Case 3:03-cv-04350-EMC Document 222 Filed 05/11/18 Page 1 of 32

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’ NOTICE OF MOTION
AND MOTION FOR SUMMARYJUDGMENT, RESPONSE TO
PLAINTIFFS’ MOTION FOR SUMMARYJUDGMENT AND MEMORANDUM OF
AUTHORITIES(National Historic Preservation Act, 16 U.S.C.
§§ 470 et seq.)

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TABLE OF CONTENTSINTRODUCTION .................................................................................................................................1I.

II.

BACKGROUND ...........................................................................................................2A.

The Futenma Replacement Facility ...................................................................2B.

The Okinawa Dugong ........................................................................................3C.

The History of This Litigation ...........................................................................4D.

DoD’s Section 402 Process................................................................................6

LEGAL BACKGROUND .............................................................................................7
A.

III.

IV.

National Historic Preservation Act, Section 402. ..............................................7

STANDARD OF REVIEW ...........................................................................................8A.

Administrative Procedure Act............................................................................8

B.

Summary Judgment ...........................................................................................8

ARGUMENT .................................................................................................................9A.

B.

DoD’s Research and Examination Process Met the Requirements of Section
402......................................................................................................................9
1.

DoD’s Research and Examination process was extensive andthorough .................................................................................................92.

DoD’s consultation process satisfied legal standards ..........................12a.

DoD’s judgment as to how the consultation process
should be scoped is entitled to deference ................................ 12b.

DoD was not obligated to consult with specific local
governments, or with plaintiffs. .............................................. 12c.

The fact that DoD’s contractors had limited exposure todugong “practitioners” is immateria ....................................... 14

DOD’s Finding of No Adverse Effect Met the Requirements of Section
402....................................................................................................................15
1.

DoD reached its conclusions about effects and mitigation after a sound
NHPA section 402 process ..................................................................15iCase 3:03-cv-04350-EMC Document 222 Filed 05/11/18 Page 3 of 32

1
2

a.

DoD took into account the intrinsic characteristics thatmake the Okinawa dugong a natural monument..................... 16b.

DoD took into account potential impacts from the FRF
on Okinawa dugong ................................................................ 16c.

DoD took into account potential mitigation measures ............ 18

3
4
5

2.

DoD’s scope of inquiry was appropriate, and it did not fail to consider
an important aspect of the problem......................................................19

7

3.

DoD properly exercised its discretion in relying on scientific studies 21

84.

This Court may not substitute Plaintiffs’ judgments for the reasoned
judgments of DoD ................................................................................23

6

9
10

VI.

CONCLUSION ........................................................................................................................24

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM
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TABLE OF AUTHORITIES

1
2
3
4
5
6
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Cases
Alaska Survival v. Surface Transp. Bd.,
705 F.3d 1073 (9th Cir.2013) ......................................................................................................... 21
Bonnichsen v. United States,
217 F. Supp. 2d 1116 (D. Or. 2002) ......................................................................................... 22, 23
Bonnichsen v. United States,
367 F.3d 864 (9th Cir. 2004) .......................................................................................................... 23Camp v. Pitts,
411 U.S. 138 (1973) .......................................................................................................................... 8
Chevron v. NRDC,
467 U.S. 837 (1984) ........................................................................................................................ 12City of Carmel–By–The–Sea v. U.S. Dep’t. of Transp.,
123 F.3d 1142 (9th Cir.1997) ......................................................................................................... 22
Ctr. for Biological Diversity v. Mattis,
868 F.3d 803 (9th Cir. 2017) .................................................................................................... 5, 8, 9Dugong v. Rumsfeld,
No. C 03-4350, 2005 WL 522106 (N.D. Cal., Mar. 2, 2005) ................................................... 2, 3, 4
Earth Island Inst. v. Carlton,
626 F.3d 462 (9th Cir. 2010) .......................................................................................................... 19
Gardner v. U.S. Bureau of Land Mgmt.,
638 F.3d 1217 (9th Cir. 2011) .......................................................................................................... 8
Lands Council v. McNair,
537 F.3d 981 (9th Cir. 2008) .......................................................................................................... 22
Montana Wilderness Ass'n v. Fry,
310 F. Supp. 2d 1127 (D. Mont. 2004) ..................................................................................... 20, 21
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ............................................................................................................................ 8
NEPA Coalition of Japan v. Aspin,
837 F. Supp. 466 (D.D.C.1993) ...................................................................................................... 20
Norton v. S. Utah Wilderness,
All., 542 U.S. 55 (2004) .................................................................................................................... 8
Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv.,
475 F.3d 1136 (9th Cir. 2007) ........................................................................................................ 12
Nw. Motorcycle Ass’n v. USDA,
18 F.3d 1468 (9th Cir. 1994) ............................................................................................................ 8
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Occidental Eng’g Co. v. INS,753 F.2d 766 (9th Cir. 1985) ............................................................................................................ 8
Okinawa Dugong v. Gates,
543 F. Supp. 2d 1082 (N.D. Cal. 2008) .............................................. 3, 4, 5, 8, 9, 12, 13, 17, 18, 19
ONRC Action v. Bureau of Land Mgmt.,
150 F.3d 1132 (9th Cir.1998) ..................................................................................................... 9, 11
Plains Res. Council, Inc. v. Surface Transp. Bd.,
668 F.3d 1067 (9th Cir. 2011) ........................................................................................................ 21
Protect Our Cmtys. Found. v. Jewell,
825 F.3d 571 (9th Cir. 2016) .................................................................................................... 23, 24
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) .................................................................................................................. 12, 19
Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of the Interior,
608 F.3d 592 (9th Cir. 2010) ............................................................................................................ 7
United States v. Mead Corp.,
533 U.S. 218 (2001) ........................................................................................................................ 12
United States v. Mitchell,
553 F.2d 996 (5th Cir. 1977) .......................................................................................................... 20
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .......................................................................................................... 2, 4, 5, 21, 22
STATUTES

17

5 U.S.C. § 706(2)(A)............................................................................................................................. 1

18

5 U.S.C. § 706(2)(D)............................................................................................................................. 1

19

16 U.S.C. §§ 470 ............................................................................................................................... 1, 7

20

16 U.S.C. § 470a-2................................................................................................................................ 1

21

16 U.S.C. § 1371 ................................................................................................................................. 202242 U.S.C. § 4321 ................................................................................................................................. 2023

54 U.S.C. § 300101 ............................................................................................................................... 724

54 U.S.C § 306108 .................................................................................................................. 7, 8, 9, 13

25

54 U.S.C § 307101 ........................................................................................................ 5, 7, 8, 9, 19, 20

26

54 U.S.C § 307101(e) ....................................................................................................................... 1, 8

27

Pub. L. No. 113-287.............................................................................................................................. 7

28

RULES

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12Fed. R. Civ. P. 56(c) ............................................................................................................................. 1
REGULATIONS
36 C.F.R. pt. 800 ......................................................................................................................... 4, 7, 13

3
4
5

36 C.F.R. § 800.1 .................................................................................................................................. 7
36 C.F.R. §§ 800.4(3) ........................................................................................................................... 7
Administrative Reports & Decisions

6

An Anthropological Study of the Significance of the Dugong in Okinawa Culture (Welch report) ... 16

7

Biological Assessment Of The Okinawan Dugong: A Review Of Information And Annotated
Bibliography Relevant To The Futenma Replacement Facility (Jefferson Report)........................ 17

8
9
10
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12
13
14
15
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28

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
To Plaintiffs and their Attorney(s) of Record:
You are hereby given notice that Defendants, James Mattis, in his official capacity as the Secretaryof Defense, and US Department of Defense (DoD), hereby move for summary judgment in theabove-referenced case. A hearing on this motion will be held on June 28, 2018 at 1:30 pm before
the Honorable Edward M. Chen, in Courtroom 5 of the United States District Court for the Northern
District of California, San Francisco Division, 450 Golden Gate Avenue, San Francisco, CA.
Defendants request that this Court deny Plaintiffs’ motion for summary judgment and grant
Defendants’ motion for summary judgment. This motion is filed pursuant to Fed. R. Civ. P. 56(c)and Civil L.R. 7-2 and is made on the grounds specified in Defendants’ memorandum in support ofthe motion, the complete record before the Court in this matter, and upon such other evidence as
may be presented to the Court.
STATEMENT OF ISSUES TO BE DECIDED
Whether Defendants’ finding pursuant to section 402 of the National Historic Preservation
Act (NHPA), 54 U.S.C § 307101(e), that construction of a military base off the coast of Okinawa,
Japan would have “no adverse effect” on the resident population of endangered Okinawa dugong
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C.
§ 706(2)(A), and made “without observance of procedure required by law.” Id. § 706(2)(D).
INTRODUCTION
This case involves a challenge to joint plans by the United States and Japan 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. Plaintiffs challenge these plans under National
Historic Preservation Act (“NHPA”) Section 402, 16 U.S.C. § 470a-2, asserting that DoD failed toproperly “take into account” the FRF project’s potential effects on the Okinawa dugong, a manateelike marine mammal that is designated a “cultural property” under Japanese law. In 2008, this Court
determined that Section 402 applies to the FRF project and provided guidance on the scope of theprocess required by Section 402’s specific “take into account” requirement.
In response to the Court’s 2008 order, DoD undertook an NHPA section 402 analysis. That1

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1analysis included the commissioning of independent studies, active engagement with the2Government of Japan (“Japan”), and review of multiple biological, environmental, and historical3

studies relating to the Okinawa dugong and the potential impact of the FRF on the Okinawa dugong.

4

DoD also consulted with experts on the Okinawa dugong, drawn from the fields of archeology,

5

biology, history, and folkloric and traditional knowledge. DoD concluded its analysis and issued its

6

NHPA Findings (“Findings”) in April 2014, finding that the FRF will have no adverse impact on the7

Okinawa dugong. Japan reached the same conclusion.

8

After DoD issued its Findings in April, 2014, Plaintiffs filed their Supplemental Complaint

9

challenging the adequacy of those Findings. ECF No. 152. Plaintiffs claim that DoD’s Findings are

10

substantively and procedurally flawed. But Plaintiffs have failed to show that DoD’s findings were

11

arbitrary and capricious or otherwise contrary to law. The record shows that DoD carefully followed

12

the Court’s guidance in its “stop, look, and listen” review of the potential adverse effect on the

13

Okinawa dugong. Plaintiffs do not contend that DoD failed to follow this guidance. Instead,

14

Plaintiffs seek to expand the requirements of Section 402 beyond that which Congress intended and15

ask the Court, contrary to Ninth Circuit authority, to substitute its own judgment for the reasoned

16

judgment of DoD. For these reasons, as more fully explained below, the Court should grant

17

Defendants' cross-motion for summary judgment and deny Plaintiffs' motion for summary judgment.

18

The Court should also deny Plaintiffs’ request to enjoin DoD from taking actions in furtherance of19

the FRF project, as Plaintiffs, even if successful on the merits, are unable to meet the standards for20

the extraordinary remedy of injunctive relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 33

21(2008) (plaintiffs’ ecological, scientific, and recreational interests in marine mammals are plainly

22

outweighed by the Navy's need to conduct realistic training exercises).

23

I.

BACKGROUND

24

A.

The Futenma Replacement Facility

25

The United States has maintained military bases on Okinawa, Japan since 1945. Dugong v.

26

Rumsfeld, No. C 03-4350, 2005 WL 522106 at *1 (N.D. Cal., Mar. 2, 2005). On June 17, 1971,

27

Japan and the United States signed the “Agreement Between the United States and Japan Concerning

28

the Ryukyu Islands and the Daito Islands,” under which the United States relinquished its post-war
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1

administration of these island chains, which include Okinawa, and restored them to Japanese2administration. Id. Under Article III of the 1971 agreement, Japan granted the use of “facilities and3areas” in the islands to the United States in accordance with the Treaty of Mutual Cooperation and

4

Security (“Security Treaty”) and the Status of Forces Agreement (“SOFA”) of 1960. Id.

5The existing Marine Corps Air Station Futenma (MCAS Futenma) in Ginowan City,

6

Okinawa, has been in use by the United States since 1945. Okinawa Dugong v. Gates, 543 F. Supp.

7

2d 1082, 1084-85 (N.D. Cal. 2008). In recent decades, the location of the Futenma Air Station in

8

Ginowan City has become problematic, due to intensive population growth in the immediate area.

9

Id. at 1085. The United States and Japan, have thus been working to create a replacement facility.

10

Id. The project to relocate and replace MCAS Futenma is referred to as the FRF project. Id.

11

On May 1, 2006, Japan and the United States issued the “United States–Japan Roadmap for

12

Realignment Implementation” (“2006 Roadmap”). Id. at 1086. The Roadmap stipulates for the FRF

13a “V-shaped” runway which will be partially built on landfill extending into Oura and Henoko Bays.

14

Id. The new FRF V-shape design took into account both U.S. operational requirements and the need15

to limit impacts on the environment and local communities. Id. Japan is responsible for funding and16completing the construction of the FRF. Id. at 1085.

17

Under Japanese law, Japan was required to conduct an environmental impact assessment

18

before construction of the FRF began. Id. at 1086. Japan issued its draft Environmental Impact

19

Analysis (EIA) in 2009 and its final EIA in 2012. US10981. After over twenty years of negotiation,

20

design, and study, construction of the FRF is now underway.

21

B.

The Okinawa Dugong

22

The dugong is an herbivorous marine mammal related to the manatee. Gates, 543 F. Supp.

23

At 1083. It is listed as “endangered” under the U.S. Endangered Species Act, “vulnerable” by the24World Conservation Union, and “critically endangered” under Japanese law. Id. at 1084. The

25

Okinawa dugong, the northernmost dugong population in the world, is not a genetically-distinct

26

subspecies but an isolated relict population. US4164. Once common, its numbers declined in the27

early twentieth century due to traditional hunting (which is now illegal) and fisheries bycatch.

28

US4176, 4181. The primary threat to the Okinawa dugong today remains bycatch, followed by
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habitat destruction from coastal development and soil runoff that pollutes or kills seagrass beds.

2

US4183. In 1997, the Mammalogical Society of Japan estimated that fewer than 50 Okinawa

3

dugongs survive in the wild. US4156. The Okinawa dugong is listed as a “cultural property” under4

the Japanese Law for the Protection of Cultural Properties based on its importance in native

5

Okinawan mythology and culture. Okinawa Dugong v. Rumsfeld, 2005 WL 522106 at *6,*7.

6C.

The History of This Litigation

7

Plaintiffs commenced this litigation in 2003, seeking declaratory and injunctive relief based

8

on DoD’s alleged failure to comply with NHPA § 402 in connection with the design, development

9and approval of the FRF. Complaint for Declaratory and Injunctive Relief, ECF No. 1. In an

10

unpublished 2005 decision, the district court (Judge Patel) held, among other things, that: (1) Japan’s

11“Law for the Protection of Cultural Properties . . . is an ‘equivalent of the National Register’ within

12

the meaning of” Section 402; (2) the Dugong is a “property” within the meaning of Section 402; and13(3) factual issues precluded findings on whether the FRF is a federal “undertaking” under Section

14

402 and whether Japan’s degree of control over the siting of the FRF required judicial abstention

15

under the act of state doctrine. Rumsfeld, 2005 WL 522106 at *8, *10-11, *19-20. The Court

16

withheld decision as to whether the FRF would “directly and adversely” affect the dugong and17

whether the Secretary had completed the take-into-account process required by Section 402. Id. at

18*16-18.

19

In 2006, Plaintiffs filed their Second Amended Complaint. ECF No. 69. In a 2008 decision,20

the Court (again, Judge Patel) held that: (1) the Roadmap constituted “final agency action” under the21

APA, (2) most but not all of the Plaintiffs had standing, and (3) Plaintiffs’ claims were ripe. Gates,

22

543 F. Supp. 2d at 1091-97. The Court held that DoD had failed to satisfy these requirements and23

ordered that DoD “comply with NHPA section 402.” Id. at 1107-1112. 1

24

The Court, based on its interpretation of the purposes of Section 402 and on the 36 C.F.R. pt.

25

800 regulations (which describe the take-into-account process for domestic undertakings), held that

26

1

27
28

Rather than remanding to the 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.” Gates, 543 F. Supp. 2d at 1112.
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to satisfy the requirements of Section 402, the take-into-account process must include, at a2

minimum:

3456(1) identification of protected property, (2) generation, collection, consideration, andweighing of information pertaining to how the undertaking will affect the historic property,(3) a determination as to whether there will be adverse effects or 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 further noted that “a federal agency does not complete the take into account process on its

7own, in isolation, but engages the host nation and other relevant private organizations and8
individuals in a cooperative partnership.” Id.
9
In April 2014, DoD notified the Court and Plaintiffs that it had completed its Section 402
10process. ECF No. 151. In response, Plaintiffs filed their First Supplemental Complaint seeking
11
review of DoD’s take-into-account process and no-effect finding. ECF No.152-1. The
12
Supplemental Complaint requests (1) a declaration that “DoD’s Findings and failure to involve
13
Plaintiffs and the public” in the take-into-account process violate Section 402 and the APA, (2) an
14order setting aside DoD’s findings, and (3) “[a]n order that DoD not undertake any activities in15
furtherance of the FRF project, including granting permits or approvals for contractor entry to Camp
16
Schwab and/or the proposed FRF project area, and that DoD rescind any such permits or approvals
17
already granted, until it complies with” NHPA § 402. Id. at 15-16.
18
The parties moved for summary judgment, and on February 13, 2015, the Court granted
19
DoD’s motion to dismiss. The Court held that Plaintiffs’ claim for injunctive relief presents a non20
justiciable political question and that the declaratory claims are non-justiciable for want of
21
redressability. Id. Plaintiffs appealed, and on August 21, 2017, the Ninth Circuit reversed the22
Court’s dismissal of Plaintiffs’ claims, holding that Plaintiffs have standing to seek both declaratory23
and injunctive relief, and that the political question doctrine does not bar Plaintiffs’ claims. Ctr. for24
Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017). The Ninth Circuit remanded to the25
district court for further consideration of plaintiffs' claims but noted that “the plaintiffs may face26
challenges in securing relief on the merits.” Mattis, 868 F.3d at 809 n. 2.
27
28
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D.

DoD’s Section 402 Process

2

DoD’s Section 402 process carefully followed Judge Patel’s description of what Section 402

3

requires. In order to analyze the potential effects of the FRF on the Okinawa dugong, DoD gathered4

and assessed information on the proposed construction and operation of the FRF and defined the5

Area of Potential Effect (“APE”) to include the geographic areas for which construction and6

operation of the FRF could directly or indirectly affect the Okinawa dugong. US10978. DoD

7

considered data on the Okinawa dugong “population size, known vulnerabilities or threats to the8

population, behavior patterns within Henoko Bay, distribution of seagrass beds in the waters around9

Okinawa[,] and information on cultural practices related to the Okinawa dugong that occur within

10

the APE for the Undertaking.” US10980. In addition, because assessment of effect is based on the11extent to which the Undertaking would alter the characteristics of the Okinawa dugong that make it

12cultural property, DoD collected and analyzed information to identify the historic and modern

13significance of the dugong in Okinawa culture, as well as the rationale for designating it for

14

protection as a natural monument. DoD also considered in detail potential mitigation measures both

15

for the Government of Japan to implement during construction and for the Marines to implement

16

during operations. US10994-96.

17

Sources used by DoD in the review process included the information and documentation18

prepared by GOJ, including both the draft and final environmental impact analysis (“EIA”) prepared19

by Japan for the FRF. In addition to its analysis of existing resources and studies, DoD also

20

commissioned a biological assessment of the dugong (Jefferson) and an analysis of its cultural

21

significance (Welch). And DoD engaged GOJ and other relevant private organizations and22

individuals. Id. at 10996-97. At the end of the process, DoD prepared an analysis entitled the23

United States Marine Corps Recommended Findings (“Findings”). US10977-11002. 2

24
25
26
27

2

The official with the authority for NHPA 402 for the FRF is the Deputy Assistant Secretary of theNavy for the Environment (“DASN-E”), who is the Federal Preservation Officer for the Departmentof the Navy. Defendants’ Resp. to Court Mem. & Order at 6, ECF No. 120. The United States
Marine Corps, which falls within the Department of the Navy, is the action proponent for theUndertaking, the FRF.

28
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II.

2

LEGAL BACKGROUND
A. National Historic Preservation Act, Section 402.

The NHPA, 54 U.S.C. § 300101 et seq., 3 generally requires federal agencies to “take into

3
4

account the effect” of their “undertakings” on certain properties. 36 C.F.R. § 800.1. Like the5

National Environmental Policy Act (“NEPA”), the NHPA is a procedural statute. It does not

6

prohibit projects that result in adverse effects; rather, it requires agencies “to ‘stop, look, and listen’

7

before proceeding with agency action.” Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of the

8Interior, 608 F.3d 592, 610 (9th Cir. 2010).

9

Within the United States, federal projects are governed by NHPA § 106, 54 U.S.C § 306108

10(formerly 16 U.S.C. § 470f). Section 106 requires federal agencies to “take into account the effect”

11

that a federal project will have on “any district, site, building, structure, or object that is included in

12

or eligible for inclusion in the National Register,” and to “afford the [Advisory Council on Historic

13

Preservation (ACHP)] a reasonable opportunity to comment with regard to such undertaking.” 54

14

U.S.C § 306108 & note (5. Undertaking – Generally). Implementing regulations for domestic

15

federal undertakings establish a detailed four-step procedure to comply with Section 106. 36 C.F.R.

16

pt. 800. First, the agency identifies “consulting parties,” including the State Historic Preservation

17

Office and interested Indian tribes. Second, the agency identifies historic properties that might be18

affected by the project. Third, the agency assesses whether there are adverse effects on those19

historic properties. Fourth, the agency endeavors to resolve any adverse effects. These steps occur

20

in consultation with the consulting parties identified by the agency. See, e.g., 36 C.F.R. §§ 800.4(3),21800.5(a).
Extraterritorial undertakings are addressed in NHPA § 402, which was added to the NHPA in

22
231980 to implement the U.N. Convention Concerning the Protection of the World Cultural and24

Natural Heritage. H.R. Rep. 96-1457 at 43-44 (Oct. 10, 1980). Section 402 provides:

25
26
27
28

3

The NHPA, previously codified at 16 U.S.C. § 470 et seq., was recently recodified in title 54. Pub.
L. No. 113-287, § 3, 128 Stat. 3094 (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.
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Prior to the approval of any [Federal] undertaking outside the United States which
may directly and adversely affect a property which is on the World Heritage List oron the applicable country’s equivalent of the National Register, the head of a Federal
agency having direct or indirect jurisdiction over such undertaking shall take into
account the effect of the undertaking on the property for purposes of avoiding or
mitigating any adverse effect.

1
2
3
4

54 U.S.C. § 307101(e) (formerly 16 U.S.C. § 470a-2). Unlike Section 106, no implementing
5

regulations have been promulgated for Section 402. Gates, 543 F. Supp. 2d at 1089. 4

6
III.

STANDARD OF REVIEW

7
A. Administrative Procedure Act
8
The Administrative Procedure Act (APA) requires courts to uphold agency actions unless9
they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”10
Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1224 (9th Cir. 2011) (quoting 5 U.S.C. §11706(2)(A)). An agency decision is arbitrary and capricious if it “relied on factors which Congress12
has not intended it to consider, entirely failed to consider an important aspect of the problem, offered
13
an explanation for its decision that runs counter to the evidence before the agency, or is so
14
implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
15
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also
16
Norton v. S. Utah Wilderness All., 542 U.S. 55, 66 (2004).
17
B.

Summary Judgment

18
The Ninth Circuit has endorsed the use of summary judgment to review agency actions
19
governed by the APA. See, e.g., Nw. Motorcycle Ass’n v. USDA, 18 F.3d 1468, 1471-72 (9th Cir.
201994). The court’s role is not to determine whether there are genuine disputes of fact, but instead to
21“determine whether or not as a matter of law the evidence in the administrative record permitted the22
agency to make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir.
23
1985). “[T]he focal point for judicial review should be the administrative record already in24existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138,
25
26
27
28

4

The Ninth Circuit, in its decision remanding this case on standing and political question grounds,
provided some guidance for the procedural requirements for Section 402. It noted that, while theprocedural requirements for NHPA Section 106 provide “a useful comparison point” for evaluationof NHPA Section 402 process, “the statutory text of Section 106 imposes more rigorous
requirements than Section 402. Mattis, 868 F.3d at 824.
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1

142 (1973) (per curiam). The administrative agency itself is the fact-finder; summary judgment is2

appropriate for determining “the legal question of whether the agency could reasonably have found3

the facts as it did.” Occidental Eng’g Co., 753 F.2d at 770.

4IV.

ARGUMENT

5

DOD COMPLIED WITH SECTION 402 “TAKE INTO ACCOUNT” REQUIREMENTS

6The Ninth Circuit, in its 2017 decision, noted that “if the Government has reached its

7

conclusions about effects and mitigation after a sound NHPA Section 402 process, then it has

8complied with NHPA Section 402.” CBD v. Mattis, 868 F.3d at 818. Judge Patel’s 2008 order,

9

while acknowledging that the NHPA “section 106 process does not map directly onto the section

10402 process,” identified five components that the DoD section 402 process should include. Gates,

11

543 F. Supp. 2d at 1105. DoD’s process addressed all five.

12

Plaintiffs assert that DoD’s Section 402 review and finding of “no adverse effect” on the

13

Okinawa dugong was arbitrary and capricious and “without observance of procedure.” Pls.’ Br. 1.

14

Plaintiffs assert that DoD failed to properly conduct Section 402 consultation and that DoD’s “no15

adverse effect finding” was flawed because it was improperly limited in scope and was not

16

supported by sufficient science or by information in the record. Id. But Plaintiffs’ arguments on

17

consultation and impacts analysis requirements are premised on an unwarranted expansion of18

Section 402 procedural requirements, beyond what Congress contemplated for Section 402. DoD

19

reasonably interpreted the Section 402 requirements in its consultations and in its impact analysis,

20

and DoD’s interpretation is entitled to deference. See ONRC Action v. Bureau of Land Mgmt., 150

21

F.3d 1132, 1139 (9th Cir.1998) (agency interpretation of statute is entitled to considerable weight

22

and will be upheld if it is reasonable and does not conflict with the statute’s clear language).

23

Plaintiffs have failed to show that DoD’s process or finding was arbitrary and capricious.

24

A. DoD’s Research and Examination Process Met the Requirements of Section 402

25

1. DoD’s Research and Examination process was extensive and thorough26

DoD contracted with International Archaeological Research Institute, Inc. (IARII) to:27

Conduct background and documentary archival research for geographicalarchaeological folklore historical ethnographic and any other type of cultural
resources information related to the dugong (Dugong dugon) in Okinawa culture.

28

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The contractor shall also analyze available and pertinent biological information on thedugong and seagrass beds and the information received from reference and provide
input as to dugong behavior, migratory movements and feeding patterns insofar as
those topics are relevant to the dugong’s status as cultural and historic property ofJapan.

1
2
3
4

US4167. The team assembled by IARII included:
5
6
7
8

•
•
•
•

9
10

•

Archaeologists Dr. David Welch and Ms. Judith McNeill from International ArchaeologicalResearch Institute Inc. Honolulu,
Cultural anthropologist Dr. Arne Rokkum, professor at the University of Oslo,
Biologist Dr. Thomas Jefferson of Claymene Enterprises in San Diego,
Research staff from ARCGEO Inc. in Nishikawa, Okinawa, led by archaeologist Mr. Taku
Mukai and archaeologist Mr. Naoki Higa, with translations prepared by Mr. Takashi Miyagi
and Ms. Nariko Yogi, andMr. Masayuki Yonaha, MCB Camp Butler archaeologist

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

US4164-65.
The outreach was extensive, and formulating the list of interviewees was itself a substantial
undertaking:An initial list of persons to be interviewed was developed from several sources. The project
anthropologist Arne Rokkum had formerly worked in Okinawa; his background includes four
years of in situ fieldwork spanning a period of three decades. Participant observation duringthat period was carried out on Yonaguni, Ishigaki, Iriomote, Hatoma, Kohama, Aragusuku,
and Miyako Islands. Archival research was conducted in library institutions on Okinawa
Island. Dr. Rokkum knew individuals who were likely to have information about the dugong
in Okinawan culture including those at the Okinawa Studies Institute in Tokyo with which hehad previously been affiliated.
The cultural and natural resource specialists at Camp Butler were consulted for names ofindividuals who might have expertise regarding the cultural role of the dugong. Naoki Higa,
ARCGEO researcher formerly with the Okinawa Prefectural Archaeology Center, andMasayuki Yonaha the MCB Camp Butler archaeologist, knew the archaeologists who hadstudied dugong remains and were likely to be knowledgeable in this area… Mr Senzo
Uchida, a biologist at the Churaumi Aquarium, had done extensive work and written
numerous articles on the dugong and was contacted at the suggestion of the project biologist
as well as being included on the plaintiffs’ list of biological contacts.
The plaintiffs in the court case had included their own list of individuals and organizations
with expertise in regard to the cultural and historical role of the dugong. The research teammade it a point to include a number of people from the plaintiffs’ list, but field time was not
sufficient to allow us to contact and interview all the people on the list. We selected six
cultural experts who seemed most likely from their publications or who were known tomembers of the project team to have knowledge of the role of the dugong in Okinawa
culture.
US4170.
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1

The IARII consultation process, in the end, included:

2

Subject matter experts -- six archaeologists, two biologists, an archivist and two folklorists.

3

US4172. Including the subject matter experts on the team itself, and others consulted by DoD, the4experts consulted included seven archaeologists, two biologists, three archivists/professors and four5

folklorists or individuals with local traditional knowledge. US11072.

6

Museum personnel – including Uruma City Cultural Sea Museum, the University of the

7

Ryukyus, Museum Higashi Village, Museum Ishigaki City, Yaeyama Museum, Nago Museum,

8

Okinawa Churaumi Aquarium and the Okinawa Prefectural Archaeology Center. Id.

9Prefectural cultural authorities 5 – including the Okinawa Prefectural Board of Education

10

and those municipal Boards of Education located nearest the proposed project and those that were

11

located along coasts where dugongs have been sighted: Chatan Town, Ginoza Village, Nakijin

12

Village, and Nago City. Id.

13

The Japanese Government. Japan played a prominent role. During the summer of 201014

Japan and U.S convened a bi-lateral Expert Study Group to examine the FRF including its impacts

15

on the environment. A member of the U.S negotiating team presented the preliminary results of the16

Government’s findings to that Expert Group for their consideration. Finally the U.S conveyed its

17

draft findings and mitigation measures to Japan through the Office of the Secretary of Defense

18

Policy in sufficient time for the draft findings to be reviewed by GOJ as part of its environmental

19

impact analysis. The Deputy Assistant Secretary of the Navy (Environment) -- the Department of20

the Navy’s Federal Preservation Officer, responsible for making the final decision on DoD’s take21

into account process -- considered the response received from GOJ and the mitigation measures

22

clarified or added to Japan’s 2012 EIA as well. Id.

23
24
25
26
27
28

5

In the Okinawa government, the Board of Education and each of its prefectural offices includes a"Cultural Property Division" that has responsibility for maintaining an inventory of culturalproperties within the prefecture, conducting cultural property investigations, and consulting on thepotential impacts of various development/construction activities on cultural properties in theirprefecture. This office is an equivalent to the State Historic Preservation Office in the U.S. (SeeUS4185, 4188). The Navy’s consultation with these Boards refutes Plaintiffs’ assertion that “[a]t no
time did DoD notify … Okinawa state or local government.” Pl. Br. (ECF No. 221) at 17.

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1

2. DoD’s consultation process satisfied legal standards

2
3
4

Plaintiffs’ challenge to DoD’s consultation process ignores guiding legal principles and seeks
to impose specific mandates that are neither practical nor legally supported.
a.
DoD’s judgment as to how the consultation process should be
scoped is entitled to deference

5

Section 402 contains no specific requirements for completion of the take into account6

process. DoD has the discretion to interpret the statutory provisions, as its views “constitute a body7of experience and informed judgment to which courts and litigants may properly resort for

8

guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The degree of deference given to9

DoD’s interpretations depends on “the degree of the agency’s care, its consistency, formality, and10

relative expertness, and ... the persuasiveness of the agency’s position.” Nw. Ecosystem All. v. U.S.

11

Fish & Wildlife Serv., 475 F.3d 1136, 1141 (9th Cir. 2007) (quoting United States v. Mead Corp.,

12533 U.S. 218, 228 (2001)). The record shows that DoD carefully and methodically completed its

13

Section 402 process, including consultation with GOJ and persons and organizations having relevant

14expertise. Under Skidmore, the Court must grant deference to DoD’s interpretation of the scope of15

the process required by Section 402. 6 As the Court recognized in its January 24, 2008 Memorandum

16

and Order, the Court must “allow[] the precise letter of the statute to be filled in by a particular

17

agency depending on the agency’s mission and undertaking…” Gates, 543 F.Supp.2d at 1105.

18
b.

19
20

DoD was not obligated to consult with specific local governments,
or with plaintiffs.

Plaintiffs complain that DoD did not consult with Plaintiffs themselves, or with local

21

governments (which is not entirely true – see US11072), and did not initiate a process for22participation by the Japanese public. What Plaintiffs are asking is for this Court to impose on

23

Section 402 the formal consultation procedures found in the domestic regulations implementing

24

NHPA section 106. 36 C.F.R. pt. 800. The 106 regulations establish formal “consulting parties”

25

that include: (1) the State Historic Preservation Officer, (2) Indian tribes and Native Hawaiian

26
27
28

6

Judge Patel cited Chevron v. NRDC, 467 U.S. 837 (1984), in her analysis of deference to beafforded DoD in this matter. Gates, 543 F. Supp. 2d at 1103-1107 (citing Chevron, 467 U.S. at 842).
If that is the appropriate standard, the Court should, under Chevron step two, defer to DoD’s specificformulation of the take into account process.
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1

organizations, (3) representatives of local governments, and (4) applicants for Federal assistance2

permits, licenses and other approvals. Id. § 800.2(c). The regulations also provide the action agency

3

discretion to grant consulting party status to “certain individuals and organizations with a4demonstrated interest in the undertaking due to the nature of their legal or economic relation to the5undertaking or affected properties, or their concern with the undertakings effects on historic

6

properties.” Id. § 800.2(c)(5). Under the regulations, only consulting parties that receive status from7

the agency are afforded special opportunities to comment during each phase of the identification and8evaluation of impacts on listed properties. Id. §§ 800.2 - 800.7. If an adverse effect is found, the9consulting parties are entitled to negotiate an agreement with the action agency identifying

10

acceptable measures to avoid, minimize, or mitigate the adverse effect. Id. § 800.6.

11

First, none of the section 106 domestic regulations apply to foreign undertakings. Gates, 543

12

F.Supp.2d at 1105. Second, even under these domestic regulations, only government entities and the13

applicant are entitled to consulting party status – Plaintiffs, scientists, cultural experts, and allegedly

14

affected individuals are not entitled to status absent the agency’s grant of status. Id. § 800.2(c).

15Under section 402, where the historic properties under consideration fall under the governance of

16

another nation, it would be highly inappropriate for the court to mandate that United States statutes

17or regulations entitle Japanese citizens or groups to have the right to negotiate and seek agreement

18with the United States Government on an equal footing with Japan, or to compel the DoD to grant a

19group consulting status. Only Japan, as a sovereign, can represent its interests as a sovereign. The

20

Court must not undermine Japan’s sovereignty by ordering DoD to grant consulting party status to21

Japanese citizens, local and prefectural governments, and Japanese non-governmental organizations.

22

Certainly, if the situation were reversed, the United States would not be required to allow its citizens,

23

local/state governments or non-governmental entities to enter into negotiations with the Government

24

of Japan over a project that was agreed to by Japan and the United States.

25

And little would be gained by requiring DoD to invite public participation. 7 The Japanese26

equivalent of the National Environmental Policy Act (NEPA) allows fulsome public participation.

27

7

28

This Court’s consultation factor referred to the “… host nation and other relevant privateorganizations and individuals” and did not require or encourage the DoD to grant consulting status to
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1

See Declaration of Takemasa Moriya, June 27, 2007, ECF No. 91-3, at ¶¶ 13-18 (description of the2

public’s opportunities to comment during the Japanese EIA/EIS process).

3
4

c.

The fact that DoD’s contractors had limited exposure to dugong“practitioners” is immaterial

5

As Plaintiffs note, DoD’s contractor did not interview local “practitioners” – that is, non-6

expert members of the community who may or may not regard the dugong as sacred or otherwise

7

special. And it is true that at least one member of the team voiced the opinion that this omission

8

represents a weakness in the “take into account” process. Pls.’ Br. 13, citing AR 4149 (Feb. 4, 2010

9

email string). Such an observation does not, however, render the analysis or its conclusions

10

unreasonable. In fact, Dr. Welch specifically addresses this in his report: “[w]hile conducting

11

interviews with these additional experts and practitioners would no doubt have furthered the depth of

12

information on particular topics regarding the cultural significance of the dugong, it is the opinion of13

the authors that additional information would not substantially alter the conclusions reached in this14

study.” US4171. Plaintiffs offer no reason to believe otherwise.

15

Dr. Welch’s observations are supported by the Navy’s own cultural resource expert who, in16

the same exchange Plaintiffs cite, identifies two factors that make the absence of “practitioner”

17

interviews de minimis. First, IARII’s desire to do additional work is modus operandi for all

18

conscientious researchers. AR 4149 (“[L]ike all studies they would have liked more time and19funds.”) Second, there is no evidence that practitioners would provide evidence not otherwise

20

indirectly learned from other sources. Id. (“They differentiate between cultural experts and cultural

21

practitioners but both do have overlap with one another so if they talked to one that could get the gist

22of what the other does.”) This point was made by the IARII itself:

23
24
25

A few of the informants had talked to cultural practitioners to whom the interview
team could not get access and had information regarding rituals and other cultural
practices that has never been published and would thus be unavailable from othersources. In particular as result of his own research Mr. Isshu Maeda possessed
extensive knowledge of unpublished cultural practices related to the dugong.

26
27
28

any particular organizations or individuals. Gates, 543 F. Supp. 2d at 1104.
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1

US4172-73; see also US4171 (“These and several other informants were able to provide information

2

from their own experience of the myths and folk stories associated with the dugong and of rituals

3

that honored or invoked the dugong.”) Plaintiffs offer no reason to question these observations.

4

Indeed, Mr. Maeda was among the experts Plaintiffs themselves advanced. AR 4170.

5

And, in contrast with academics and other specialists who are (in many cases) public

6

personae, interacting with private “practitioners” presents unique practical problems. First, as the7

principal author of the IARII report noted, conducting private interviews would likely have caused if

8

nothing else considerable delay “given the requirement that the Japanese embassy approve all

9contacts.” US4149. Also, experts expressed some skepticism about current “practitioners.” Mr.

10

Hideo Henzan, an official in Naha (Okinawa Prefecture’s principal city) stated a view that local

11

residents “should be able to tell the contractors that Dugongs are not at all perceived in Okinawa as a12

mythological figure (mermaids, etc.) but that they were in fact valuable dietary source of protein for13

the local population.” US3207.

14

The record shows, in all events, that DoD’s outreach and research initiatives were thorough15

and wide-ranging. And, as we show in the section that follows, it led to well-supported conclusions.

16
17
18

B.

DOD’s Finding of No Adverse Effect Met the Requirements of Section 402.
1. DoD reached its conclusions about effects and mitigation after a sound

NHPA section 402 process

DoD concluded its analysis and issued its NHPA Findings in April 2014, finding that
19
construction and operation of the FRF will have no adverse impact on the Okinawa dugong.
20
Specifically, DoD found that the FRF will not adversely affect the Okinawa dugong as a cultural21
property “because of the extremely low probability of Okinawa dugongs being in the APE; or should
22
dugongs in fact be present the construction and operational activity is primarily of the type that23
would not have an adverse effect.” US10988. In doing so, DoD satisfied its duty to take into
24
account the FRF’s possible effects on the Okinawa dugong as a cultural property.
25
DoD carefully followed this Court’s 2008 ruling in ensuring that it complied with the26
procedural requirements of Section 402. In scoping its Section 402 analysis, it determined that, in
27
order for the FRF to have an adverse effect on the Okinawa dugong, “dugongs would have to be
28
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1

present in the APE and subject to activities that could destroy harm or alter those intrinsic

2

characteristics that make the Okinawa dugong a natural monument.” US10987. The record shows3

that DoD met its “take into account” obligations under Section 402 and the standards set forth in

4

Judge Patel’s opinion by considering (1) the cultural significance of the Okinawa dugong, including5

the bases for this significance, (2) the potential impacts that the FRF project would have on the

6

Okinawa dugong, and (3) any potential mitigation measures that could further protect the Okinawa

7

dugong from any adverse effects.
a. DoD took into account the intrinsic characteristics that make the
Okinawa dugong a natural monument

89

DoD determined that, to address whether the FRF will have an effect on the Okinawa dugong

10

as cultural property, “it is necessary to first identify the character-defining features of the dugong as

11

a cultural property.” US10986. To that end, DoD reviewed information on cultural practices related

12

to the Okinawa dugong that occur within the APE, as well as information to identify the historic and13

modern significance of the dugong in Okinawa culture and the rationale for designating it for

14

protection as natural monument under Japanese law. US10980. DoD’s consultation process is15

described in detail above. The culmination of these efforts was the 2010 report entitled: An

16

Anthropological Study of the Significance of the Dugong in Okinawa Culture (Welch report), which

17

evaluated in detail the cultural significance of the Okinawa dugong and found that “the18disappearance of the dugong population from Okinawa would have an adverse cultural impact.”

19

US4254. By considering all of these characteristics of the Okinawa dugong, DoD satisfied the first20

step in Judge Patel’s Section 402 guidance.

21
22

b.

DoD took into account potential impacts from the FRF on
Okinawa dugong

23

To account for the potential effects the FRF may have on the Okinawa dugong, DoD

24

reviewed multiple sets of data to determine the extent of the presence of the Okinawa dugong within

25

the identified APE. DoD reviewed a number of previously established GOJ surveys documenting

26

dugong presence in the area in 2000, 2001, 2003, 2008 and 2009, (US10979; US5015-19), as well as

27

continuous 24-hour video and passive acoustic monitoring survey data that Japan compiled to28

support its EIA. DoD also considered aerial surveys that GOJ conducted on a monthly schedule
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1(US11059; US9996) and DoD survey data concerning its natural resource management effort in2

Okinawa. US9243-400

3The feeding trail information provided by GOJ, along with other studies, indicated “steady4

and routine dugong activity” north of the FRF “with sporadic dugong activity observed directly in

5Henoko and Oura Bay.” (US7656; US5022). The surveys conducted by Japan between January

62008 and December 2013 observed routine use of seagrass beds off Kayo, an area north of Henoko

7

Bay. US10979. DoD also noted that there were five observances of dugongs in Oura Bay between

8

September of 2010 and November of 2013 and that feeding trails have been intermittently observed

9in the seagrass beds within the footprint of the FRF. Id. Based on these data, as well as review of

10

external academic studies, e.g. USREF1580 et seq., USREF2064 et seq., DoD found that Okinawa

11

dugongs are present, at least intermittently, within the APE. Id.

12

In addition to its review of the EIA and other studies to determine the presence of the

13

Okinawa dugong in the area, DoD also commissioned its own analysis of the biology of the dugong,

14

culminating in a report entitled Biological Assessment Of The Okinawan Dugong: A Review Of

15

Information And Annotated Bibliography Relevant To The Futenma Replacement Facility (Jefferson

16

Report) (US3356-91). Jefferson assessed the biological characteristics of the dugong and the past17

and current threats to the dugong, concluding that the primary current threat is bycatch and noting

18

that habitat destruction and alteration from the FRF is a potential threat. US3369-70. 8 See also,

19

US04735-4739 (review of available information on the vulnerability of dugongs to human activities,

20

including (1) hunting; (2) bycatch/incidental catch; (3) vessel strikes; (4) acoustic disturbance21

resulting in injury to hearing systems, interference with acoustic communication signals, or causing

22

behavioral changes; (5) habitat loss/degradation; and (6) chemical pollution. )23

DoD then analyzed the potential impact on the Okinawa dugong by FRF construction and24

operations. DoD reviewed the Japanese EIA for its assessment of the potential impacts from the25

construction and operation of the FRF. US6139. The EIA disclosed and analyzed aspects of FRF

26

8

27
28

Jefferson concluded that “eliminating activities that may have the potential to limit population
recovery (e.g. the FRF) while ignoring the issues known to be causing population decline (e.g.
possible illegal hunting and incidental catches in fisheries) will not help the population. An
integrated management plan that examines each of the potential threats with objective scientific data
and deals with them accordingly is the only way to preserve this dugong population.” US3373.
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1

construction that could have an impact on dugongs in the area, including water turbidity, noise,2

vibrations, and night lighting during the construction work, as well as the effects of the navigation of3

work ships. US6139. The EIA found that:

4

6[I]t is projected that the effects of muddy water, noise, and the navigation of work ships
during the construction work will not reach the sea areas where the seagrass beds thatdugongs use as feeding grounds are distributed. It is also projected that if dugongs remain
within their hitherto observed habitat, there is no possibility that implementation of the
project will change the functions and value of dugongs’ living environment. US6142.

7

Similarly, the EIA disclosed and analyzed potential impacts on the Okinawa dugong from

8

activities associated with operation of the FRF. The EIA reviewed the potential impacts of habitat

9

loss or change, marine and air operational noise, wastewater, and marine navigation. US6144. The

10

EIA found that:

5

11
12

there is no possibility that implementation of the project changes the functions and value of[the dugong] living environment. Nor will implementation of the project practically affectindividual dugongs that live around the project implementation site. US6147.

13

DoD’s Findings also incorporated independent analysis and conclusions regarding the

14

potential impacts from construction and operation of the FRF. For construction activities, DoD

15

analyzed the potential impacts from increased vessel presence, land reclamation, red soil runoff, and16

acoustic or visual disturbance. US10988-91. As to each of these conditions, DoD found that the17

infrequent use of the APE by the dugong and the implementation of mitigation measures would

18

result in no adverse effect to the Okinawa dugong. Id. For operational activities, DoD analyzed the19potential impacts from increased vessel presence, stormwater runoff, and acoustic or lighting

20

disturbance and determined that there would be no adverse effect on the dugong. US10992-93.

21

DoD’s analysis of FRF impacts and finding of no adverse effect meet the second and third “take into

22

account” steps outlined by Judge Patel.

23
24

c.

DoD took into account potential mitigation measures

Although DoD did not find any adverse effects on the Okinawa dugong, it nevertheless25
identified measures that could further reduce the likelihood of an adverse effect and recommended
26
that the government of Japan implement these measures. The draft EIA identified mitigation27
measures to be implemented to further protect dugongs, in both the construction and operation of the28
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FRF. US6148-51. DoD reviewed these potential measures, and as part of its NHPA analysis,

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engaged with the Japanese government on those and other potentially available mitigation measures

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that could be implemented during the design and construction of the FRF. US8073-74.

4This engagement resulted in an enhancement of mitigation measures proposed in Japan’s final EIA.

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See US10995. DoD also noted that GOJ made additional commitments to continue monitoring

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surveys after the completion of FRF construction. US10996.

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In sum, DoD’s Section 402 process included all of the steps articulated by Judge Patel in her

82008 opinion. DoD’s explanation for its decision is supported by the evidence in the record, and9Plaintiffs’ claims challenging DoD’s Section 402 process as arbitrary and capricious fail.

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2. DoD’s scope of inquiry was appropriate, and it did not fail to consider an
important aspect of the problem

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Plaintiffs assert that DoD improperly limited its Section 402 inquiry and failed “to identify or

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consider the full range of possible adverse effects on the dugong caused by the FRF project.” Suppl.

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Compl. ¶43, ECF No. 152-1. Plaintiffs allege that, while DoD scoped its review process based on

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the list of topics compiled by the Court in its 2008 Order, DoD was also required to go beyond those

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topics and to analyze issues such as dugong “population fragmentation, the disruption of travel

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routes, and the loss of habitat that may be required in the future to sustain a viable population, which

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would be larger than the present population.” Pls.’ Br. 19. Like their arguments regarding

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consultation, Plaintiffs seek to write into NHPA Section 402 procedural requirements that have no20

basis in the statutory text. See Earth Island Inst. v. Carlton, 626 F.3d 462, 472 (9th Cir. 2010)21(“[c]ourts may not impose procedural requirements not explicitly enumerated in the pertinent

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statutes.”) (Internal quotation marks and citation omitted)). Because Section 402 contains no23

specific requirements for completion of the take into account process, DoD has the discretion to

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interpret the statutory provisions in light of its “experience and informed judgment to which courts

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and litigants may properly resort for guidance.” Skidmore, 323 U.S. at 140.

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Further, Plaintiffs’ claim that DoD “failed to consider an important aspect of the problem”

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relies on an expansive and untethered interpretation of Section 402 requirements. For example,

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Plaintiffs’ assertions that DoD must also consider effects on dugong population fragmentation,
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disruption of travel routes, and the need to increase the number of Okinawa dugongs in order to2achieve future population sustainability are clearly outside of the scope of the “clear Congressional

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intent regarding the basic components of a take into account process under section 402.” Gates, 543

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F. Supp. 2d at 1104. The “problem,” as defined by Plaintiffs, is in substance, akin to a NEPA

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requirement to take a “hard look” at environmental impacts or a Marine Mammal Protection Act

6(MMPA) requirement to achieve the least practical impact on a species or stock and its habitat. 9 Cf.

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42 U.S.C. § 4321 et seq. (NEPA) 16 U.S.C.A. § 1371 (MMPA). But the NHPA Section 402 take8

into account process does not subsume these environmental statutes. Unlike NEPA, it does not

9require a hard look analysis of the full range of direct, indirect, and cumulative impacts. And unlike

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the MMPA, it does not compel a result. Plaintiffs may not, under the guise of an NHPA Section 402

11claim, assert claims under environmental statutes whose reach Congress specifically chose not to12extend extraterritorially.

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Plaintiffs rely on Montana Wilderness Ass’n v. Fry in support of their position that DoD

14“failed to consider an important aspect of the problem” in its Section 402 review. Pls.’ Br. 19. But

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Montana Wilderness Ass’n does not support Plaintiffs’ attempt to expand the scope of Section 402.

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In that case, which dealt with claims under NHPA Section 106, the district court found that BLM

17used an improperly narrow geographic scope when defining and reviewing the “affected area” of a18

pipeline project. Montana Wilderness Ass'n v. Fry, 310 F. Supp. 2d 1127, 1153 (D. Mont. 2004).

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BLM had argued that, because a nearby archaeological site was outside the dimensions of the20

proposed right-of-way, BLM had no obligation to consult with tribes known to have used the area in21

order to seek their input on any adverse effects to the nearby site. Id. The district court disagreed,22

finding that the “affected area” included the site that lay 54 feet away from the pipeline dimensions.

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Id.

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Plaintiffs have not and cannot assert claims under these statutes, as NEPA and the MMPA do not
apply extra-territorially. See NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466 (D.D.C.1993)(DoD not required to conduct NEPA review for a United States military base in Japan); UnitedStates v. Mitchell, 553 F.2d 996, 1003 (5th Cir. 1977) (purpose of the MMPA is “the protection ofmarine mammals only within the territory of the United States and on the high seas. Conservation inother states is left to diplomatic negotiations.”)

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By contrast here, DoD did not unreasonably limit the geographic scope of the affected area.

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DoD defined the area of potential effects APE for the FRF as follows: during construction, the APE

3would include the construction footprint, inclusive of work yards and sea yards and those portions of

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Henoko and Oura Bays around the construction site subject to vessel traffic, acoustic disturbance,

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runoff or turbidity associated with the construction effort. US10978. For operations, the APE would

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include those portions of Henoko Bay subject to vessel traffic to and from the FRF, acoustic

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disturbance from FRF operations, and discharge of effluent and stormwater runoff from the FRF. Id.

8Thus, unlike BLM in Montana Wilderness Ass'n, DoD reasonably identified the area at issue to9include the surrounding area that could be impacted by indirect effects of the undertaking. And

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more importantly, unlike BLM, DoD undertook a comprehensive consultation process to obtain

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information about any impacts within its properly scoped affected area. See, supra. Thus, DoD did

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not fail to consider an important aspect of the problem, and Plaintiffs’ claims seeking the expansion

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of Section 402 procedural requirements fail.

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3. DoD properly exercised its discretion in relying on scientific studies

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Plaintiffs claim that DoD’s Section 402 finding is arbitrary and capricious because it is16

allegedly based on “information its own experts deemed not ‘scientifically and legally defensible.’”17

Pls.’ Br. 15-18. Plaintiffs cite to evidence of internal criticism of several of the scientific studies

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relied upon by DoD and assert that this criticism equates to scientific “shortcomings that were never19

cured.” Id. at 16. But the existence of scientific disagreement among agency and project experts

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does not equate to a scientific shortcoming, and there is no requirement under the NHPA or APA

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that scientific disagreements during an agency review process be “cured.”22

Even in the NEPA context, Ninth Circuit authority is clear that an agency is afforded wide

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deference as to its scientific and technical findings. 10 A court is required to be “at its most24

deferential” when reviewing scientific judgements and technical analyses within the agency’s

25expertise. N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011)

26“The court is not to ‘act as a panel of scientists that instructs [the agency] . . ., chooses among

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Because the “take into account” analysis of Section 402 is a less rigorous standard than NEPA’s“hard look”, the Court’s deference to DoD’s scientific judgments should be even more pronounced.
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scientific studies . . ., and orders the agency to explain every possible scientific uncertainty’ . . .

2‘[w]hen specialists express conflicting views, an agency must have discretion to rely on the3reasonable opinions of its own qualified experts even if, as an original matter, a court might find4

contrary views more persuasive.’” (all alterations but third ellipses in original) (internal citations

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omitted)). It is not the role of this Court “to decide whether [agency analysis] is based on the best6
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scientific methodology available.” Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1088 (9thCir.2013) (quoting The Lands Council v. McNair, 537 F.3d 981, 1003 (9th Cir.2008)(en banc). “Aslong as the agency engages in a ‘reasonably thorough discussion,’ courts do not require unanimity of

9opinion.” City of Carmel–By–The–Sea v. U.S. Dep’t. of Transp., 123 F.3d 1142, 1151 (9th10
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Cir.1997).
Here, Plaintiffs seek to emphasize disagreements over scientific views, in an attempt to

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undermine the basis of DoD’s findings. Plaintiffs cite to an email from Dr. Thomas Jefferson,
criticizing the quality of the EIA. Pls.’ Br. 16. While Jefferson did broadly criticize the EIA, thatcriticism does not prevent DoD from considering it in combination with the results of the otherfactors. 11 Moreover, DoD’s own experts ultimately determined, based on independent inquiries anda diverse set of data, that the EIA’s analysis on the potential impacts from the FRF was sound andincorporated that analysis into its own finding. DoD is entitled to rely on the reasoned scientificjudgments of its experts in making this determination.
Plaintiffs also point to disagreements in the record as to whether there was a sufficiently

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complete population study of Okinawa dugongs in order to establish a baseline for an effects
analysis. Id. at 16-17. First, as stated above, this is not a NEPA process, and any baseline criteriathat may apply in the NEPA context does not translate to a Section 402 analysis. Further, while
there does appear to have been disagreement as to whether additional dugong population data should
be collected, Plaintiffs are incorrect that those disagreements translate into the conclusion that DoD
did not have a “reasonable estimate” of the total Okinawa dugong population. As noted above, DoD
11Contrary to being evidence of an arbitrary and capricious process, Dr. Jefferson’s statement in therecord demonstrates that DoD’s Section 402 review was thorough, deliberative, and inclusive of
varying perspectives.
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relied on several sources of surveys of both dugong sightings and of seagrasses and feeding trails, to2obtain an understanding of the extent to which the dugong was present in the APE. Thus, while3

there may have been questions about aspects of those surveys, DoD’s determination that it did in fact

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have a reasonable estimate of the presence of dugongs in the APE was well-founded.

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Plaintiffs cite Bonnichsen v. United States in support of their argument that the internal

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disagreements over the EIA’s science render DoD’s findings arbitrary and capricious. Pls.’ Br. 18.

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But Bonnichsen is distinguishable, as the court there held that the agency violated the NHPA not

8

because it failed to resolve all internal scientific disagreements, but because it did not perform any

9meaningful study of the site at issue. Bonnichsen v. United States, 217 F. Supp. 2d 1116, 1163–64

10(D. Or. 2002), aff'd and remanded, 357 F.3d 962 (9th Cir. 2004), amended and superseded on denial11of reh'g, 367 F.3d 864 (9th Cir. 2004). While the district court there noted that an agency scientist

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had questioned the project’s urgency and advised caution, the court determined that the agency

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violated the NHPA because “the project proceeded without significant study to determine the14characteristics of the site, including what archaeological resources might exist, and there is little

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evidence that alternative methods of erosions control that might mitigate potential data loss were

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seriously considered.” Id. By contrast here, DoD’s findings are based on several studies evaluating17

the dugong, the potential effects of the FRF on the Okinawa dugong, and potential mitigation18

measures. This constitutes a sound Section 402 process.

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4. This Court may not substitute Plaintiffs’ judgments for the reasoned
judgments of DoD

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Finally, Plaintiffs assert that DoD’s finding of no adverse effect reflects a “clear error of

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judgment” and is therefore arbitrary and capricious. Pls.’ Br. 20 (citation omitted). Plaintiffs argue

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that DoD’s finding of no adverse effect is wrong and that “the record shows that the FRF project is

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likely to adversely impact the dugong.” Id. With this argument, Plaintiffs are asking the Court to25

substitute Plaintiffs’ own judgment for that of the agency. This is not the Court’s function. Protect

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Our Cmtys. Found. v. Jewell, 825 F.3d 571, 583 (9th Cir. 2016) (“When the agency’s determination27

is founded on reasonable inferences from scientific data, a reviewing court will not ‘substitute its

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judgment for that of the agency.’” (internal citation omitted)).
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Plaintiffs’ “clear error of judgment” argument asserts that the Welch 2010 report, which2analyzed the cultural significance of the Okinawa dugong, contains statements that undermine

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DoD’s analysis of effects on the dugong. Pls.’ Br. 20. First, as noted above, disagreements among

4experts regarding scientific methodology or analysis are not sufficient to render that analysis

5arbitrary and capricious. Second, the Welch 2010 report was finalized prior to the publication of the6

Final EIA and prior to DoD’s engagement with Japan on possible mitigation measures to further

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reduce any likelihood of adverse effects from the FRF project. Third, Welch 2010 does not actually8contradict DoD’s findings. Plaintiffs note that Welch 2010 “indicat[es] that dugongs were still

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active in the area” between 2000 and 2003. Id. (citing US4177). But this doesn’t contradict DoD’s

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finding of no adverse effect, as DoD’s Findings document states that “the Okinawa dugong [is]11found, at least intermittently, within the APE . . . .” US10979. Plaintiffs also cite to discussions in

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Welch 2010 regarding the precariously low Okinawa dugong population and the need for seagrass13

beds along Henoko Bay as a future habitat, in the event that the population were to recover. Pls.’ Br.

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20-21. In addition to being far outside the scope of DoD’s obligations under Section 402, this15

discussion about enhancing dugong habitat does not contradict DoD’s finding of no adverse impact,

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and Plaintiffs’ “clear error of judgment” argument fails.

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CONCLUSION
For the foregoing reasons, Federal Defendants respectfully request that their cross motion for

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summary judgment be granted, Plaintiffs’ motions for summary judgment be denied, and judgment
be entered accordingly.
Respectfully submitted, May 11, 2018,

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JEFFREY H. WOOD
Acting Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice3

10/s/ Peter Kryn Dykema
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

11Counsel for Federal Defendants

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CERTIFICATE OF SERVICE
It is hereby certified that service of the foregoing has been made through the Court’s
CM/ECF electronic filing and notification system on all system participants this 11th day of May,
2018.
/s/ Peter Kryn Dykema
Peter Kryn Dykema

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