, historical reasons under a foreign country’s
equivalent statutory scheme for cultural protection.” Dugong v. Rumsfeld, 2005
WL 522106 (N.D. Cal. Mar. 2, 2005) (determining applicability of the NHPA andrejecting the Act of State doctrine as a litigation bar). 4 In addition, the district court3

For a more complete discussion of the origins of Section 402, which was enacted
as part of the 1980 amendments to the NHPA, in order to address the UnitedStates’ participation in the World Heritage Convention, see Blanchard, Guy,
“National Historic Preservation Act § 402: Inception, Interpretation and Future
Use” (Masters Thesis, Vanderbilt University, 2006), available athttps://getd.libs.uga.edu/pdfs/blanchard_guy_v_201105_mhp.pdf.
4

As discussed in the Appellants’ brief, the dugong have long been revered bynative Okinawans as a significant part of their culture and history. In recognitionof their significance, Japan has listed the Okinawa dugong since 1955 as a Natural
Monument under Japan’s Cultural Properties Protection Law, an equivalent of the
National Register of Historic Places. Since 2007, the Japanese Ministry of4

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has already determined that the current adjudication is not barred by finality,
standing, or ripeness grounds; that the federal agency’s proposed expansion of its
military base constituted an undertaking; and that the agency failed to “take into
account” the effects of the proposed air base expansion on the dugong. Okinawa
Dugong v. Gates, 543 F. Supp. 2d 1082, 1105 (N.D. Cal. 2008). 5 For the district
court to now hold that the plaintiffs lack standing to sue because the NHPA cannot
dictate the final outcome of the project is inconsistent with applicable law.
ARGUMENT
The district court ignored an entire body of relevant case law that governs
the duties of federal agencies to comply with the procedural requirements of the
National Historic Preservation Act. If the district court had considered thisprecedent, we believe the court would have determined that the plaintiffs do have

Environment has listed the Okinawa dugong as “critically endangered”—the most
severely threatened category before “extinct.” Henoko Bay, adjacent to Camp
Schwab, is the primary habitat and feeding grounds for a small dugong
population—possibly as few as 3 to 10—and is the site where a new military basewould be built. Preservation of the dugong depends on maintenance of this habitat.
Nevertheless, the Department of Defense issued a finding of “no adverse effect.”5

The U.S. District Court held that the “take into account” process under Section
402 should “follow the basic outline of [Section 106 of the NHPA], which governs
the process for taking into account the effects of agency actions on properties listed
in the National Register of Historic Places. 543 F. Supp. 2d at 1105. The court
explained that, “at a minimum, [the Section 402] ‘take into account’ process must
include” (1) identification of the protected property; (2) generation, collection,
consideration, and weighing of information pertaining to how the undertaking willaffect the historic property; (3) a determination as to whether there will be adverse
effects; and (4) if necessary, development and evaluation of alternatives ormodifications to the undertaking that could avoid or mitigate the adverse effects.”
Id. at 1104.
5

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standing and that their injuries are redressable. This Court should reverse the
district court’s decision by recognizing the redressability of the plaintiffs’ injuries,
and thus their standing to bring this action.
A number of key cases that have specifically dealt with the redressability
standard under the NHPA are instructive.
First, in Tyler v. Cuomo—decided by this Court—a group of historic
homeowners sued HUD over the construction of a housing project, alleging
violations of specific mitigation commitments under the NHPA and NEPA, which
required the City of San Francisco to consult with interested parties to “take into
account” their objections to the development. 236 F.3d 1124 (9th Cir. 2000). The
district court dismissed the lawsuit, finding that the plaintiffs lacked standing. With
regard to redressability, the district court assumed that there was “no reason tobelieve” that requiring the City to honor the consultation requirements would be
likely to result in any changes to the project. Id. at 1133. As this Court recognized,
however, it was improper for the district court to “pre-judge[] the outcome of
consultation.” Id. Accordingly, this Court reversed, and held that the plaintiffs did
have standing to sue, because their injuries could be redressed.
In upholding the plaintiffs’ standing in Tyler v. Cuomo, this Court reliedstrongly on Vieux Carre Property Owners, Residents & Assoc’s, Inc. v. Brown, 948
F.2d 1436 (5th Cir. 1991), which involved a challenge to the Army Corps ofEngineers’ approval of a riverside park as part of a new aquarium complex
immediately adjacent to New Orleans’ historic French Quarter, on the grounds that
the Army Corps failed to comply with the NHPA. The Army Corps argued that the6Case: 15-15695, 12/12/2015, ID: 9790262, DktEntry: 22-2, Page 11 of 17

case was moot because the project had been completed and nothing would bechanged. Even though the Vieux Carre opinion was issued in the context of amootness argument rather than redressability for purposes of standing, this Court
felt that the Fifth Circuit’s reasoning in Vieux Carre was directly relevant and“instructive”:
At this point . . . it is impossible for us to known with any degree ofcertainty just what the end result of the NHPA process would be. For
example, NHPA review could result in a determination . . . that at thislate date nothing can be done, or should be done, to mitigate theadverse effects of the park project on the historic properties. . . . We
find it inappropriate to prejudge those results as being limited to theextremes of either maintaining the status quo or totally demolishing
the park. . . .
Therefore, a district should not pre-judge the result of the NHPA
process by concluding that no relief is possible. . . . Even though, inthis NHPA case, [the plaintiffs’] possible relief may appear to some tobe irrelevant, trivial, or prohibitively expensive, a district court should
beware of shortcutting the process which has been committed in thefirst instance to the responsible federal agency.
Id. at 1446-47, quoted in Tyler v. Cuomo, 236 F.3d at 1134 (emphasis added).
More recently, in Lemon v. Geren, 514 F.3d 1312 (D.C. Cir. 2008), the U.S.
Court of Appeals for the D.C. Circuit had the opportunity to consider standing
under both the NHPA and NEPA, in the context of an army base closure. In thatcase, the court of appeals rejected the district court’s conclusion that the plaintiffs
lacked standing to sue because they could not “force” the Army to change its
decision to close Fort Ritchie, an army base in Maryland, even if the Army
prepared an Environmental Impact Statement. Id. at 1314-15. As the D.C. Circuit
explained:
7

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We think the court misperceived the nature of plaintiffs’ claim. The
key word [from] the district court’s opinion is “force.” Preparation ofan [EIS] will never “force” an agency to change the course of action it
proposes. The idea behind NEPA is that if the agency’s eyes are open
to the environmental consequences of its actions and if it considers
options that entail less environmental damage, it may be persuaded toalter what it proposed. Countless lawsuits in which this court andothers upheld a plaintiff’s standing were predicated on that
understanding. . . . The Supreme Court recognizes as much, as do we.
Id. at 1315 (citations omitted).
For similar reasons the Lemon court ruled that the plaintiffs had standing tosue under the NHPA because the Army failed to properly consider the effects of its
decision to close an Army base that contained historic properties. In noting thesimilarities between NEPA’s EIS requirements and the requirement under the
NHPA that the Army “take into account” the effects of its undertaking, the court
reasoned that, if the Army had complied with the law, it might have altered its
decision, or modified the terms of the land transfer agreement in a way that would
have ameliorated what the plaintiffs viewed as harm to a historic site that they
visited and enjoyed. Id. at 1315. Therefore, the court of appeals reversed the
district court’s dismissal for lack of standing and remanded the case for further
proceedings.6
In addition to Lemon and the other D.C. Circuit cases, this Court should find6

See also Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir. 2014) (reversing the district
court’s denial of standing to plaintiffs, including the National Trust, challenging
the unlawful delisting of the Blair Mountain Battlefield in West Virginia from the
National Register of Historic Places); City of Jersey City v. Consolidated RailCorp., 668 F.3d 741 (D.C. Cir. 2012) (reversing the district court’s denial ofstanding to the City and others in their efforts to protect and acquire the historic
Harsimus Embankment elevated railroad corridor).
8

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instructive the decision from the U.S. Court of Appeals for the Fourth Circuit inPye v. United States, 269 F.3d 459 (4th Cir. 2001). The Pye case involved a lawsuit
against the Army Corps for permitting a road and small culvert to be constructed
on a plantation in Charleston County, South Carolina, and in close proximity to an
historic African American cemetery that would likely have been exposed to anincreased likelihood of trespassing, damage, and looting. Id. at 467. The Army
Corps approved the permit after issuing a finding of “no effect.” The district court
dismissed the lawsuit for lack of standing. On appeal, however, the court held thatadjacent property owners did have standing to sue to require the Army Corps tocomply with the Section 106 review process under the NHPA. The Fourth Circuit
explained that refusing to recognize standing would render the NHPA “merely a‘procedural calisthenic.’ We decline to so hold.” Id. at 468. 7
The Pye court also found for plaintiffs on the issue of redressability, notingthat plaintiffs need only show “that there is a procedural remedy by which theplaintiffs’ concerns may be aired before the agency.” Id at 471. In reaching its
decision, the Fourth Circuit noted that the plaintiffs “need not show that the resultof the agency’s deliberations will be different if the statutory procedure isfollowed.” Id. at 471 n.7 (citing Federal Election Comm’n v. Akins, 524 U.S. 11,
25 (1998)) (emphasis added).
The cases cited above are directly on point. They are factually similar in7

On remand, the Charleston District of the Army Corps initiated Section 106
consultation, and ultimately revoked the permit and required the applicant toremove the work that had previously been installed when the permit had been inplace.
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terms of the nature of the Appellants’ claims, as well as the flawed reasoning usedby the district courts. In each case, the courts of appeal rejected any argument fromthe district courts that injuries arising from violations of the NHPA are notredressable merely because the protections afforded by the NHPA (or NEPA) areprocedural in nature. If the district court had considered these cases, we believe thecourt would have reached the opposite result and found that the Appellants had
standing to enforce procedural compliance with NHPA. Likewise, the district court
would have concluded that the Appellants’ injuries are redressable by requiring the
Department of Defense to follow the NHPA as Congress intended it to do.
Even though the Appellants cannot control the outcome of the NHPA review
process, there is always the possibility that consultation could alter the project in a
way that could reduce harm to the dugong. This is particularly true with respect tooperational plans such as aircraft flight paths, nighttime illumination, and protocols
for controlling discharge into Henoko Bay, as Appellants point out. In this case,however, by issuing a finding of “no adverse effect” that lacks any basis in fact, theDepartment failed to take into account—as required by Section 402—any of theharmful effects to the Okinawa dugong that its military base expansion will have.
Because of this, the Department failed to consider any variation in its plans thatmight reduce adverse effects to an undeniably important cultural property in Japan.
CONCLUSION
The district court’s decision is inconsistent with settled law on the issue ofstanding and redressability for procedural harms in cases arising under the National
Historic Preservation Act. The NHPA—contrary to the district court’s erroneous
10

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assertion that it is merely hortatory—was intended by Congress to provide a public
process by which federal agencies take into account the effects of theirundertakings on historic resources that are listed in or determined eligible forlisting in the National Register of Historic Places (Section 106) or anothercountry’s equivalent inventory (Section 402). And to the extent that adverse effects
on those resources are identified, then federal agencies are required to consider
ways to avoid, minimize, or mitigate those harms. 36 C.F.R. §§ 800.3-800.6.
In this case, the fact that the Appellants may ultimately be unsuccessful inachieving a relocation of the proposed air base expansion is irrelevant. To thecontrary, the possibility that the Department of Defense through its compliancewith the NHPA might adjust its plans in a way that could avoid or mitigate harm to
the Okinawa dugong is enough to satisfy this Court’s standing requirements as set
forth in the cases discussed above. Therefore, this Court should reverse thedecision of the district court and remand the case for a determination on the merits.

CERTIFICATE OF COMPLIANCE
I certify that pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C)and Ninth Circuit Rule 32-1, the foregoing brief is proportionately spaced, has a
typeface of 14 points, and contains 2,824 words, excluding the parts of the brief
exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).

11

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Dated: December 11, 2015/s/ Elizabeth S. Merritt
ELIZABETH S. MERRITTWILLIAM J. COOK
National Trust for Historic Preservation
2600 Virginia Ave., NW; Suite 1100
Washington, DC 20037
Tel: 202-588-6035; Fax: 202-588-6272
E-mail: emerritt@savingplaces.org
wcook@savingplaces.org
BRIAN R. TURNER
San Francisco Field Office,National Trust for Historic Preservation
5 Third Street, Suite 707
San Francisco, CA 94103
Tel: 415-692-8083
E-mail: bturner@savingplaces.org
Counsel for Amicus Curiae National Trustfor Historic Preservation

12

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the U.S. Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on December 11, 2015. I certify that all participants in the caseare registered CM/ECF users and that service will be accomplished by theappellate CM/ECF system.

Dated: December 11, 2015/s/ Elizabeth S. Merritt
ELIZABETH S. MERRITTWILLIAM J. COOK
National Trust for Historic Preservation
2600 Virginia Ave., NW; Suite 1100
Washington, DC 20037
Tel: 202-588-6035; Fax: 202-588-6272
E-mail: emerritt@savingplaces.org
wcook@savingplaces.org
BRIAN R. TURNER
San Francisco Field Office,National Trust for Historic Preservation
5 Third Street, Suite 707
San Francisco, CA 94103
Tel: 415-692-8083
E-mail: bturner@savingplaces.org
Counsel for Amicus Curiae
National Trust for Historic Preservation

13