Ctr for Biological Diversity, et al v. Ashton Carter, et al

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, MARY H. MURGUIA and PAUL J. WATFORD) REVERSED AND REMANDED. Judge: MHM Authoring, FILED AND ENTERED JUDGMENT. [10551320]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY;
TURTLE ISLAND RESTORATION
NETWORK; JAPAN ENVIRONMENTAL
LAWYERS FEDERATION; SAVE THE
DUGONG FOUNDATION; ANNA
SHIMABUKURO; TAKUMA
HIGASHIONNA; YOSHIKAZU MAKISHI,
Plaintiffs-Appellants,

No. 15-15695
D.C. No.
3:03-cv-04350EMC
OPINION

v.
JAMES MATTIS, in his official
capacity as the Secretary of Defense;
UNITED STATES DEPARTMENT OF
DEFENSE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted March 15, 2017
San Francisco, California
Filed August 21, 2017
Before: Ferdinand F. Fernandez, Mary H. Murguia,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Murguia

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CENTER FOR BIOLOGICAL DIVERSITY V. MATTIS
SUMMARY *
National Historic Preservation Act / Administrative
Procedure Act

The panel affirmed in part, reversed in part and
remanded for further proceedings in an action brought by
environmental groups and individuals who challenged a
decision by the U.S. Department of Defense to construct a
new military base on Okinawa, Japan.
Plaintiffs, seeking to protect a local animal population
and cultural property from the base’s alleged adverse effects,
brought claims for declaratory and injunctive relief based on
the Government’s alleged violations of Section 402 of the
National Historic Preservation Act, 54 U.S.C. § 307101(e),
and the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
Reversing the district court, the panel held that plaintiffs
had standing to pursue declaratory relief, limited to whether
the Government’s evaluation, information gathering, and
consultation process pursuant to the National Historic
Preservation Act Section 402 discharged the Government’s
obligations under the Act and otherwise satisfied the
requirements of the Administrative Procedure Act.
Applying Baker v. Carr, 369 U.S. 186 (1962), the panel
agreed with the district court that plaintiffs’ claims for
declaratory relief did not present a political question that
would prevent judicial review.

* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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The panel held that plaintiffs also had Article III standing
to pursue injunctive relief and that the claims for injunctive
relief did not present a political question implicating any
Baker factors. The panel remanded to the district court for
further proceedings so that the district court could address
the merits of the claims in the first instance.
COUNSEL
Sarah Burt (argued) and J. Martin Wagner, Earthjustice, San
Francisco, California, for Plaintiffs-Appellants.
Mark R. Haag (argued), Peter Kryn Dykema, and Andrew C.
Mergen, Attorneys; John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.;
Jonathan C. McKay, Office of General Counsel, Department
of the Navy, Washington, D.C.; Phillip J. Riblett, Office of
the Legal Adviser, United States Department of State,
Washington, D.C.; for Defendants-Appellees.
Brian R. Turner, San Francisco Field Office, National Trust
for Historic Preservation, San Francisco, California;
Elizabeth S. Merritt and William J. Cook, National Trust for
Historic Preservation, Washington, D.C.; for Amicus Curiae
National Trust for Historic Preservation.

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OPINION

MURGUIA, Circuit Judge:
The U.S. Department of Defense (the Government)
approved the location, construction, and specifications for a
military base in Okinawa, Japan.
Individuals and
organizations seek to protect a local animal population and
cultural property from the base’s alleged adverse effects by
bringing claims for declaratory and injunctive relief based
on the Government’s alleged violations of Section 402 of the
National Historic Preservation Act (NHPA), 54 U.S.C.
§ 307101(e), 1 and the Administrative Procedure Act (APA),
5 U.S.C. § 701 et seq. The plaintiffs allege the Government
failed to “take into account” the base’s impact on their
cultural, aesthetic, economic, and environmental interests.
The district court dismissed the case, concluding that it
lacked jurisdiction to hear the claims for declaratory relief
because plaintiffs lacked standing to seek declaratory relief,
and concluding that it could not hear the claim for injunctive
relief because resolving that claim involved deciding a
political question. We conclude that the plaintiffs have
standing to bring their declaratory relief claims and that
plaintiffs’ injunctive relief claim does not present a political
question. We therefore affirm the district court’s conclusion
that plaintiffs’ claims for declaratory relief do not present a
At the time of the district court decisions in this proceeding, NHPA
Section 402 was codified at 16 U.S.C. § 470a-2. In December 2014,
after the district court decision now under appeal, NHPA Section 402
was moved to Title 54 of the U.S. Code, and the specific provision now
is found at 54 U.S.C. § 307101(e). Act of Dec. 19, 2014, Pub. L. No.
113-287, 128 Stat. 3094, 3231 (Dec. 19, 2014). All references in this
opinion to NHPA Section 402 refer to the same underlying provision as
the statute cited in the district court decisions.
1

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political question; reverse the district court’s conclusion that
plaintiffs lack standing to seek declaratory relief; and reverse
the district court’s conclusion that plaintiffs’ claim for
injunctive relief presents a political question. We remand to
the district court for further consideration of plaintiffs’
claims for declaratory and injunctive relief. 2
I. Background and Procedural History
A. The Okinawa Dugong
The dugong is a species of marine mammal resembling
a manatee. See Ctr. for Biological Diversity v. Hagel, 80 F.
Supp. 3d 991, 994 (N.D. Cal. 2015) (Okinawa Dugong III).
Dugong populations are often small and isolated, and live
only in saltwater. See generally 68 Fed. Reg. 70185 (Dec.
17, 2003). Dugongs have long lifespans, but do not
reproduce at a high rate, and because of their exclusively
plant-based diet may face difficulty in moving to new
locations to find food. See id. at 70186. The dugong largely
depends on seagrass communities for survival and must stay
close to the coastal habitats where seagrass grows. See id.
(noting that the dugong’s “close ties to the shore increase its
chances of local extinction”). The same food sources are
vulnerable to development on or soil runoff from coastal
lands. See, e.g., Okinawa Dugong III, 80 F. Supp. 3d at 997–
98. Hunting and the fragility of the dugong’s habitat have
taken a toll on its numbers: the United States lists the dugong
as an “endangered” species under the Endangered Species
Act (ESA), the World Conservation Union considers the

We note that the plaintiffs may face challenges in securing relief
on the merits.
2

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dugong “vulnerable,” and Japan considers the dugong
“critically endangered.” Id. at 995.
Okinawa is the largest of the Ryukyu Islands in Japan.
See Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082, 1084
(N.D. Cal. 2008) (Okinawa Dugong II). Okinawa has a
culture and local mythology distinct in some ways from the
Japanese mainland. See id. The dugong is significant within
traditional Okinawan culture, and continues to hold special
significance for at least some Okinawans. Okinawa Dugong
III, 80 F. Supp. 3d at 995.
At present, the Okinawa dugong population is the
northernmost dugong population in the world.
The
population is small—perhaps as few as 50 in number,
according to a 1997 estimate by the Mammalogical Study of
Japan—and located in the waters to the east of Okinawa. Id.
at 995. Because of its significance in Okinawan culture, the
Japanese government has designated the Okinawan dugong
population for protection under Japan’s Law for the
Protection of Cultural Properties. See Okinawa Dugong II,
543 F. Supp. 2d at 1084. Under Japanese law, therefore, the
dugong is a “natural monument” or “cultural property.” Id.
The designation of the Okinawa dugong in this fashion
provides the legal hook for the challenge at the heart of this
appeal.
Plaintiffs-appellants are individuals and organizations,
including the Center for Biological Diversity, the Turtle
Island Restoration Network, the Japan Environmental
Lawyers Federation, and the Save the Dugong Foundation
(collectively, CBD). Among the plaintiffs-appellants are
three individual Japanese citizens and four international
environmental organizations. Okinawa Dugong III, 80 F.
Supp. 3d at 995. The individual plaintiffs reside in Japan,
and either live on Okinawa or guide dugong tours. Id. The

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organizations have members who allege aesthetic and
environmental interests in the Okinawa dugong. Id.
B. Diplomatic Framework for Okinawan Territory
The Government’s interests in Okinawa include a
longstanding security relationship with the Government of
Japan. The United States military has maintained a presence
on Okinawa from the close of World War II up to the present
day. Okinawa Dugong II, 543 F. Supp. 2d at 1084. The
military has several bases in Okinawa. Okinawa Dugong III,
80 F. Supp. 3d at 995–96.
“Today, as throughout our Nation’s history, there is
significant variation in the ownership status of U.S. military
sites around the world.” United States v. Apel, 134 S. Ct.
1144, 1151 (2014). The Government’s operation of military
bases in Japan involves “complex and long standing treaty
arrangements.” NEPA Coal. of Japan v. Aspin, 837 F. Supp.
466, 467 (D.D.C. 1993). From 1945 to 1972, the United
States administered Okinawa, while Japan retained residual
sovereignty. Okinawa Dugong III, 80 F. Supp. 3d at 995. In
1972, after years of negotiations, Japan and the United States
entered into a new arrangement, restoring full Japanese
sovereignty over Okinawa. See The Agreement Between the
United States of America and Japan Concerning the Ryukyu
Islands and the Daito Islands, June 17, 1971, 23 U.S.T. 447
(the Okinawa Reversion Treaty); Okinawa Dugong III, 80 F.
Supp. 3d at 995–96; Okinawa Dugong II, 543 F. Supp. 2d at
1084. Under the Okinawa Reversion Treaty, the United
States ceased to administer Okinawa and the island chains,
which became a prefecture of Japan, but the United States
retained “the use of facilities and areas in” Okinawa.
Okinawa Reversion Treaty, arts. I, ¶1, III, 23 U.S.T. 447; see
Okinawa Dugong II, 543 F. Supp. 2d at 1084. The United
States continued to use Okinawan territory pursuant to two

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additional agreements: the Treaty of Mutual Cooperation
and Security Between the United States of America and
Japan, Jan. 19, 1960, 11 U.S.T. 1632 (Security Treaty) and
the Agreement Under Article VI of the [Security Treaty]
Regarding Facilities and Areas and the Status of United
States Forces in Japan, Jan. 19, 1960, 11 U.S.T. 1652 (Status
of Forces Agreement). See Okinawa Dugong II, 543
F. Supp. 2d at 1084. The Security Treaty and Status of
Forces Agreement set up a bilateral Security Consultative
Committee (Consultative Committee) consisting of two
principals from each of the two nations: Japan’s Ministers of
Defense and Foreign Affairs, and the United States’
Secretaries of State and Defense. Id. at 1084–85. The
Consultative Committee provides the forum for the two
countries to consult when deciding what areas and facilities
the United States will use for the defense purposes of the
Security Treaty. Id. Article XXV of the Status of Forces
Agreement also establishes a “Joint Committee”—separate
from the Consultative Committee—with one representative
from each nation. The functions of the two committees
appear broadly similar.
In effect, this diplomatic framework is an agreement by
the United States to provide security to Japan in exchange
for the space to do so. To that end, Article III of the Status
of Forces Agreement provides that “within the facilities and
areas granted for use of the United States, the United States
may take all measures necessary for the establishment,
operation, safeguarding, and control of assigned facilities.”
This includes authority for the United States to control which
individuals may access bases or facilities.
One longstanding base is Marine Corps Air Station
Futenma (MCAS-Futenma), which supports Marine air
operations. Dugong v. Rumsfeld, No. C 03-4350 MHP, 2005

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WL 522106, at *1 (N.D. Cal. Mar. 2, 2005) (Okinawa
Dugong I); see Okinawa Dugong III, 80 F. Supp. 3d at 996.
MCAS-Futenma is located in Ginowan City, a site of
growing urban development on Okinawa. Okinawa Dugong
III, 80 F. Supp. 3d at 996. The growth and resulting change
in surrounding conditions since the base was first established
has led Japanese officials to express concern about the effect
of the base on the health and safety of Japanese citizens. Id.
American officials have agreed the base’s current location
poses challenges, and the two nations have engaged in
efforts to relocate MCAS-Futenma since at least 1996. Id.
The two countries’ efforts have focused primarily on moving
the Okinawa base to a less densely populated area.
Relocating MCAS-Futenma to a new site has taken a
great deal of time and effort. See, e.g., Okinawa Dugong II,
543 F. Supp. 2d at 1085–86. In 2006, the Consultative
Committee released the “United States–Japan Roadmap for
Realignment Implementation” (the Roadmap)—a bilateral
executive agreement between the two nations that agreed on
a plan of action for, among other things, relocation of
MCAS-Futenma. Id. at 1086. The Roadmap sets forth that
Japan will build a replacement military base, the Futenma
Replacement Facility (FRF), near Camp Schwab, a military
base already located adjacent to Oura and Henoko Bays.
Okinawa Dugong III, 80 F. Supp. 3d at 996. Officials from
the two nations selected the site after considering other
potential base sites, including a sea-based location. See
Okinawa Dugong II, 543 F. Supp. 2d at 1085–86.
Critical to the design of the FRF is a “V-shaped” set of
runways built on top of landfill and extending into what are
now the waters of the Oura and Henoko Bays. Okinawa
Dugong III, 80 F. Supp. 3d at 996, 996 n.4. The runways are
approximately 1600 meters long, with additional space for

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“overrun.” Id. at 996. After the 2006 Roadmap, no “serious”
construction work occurred for the next seven years. Id. at
997. The FRF Project continued to be the subject of active
diplomatic negotiations between Japan and the United
States. Id. This included attention to the environmental
impact of the base on eastern Okinawa. In Japan,
government officials prepared a draft environmental impact
statement (EIS) in 2009, and issued a final EIS in 2012. Id.
The Japanese EIS included attention to “potential impacts on
the dugong” from the runways and other FRF construction.
Id. The Japanese EIS concluded that there would be no
adverse effects on the Okinawa dugong from the FRF.
C. Prior Decisions
CBD filed suit against the U.S. Department of Defense
and the Secretary of Defense in his official capacity in
September 2003. CBD filed its suit after it became clear that
the likely site of the FRF might have effects on the Okinawa
dugong, but prior to Japan and the United States entering
into the 2006 Roadmap. In its complaint, CBD alleged that
the FRF was a serious threat to the Okinawa dugong. CBD
rested its claims on Section 402 of the NHPA and the APA.
NHPA Section 402 requires that United States agency
officials “take into account the effect” of any Government
undertaking “[p]rior to the approval of any undertaking
outside the United States that may directly and adversely
affect” recognized cultural heritage sites or properties, “for
purposes of avoiding or mitigating any adverse effect.” 54
U.S.C. § 307101(e). CBD alleged that the Government had
failed to “take into account” the effect the FRF might have
on the Okinawa dugong, violating NHPA Section 402.
The Government first argued that NHPA Section 402
does not provide a cognizable basis for relief. The
Government moved to dismiss on the basis that the dugong

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was not “property” implicated by NHPA Section 402 and
that the protected status of the dugong under Japanese law
was not “equivalent” to being on the United States’ National
Register. See Okinawa Dugong I, 2005 WL 522106 at *6.
The district court concluded that the NHPA could apply to
the Government’s design and construction of the FRF. Id. at
*18. The district court found that Japan’s cultural property
protection law was equivalent to the United States’ National
Register, implicating NHPA Section 402, and that the
dugong was a property the NHPA protects. Id. at *7–12.
The district court also held that the NHPA applied
extraterritorially because the statute on its face “explicitly
demonstrate[d] Congress’s intent that it apply abroad where
a federal ‘undertaking’ promises to have direct or adverse
effects on protected foreign properties.” Id. at *18. The
district court also ruled that relocation of MCAS-Futenma
could be an “undertaking” for NHPA purposes, but that
factual disputes precluded ruling on that question or on
determining whether Japan’s role made the action
unreviewable under the act of state doctrine. See id. at *8,
*10–11, *19–20. The parties had to develop the case further
to allow for a conclusion on whether the FRF would actually
have the potential to affect the dugong adversely and
whether the Secretary of Defense had in fact discharged his
NHPA Section 402 obligations. Id. at *16–18.
After this decision, Japan and the United States
announced the Roadmap, and CBD filed a second amended
complaint. After development of the record, the parties filed
cross-motions for summary judgment.
In 2008, the district court ruled in favor of CBD on the
cross-motions for summary judgment. Okinawa Dugong II,
543 F. Supp. 2d at 1112. The district court held that the
individual plaintiffs and most of the organizations had

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standing. Id. at 1096. The district court also dismissed a
number of other threshold jurisdictional arguments from the
Government, including arguments based on the lack of a
“final agency action” under the APA, a failure of ripeness,
the act of state doctrine, and Federal Rule of Civil Procedure
19’s requirement to join necessary and indispensable parties
(here, Japan). Id. at 1096–1100. The Government did not
raise the political question doctrine at that time.
The district court then held that NHPA Section 402
applied to the Government because the FRF was a “federal
undertaking” within the meaning of the statute and the
undertaking might have adverse effects on the dugong. Id.
at 1101–02. Having reached this conclusion, the district
court interpreted the requirements of NHPA Section 402,
which was an issue of first impression. Id. at 1102. The
district court concluded that satisfying NHPA Section 402’s
process must include, at a minimum:
(1) identification of protected property,
(2) generation, collection, consideration, and
weighing of information pertaining to how
the undertaking will affect the historic
property, (3) a determination as to whether
there will be adverse effects or no adverse
effects, and (4) if necessary, development
and
evaluation
of
alternatives
or
modifications to the undertaking that could
avoid or mitigate the adverse effects. The
person charged with responsibility for this
basic process is the person with jurisdiction
over the undertaking, and compliance with
the process must occur before the
undertaking is approved. In addition, a
federal agency does not complete the take

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into account process on its own, in isolation,
but engages the host nation and other relevant
private organizations and individuals in a
cooperative partnership.
Id. at 1104.
The district court concluded that the Government had
failed to comply with NHPA Section 402 because the
“record contains no evidence that a single official from [the
Government] with responsibility for the FRF has considered
or assessed the available information on the dugong or the
effects of the FRF.” Id. at 1108. This, in turn, was a
violation of the APA, because it was agency action
“unreasonably delayed and unlawfully withheld.” Id. at
1112 (citing 5 U.S.C. § 706(1)). The district court ordered
the Government to comply with NHPA Section 402. Id.
The district court then ordered the case “held in abeyance
until the information necessary for evaluating the effects of
the FRF on the dugong is generated, and until defendants
take the information into account for the purpose of avoiding
or mitigating adverse effects to the dugong.” Id. The district
court ordered the Government to submit additional
information and documentation within 90 days,
describing [1] what additional information is
necessary to evaluate the impacts of the FRF
on the dugong; [2] from what sources,
including relevant individuals, organizations,
and government agencies, the information
will be derived; [3] what is currently known
or anticipated regarding the nature and scope
of Japan’s environmental assessment and
whether that assessment will be sufficient for
meeting defendants’ obligations under the

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NHPA; and [4] identifying the DOD official
or officials with authorization and
responsibility for reviewing and considering
the information for purposes of mitigation.

Id. The district court did not issue an appealable final order.
Eventually, in February 2012, without motion from
either party, the district court administratively closed the
case, citing reported obstacles in FRF construction. The
district court instructed the parties to reopen the proceeding
via letter when the FRF Project’s likely outcome was more
certain.
After the district court’s 2008 decision in Okinawa
Dugong II and the parties’ attempts to comply with the
district court’s order, the U.S. Department of Navy engaged
in an analysis pursuant to NHPA Section 402. Among other
steps, the Navy (1) commissioned an independent study on
the potential effects of the FRF on the Okinawa dugong,
(2) engaged with the Government of Japan, (3) reviewed
“multiple biological, environmental, and historical studies
relating to the impact” of the project on the dugong,
(4) reviewed Japan’s EIS, including comments, (5) reviewed
CBD’s litigation materials, including the declaration of
CBD’s expert, and (6) consulted with sixteen experts in
diverse disciplines, including some recommended by CBD.
The Navy in a draft report also suggested a number of
mitigation measures to the Government of Japan “to avoid
possible adverse impacts to the Okinawa dugong.” The
Navy also identified mitigation measures to consider during
operations of the base. The Government released its final
report, the U.S. Marine Corps Recommended Findings
(Marine Corps Findings), in April 2014. In its report, the
U.S. Navy concluded that the FRF would have no adverse

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impact on the Okinawa dugong population. The parties
continue to dispute whether the Government actually
discharged its NHPA Section 402 obligations.
The Government subsequently filed a notice of
completion of the NHPA process for the FRF. The
Government submitted the Marine Corps Findings to CBD,
but did not provide the district court or CBD with an
administrative record or underlying documentation.
In the interim, during 2013, the FRF construction project
had “gained significant momentum.” Okinawa Dugong III,
80 F. Supp. 3d at 997. The momentum included productive
negotiations between the Government of Japan and the
Governor of the Okinawa Prefecture. Id.
CBD subsequently filed a supplemental complaint that
alleged that limited construction work was underway, a fact
to which both parties agreed as of 2015. Since 2015, the
FRF has had setbacks. Construction stopped in late 2015,
before restarting, reflecting local political disputes relating
to the FRF. Though construction appears to be ongoing at
this time, there is no reason to think completion of the base
is imminent.
D. Instant Federal Court Proceeding
1. Claims for Relief
In its first supplemental complaint, CBD brought a single
claim for declaratory and injunctive relief, with several
subparts. CBD stated that the Government’s failure to
consult CBD as “interested parties” and failure to provide
information to the public or seek public comment constituted
violations of the “take into account” requirement of NHPA
Section 402. CBD also alleged that failing to follow the

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NHPA requirements violated the APA, 5 U.S.C.
§ 706(2)(A), (2)(D).
Finally, CBD alleged that the
Government’s “conclusion that the construction and
operation of the FRF will have no adverse effect on the
Okinawa dugong” was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law, within
the meaning of the APA.
In its prayer for relief, CBD asked for (1) “a judgment
declaring” several violations of NHPA Section 402 and of
the APA; (2) an order setting aside the Marine Corps
Findings; (3) an order barring the Government from
proceeding with the FRF project, including derivative
procedural steps like permitting and construction approval,
until the Government “complies with section 402 of the
NHPA”; and (4) costs and fees. We will refer to the request
for a declaratory judgment and an order setting aside the
Marine Corps Findings as CBD’s “claims for declaratory
relief” and the request for an order enjoining construction
work as CBD’s “claim for injunctive relief.”
2. Motion to Dismiss and District Court Order
In September 2014, the Government moved to dismiss.
At that point, the Government took the position that all of
CBD’s claims presented political questions, depriving the
district court of jurisdiction.
In February 2015, the district court granted the motion to
dismiss, but did so “on slightly different grounds than the
Government request[ed].” The district court concluded that
CBD’s requested injunctive relief presented “nonjusticiable
political questions.” Specifically, the district court ruled that
for the district court “to stop construction of a U.S. military
facility overseas that has been approved by both the
American and Japanese governments, and which is being

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built by the Japanese on their own sovereign soil, runs afoul
of the political question doctrine.” On CBD’s claims for
declaratory relief, however, the district court declined to
dismiss based on the political question doctrine, noting that
these claims “arise in the context of a political case” but “do
not present a non-justiciable political question.”
The district court then concluded that even though the
political question doctrine did not bar the claims for
declaratory relief, CBD lacked standing to bring them
because of “[t]he inability of this Court to fashion any
injunctive or otherwise coercive relief to protect the
dugong.” The district court concluded specifically that CBD
could not show that a favorable judicial decision was likely
to redress its injuries. The district court, having resolved
both the injunctive and declaratory claims, dismissed the suit
with prejudice. CBD timely appealed. 3
II. Standard of Review
We review de novo whether CBD has Article III
standing, Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 907 (9th
Cir. 2011), and the dismissal for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d
1038, 1039 (9th Cir. 2011).

3
The National Trust for Historic Preservation also moved for leave
to participate as an amicus, which we granted.

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III. Order of Analysis

The district court dismissed CBD’s claim for injunctive
relief on political question grounds, and CBD’s claims for
declaratory relief for lack of standing. 4
Lack of standing deprives this court of Article III
jurisdiction, Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 103–04 (1998), and the presence of a political question
likewise deprives this court of jurisdiction. Corrie v.
Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007). “Article
III generally requires a federal court to satisfy itself of its
jurisdiction over the subject matter before it considers the
merits of a case.” Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999).
We analyze separately CBD’s standing for its
declaratory and injunctive relief claims because “a plaintiff
must demonstrate standing separately for each form of relief
sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 185 (2000). Likewise, the
political question doctrine requires analysis on a claim-byclaim basis. See Alperin v. Vatican Bank, 410 F.3d 532, 547
(9th Cir. 2005) (“It is incumbent upon us to examine each of
the claims with particularity.”). We therefore have four
discrete threshold issues before us: standing for declaratory
relief, standing for injunctive relief, whether declaratory
relief presents a political question, and whether injunctive
relief presents a political question.

The Government’s actual compliance with NHPA Section 402 is
not at issue on appeal because the Government did not move the district
court for dismissal under Federal Rules of Civil Procedure 12(b)(6) or
56. See infra, Part V.
4

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The district court recognized the need to engage in a
fresh analysis of standing, and not to rely on the facts as they
stood at the outset of the litigation. See Quinn v. Anvil Corp.,
620 F.3d 1005, 1012 (9th Cir. 2010). The district court,
however, took a roundabout path to the standing question.
Rather than confronting standing first, the district court, as
noted above, discussed the political question doctrine for
declaratory relief (finding no political question), then the
political question doctrine for injunctive relief (finding the
injunctive relief claim barred for presence of a political
question), and then finally standing for declaratory relief
(finding no standing for declaratory relief).
We take a different approach. No GWEN All. of Lane
Cty., Inc. v. Aldridge, 855 F.2d 1380, 1382 (9th Cir. 1988)
(“When both standing and political question issues are
before the court, the court should determine the question of
standing first.”). We begin with standing for declaratory
relief.
IV. Discussion of Declaratory Relief
A. Standing
CBD alleges a procedural injury based on the NHPA,
relying on the APA. 5 Three elements form the “‘irreducible
5
CBD brings claims based on the NHPA. NHPA “is a procedural
statute requiring government agencies to ‘stop, look, and listen’ before
proceeding with agency action.” Te-Moak Tribe of W. Shoshone of Nev.
v. U.S. Dep’t of the Interior, 608 F.3d 592, 610 (9th Cir. 2010). The
default approach with procedural statutes of this variety is to recognize
no private right of action, and to require a plaintiff to proceed under the
APA. 5 U.S.C. § 702; see San Carlos Apache Tribe v. United States,
417 F.3d 1091, 1097–98 (9th Cir. 2005); Sierra Club v. Penfold,
857 F.2d 1307, 1315 (9th Cir. 1988). Plaintiffs who bring a cause of

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constitutional minimum’ of standing” to file suit in federal
court. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016),
as revised (May 24, 2016) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.” Id.
CBD bears the burden to establish the elements of standing,
which, when challenged in a motion to dismiss, are judged
based on the allegations in its complaint. See Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014).
1. Injury-in-Fact
A plaintiff shows a procedural injury-in-fact “when a
procedural requirement has not been met, so long as the
plaintiff also asserts a ‘concrete interest’ that is threatened
by the failure to comply with that requirement.” City of
action under another provision of NHPA, Section 106, must do so under
the APA. San Carlos Apache Tribe, 417 F.3d at 1098. The relevant
provision of NHPA for this appeal, Section 402, requires that
Prior to the approval of any undertaking outside the
United States that may directly and adversely affect a
property that is on the World Heritage List or on the
applicable country’s equivalent of the National
Register, the head of a Federal agency having direct or
indirect jurisdiction over the undertaking shall take
into account the effect of the undertaking on the
property for purposes of avoiding or mitigating any
adverse effect.
54 U.S.C. § 307101(e). Nothing in NHPA Section 402 suggests the
creation of any separate private right of action. NHPA’s procedural
character therefore requires that CBD file suit under the APA. San
Carlos Apache Tribe, 417 F.3d at 1096–97 (noting default presumption
of no private right of action outside the APA).

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Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004)
(quoting Citizens for Better Forestry v. U.S. Dep’t of Agric.,
341 F.3d 961, 969–70 (9th Cir. 2003)). Congress cannot
create an injury-in-fact or relax the injury-in-fact
requirement. See Spokeo, 136 S. Ct. at 1547–48; see also
Sausalito, 386 F.3d at 1197.
A “concrete interest” implicated by a procedural
requirement may reflect “aesthetic, conservational, and
recreational” values and does not need to be an economic
harm. Sierra Club v. Morton, 405 U.S. 727, 738 (1972).
Here, CBD alleges concrete aesthetic interests in the
enjoyment of the Okinawa dugong. Two of the individual
named plaintiffs also allege concrete economic interests
through their tourism business. CBD also points to a
procedural requirement, NHPA Section 402, and alleges the
Government did not satisfy this requirement. The threat to
CBD’s interests by the Government’s failure to satisfy the
procedural requirement is clear because the requirement
directly relates to “the effect of the undertaking on the
property” within the meaning of NHPA Section 402.
54 U.S.C. § 307101(e). CBD therefore satisfies the first
element of Article III standing. See Pit River Tribe v. U.S.
Forest Serv., 469 F.3d 768, 779 (9th Cir. 2006) (citing
Friends of the Earth, 528 U.S. at 183) (finding injury-in-fact
requirement met where plaintiffs pointed to use of affected
area and activity that will lessen enjoyment of use).
2. Causation
The next requirement of standing is whether the injury in
question is “fairly traceable” to the conduct of the
Government. The conduct of the Government for purposes
of CBD’s challenge is the Government’s failure to “take into
account” the effects of the FRF project on the dugong prior

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to the approval of a federal undertaking. A claim of
procedural injury affects the standing analysis, and can relax
some requirements. See Massachusetts v. E.P.A., 549 U.S.
497, 517–18 (2007). Where, as here, claims rest on a
procedural injury, “the causation and redressability
requirements are relaxed.” California ex rel. Imperial Cty.
Air Pollution Control Dist. v. U.S. Dep’t of the Interior,
767 F.3d 781, 790 (9th Cir. 2014) (quoting Cantrell v. City
of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001)).
Causation in a NHPA case involves the take-intoaccount process for a federal undertaking. When analyzing
the relevant undertaking in this case, we adopt the following
description by the district court:
DOD does not violate the NHPA by virtue of
its bilateral participation in the design, site
selection, construction and operation of a
military facility that threatens a protected
property. The NHPA violation arises instead
from DOD’s failure to take into account
information relevant for making a
determination as to whether the military
facility will adversely affect the dugong and
if so, how those effects may be avoided or
mitigated. In other words, the challenged
activity is not the undertaking itself, but the
process by which the effects of the
undertaking are considered and assessed.
Okinawa Dugong II, 543 F. Supp. 2d at 1095 (emphasis
added). In other words, we focus on causation by reference
to the required NHPA process. CBD is not challenging entry
into the 2006 Roadmap, or any specific approval, but
whether the Government conducted the required take-into-

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account process. When, as of 2008, CBD was asking the
Government to engage in the take-into-account process, its
standing to challenge agency inaction was clear. At this
stage in the litigation, the question is whether the action the
Government took—the process detailed in and leading up to
the Marine Corps Findings—satisfied NHPA Section 402
and APA standards for agency action. The relationship
between causation and adverse effects remains intact, and
the inquiry remains focused clearly on the process and not
the result. CBD has shown causation and satisfied the
second “irreducible” element of Article III standing.
3. Redressability
The final standing question is whether CBD can establish
redressability. It was on this ground that the district court in
the decision under appeal concluded that CBD lacked
standing to bring its claims.
The plaintiff must show it is likely the injury “will be
redressed by a favorable decision.” Friends of the Earth,
528 U.S. at 181. “Plaintiffs alleging procedural injury can
often establish redress[a]bility with little difficulty, because
they need to show only that the relief requested—that the
agency follow the correct procedures—may influence the
agency’s ultimate decision of whether to take or refrain from
taking a certain action.” Salmon Spawning & Recovery All.
v. Gutierrez, 545 F.3d 1220, 1226–27 (9th Cir. 2008).
In a project with many moving pieces, as well as several
stops and starts, the details of the base’s construction and
operation are susceptible to potential alteration and
modification by the take-into-account process. Indeed, the
take-into-account process of NHPA Section 402 envisions
the process’ goal to be “avoiding or mitigating any adverse

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effect,” 54 U.S.C. § 307101(e), which implies that an
undertaking will still be carried out.
The Government, having concluded in the Marine Corps
Findings that no adverse effects are forthcoming, opposes
standing based on the idea that no mitigation efforts are
possible. The Government, for instance, notes practical
obstacles to changing flight paths, storm water management
plans, or nighttime illumination. But this does not defeat
standing, given the allegations in the operative complaint. If
the Government has reached its conclusions about effects
and mitigation after a sound NHPA Section 402 process,
then it has complied with NHPA Section 402; the claim fails
not for lack of standing but on the merits. If the Government
has not followed NHPA Section 402, then these arguments
are unavailing, because the underlying determinations about
effects and mitigation lack validity.
In concluding CBD lacked standing, the district court
relied heavily on our decision in Salmon Spawning, 545 F.3d
1220. In Salmon Spawning, the State Department sought to
enter into a treaty with Canada regarding fisheries in the
waters off the Pacific Northwest (Fisheries Treaty). Id. at
1223.
The State Department’s action triggered a
consultation requirement under the ESA, whereby the State
Department had to request advice from either the National
Marine Fisheries Service (NMFS) or the Fish and Wildlife
Service on the likelihood of the action threatening
endangered species with extinction. Id. The United States
would not implement the Fisheries Treaty unless the federal
government had discharged relevant consultation
requirements under domestic statutory law. See id. That
consultation requirement required the NMFS to issue a
biological opinion (BiOp), which in relevant part concluded
that the Fisheries Treaty would not jeopardize any

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endangered species. See id. at 1223–24. The plaintiffs
challenged the BiOp as arbitrary and capricious and claimed
that implementation of the Fisheries Treaty was unlawful
without a legally adequate consultation. Id. at 1224. The
plaintiffs sought declaratory and injunctive relief. See
Salmon Spawning & Recovery All. v. Gutierrez, No. C051877RSM, 2006 WL 2620421, at *2 (W.D. Wash. Sept. 12,
2006), aff’d in part, rev’d in part and remanded, 545 F.3d
1220.
In Salmon Spawning, we characterized the claim as a
challenge to “the biological foundation for the Treaty.”
545 F.3d at 1225. We concluded that “if the groups were
successful in establishing that NMFS failed to comply with
the procedural requirements of ESA § 7 in deciding whether
the United States’ entrance into the Treaty would jeopardize
listed species, the procedurally flawed consultation and
defective BiOp could theoretically be set aside.” Id. at 1226.
But we immediately noted that “a court could not set aside
the next, and more significant, link in the chain—the United
States’ entrance into the Treaty. While the United States and
Canada can decide to withdraw from the Treaty, that is a
decision committed to the Executive Branch, and we may
not order the State Department to withdraw from it.” Id. On
that basis, we concluded that the plaintiffs could not show
redressability, even under the relaxed showing necessary for
a procedural injury, because “[t]he agency action that the
BiOp authorized was the United States’ entrance into the
Treaty” and the court had no power to disturb the entrance
into the Fisheries Treaty. Id. at 1227.
Salmon Spawning suggests that to the extent CBD seeks
declaratory relief aimed at challenging the 2006 Roadmap,
or the decision to initiate the FRF Project, CBD lacks
standing. Indeed, perhaps for this reason, the Government

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treats CBD’s challenge in this case as akin to the effort to
invalidate the Fisheries Treaty in Salmon Spawning. As
noted above, however, CBD’s claim concerns the take-intoaccount process of NHPA Section 402, Okinawa Dugong II,
543 F. Supp. 2d at 1095, and CBD does not seek to invalidate
any specific decision. Instead, CBD is seeking a declaration
that the Government did not take into account the effects of
the FRF project on the dugong, as the Government was
required to do under NHPA Section 402.
Further, the district court overlooked a more limited
challenge by the Salmon Spawning plaintiffs that we did
sustain: a claim that the NMFS was obligated to “reinitiate”
its analysis and consultation in light of new data. We
concluded that Article III standing was satisfied, including
redressability, because the fact that
it is uncertain whether reinitiation will
ultimately benefit the groups (for example,
by resulting in a “jeopardy” determination)
does not undermine their standing. The
asserted injury is not too tenuously connected
to the agencies’ failure to reinitiate
consultation. And a court order requiring the
agencies to reinitiate consultation would
remedy the harm asserted. Unlike the other
claims, this claim is a forward-looking
allegation whose remedy rests in the hands of
federal officials and does not hinge on
upsetting the Treaty.
Salmon Spawning, 545 F.3d at 1229 (citation omitted).
Here, CBD’s claim is similarly forward-looking and “does
not hinge on upsetting” the 2006 Roadmap or the FRF
Project. It is merely seeking that the Government discharge

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a statutory procedural requirement. If the Government has
failed to do so, then the court can remedy the defect by
ordering the Government to comply with its statutory
obligations.
Mayfield v. United States also does not provide a basis to
defeat CBD’s standing here. 599 F.3d 964 (9th Cir. 2010).
The plaintiff in Mayfield sought declaratory relief that
aspects of the Foreign Intelligence Surveillance Act (FISA)
violated the Fourth Amendment of the United States
Constitution. 599 F.3d at 966. Mayfield is distinguishable
for three reasons. First, Mayfield’s claim was not procedural
in nature, meaning that the redressability analysis in his case
was not characteristic of procedural injuries. CBD’s claims,
as discussed, are procedural. Second, Mayfield’s relief was
limited to declaratory relief because of a settlement. Id. at
968 (“The parties agreed that the sole relief that Mayfield
could seek or that the court could award with regard to this
claim would be a declaratory judgment.”). We concluded,
“[T]he only relief that would redress this alleged Fourth
Amendment violation is an injunction requiring the
government to return or destroy such materials,” which was
not within the scope of what Mayfield could seek. Id. at 972.
CBD has not bargained away its right to seek injunctive
relief, and for procedural injuries the lack of injunctive relief
is not fatal to standing for declaratory relief. See
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d
1075, 1088 (9th Cir. 2015). Finally, in Mayfield, the
likelihood of redress seemed minimal because there was no
indication that the Government would “return the materials
of its own volition, as it is under no legal obligation to do so,
and has stated in its brief that it does not intend to take such
action.” 599 F.3d at 972. But while the redress sought in
Mayfield related to information the Government had no legal
obligation to delete or return, here the redress relates to a

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legal requirement binding on the government, NHPA
Section 402. A declaratory judgment finding that the Marine
Corps Findings do not satisfy NHPA Section 402 would
impose a legal obligation on the Government because a
procedural requirement would stand unfulfilled. Unlike
Mayfield, where a ruling would be of “no direct
consequence” to the plaintiff, here CBD’s claims for
declaratory relief, challenging the NHPA Section 402
process, are something a legally adequate NHPA Section
402 process could address.
CBD in its complaint alleges that the Government would
discharge its obligations under NHPA Section 402 by taking
steps that include:
a. Producing, gathering, and adequately
considering the necessary information for
taking into account all the effects of the FRF
on the Okinawa dugong and for determining
whether mitigation or avoidance measures
are necessary and possible;
b. Making this information and other
documentation relevant to the section 402
“take into account” process available to the
public; and
c. Consulting with all interested parties,
including Plaintiffs, and inviting public
participation in the section 402 process.
CBD alleges the Government has not taken these steps. An
adequate process will benefit CBD, even for an ongoing
project. CBD therefore has standing to pursue these claims.

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Further, the relevant controversy has not yet concluded.
The Government asserts that the Japanese government “has
completed its environmental analysis and finalized its
stormwater management design, and is in the process of
constructing the FRF.” But the FRF project has seen stops,
starts, and modifications throughout its history. We cannot
assume that the project is “finalized” and that a new NHPA
Section 402 analysis—if required—would not lead to
changes, minor or major, to the details of the construction of
the FRF. We especially cannot assume that it would affect
details of the operation of the FRF, once completed. As we
noted in a case involving a different provision of NHPA, we
should not “pre-judge the outcome of any consultations” that
may take place. Tyler v. Cuomo, 236 F.3d 1124, 1134 (9th
Cir. 2000). “At this point . . . it is impossible for us to know
with any degree of certainty just what the end result of the
NHPA process would be,” and under those circumstances
we avoid “shortcutting the process which has been
committed in the first instance to the responsible federal
agency.” Id. (quoting Vieux Carre Prop. Owners, Residents
& Assocs., Inc. v. Brown, 948 F.2d 1436, 1446–47 (5th Cir.
1991)) (noting the need to consider a range of outcomes and
not merely a binary between no change or a completely
altered approach).
4. Conclusion
We conclude that CBD 6 has standing to pursue
declaratory relief, limited to whether the Government’s
evaluation, information gathering, and consultation process
CBD and other organizational plaintiffs derive their standing from
their members, and those members allege similar interests to the
individual plaintiffs, meaning standing is satisfied for all plaintiffs. See
Friends of the Earth, 528 U.S. at 181.
6

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pursuant to NHPA Section 402 discharged the
Government’s obligations under the NHPA and otherwise
satisfied the requirements of the APA.
We turn now to whether CBD’s claims for declaratory
relief present a political question.
B. Political Question Doctrine
“It is emphatically the province and duty of the judicial
department to say what the law is.” Marbury v. Madison,
5 U.S. (1 Cranch) 137, 177 (1803); see United States v.
Nixon, 418 U.S. 683, 703 (1974) (noting that Marbury’s
pronouncement has been “unequivocally reaffirmed” in
“many decisions” of the Supreme Court since it was first
written). Nonetheless, the duty is not a license for courts to
issue opinions on every legal issue that may come before
them. For instance, the prohibition “that the federal courts
will not give advisory opinions”—called “the oldest and
most consistent thread in the federal law of justiciability”—
predates even the holding of Marbury. See Flast v. Cohen,
392 U.S. 83, 96 (1968) (quoting C. Wright, Federal Courts
34 (1963)). Elsewhere, in Marbury itself, Chief Justice
Marshall recognized that
The province of the court is, solely, to decide
on the rights of individuals, not to enquire
how the executive, or executive officers,
perform duties in which they have a
discretion. Questions, in their nature
political, or which are, by the constitution and
laws, submitted to the executive, can never be
made in this court.
Marbury, 5 U.S. (1 Cranch) at 170; see Alperin, 410 F.3d at
544. Marbury’s reference to questions “in their nature

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political” was an early glimpse of the “political question
doctrine.” Today, the “political question doctrine excludes
from judicial review those controversies which revolve
around policy choices and value determinations
constitutionally committed for resolution to the halls of
Congress or the confines of the Executive Branch.” Japan
Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230
(1986). By its nature, the doctrine is a “narrow exception”
to the judiciary’s “responsibility to decide cases properly
before it, even those it ‘would gladly avoid.’” Zivotofsky ex
rel. Zivotofsky v. Clinton, 566 U.S. 189, 194–95 (2012)
(quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404
(1821)).
“The nonjusticiability of a political question is primarily
a function of the separation of powers.” Baker v. Carr,
369 U.S. 186, 210 (1962). Traditionally, courts determining
whether a case presents a political question have consulted
the following six factors:
[1] a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or [2] a lack of
judicially discoverable and manageable
standards for resolving it; or [3] the
impossibility of deciding without an initial
policy determination of a kind clearly for
nonjudicial
discretion;
or
[4]
the
impossibility of a court’s undertaking
independent resolution without expressing
lack of the respect due coordinate branches of
government; or [5] an unusual need for
unquestioning adherence to a political
decision already made; or [6] the potentiality
of embarrassment from multifarious

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pronouncements by various departments on
one question.

Id. at 217. The Supreme Court recently has placed more
weight on the first two factors: (1) “a textually demonstrable
constitutional commitment of the issue to a coordinate
political department” or (2) “a lack of judicially discoverable
and manageable standards for resolving” the question.
Zivotofsky, 566 U.S. at 195 (quoting Nixon v. United States,
506 U.S. 224, 228 (1993)) (analyzing only the first two
Baker factors before concluding case did not present a
political question); see Nixon, 506 U.S. at 228 (citing only to
the first two Baker factors).
Dismissal because of the presence of a political question
is appropriate if “one of these [six] formulations is
inextricable from the case at bar.” Baker, 369 U.S. at 217.
This analysis requires close attention to the particular claims
presented in each case. See Corrie, 503 F.3d at 982. Here,
the claims seeking declaratory relief turn on interpretation of
NHPA Section 402. If a political question bars CBD’s
claims for declaratory relief, then that question must be
inextricable in some way from the interpretation and
application of NHPA Section 402. 7

7
On appeal, the Government notes its continuing objection to the
2005 and 2008 orders of the district court, arguing that the legal
conclusions are not even the “law of the case” and reserving the right to
move for reconsideration or further appellate review. Subject to any
waiver considerations, the Government may still be able to challenge
these orders’ conclusions regarding: (1) a procedural right existing in
NHPA Section 402, (2) NHPA Section 402 applying extraterritorially,
and (3) the dugong’s protection under Japan’s Law for the Protection of
Cultural Properties being equivalent to inclusion on the United States’
National Historic Register. Nonetheless, we do not construe the

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1. First Baker Factor—Textual Commitment to Another
Branch
The district court found that CBD’s declaratory claims
challenging the Government’s compliance with NHPA
Section 402 did not implicate the first Baker factor, “a
textually demonstrable constitutional commitment of the
issue to a coordinate political department.” Baker, 368 U.S.
at 217. We agree with the district court that evaluating
CBD’s declaratory claims requires us “to apply the standards
of the APA to the process employed by the [Government],
not pass judgment on the wisdom of the Executive’s ultimate
foreign policy or military decisions.” Okinawa Dugong III,
80 F. Supp. 3d at 1005. For that reason, we conclude that no
political question is present under the first Baker factor.
To the extent that one considers the first Baker factor to
implicate a broader deference to the political branches’
judgment in foreign affairs, that deference cuts in both
Government to be challenging the district court’s 2005 and 2008 rulings
at this time, nor would it be proper to do so: the conclusions in those
orders relate to the merits, and the motion ruled on here, filed under Rule
12(b)(1), solely concerns subject-matter jurisdiction. Accordingly, we
assume for purposes of the appeal that NHPA Section 402 provides a
procedural right, applies extraterritorially, and has relevance to the
effects of the FRF on the dugong.
Further, we note that NHPA’s extraterritorial application seems
logical, in light of its purpose. See H.R. Rep. 96-1457, at 43 (1980),
reprinted in 1980 U.S.C.C.A.N. 6378, 6406 (enacting NHPA Section
402 as part of the United States’ obligations under the U.N. Convention
Concerning the Protection of the World Cultural and Natural Heritage,
which sought “to establish an effective system of collective protection of
the cultural and natural heritage of outstanding universal value”). Any
invocation of NHPA Section 402 before the courts would implicate some
aspect of foreign affairs, and few acts of the United States overseas do
not relate to the nation’s interests.

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directions. Here, Congress has expressed its intent regarding
an aspect of foreign affairs. In this way, a reviewing court
evaluating the Government’s compliance with NHPA
Section 402 is “not being asked to supplant a foreign policy
decision of the political branches with the courts’ own
unmoored determination of what United States policy . . .
should be.” Zivotofsky, 566 U.S. at 196. Instead, a court
must engage in the “familiar judicial exercise” of reading
and applying a statute, conscious of the purpose expressed
by Congress. See id.
As further support for our conclusion, consider Japan
Whaling Association, where the Supreme Court faced the
question of whether the Secretary of Commerce had to
certify publicly that Japan had diminished the effectiveness
of an international convention on whaling. 478 U.S. at 223.
The Court considered whether the question might be
political in nature, and concluded that the question’s clear
political implications did not bring it beyond review:
[T]he courts have the authority to construe
treaties and executive agreements, and it goes
without
saying
that
interpreting
congressional legislation is a recurring and
accepted task for the federal courts. . . . We
are cognizant of the interplay between these
Amendments and the conduct of this
Nation’s foreign relations, and we recognize
the premier role which both Congress and the
Executive play in this field. But under the
Constitution, one of the Judiciary’s
characteristic roles is to interpret statutes, and
we cannot shirk this responsibility merely
because our decision may have significant
political overtones.

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Id. at 230.
Finally, in its briefing, the Government seems to veer
close to arguing that NHPA Section 402 is an
unconstitutional infringement on executive power. For
instance, discussing injunctive relief, the Government
invokes Earth Island Institute v. Christopher, 6 F.3d 648,
653 (9th Cir. 1993), where we held the statute in question to
be an unconstitutional infringement on the President’s
powers of diplomatic negotiation. But even if this were the
Government’s argument, it would be of no relevance to our
political question analysis because whether the statute is an
unconstitutional infringement on the President’s power is a
merits issue, not an issue of subject-matter jurisdiction. See,
e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076,
2083 (2015) (Zivotofsky II) (analyzing respective
constitutional powers of the executive and Congress, after
first having determined that the case did not present a
political question).
We hold that the first Baker factor does not bar the claims
for declaratory relief.
2. Second Baker Factor—Judicially Manageable
Standards
The second Baker factor concerns the lack of “‘judicially
discoverable and manageable standards.’” Alperin, 410 F.3d
at 553. The Government relies on this factor to challenge
our competence to decide CBD’s claims. Acknowledging
that the interpretation of statutes is a “familiar judicial
exercise,” Zivotofsky, 566 U.S. at 196, the Government
nonetheless argues that NHPA Section 402 “provides no
substantive standard by which to review either the
procedures the Secretary used to consider the impacts of the
FRF or the substance of his conclusion.” Specifically, the

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Government argues, “legal tools are lacking here, because
there are no applicable statutory or regulatory standards by
which a court can review the Secretary’s implementation of
Section 402 in this case.”
This argument is unconvincing. For one, a statute does
not need a regulatory gloss to have substantive standards.
Courts can interpret statutes without the aid of regulatory
interpretation. See POM Wonderful LLC v. Coca-Cola Co.,
134 S. Ct. 2228, 2236 (2014) (noting that in “a statutory
interpretation case . . . the Court relies on traditional rules of
statutory interpretation. That does not change because the
case involves multiple federal statutes. Nor does it change
because an agency is involved. Analysis of the statutory text,
aided by established principles of interpretation, controls.”)
(citations omitted). Federal agencies retain a great deal of
power to interpret ambiguous statutes. See Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
981 (2005) (holding that an agency’s interpretation of an
ambiguous statute continues to receive deference even when
that interpretation is “inconsistent with its past practice”).
We are unaware, however, of any requirement that a statute
must have an agency interpretation before judicial
construction is possible. Further, as CBD points out, courts
decided cases involving NHPA Section 106, a similar
provision relating to domestic undertakings, 8 even before
8
In the absence of case law governing NHPA Section 402, the more
developed regime of Section 106 is a useful comparison point. NHPA
Section 106 applies to federal domestic “undertakings” a set of
procedural requirements broadly similar to those applied to federal
“undertakings” overseas by NHPA Section 402. See 54 U.S.C.
§ 306108. In this Circuit, plaintiffs must bring procedural violations of
NHPA Section 106 under the APA, and we have recognized Section 106
to provide procedural rights. San Carlos Apache Tribe, 417 F.3d at
1099. Section 106 also has a detailed set of regulations, 36 C.F.R.

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promulgation of any implementing regulations for Section
106. E.g., D. C. Fed’n of Civic Ass’ns v. Adams, 571 F.2d
1310, 1313 & n.8 (4th Cir. 1978) (applying Section 106
without looking to any regulations); Edwards v. First Bank
of Dundee, 534 F.2d 1242, 1245 (7th Cir. 1976) (noting
“substantive provisions” of Section 106). A court analyzing
the Government’s compliance with NHPA Section 402 also
has the aid of a clear legislative purpose and treaty
framework to aid in the effort to craft appropriate standards.
In this situation, “courts are capable of granting relief in a
reasoned fashion” to plaintiffs. Alperin, 410 F.3d at 553.
The second Baker factor does not bar CBD’s claims for
declaratory relief.
3. Other Baker Factors
As noted above, the remaining Baker factors, 369 U.S.
at 217, are usually less significant than the first two. The
district court analyzed each of these factors, and concluded
that none rendered CBD’s declaratory relief inextricable
from a political question. We agree.
The case does not implicate the third Baker factor, “the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion,”
for essentially the same reasons as the second Baker factor:
a federal court has standards to guide its resolution of the
dispute. The fourth Baker factor, “the impossibility of a
§ 800.1–16, first promulgated in 1974. See Okinawa Dugong II, 543
F. Supp. 2d at 1088–89. The statutory text of Section 106 imposes more
rigorous requirements than Section 402, including an opportunity for
comment by the Advisory Council on Historic Preservation. See
54 U.S.C. § 306108. Section 106 also has a robust set of regulations,
with many consultation requirements, while Section 402 has no
implementing regulations. Okinawa Dugong II, 543 F. Supp. 2d at 1089.

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court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government,” is unavailing because to abstain from giving
effect to a federal statute is less respectful to Congress than
reviewing the executive’s compliance. The sixth Baker
factor, “the potentiality of embarrassment from multifarious
pronouncements by various departments on one question,”
is also not present, because the accuracy of the Marine Corps
Findings and the adequacy of process under NHPA Section
402 are separate questions. Finally, we agree with the
district court that “[d]eclaratory relief would not be directed
towards criticizing the policy decisions of the American and
Japanese governments to construct the new base; rather, if
granted, it would hold only that statutory procedures were
not followed.” Okinawa Dugong III, 80 F. Supp. 3d at 1011.
The fifth Baker factor, “an unusual need for
unquestioning adherence to a political decision already
made,” is in some ways the most compelling factor in the
circumstances of this case. The Government has expended
considerable effort to build the FRF over decades. We have
no basis to question the wisdom of that effort, or to seek to
frustrate our nation’s foreign policy. See Coleman v. Miller,
307 U.S. 433, 455 (1939) (noting the “considerations of
extreme magnitude” characteristic of the nation’s “conduct
of foreign relations”). Enforcing NHPA, however, does not
intrude on foreign policy judgment, and it would be a “rare
case” where prudential considerations of this kind might bar
judicial resolution. Zivotofsky, 566 U.S. at 207 (Sotomayor,
J., concurring). Judicial scrutiny to enforce the obligations
of binding domestic law is unlikely to alter or damage our
nation’s longstanding bond with Japan. The Government’s
efforts to comply with the district court’s 2008 order suggest
that the amicable relationship between Japan and the United
States can withstand scrutiny or reassessment of operational

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details, even years after the two nations entered into the
Roadmap. The Government itself notes that the Marine
Corps Findings submitted to CBD “are the product of a
robust process that included active engagement with the
Government of Japan and consideration of multiple studies,
reports, and comments, including the Government of Japan’s
[environmental impact assessment], the comments collected
by the Government of Japan, and the declaration of CBD’s
expert.”
The Government emphasizes the care taken in every
aspect of negotiations regarding the FRF Project. The
Government points to “over twenty years of negotiation,
design, and study” before construction commenced. Rather
than counseling in favor of “unquestioning adherence,”
however, the Government’s painstaking efforts render it
more questionable why the NHPA take-into-account process
is an undue burden. There is no reason to think that
compliance with the NHPA process is beyond the
Government’s ability, especially when the Government
argues at length that it has provided a good-faith analysis of
the environmental impacts of the new base. To declare that
courts cannot even look to a statute passed by Congress to
fulfill international obligations turns on its head the role of
the courts and our core respect for a co-equal political
branch, Congress. Interpreting and applying NHPA Section
402 does not prevent the military from planning and building
bases. It requires only that the executive take into account
certain procedural obligations, required by Congress, before
it takes steps forward. The courts may then look to whether
the executive complied with its obligations. We may
consider national security concerns with due respect when
the statute is used as a basis to request injunctive relief. This
is not a grim future, and certainly no grimmer than one in

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which the executive branch can ask the court for leave to
ignore acts of Congress.
4. Conclusion
The Government’s core argument is that to allow CBD
to proceed with its suit would “necessarily require the
judicial branch . . . to question the political branches’
decision” in completing the FRF. Corrie, 503 F.3d at 982.
The district court rejected this argument, and was correct to
do so. CBD’s claims for declaratory relief present no
political question preventing judicial review.
V. Discussion of Claim for Injunctive Relief
We turn now to CBD’s claim for injunctive relief. Here,
the district court concluded only that the claim presented a
political question, and did not discuss standing. We begin
with CBD’s standing for injunctive relief. See Aldridge,
855 F.2d at 1382.
A. Standing
As noted above, “a plaintiff must demonstrate standing
separately for each form of relief sought.” Friends of the
Earth, 528 U.S. at 185. For the first two elements, injuryin-fact and causation, Spokeo, 136 S. Ct. at 1547, the
analysis for injunctive relief mirrors the previous analysis of
declaratory relief. This correspondence is natural when the
declaratory and injunctive claims emerge out of the same
underlying allegations and violations. CBD alleges it has
suffered a procedural injury to its concrete interests, and that
the injury is traceable to the Government’s conduct. CBD
thus meets the injury and causation requirements to have
standing for its claim seeking injunctive relief.

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Like in the claims for declaratory relief, the
redressability requirement is “relaxed” because the injuryin-fact is procedural.
Cantrell, 241 F.3d at 682.
Redressability, however, is a more relevant difference when
comparing declaratory and injunctive relief because
redressability depends on the relief envisioned.
Here, CBD seeks injunctive relief via an order that the
Government “not undertake any activities in furtherance of
the FRF project, including granting permits or approvals for
contractor entry to Camp Schwab and/or the proposed FRF
project area, and that [the Government] rescind any such
permits or approvals already granted, until it complies with
section 402 of the NHPA[.]” The grant of injunctive relief
in this case will result in (1) an adequate NHPA Section 402
process with (2) some likelihood of protecting CBD’s
interests. Courts often exercise power under the APA to
grant injunctive relief analogous to the halt that CBD
requests. E.g., Muckleshoot Indian Tribe v. U.S. Forest
Serv., 177 F.3d 800, 815 (9th Cir. 1999) (per curiam)
(enjoining further activities on specific area of land until the
Forest Service discharged its obligations under NHPA and
the National Environmental Protection Act, in part because
of ongoing damage). Accordingly, CBD has satisfied the
requirement of redressability. We hold that CBD has
standing for its injunctive claim.
B. Political Question Doctrine
The framework for analyzing whether CBD’s claims for
declaratory relief presented a political question also applies
to injunctive relief. The district court, analyzing the Baker
factors, concluded that CBD’s claim for injunctive relief
presented a political question. The district court rested its
conclusion primarily on the second Baker factor, regarding
the lack of judicially manageable standards. The district

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court also concluded that CBD’s claim likely presented a
political question under the first Baker factor, a power
belonging to another branch. The district court also cited to
the fourth, fifth, and sixth Baker factors: respect for
coordinate branches, the need for unquestioning adherence
to a decision already made, and the potential embarrassment
of varying pronouncements by several departments on one
question. We consider all the Baker factors on appeal.
The nature of the remedy sought is relevant to
considering whether any of the Baker factors are inextricable
from CBD’s claim. To obtain injunctive relief after
prevailing on the merits, CBD would be required to show
(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as
monetary damages, are inadequate to
compensate for that injury; (3) that,
considering the balance of hardships between
the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public
interest would not be disserved by a
permanent injunction.
Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th
Cir. 2011) (per curiam) (quoting eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 391 (2006)). We have suggested that
“because the framing of injunctive relief may require the
courts to engage in the type of operational decision-making
beyond their competence and constitutionally committed to
other branches, such suits are far more likely to implicate
political questions.” Koohi v. United States, 976 F.2d 1328,
1332 (9th Cir. 1992).

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1. First Baker Factor—Textual Commitment to Another
Branch
When confronting a statutory question touching on
subjects of national security and foreign affairs, a court does
not adequately discharge its duty by pointing to the broad
authority of the President and Congress and vacating the
field without considered analysis. See Baker, 369 U.S. at
211 (rejecting “sweeping statements to the effect that all
questions touching foreign relations are political
questions”); see also Zivotofsky, 566 U.S. at 201 (noting
judicial capacity and responsibility to engage in “careful
examination of the textual, structural, and historical
evidence put forward by the parties regarding the nature of
the statute”). The inquiry under the first Baker factor
requires far more specificity about the nature and source of
the power exercised.
See Baker, 369 U.S. at 211
(“[W]hether a matter has in any measure been committed by
the Constitution to another branch of government, or
whether the action of that branch exceeds whatever authority
has been committed, is itself a delicate exercise in
constitutional interpretation.”).
Here, the district court noted that decisions to “establish”
a military base are generally unreviewable. But it is not
necessary to review the establishment or location of the base
to consider whether to enjoin the Government from
undertaking any activities in furtherance of the FRF project
until it complies with NHPA Section 402. The district court
erred by assuming otherwise. Like CBD’s claims for
declaratory relief, the relevant question for CBD’s claim for
injunctive relief is compliance with NHPA Section 402.
After all, a court would have to find a violation of NHPA
Section 402 prior to granting the injunctive relief CBD
requests.

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Once a court finds a violation of a statutory requirement,
the relief that follows is to vindicate what Congress has
directed. The question then presented, whether injunctive
relief should issue, is one courts often resolve after
determining that a procedural violation took place. E.g.,
Montana Wilderness Ass’n v. Connell, 725 F.3d 988, 1010
(9th Cir. 2013) (reversing summary judgment to defendant
on a NHPA claim, and remanding with instructions to grant
injunctive relief to plaintiffs). Appropriate injunctive relief
arises from the act of statutory interpretation, and does not
require the courts to engage in “operational decision-making
beyond their competence.” See Koohi, 976 F.2d at 1332.
Our chief concern under the first Baker factor is to avoid
answering a question committed to a coordinate political
department. See Zivotofsky, 566 U.S. at 195; Nixon,
506 U.S. at 228; Baker, 369 U.S. at 217. In this case,
determining whether to grant injunctive relief would not
require a court to answer this kind of question. Whether an
injunction should issue to remedy a violation of the
procedural requirements imposed by NHPA Section 402 is a
question constitutionally committed to the judiciary, not to
the political branches, and a district court may exercise its
equitable discretion to “order that relief it considers
necessary to secure prompt compliance” with an act of
Congress. See Weinberger v. Romero-Barcelo, 456 U.S.
305, 320 (1982). To the extent a conflict arises from
diverging intentions by the executive and Congress, we are
competent to police these kinds of disputes, even when they
implicate foreign policy matters. Zivotofsky, 566 U.S. at
201.
We conclude that there is no political question present
under the first Baker factor.

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2. Second Baker Factor—Judicially Manageable
Standards
The district court principally relied on the second Baker
factor. On appeal, CBD argues that to affirm the district
court’s reasoning would adopt, in practice, “[a] per se rule
that any request for injunctive relief is nonjusticiable when
foreign affairs or national security are at stake.” We agree
that any similar per se rule would be out of step with
Supreme Court precedent, and we reject the district court’s
conclusion that CBD’s claim for injunctive relief implicates
the second Baker factor.
In Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 26 (2008), the Supreme Court applied the fourpart standard for preliminary injunctive relief to determine
whether the use of sonar in training exercises by Navy
submarines was a strong enough government interest to
outweigh harm to whales and other marine mammals that
plaintiffs studied and observed. 555 U.S. at 26; see also id.
at 20–31. The use of sonar was “essential to national
security”—much like the weighty security interests the
Government asserts in this case. Harm to marine mammals
presented a similar set of non-economic interests. The Court
found that the balance of the equities was not a “close
question” and ruled in the Government’s favor. Id. at 26.
Critically, however, the Supreme Court did not hold that the
inquiry was a political question; it merely applied the
injunctive analysis and ruled against the plaintiffs on the
merits.
When a court exercises its equitable discretion to weigh
the considerations of injunctive relief for a plaintiff, whether
granting or denying that relief, the exercise undoubtedly
“can fully protect the range of public interests at issue” in the
proceedings.
Weinberger, 456 U.S. at 320.
The

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Government’s asserted interests are compatible with judicial
resolution under the four-part injunction analysis because
courts are able to weigh equitable considerations when
security or foreign affairs interests are at stake. To hold
otherwise would introduce an overbroad rule in conflict with
controlling precedent. CBD’s claim for injunctive relief
does not implicate the second Baker factor.
3. Third Baker Factor—Judicial Competence
Considerations of the second and third Baker factors
often closely relate because they involve “decisionmaking
beyond courts’ competence.” Zivotofsky, 566 U.S. at 203
(Sotomayor, J., concurring). As noted above, the weighing
of interests in the context of injunctive relief is not an action
beyond judicial competence. Assessing the equities of
injunctive relief does not require “an initial policy
determination of a kind clearly for nonjudicial discretion.”
See Baker, 369 U.S. at 217. CBD’s injunctive claim does
not implicate the third Baker factor.
4. Fourth, Fifth, and Sixth Baker Factors
“Courts should be particularly cautious before forgoing
adjudication of a dispute on the basis” of the final three
Baker factors. Zivotofsky, 566 U.S. at 204 (Sotomayor, J.,
concurring). We treat the last three Baker factors in tandem.
See id. (discussing the last three Baker factors as one group);
Alperin, 410 F.3d at 544 (noting that Baker’s “tests are more
discrete in theory than in practice, with the analyses often
collapsing into one another”).
For the fourth factor, enjoining executive action based
on a violation of a statutory requirement does not express a
lack of respect for the executive; if anything, an injunction
expresses respect for Congress by vindicating its legislative

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power. We also doubt that injunctive relief even implicates
the sixth factor—the issuing of various “pronouncements.”
An injunction here does not pronounce anything, and though
it might imply internal conflict between the branches of
government to outside observers, it does not speak on behalf
of the United States.
As with declaratory relief, this case provides a tempting
candidate for reliance on the fifth factor, “an unusual need
for unquestioning adherence to a political decision already
made.” Baker, 369 U.S. at 217. The long-running
diplomatic engagement between Japan and the United States
on the construction of the base has already seen its fair share
of twists and turns, and there is room to consider whether
raising an additional obstacle at this time counsels against
exercise of judicial power. Nonetheless, reliance on this
ground is extraordinary, and we find it unnecessary in this
instance.
C. Conclusion
We conclude that CBD has standing for its claim for
injunctive relief and that the claim does not present a
political question implicating any Baker factor.
VI. Merits
Because the district court itself did not grant preliminary
injunctive relief, there is no stay or injunction in place on the
Government’s base-related activities in Japan.
The
Government did not move on the merits to dismiss CBD’s
claim for injunctive relief, and on appeal did not argue the
merits, either. We may affirm “on any basis supported by
the record even if the district court did not rely on that basis.”
United States v. Washington, 969 F.2d 752, 755 (9th Cir.
1992) (internal quotation marks omitted). Nonetheless, the

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parties have presented to us threshold jurisdictional issues,
and we act most prudently when we allow the district court
to address the merits of claims in the first instance. See
Zivotofsky, 566 U.S. at 201. Based on the current state of the
record, and in light of the traditional four-factor test for
preliminary injunctive relief, there is no basis for issuing an
injunction at this time. Winter, 555 U.S. at 20 (“A plaintiff
seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.”). Even assuming that a NHPA
violation has taken place, under the traditional injunction
test, the national security interests of the Government are
likely to outweigh the interests CBD asserts. See id. at 32–
33 (“Given that the ultimate legal claim is that the Navy must
prepare an EIS, not that it must cease sonar training, there is
no basis for enjoining such training in a manner credibly
alleged to pose a serious threat to national security.”). But it
is the district court’s task to weigh the Winter injunction
factors carefully, in the first instance, and in light of the
circumstances of this case. We note, however, that even if
the district court were to rule in the Government’s favor on
CBD’s claim for injunctive relief, this does not mean that
CBD’s claims for declaratory relief necessarily must fail.
See Steffel v. Thompson, 415 U.S. 452, 471 (1974) (noting
“Congress’ intent to make declaratory relief available in
cases where an injunction would be inappropriate”);
Olagues v. Russoniello, 770 F.2d 791, 808 (9th Cir. 1985)
(Nelson, J., concurring in part and dissenting in part)
(“Declaratory relief is a separate remedy to be awarded when
warranted, even if an injunction under the same
circumstances would be denied.”).

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VII. Conclusion
We reverse the district court’s dismissal of CBD’s
declaratory relief claims because CBD has Article III
standing for these claims. We affirm that the claims do not
present a political question. We reverse the district court and
hold that CBD has Article III standing to pursue injunctive
relief and that its claims for injunctive relief do not present a
political question. We remand to the district court for further
proceedings.
REVERSED and REMANDED.