Case 3:03-cv-04350-EMC Document 226 Filed 06/01/18 Page 1 of 19

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISIONCENTER FOR BIOLOGICAL DIVERSITY;
TURTLE ISLAND RESTORATIONNETWORK; JAPAN ENVIRONMENTALLAWYERS FEDERATION; SAVE THE
DUGONG FOUNDATION; ANNASHIMABUKURO; TAKUMAHIGASHIONNA; and YOSHIKAZUMAKISHI,

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

Civil Action No. 3:03-cv-4350 (EMC)
Hearing Date: June 28, 2018
Time: 1:30 pm
Courtroom: 5
DEFENDANTS’ REPLY BRIEF IN
SUPPORT OF CROSS MOTION FOR
SUMMARY JUDGMENT(National Historic Preservation Act, 16 U.S.C.
§§ 470 et seq.)

DEFENDANTS’ REPLY IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT
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TABLE OF CONTENTS

1
2

I.

INTRODUCTION ........................................................................................................... 1

3

II.

ARGUMENT ................................................................................................................... 14A.

DoD is Entitled to Substantial Skidmore Deference ............................................ 15

B.

DoD Complied With Section 402’s “Take Into Account” Requirements ........... 3

6

1.

DoD sufficiently generated, collected, and considered information
pertaining to how the Futenma Replacement Facility (FRF) will affectthe dugong. ............................................................................................... 32.

DoD considered an appropriate range of potential impacts ..................... 7

7
8
9
C.

10

DoD’s Consultation Process Satisfied Section 402 ............................................ 811

1.

DoD engaged in thorough and wide-ranging consultation ...................... 8

12

2.

DoD was not required to consult with the entities that Plaintiffs
identify ................................................................................................... 11

13
14

D.

The Record Supports DoD’s Determination of "No Adverse Effect." ............. 13

15

E.

This Court Should Defer Consideration of Plaintiffs’ Request for Injunctive
Relief. ................................................................................................................. 14

16
17

III.

CONCLUSION .............................................................................................................. 14

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TABLE OF AUTHORITIES

1
2

CASES

3

Chevron v. NRDC,
467 U.S. 837 (1984) ........................................................................................................................ 11

4
5
6
7
8
9
10
11
12
13
14
15

Earth Island Inst. v. Carlton,
626 F.3d 462 (9th Cir. 2010) ............................................................................................................ 7
Earth Island Inst. v. U.S. Forest Serv.,
697 F.3d 1010 (9th Cir. 2012) .......................................................................................................... 8
Occidental Eng’g Co. v. INS,753 F.2d 766 (9th Cir. 1985) ............................................................................................................ 9
Okinawa Dugong v. Gates,
543 F. Supp. 2d 1082 (N.D. Cal. 2008) ...................................................................................... 8, 11
ONRC Action v. Bureau of Land Mgmt.,
150 F.3d 1132 (9th Cir.1998) ......................................................................................... 1, 11, 12, 13
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) ................................................................................................................ 1, 2, 11
Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior,
608 F.3d 592 (9th Cir. 2010) ...................................................................................................... 9, 10

16

United States v. Mead Corp.,
533 U.S. 218 (2001) .......................................................................................................... 1, 2, 3, 5, 6

17

STATUTES

18
19
20

16 U.S.C. §§ 470 ................................................................................................................................... 1
54 U.S.C § 307101(e) ......................................................................................................................... 14
REGULATIONS
36 C.F.R. § 800.2(c)............................................................................................................................ 1221

63 Fed. Reg. 20496 (April 24, 1998) .................................................................................................. 11

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23
24
25
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I.

INTRODUCTION
Plaintiffs have failed to meet their burden of demonstrating that the U.S. Department of

Defense’s (DoD) NHPA Section 402 process was unsound. Plaintiffs argue that DoD “did notadequately generate, collect, and consider information,” that DoD did not sufficiently “engage‘Relevant Private Organizations and Individuals,’” and that DoD’s finding of no adverse effect is notsupported by the record. Pls.’ Opp’n to Defs.’ Mot. for Summ. J. & Reply in Supp. of Pls.’ Mot. forSumm. J. (Pls.’ Reply) 3, 7, 11 (ECF No. 223). All of Plaintiffs’ arguments ignore or misinterpretthe evidence in the record. The record actually shows that DoD closely followed this Court’s
guidance, sufficiently considered all of the important aspects of the “take into account” process, andmade Findings that are consistent with the evidence before it. And all of Plaintiffs’ arguments seek
to expand unreasonably the scope of DoD’s Section 402 obligations while unduly restricting thedeference owed to DoD. The Court should reject Plaintiffs’ challenges and grant summary judgmentin favor of Defendants on all claims.
II.

ARGUMENTA.

DoD is Entitled to Substantial Skidmore Deference.

DoD’s interpretation and implementation of the “take into account” standard established by
Section 402 is entitled to deference. An agency’s statutory interpretation is “entitled to‘considerable weight’” and will be upheld if it is reasonable and does not conflict with the statute’s
clear language. ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132, 1139 (9th Cir.1998)(citation omitted). Plaintiffs argue that DoD is entitled to minimal deference in scoping andimplementing its Section 402 process and that the Court should evaluate DoD’s interpretation ofSection 402 with “near indifference” under the Skidmore deference inquiry. Pls.’ Reply 3. Plaintiffs
note that NHPA regulatory authority has not been expressly delegated to DoD, claim that “DoD has
little experience or expertness in cultural preservation,” and assert that DoD “has shown very little
care and consistency.” Id. (citing United States v. Mead Corp., 533 U.S. 218, 228 (2001)).

1
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1

But Skidmore deference does not require that an agency be an expressly delegated authority

2

to issue regulations for the relevant statute. 1 The Supreme Court has recognized that “whether or not3

they enjoy any express delegation of authority on a particular question, agencies charged with4

applying a statute necessarily make all sorts of interpretive choices,” and, where the agency has

5specialized expertise and information, those choices merit deference. See Mead Corp., 533 U.S. at

6227. Here, DoD has specialized expertise and information that merit substantial Skidmore deference.

7

Contrary to Plaintiffs’ unsupported assertion that “DoD has little experience or expertness in cultural8

preservation,” DoD is the steward for the Nation’s largest inventory of federally managed historic

9

properties and routinely implements projects that implicate potential cultural preservation projects, 2

10

and the Department of the Navy has its own cultural resources program and instructions for

11

protection of cultural resources. See SECNAVINST 4000.35A (9 April 2001). 3 And, as discussed

12

below, the record shows that DoD took great care in following the Court’s guidance in its Section

13

402 review and in maintaining consistency with that guidance.

14

Finally, DoD is not seeking broad deference here; Judge Patel already attempted to annotate

15

Section 402’s sparse language by identifying five components that she believed must be included in

16

DoD’s “take into account” process. The record shows that DoD adhered closely to the Court’s

17

guidance as to those five components, and the U.S. Marine Corps Recommended Findings

18
19
20
21
22
23
24

1

The unique nature of Section 402 necessarily requires that courts afford substantial deference to theagency charged with applying it. Plaintiffs’ proposal to revoke the interpretive choices of agencies
applying Section 402 would create an unworkable scenario, as the statute does not tell agencies how
to “take into account” an undertaking, and there are no implementing regulations for the agency tofollow. If an agency applying Section 402 lacks any discretion to make choices to fill the Section
402 regulatory gap, then that agency is condemned to administrative stasis. Plaintiffs’ attempt toundercut DoD’s discretion is inconsistent with principals of administrative law and of thepresumption of administrative regularity.
2

25
26
27
28

See https://www.denix.osd.mil/cr/home/ (last visited May 30, 2018).

3

https://doni.documentservices.dla.mil/secnav.aspx?RootFolder=%2FDirectives%2F04000%20Logist
ical%20Support%20and%20Services%2F0400%20General%20Logistical%20Support&FolderCTID=0x012000E8AF0DD9490E0547A7DE7CF
736393D04&View=%7B38D89E07-AD50-407F-9B15-0FF1BDD0D5D5%7D (last visited May 30,2018).
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1(“Findings”) (US00010977-11002) faithfully track that guidance. Plaintiffs cannot credibly claim

2that DoD, by following this Court’s scoping guidance in interpreting Section 402, acted without care3and contrary to the clear language of Section 402.

4
5

B.

6

DoD Complied With Section 402’s “Take Into Account” Requirements.
1.

7

DoD sufficiently generated, collected, and considered information
pertaining to how the Futenma Replacement Facility (FRF) will affect thedugong.

8

Plaintiffs assert that DoD failed to follow the Court’s guidance for its Section 402 process

9

because “DoD did not adequately generate, collect, and consider information pertaining to how the10

FRF will affect the dugong.” Pls.’ Reply 2. But as discussed in Defendants’ opening brief (Defs.’

11Br.), DoD (1) collected survey data indicating the extent of dugong presence in the area and12scientific data on the biology of the dugong and on the dugong habitat; (2) generated additional

13

study of the biology and cultural properties of the dugong; (3) reviewed the Japanese Environmental

14

Impact Analysis (EIA) and its analysis of potential impacts on the Okinawa dugong from the15

construction and operation of the FRF; and (4) performed an independent analysis of this16

information to take into account the possible effects of the FRF on the Okinawa dugong. Defs.’ Br.

17

16-18 (ECF No. 222). Through this process, DoD satisfied the “generate, collect, and consider” step

18

identified in the Court’s guidance.

19

Plaintiffs claim that none of the sources cited by DoD in its Findings adequately assesses the20

impact that the FRF will have on the dugong as a culturally protected species. Pls.’ Reply 4.

21

Plaintiffs base this claim on their incorrect assertion that DoD only relied on three sources, two of

22

which did not contain an analysis of the FRF’s impacts and a third—the Japanese EIA—that they23

allege contains no credible scientific information and cannot provide “substantial evidence” for24

DoD’s Findings. Pls.’ Reply 4-5. In essence, Plaintiffs seek to discredit the EIA and then to argue

25

that, without it, DoD has no reliable data on the potential effects of the FRF on the dugong. Id. This

26

argument fails.

27

First, Plaintiffs ignore that DoD conducted its own independent analysis of the FRF’s

28

potential impacts to the Okinawa dugong. See US10988-93. As discussed more fully below, see
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1

infra § B.2, the impacts analysis in the Findings document addresses various potential impacts to the2dugong and its habitat as a result of aspects of the construction and operation of the FRF. It is also

3

untrue that DoD relied on only three sources in support of its Findings. See Defs.’ Br. 16-17

4(description of sources used by DoD, including multiple types of surveys and external literature).

5

Second, Plaintiffs have not shown that the EIA contains no reliable data on the FRF’s

6

potential effects on the dugong or that DoD was unreasonable in relying on the EIA. As discussed in

7

Defendants’ opening brief, the EIA thoroughly analyzed and disclosed the FRF’s potential effects on

8

the Okinawa dugong. It contains specific discussion of the various environmental conditions that

9

could arise from the FRF’s construction and operation, and it contains an analysis of whether those10

conditions will adversely affect the dugong. Defs.’ Br. 17-18. Plaintiffs do not cite any specific11

provision in the EIA that they claim is deficient and do not identify any methodological defect or

12scientific error therein. In lieu of identifying any actual deficiencies in the EIA, Plaintiffs refer to13

two documents in the record containing statements questioning the quality of the EIA as a whole.

14Pls.’ Reply 4 (citing AR 4706, AR 4149). As discussed in Defendants’ opening brief, these general15

criticisms of and scientific disagreements with the EIA do not prevent DoD from reasonably relying

16

on it. See Defs.’ Br. 22.

17

In addition to those two statements, Plaintiffs also misrepresent certain comments in the18

record, inaccurately asserting that those comments criticize specific aspects of the EIA. Plaintiffs

19

cite: (1) the Jefferson report’s statement that “a better understanding of the current status of the20

dugong population is needed in order to understand what impacts might be expected from21

construction of the FRF” (US3334); (2) a statement by Morgan Richie that “[w]e do not recommend

22

using data from the currently designed project to make legally defensible claims regarding the23

presence or absence of dugongs” (US8095); and (3) the SuMMO Report’s statement that “[i]t is not24

possible to say anything definitive about densities of dugongs” (US9269). Pls.’ Reply 4-5. None of25

these supports Plaintiffs’ argument that the EIA is deficient and that DoD’s reliance on it is de facto

26

arbitrary and capricious.

27
28
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As to the Jefferson report statement, Plaintiffs have taken that statement out of context. 4

12

Jefferson’s statement, made in 2010 and prior to the final EIA, is discussing mitigation measures.

3

US3334. In context, the statement does not discredit the draft EIA. It identifies the draft EIA’s list4of mitigation measures as “an important first step,” recommends “a better understanding of the5current status of the dugong population” in order to evaluate whether additional mitigation measures6

would be appropriate, and cites to specific possible mitigation measures. Id. Notably, the record

7shows that DoD took into account Jefferson’s perspectives on mitigation: it recommended some of8

these same mitigation measures to the Japanese government. See US8073 (recommending to Japan,

9inter alia, the use of a bubble curtain and an expansion of dugong monitoring programs).

10

The Richie comment (US8095) and the SuMMO Report statement (US9269) also do not

11

support Plaintiffs’ arguments that the EIA is deficient, as they are not talking about the EIA at all. In

12

her statement regarding “the currently designed project,” Ms. Richie is not referring to the EIA; she

13is referring to a USMC-sponsored proposed marine mammal monitoring project in Okinawa. 5

14US8095. And the statement that she does not recommend using data from that project indicates only

15
16

4

17

The full text of the statement is as follows:
The Japanese Environmental Impact Assessment report for the FRF mentions a number of
mitigation measures being considered for reducing impacts on the Okinawan dugong(Ministry of Defense 2009). Providing such a list of potential mitigation measures is an
important first step for dugong management and conservation in Okinawa. However, a better
understanding of the current status of the dugong population is needed in order to understandwhat impacts might be expected from construction of the FRF and to determine if mitigation
measures can reduce the impacts to acceptable levels. Therefore, comprehensive evaluationof what mitigation measures are appropriate and needed should be conducted before theproject begins, based on the best available scientific information (for a description of
mitigation measures used for dolphins in similar marine construction projects in Hong Kong,
see Jefferson et al. 2009). For instance, the use of bubble curtain around noisy construction
activities, such as percussive piling, can dramatically reduce construction noise and help toprotect dugongs (see Würsig et al. 2000). In addition, pre-construction-, construction-, andpost-construction-phase dugong and seagrass monitoring programs should be undertaken toevaluate actual impacts, the effectiveness of mitigation measures, and to provide information
for use in adaptive management of the dugong population. (US3334.)

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21
22
23
24
25
26
27
5

28

This project was ultimate executed as the Survey of the Marine Mammals of Okinawa (SuMMO)
Project. US00009243.
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Case 3:03-cv-04350-EMC Document 226 Filed 06/01/18 Page 9 of 191that Ms. Richie, at the time she made the comments, believed that the Marine Corps should expand2

the scope of its own study. Id. Ms. Richie’s statement says nothing about the EIA and implicates3

nothing in the EIA’s analysis. Likewise, the SuMMO statement that “it is not possible to say

4anything definitive about densities of dugongs” is not a criticism of data in the EIA. It is a reference5

to the limitations of the SuMMO study’s use of passive acoustic monitoring (PAM). US9269. And

6while the PAM monitoring may have limited the SuMMO authors’ ability to “say anything definitive

7

about densities of dugongs,” the EIA and the Findings did not exclusively rely on PAM data to

8analyze the extent of dugong presence in the Area of Potential Effect (APE). The EIA and DoD’s

9

Findings also relied on aerial surveys that Government of Japan (GOJ) conducted on a monthly

10schedule (US11059; US9996-10011) and on external literature (USREF1580 et seq., USREF2064 et

11seq.).

12

More importantly, even if the Japanese survey data on dugong presence in the area is not as

13complete as some individuals would have liked, the comments identified by Plaintiffs do not support

14

a finding that DoD required more data in order to conduct a sound “take into account” process of the

15

FRF’s effects on the dugong. The Findings ultimately included a determination that the “Okinawa

16

dugong [is] found, at least intermittently, within the APE for the Undertaking.” US10979. Thus, the17analysis of potential impacts assumed dugong presence in the APE, and DoD did not base its

18

determination of no adverse impact on an assumption that there would never be any dugong

19

presence in the APE. Id. To the contrary, DoD found that:

20
21
22
23
24

should dugongs in fact be present [in the APE], the construction and operational activity is
primarily of the type that would not have an adverse effect. The exception to this, as
discussed in Section 3.2.4, is construction noise; however, the GoJ has committed to noise
minimization and monitoring efforts that the USMC finds likely to be effective in avoiding or
minimizing impacts on dugongs if they are present during construction.
US10988.

25

While additional and exhaustive monitoring of dugong presence would have provided more

26

complete information about the overall dugong population, this additional degree of certainty was27

not required by Section 402 or the Administrative Procedure Act (APA) for DoD to take into

28

account the effects of the FRF on the Okinawa dugong. See US10993 (“Notwithstanding the
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absence of recent total population data, we do have current and valid population data for Henoko and2Oura bays . . . [T]he construction and operation of the FRF will not have adverse effects on the local

3

Okinawa dugong population and consequently will not substantially contribute to the extinction of4

the entire Okinawa dugong”) (emphasis added). DoD had substantial evidence on which to base its

5

Findings, and there is no basis for Plaintiffs’ claim that DoD was required to collect more exhaustive

6

data on the dugong population prior to making its Findings.

7
8

2.

DoD considered an appropriate range of potential impacts.

Plaintiffs next restate their claim that DoD “failed to consider the full range of impacts of the9
FRF project on the dugong.” Pls.’ Reply 6. But DoD did consider a wide range of potential impacts
10
from construction and operation of the FRF, including the potential impacts of vessel strikes, ship11
noise, habitat loss or change, construction noise, destruction or contamination of seagrass beds by
12
land reclamation and/or soil and wastewater runoff, visual disturbance, and acoustic or lighting
13
disturbance from vessel traffic or aircraft overflights. US10988-10993. DoD did not, as Plaintiffs
14
contend, limit its inquiry to an arbitrary “subset of impacts”; it followed Judge Patel’s guidance on
15potential impacts, reviewed the EIA’s analysis of potential impacts, and conducted its own analysis
16of the potential impacts that were necessary to take into account the effect of the FRF project. And,17
as discussed above, this Court must afford some deference to DoD in its interpretive choices in
18
scoping its analysis.
19
Further, as discussed in Defendants’ opening brief, Plaintiffs’ proposed “full range of20
impacts” improperly seeks to write into Section 402 environmental analysis requirements that are21
not found in the statutory text. See Defs.’ Br. 19; Earth Island Inst. v. Carlton, 626 F.3d 462, 472
22(9th Cir. 2010) (“Courts may not impose procedural requirements not explicitly enumerated in the23
pertinent statutes.”) (internal quotation marks and citation omitted)). Plaintiffs disclaim that they are24
trying to use Section 402 as a backdoor to enforce environmental requirements of other laws,
25
asserting that “the plain language of Section 402” requires DoD to consider “population
26
fragmentation, disruption of travel routes, and loss of habitat that may be required to sustain a viable27
population.” Pls.’ Reply 6. Section 402 of course does not mention population fragmentation,
28
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marine mammal travel routes, or population sustainability. But even read broadly, Section 402’s

2plain language does not compel federal agencies to consider every conceivable aspect of every

3

potential impact to the relevant property. 6 Plaintiffs’ attempt to read into the statutory text a4

requirement to take into account “all effects of the undertaking,” id., creates an impossible standard

5

that turns on its head the principles of APA deference and that directly violates the rule set forth in

6Carlton that courts are not to impose on agencies procedural requirements that have no statutory

7

basis. Plaintiffs’ argument that DoD has failed to consider an important part of the problem is

8

without merit.

9
DoD’s Consultation Process Satisfied Section 402.

C.

10
11

DoD satisfied the legal requirements for consultation by properly consulting with an

12

appropriate range of entities and individuals on the cultural impacts of the project and on the impacts

13

to the Okinawa dugong. Like their argument on impacts above, Plaintiffs’ arguments seek to impose

14

requirements on DoD that are beyond those required by law. This court should defer to DoD’s

15
16
17

interpretation of the scope of the process required by Section 402 and grant summary judgment infavor of Defendants.

18

1. DoD engaged in thorough and wide-ranging consultation.

19
20

As demonstrated by the record, DoD has met the requirements of Section 402 and thisCourt’s mandate to “engage[] the host nation and other relevant private organizations and21
22

individuals in a cooperative partnership.” Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082, 1104

23

(N.D. Cal. 2008). As the United States has explained, DoD engaged in an extensive consultation

24

process. Defs.’ Br. at 10-11. That process included close work with the GOJ. Id. at 11. It also

25
26
27
28

6

Even under the more rigorous “hard look” standard under the National Environmental Protection
Act (NEPA), federal agencies are not required to consider every possible environmental
contingency. See Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1021 (9th Cir. 2012).
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included the work done by International Archaeological Research Institute, Inc. (IARII) to engage

2archaeologists, biologists, archivists/professors, folklorists or individuals with local traditional

3knowledge, museum personnel, and prefectural cultural authorities. Id. at 10-11.

4

Plaintiffs fault DoD’s “failure to consult affected communities,” Pls.’ Reply 9, yet the record

56shows exactly the opposite. DoD consulted with cultural authorities from the municipalities located7

nearest the proposed project and those that were located along coasts where dugongs have been

8

sighted (Chatan Town, Ginoza Village, Nakijin Village, and Nago City). US11072. Notably, that9

work included consultation with the Okinawa Board of Education and its municipal Boards of

10

Education – offices tasked with responsibilities regarding protecting cultural properties and

11
12
13

functioning as the equivalent to the State Historic Preservation Office in the United States. Defs.’
Br. at 11 n.5 (citing US4185, 4188).

14

Plaintiffs also suggest that this Court should second-guess DoD’s decisions regarding the15

need to conduct additional interviews of cultural “practitioners.” Pls.’ Reply 9. However, there is

16

no basis for this Court to overturn DoD’s reasonable conclusions on this point. Occidental Eng’g

17
18

Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985) (Court’s review is to “determine whether or not as a19

matter of law the evidence in the administrative record permitted the agency to make the decision it

20

did.”). DoD and its contractors specifically concluded that they had learned most, if not everything,21

the local practitioners could have taught them through consultation with cultural practice experts. 7

22US4149, US4170-73. Plaintiffs fail to identify any particular information from practitioners that
23
24
25

DoD allegedly overlooked that would have been material to its decision and that suggested adifferent outcome. See e.g., Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608

26
27
28

7

The distinction Plaintiffs try to make between “cultural experts” and “cultural practitioners” is notclear, as DoD has noted that “both do have overlap with one another.” US4149.
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F.3d 592, 610 (9th Cir. 2010) (finding agency complied with the NHPA in part because “the2[Plaintiff] Tribe has made no showing that it would have provided new information had it been

3

consulted…earlier”). Moreover, one of the cultural experts DoD consulted, Mr. Isshu Maeda, was4

one of the experts with whom Plaintiffs specifically recommended DoD consult. US4170. Thus,

5
6

Plaintiffs’ disagreement with DoD’s conclusion that additional interviews of cultural practitioners

7

were not warranted is not a basis for finding that DoD’s consultation process was arbitrary and8capricious.

910

As discussed above, DoD examined the likely impact of the project on the dugong, and it
consulted on that issue as well, despite Plaintiffs’ claims to the contrary. See Pls.’ Reply at 7-8. In

11
12

particular, the United States consulted with the GOJ on impacts. DoD engaged with the bi-lateral

13

Expert Study Group that was convened to examine the FRF and whose mandate specifically

14

included consideration of “environmental concerns.” 8 US11072; US7306. In addition, DoD

15provided its draft Findings and mitigation measures to the GOJ in sufficient time for the draft

16

Findings to be reviewed by the GOJ as part of its environmental impact analysis. US11069-72

17
18(providing a detailed list of specific mitigation measures and recommended actions). And DoD

19

considered the response received from the GOJ and the mitigation measures clarified or added to20

Japan’s 2012 EIA as well. Id.

21

In short, DoD engaged in a thorough and wide-ranging consultation process, and Plaintiffs

22
have failed to demonstrate that the process was arbitrary and capricious or in violation of law.
23
24
25
26
8

27
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Plaintiffs’ emphasis on the Expert Study Group’s statement that the “impact to animal and plant
habitat remains to be assessed,” Pls.’ Reply 8 (citing AR7311), is misplaced. That statement refers
specifically to analysis of the I-shaped configuration, rather than addressing the V-shaped
configuration that was selected.
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2. DoD was not required to consult with the entities that Plaintiffs identify.

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Plaintiffs premise their consultation arguments on the incorrect assumption that DoD was

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required to consult with particular parties identified by Plaintiffs, including the Plaintiffs themselves,4certain scientists, specific cultural experts, or allegedly affected individuals. Pls.’ Reply at 7-11.

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There is no legal basis for this assumption.

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Plaintiffs cannot point to any legal authority requiring the type of consultation they demand

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with the particular entities they name. Plaintiffs cite to the Department of Interior guidelines for

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consultation under Section 402 and the regulations governing the domestic Section 106 process. Id.

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at 8. However, neither the Interior guidelines nor the Section 106 regulations impose the11
consultation requirements on this project suggested by Plaintiffs. The guidelines “have no12
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regulatory effect,” as they are merely “the Secretary’s formal guidance to each Federal agency on

14meeting the requirements of section 110 of the Act.” Secretary of the Interior’s Standards and

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Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic

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Preservation Act, 63 Fed. Reg. 20496, 20500 (April 24, 1998). And the Court has already

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determined that the Section 106 regulations are inapplicable to foreign undertakings. Gates, 543
F.Supp.2d at 1105.
Plaintiffs now ask this Court to second-guess the decisions that DoD made regarding thescope of the required consultation without providing any justification to depart from the deference
owed to DoD’s reasonable interpretation of Section 402’s requirements. See Skidmore v. Swift &23
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Co., 323 U.S. 134, 140 (1944); Chevron v. NRDC, 467 U.S. 837, 844 (1984). In the absence of25

specific requirements for completion of the “take into account” process, DoD reasonably interpreted

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Section 402 and determined the scope of the required consultations, and this interpretation is entitled27

to deference. See ONRC Action, 150 F.3d at 1139 (citation omitted).

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Deference to DoD’s implementation of Section 402 is particularly appropriate here as it

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occurs in the context of international relationships. An inappropriately-designed consultation process3

has the potential to affront strategic partners. Plaintiffs’ argument that “Japanese sovereignty and

4Plaintiffs’ citizenship do not bar consultation,” Pls.’ Reply at 10-11, misses the point made by the56United States, Defs.’ Br. at 12-13. The United States does not argue that DoD was barred from

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consulting with Japanese citizens or groups. Instead, the United States opposes an interpretation of

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Section 402’s consultation requirements that would establish, as a matter of United States law, that9an agency is required to consult with particular foreign national entities. Id. Here, it is the DoD’s

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position that it would be an affront to Japanese sovereignty for this Court to mandate that particular

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Japanese citizens, groups, or local governments be given consulting party status equal to that of theGOJ, such that the United States must negotiate with those entities. 9

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Even under the domestic Section 106 regulations – which do not apply to this foreign action– only government entities and the applicant are entitled to consulting party status, 36 C.F.R. §800.2(c). Beyond that short list of required entities for consultation, the action agency has the1718

discretion – but is not required to – grant consulting party status to other individuals and19organizations. Id. § 800.2(c)(5). This decision is entrusted entirely to the agency, and here, DoD did20

not choose to grant consulting party status to the entities listed by Plaintiffs. Even under the21

inapplicable domestic Section 106 regulations, this Court has no basis to require DoD to consult with

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those entities.
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This Court should grant Defendants summary judgment because DoD appropriately

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Despite Plaintiffs’ suggestion that DoD was required to have consulted with at least the nonJapanese Plaintiffs, they failed to identify any legal mandate requiring such consultation. Pls.’ Reply
at 10-11. That is because there is no mandate requiring NHPA consultation with an entity simply
because it is a party to litigation about the project.
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Case 3:03-cv-04350-EMC Document 226 Filed 06/01/18 Page 16 of 1912determined the scope of the required consultation and conducted a thorough and wide-ranging
consultation that fulfilled that scope.

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D.

The Record Supports DoD’s Determination of “No Adverse Effect.”4
Finally, Plaintiffs assert that DoD’s determination of “no adverse effect” reflects a “clear

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error in judgment” because that determination runs counter to the evidence before it. Pls.’ Reply 1112. In support of this argument, Plaintiffs cite as allegedly contrary evidence the following quotefrom the record: “[the data will have] a high likelihood of not being able to conclusively tell us if,
where, when, or how dugongs are using seagrass beds near Henoko and Oura Bay.” Pls.’ Reply 12.
Plaintiffs claim that this statement was made after the publication of the Final EIA and that it showsthat DoD’s Findings, because they rely on the EIA, are clearly erroneous. Id. First, Plaintiffs
misattribute this quote to the SuMMO Report and misidentify the date of the statement. It is notfrom the 2013 SuMMO report; it is from a 2011 email from Morgan Richie (also discussed above,see supra) wherein she recommends expanding the scope of the proposed SuMMO project.
AR8095. And her disclaimer of the conclusiveness of “the data” refers only to her prediction of theusefulness of a certain aspect of the SuMMO study. It does not discredit the EIA or any other dataon which DoD made its no adverse effect determination, and it does not demonstrate that DoD’s
Findings ran counter to the evidence that was before it.
Plaintiffs also find fault with DoD’s engagement with Japan on possible mitigation measures

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to further reduce any likelihood of adverse effect from the FRF project. Pls.’ Reply 12. According
to Plaintiffs, DoD’s finding of no adverse effect is erroneous because “it is circular for DoD to baseits determination of no adverse effects on its claim that Japan’s mitigation measures will negate any
such effects.” Id. 10 But the record is clear that DoD’s determination of no adverse effect was not

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Plaintiffs use a partial quote from Defendants’ opening brief to make this circular reasoningargument. Pls.’ Reply 12 (citing Defs.’ Mem. 18). The full sentence is referring to analysis of FRF
construction impacts and reads: “As to each of these conditions, DoD found that the infrequent useof the APE by the dugong and the implementation of mitigation measures would result in no adverse
effect to the Okinawa dugong.” Defs.’ Mem. 18.

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Case 3:03-cv-04350-EMC Document 226 Filed 06/01/18 Page 17 of 191dependent on the identified mitigation measures. For all but one of the potential impacts analyzed in2

the Findings (§§ 3.2-3.3), DoD determined that the FRF would have no adverse impacts on the3

Okinawa dugong. 11 None of those determinations relied exclusively on beneficial effects of4

anticipated mitigation measures to negate adverse effects. US10988-993. That DoD also considered5potential mitigation measures (under the guidance provided by the Court) to further reduce the6likelihood of any impacts does not mean that DoD made its findings contingent on expected7

mitigation measures and does not support Plaintiffs’ assertions that the no adverse effect8

determination relied on circular reasoning. And there is nothing in the APA that prohibits DoD from9taking a holistic approach to analyzing potential impacts by also considering mitigation measures to10further reduce the likelihood of those impacts. This is particularly true for a Section 402 review,

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given that the explicit purpose of Section 402 is for federal agencies to take into account effects “for12

purposes of avoiding or mitigating any adverse effect.” 54 U.S.C § 307101(e). Thus, it was not

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arbitrary and capricious for DoD to consider these possible measures in connection with its analysis

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of potential impacts. Plaintiffs’ “clear error of judgment” argument fails.

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E.

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This Court Should Defer Consideration of Plaintiffs’ Request for Injunctive
Relief.

The parties have conferred and stipulated that the Court should defer consideration of18
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Plaintiffs’ request for a temporary injunction. See Joint Stipulation Requesting Stay of Briefing on

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Remedy, ECF No. 224. Based on that stipulation, Defendants do not address here Plaintiffs’

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arguments regarding injunctive relief. Defendants reserve the right to address those arguments

22during remedy briefing, if any.

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III.

CONCLUSION24
For the foregoing reasons and the reasons stated in Defendants’ opening brief, Defendants

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respectfully request that the Court grant their cross motion for summary judgment and deny

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The only potential for adverse impact that DoD identified is related to construction noise.
AR10990.
DEFENDANTS’ REPLY IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT
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Plaintiffs’ motions for summary judgment, and that the Court enter judgment accordingly.

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Respectfully submitted, June 1, 2018,

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JEFFREY H. WOOD
Acting Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice/s/ Taylor Ferrell
PETER KRYN DYKEMA (D.C. Bar # 419349)
TAYLOR N. FERRELL (D.C. Bar # 498260)
Trial Attorney, U.S. Department of JusticeEnvironment and Natural Resources Section
601 D Street, NW
Washington, D.C. 20004
Dykema Tel.: (202) 305 0436
Ferrell Tel.: (202) 305-0874
Fax: (202) 305-0506
Taylor.Ferrell@usdoj.gov
Peter.Dykema@usdoj.gov
Counsel for Federal Defendants

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CERTIFICATE OF SERVICE

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It is hereby certified that service of the foregoing has been made through the Court’s

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CM/ECF electronic filing and notification system on all system participants this 1st day of June,

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2018.

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/s/ Taylor Ferrell
Taylor Ferrell

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