Okinawa Dugong (Dugong Dugon) et al v. Rumsfeld et al

Filing 231

ORDER by Judge Edward M. Chen Denying 221 Plaintiffs' Motion for Summary Judgment and Granting 222 Defendants' Cross-Motion for Summary Judgment. (emcsec, COURT STAFF) (Filed on 8/1/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OKINAWA DUGONG (DUGONG
DUGON), et al.,
Plaintiffs,

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v.
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JAMES N MATTIS, et al.,

United States District Court
Northern District of California

Defendants.
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Case No. 03-cv-04350-EMC
ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANTS’
CROSS-MOTION FOR SUMMARY
JUDGMENT
Docket Nos. 221, 222

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This case concerns the planned Futenma Replacement Facility (FRF), a U.S. military

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facility in Okinawa, and its potential impacts on the Okinawa dugong, an endangered sea mammal

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important in Japanese culture. Negotiations between the United States and Japanese governments

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regarding the FRF have a long and fraught history. As explained in more detail below, they

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ultimately resulted in an agreement to relocate the Marine Corps Air Station Futenma from

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Ginawan City to an area adjacent to Camp Schwab and the Oura and Henoko Bays.

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In 2003, Plaintiffs filed suit pursuant to Section 402 of the National Historic Preservation

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Act (“NHPA”), challenging Defendant U.S. Department of Defense‟s plans to pursue the FRF

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without first “taking into account” (TIA) its potential adverse effects on the Okinawa dugong.

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Judge Patel, assigned to this case, agreed that Defendants had failed to perform an adequate TIA

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process and granted summary judgment in Plaintiffs‟ favor. However, because of political

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uncertainty about the future of the FRF, Judge Patel administratively closed the case in 2012. In

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2014, Defendants informed the Court that they had completed a TIA process.

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Presently before the Court are the parties‟ cross-motions for summary judgment
concerning the adequacy of Defendants‟ TIA process under Section 402 of the NHPA. Plaintiffs

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contend that the process was inadequate because Defendants failed directly to consult Plaintiffs,

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cultural practitioners, local and Okinawa government officials, and failed to notify the public or

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Plaintiffs that the TIA process was underway. Plaintiffs also contend that, even if the Section 402

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TIA process was adequate, Defendants‟ finding that the FRF would have no adverse effect on the

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Okinawa dugong were arbitrary and capricious under the Administrative Procedure Act (“APA”),

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5 U.S.C. § 706, et seq., because it ran contrary to the scientific evidence and failed to consider

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important aspects of the problem.
For the reasons explained below, the Court finds in favor of Defendants. Though

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Defendants‟ Section 402 process could possibly have been more inclusive, Defendants‟ efforts

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were sufficient to satisfy Section 402‟s modest procedural requirements. Further, Defendants

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United States District Court
Northern District of California

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adequately explained their conclusions based on the evidence available to them, such that their

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conclusions were not arbitrary or capricious under the APA. Plaintiffs‟ motion for summary

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judgment is DENIED and Defendants‟ motion is GRANTED.
I.

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A.

FACTUAL AND PROCEDURAL BACKGROUND

The FRF and Okinawa Dugong
Since the end of World War II and pursuant to various treaty arrangements, the United

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States has maintained military facilities on the Japanese island of Okinawa. This case concerns

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the planned relocation of the existing Marine Corps Air Station Futenma (“MCAS Futenma”) in

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Ginawan City. The United States and Japan agreed to relocate it because its current location

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became problematic after substantial population growth in the surrounding area. The new site is

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referred to as the Futenma Replacement Facility (“FRF”). The plans for the FRF have been

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evolving for more than a decade pursuant to negotiations between Japan and the United States.

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According to a 2006 roadmap agreement, the two countries agreed that the FRF would be located

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offshore the existing Camp Schwab, near Henoko Point. The FRF plan calls for a “V-shaped”

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runway that will be partially built on landfill extending into Oura and Henoko Bays.

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The intrusion into the Bays prompted this litigation. The waters in question are a habitat

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used by the Okinawa dugong, an endangered sea mammal. Plaintiffs,1 a group of Japanese

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individuals and environmental organizations concerned about the Okinawa dugong‟s fate and the

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U.S.-based Center for Biological Diversity, filed suit in 2003 after relocation plans were first

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announced under Section 402 of the National Historic Preservation Act (NHPA). Section 402 of

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the NHPA provides:

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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.

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54 U.S.C. § 307101(e). Plaintiffs alleged that the Okinawa dugong was “property” on Japan‟s

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United States District Court
Northern District of California

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equivalent of the National Register within the meaning of Section 402. Judge Patel, then-

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presiding over the case, agreed and declined to dismiss the case. See Dugong v. Rumsfeld, 2005

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WL 522106 (N.D. Cal. Mar. 2, 2005) (“Dugong I”). Consequently, the NHPA required that,

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“[p]rior to the approval of any undertaking outside the United States [i.e., the FRF] that may

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directly or adversely affect [the Okinawa dugong],” Defendants “shall take into account the effect

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of the undertaking on the [dugong] for purposes of avoiding or mitigating any adverse effect.” 54

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U.S.C. § 307101(e). After Judge Patel‟s earlier ruling and a 2006 announcement about a new

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roadmap for the FRF, plaintiffs filed a second amended complaint and Defendants produced an

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administrative record to prepare for summary judgment.
At summary judgment, Judge Patel held that the FRF was a “federal undertaking” within

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the meaning of Section 402 of the NHPA, Dugong v. Gates, 543 F.Supp.2d 1082, 1101 (N.D. Cal.

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2008) (“Dugong II”), and that Defendants were therefore required to “take into account the effect

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of the undertaking on the property for purposes of avoiding or mitigating any adverse effect.” 54

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U.S.C. § 307101(e). This is referred to as the “take into account” (TIA) process. Judge Patel

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sketched the basic outline of what a Section 402 TIA process should look like and held that

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Plaintiffs are the Center for Biological Diversity, the Turtle Island Restoration Network, the
Japanese Environmental Lawyers Federation, the Save the Dugong Foundation, and individuals
Anna Shimabukuro, Takuma Higashionna, and Yoshikazu Makishi. See First Suppl. Compl.
(Docket No. 152-1) ¶¶ 8-15.
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Defendants had failed to comply. Dugong II, 543 F.Supp.2d at 1102-1111. She entered summary

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judgment for Plaintiffs and ordered Defendants to comply with NHPA Section 402. Due to

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subsequent uncertainty over the future of the FRF, Judge Patel held the case in abeyance and

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administratively closed it in February 2012, instructing the parties to move to re-open the case

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“[w]hen plans for Henoko become more finalized or are abandoned.” Docket No. 147 at 4-5.
Over two years later, in April 2014, Defendants filed a notice that they had completed the

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Section 402 TIA process. See Docket No. 151. With the Court‟s leave, Plaintiffs thereafter filed a

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supplemental complaint. See Docket No. 152-1. Defendants successfully moved to dismiss for

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lack of jurisdiction, see Docket No. 186, 188, but the Ninth Circuit reversed and remanded. See

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Docket No. 198. On remand, the parties filed cross motions for summary judgment concerning

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United States District Court
Northern District of California

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the adequacy of Defendants‟ TIA process and the soundness of their conclusions under the APA.

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Those motions are now before the Court. See Docket Nos. 221, 222, 223.

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B.

Defendants‟ “Take Into Account” Process
Subsequent to Judge Patel‟s order, Defendants undertook a TIA process that involved

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several components. Each is described in more detail below, but the steps included, inter alia, (1)

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a report on the FRF‟s potential impact on the dugong‟s biological well-being prepared by Dr.

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Thomas Jefferson (the “Jefferson Report”); (2) a report on the FRF‟s potential impact on the

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dugong‟s cultural significance prepared by a private research institute, International Archeological

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Research Institute, Inc. (IARII) (the “Welch 2010 Report”); (3) the Japanese government‟s

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Environmental Impact Statement (“EIS”) regarding the FRF; and (4) miscellaneous other reports

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or sources of information described below. See US 10997. After considering these reports,

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Defendants rendered their findings that the FRF would not have adverse effects on the dugong.

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The various reports make reference to certain locations, including Henoko Bay, Oura Bay,

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and Kayo; the maps below illustrate the geography of the FRF and those areas.

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United States District Court
Northern District of California

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US 4797 (Japanese EIS)-

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US 4803

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The following reports constitute part of Defendants‟ TIA process.

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C.

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Jefferson Report (Biological Assessment)
Defendants commissioned an internal study by Dr. Thomas A. Jefferson titled “Biological

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Assessment of the Okinawan Dugong: A review of Information and Annotated Bibliography

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Relevant to the Futenma Replacement Facility.” US 3356. The report consists of a literature
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review concerning the taxonomy of the dugong, their distribution and abundance, typical lifespan,

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ecology, behavior and social organization, and threats to their population. Id. The general threats

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to the Okinawa dugong identified were hunting, bycatch, vessel traffic, chemical pollution, and

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habitat loss/degradation. US 3368-69. The threats directly linked to military activities were

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identified as pollution (noise, chemical, sedimentation, and radioactivity) and habitat

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destruction/alteration. US 3369.
Dr. Jefferson concluded that, for conservation purposes, “[m]anagement actions must be

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focused on human activities known to be actual causes of mortality for dugongs in this population,

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and this generally means the closure or relocation of gillnet and setnet fisheries that catch dugongs
to locations outside the population‟s range.” US 3373. He also noted that stopping the FRF

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Northern District of California

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would be futile in preserving the dugong without additional conservation efforts: “Eliminating

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activities that may have the potential to limit population recovery (e.g., the FRF), while ignoring

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the issues known to be causing population decline (e.g., possible illegal hunting and incidental

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catches in fisheries), will not help the population.” Id. (emphasis in original). Rather, “[a]n

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integrated management plan . . . is the only way to preserve this dugong population.” Id.

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D.

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Welch 2010 Report (Cultural Assessment)
Defendants commissioned the IARII, a private research consulting firm, to produce a

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report on the cultural significance of the Okinawa dugong. US 4163. Although the bulk of the

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report focuses on the cultural significance of the dugong, it also reviews biological and ecological

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literature concerning the dugong, including threats to their existence. US 4175-4184.

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Sources of Information

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IARII assembled a team of archeologists, a cultural anthropologist, and a biologist to

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prepare the report. The team consulted with cultural and natural resource specialists at Marine

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Corps Base Camp Butler and ultimately interviewed 16 informants, including seven

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archaeologists, two biologists, three archivists/professors, and four folklorists or individuals with

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local traditional knowledge about the dugong. The researchers also visited a number of

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organizations and museums, including Uruma City Cultural Sea Museum, University of the

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Ryukyus Museum, Higashi Village Museum, Ishigaki City Yaeyama Museum, Nakijin Village
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Museum of Culture and History, Nago Museum, Okinawa Churaumi Aquarium, and the Okinawa

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Prefectural Archaeology Center (organizations which were on Plaintiffs‟ list). US 4170.

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Additionally, the team visited the Okinawa Prefectural Board of Education and municipal Boards

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of Education nearest to the proposed project (Chatan Town, Ginoza Village, Nakijin Village, and

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Nago City). The researchers also conducted a review of relevant academic literature.

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2.

Findings of Adverse Effect

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Based on their research, the authors of the Welch report discussed both direct and indirect

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effects on the dugong‟s cultural significance. Direct effects were those that might directly affect

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the cultural importance of the dugong, while indirect effects were those that might cause

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United States District Court
Northern District of California

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biological harm to the species and thereby indirectly diminish its cultural significance.
With respect to the “direct” effects, the report concludes:
Based on the results of this study, the construction and operation of
the FRF should have little direct adverse impact on the cultural
significance of the dugong or on traditional cultural practices
associated with the dugong. Since the area in which the FRF will be
built . . . is already off-limits to the general Okinawan population, no
cultural events or social/religious ritual ceremonies involving the
dugong take place in these areas. Because of the dugong‟s rareness,
its status as a GOJ endangered biological species, and its designation
as a protected cultural property, hunting has not taken place, except
perhaps surreptitiously and only occasionally, since the immediate
post-war years. Because hunting is now illegal, the FRF will not
directly affect hunting.

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US 4253. The study noted, however, that certain rituals honoring the sea deity are still held in

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Henoko Village adjacent to Camp Schwab and that “temporary construction activities and later

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operational activities could disturb the performance of these rituals.” Id. It further concluded that

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although the seagrass beds in the vicinity of Henoko might be impacted by the FRF because of the

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feeding trenches in the area, “the project research found no indication that any culturally important

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activities are conducted in or associated with this area.” Id.

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The Welch report then discussed “indirect” effects on the dugong‟s cultural significance

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based on its assessment that “[i]f the dugong population is lost, then it is likely that those

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traditions that help create Okinawan identity will become increasingly meaningless to future

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generations.” US 4254. The report identified six potential threats to the dugong‟s existence:
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hunting, bycatch/incidental catch, vessel traffic, acoustic disturbance, chemical pollution, and

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habitat loss/degradation. AR 4180-83. Among these, the report stated that habitat

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destruction/alteration, pollution, and vessel collisions are the potential threats from military

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activities. Based on review of biological literature, the report stated that although dugongs were

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not currently living in Henoko Bay, “destruction of seagrass beds along Henoko Bay will limit

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areas that could provide habitat in the event of recovery and increase in the current dugong

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populations.” US 4254. It also states that “noise from the construction and operation of the FRF

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could still affect the dugongs in [the area to the east of Oura Bay].” US 4255.
Although the Welch report identified these “potential” or “possible” effects, it made no

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attempt to quantify the likelihood that the threats would materialize. In other words, the Welch

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report does not analyze the FRF or related operations and the likelihood that they would cause

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harm to the dugong. It merely identified a list of possible threats worth consideration.

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E.

Bi-Lateral Expert Study Group (2010)
The United States-Japan Security Consultative Committee also directed a group of experts

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to study the FRF‟s location, configuration, and construction method to help achieve the earliest

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possible relocation. US 7306. This study evaluated two alternative construction plans in

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consideration of the safety of local communities and U.S. military personnel, operational

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requirements for U.S. forces, noise impact, environmental concerns, and effects on the local

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community. US 7307. It concluded that one plan (the “V” plan) would require losing a beach on

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the east side of Camp Schwab and thus “result[] in the loss of some animal and plant habitat,”

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without further elaboration. US 7309. The other plan (the “I” plan) would preserve the beach but

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“the impact on animal and plant habitat remains to be assessed.” US 7311. Plaintiffs have cited

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the latter language as evidence of an incomplete process, but because Defendants have adopted the

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“V” plan, the language regarding the “I” plan is not material to the question of compliance with

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Section 402.2

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Plaintiffs have not argued, for example, that the “I” plan was an under-explored alternative that
would have been less harmful to the dugong.
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Survey of Marine Mammals in Okinawa (SuMMO) (2011-2012)
This report was commissioned to update the Integrated Natural Resources/Cultural

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Resources Management Plan for Marine Corps Base Camp Smedly D. Butler, of which Camp

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Schwab is a part. US 9245. This report did not draw conclusions about the density of dugong

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presence in or around Henoko and Oura Bay. AR 9269. It is discussed where relevant below.

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Japanese Environmental Impact Study (“EIS”)
Defendants relied heavily on an independent Environmental Impact Study undertaken by

the Japanese government pursuant to Japanese law, a draft of which was released in in 2009 and a

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final version published in December 2012. See US 11056. The Japanese EIS is over 1600 pages

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long. US 4793. It involves a comprehensive analysis of how likely the FRF‟s construction and

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planned manner of operation is to impact the Okinawa dugong. The Japanese EIS also underwent

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a robust public notice and comment process. These components are discussed below.

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Public Notice and Public Comment

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The Japanese EIS had 3 phases of public comment: first, about the planned scope of the

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EIS; second, about the draft EIS; and third, about the final EIS. See US 3032 (flow chart of

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process). The administrative record includes an English translation summary of 32-pages of

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public comments regarding the Japanese EIS‟s proposed scoping. See US 1218. With respect to

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seagrass beds and dugong, the comments include, inter alia, concerns that “[t]he sea areas in the

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vicinity of Henoko are considered as very important breeding ground for the small population of

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Japanese dugongs,” comments regarding whether the planned survey period would be of sufficient

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duration, whether research about dugongs in other countries could be applied directly to the

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Okinawa dugong, whether the planned survey to observe dugong was sufficiently broad in its

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geographic scope, how the survey would account for measuring impact of sound on dugong, and

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so on. US 1238-41. Indeed, about four pages of translated public comment in the Japanese EIS

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are dedicated specifically to the Okinawa dugong.

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Plaintiffs do not allege that they were unable to participate in this process. As explained

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above, the record indicates that members of the Japanese public were able to participate. The

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Okinawa Prefecture, akin to the regional government of Okinawa state, was also actively involved
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in the public comment process. The then-governor of Okinawa, Hirokazu Nakaima, submitted

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public comment regarding the proposed scope of the Japanese EIS on December 21, 2007 and

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January 21, 2008. See US 1251, 1319. The translated documents are 28-29 pages long. The

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comments are robust and detailed, and include, among other things, recommendations for how to

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assess impact caused by acoustic noise and vibrations, aircraft noise, water contamination,

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turbidity caused by sediments, impact on seaweeds and seagrasses used by dugong, and impacts

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on the dugong themselves. See, e.g., US 1269-71.

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On March 4, 2008, the Department of Cultural and Environmental Affairs of the Okinawa
Prefectural Government also submitted “Comments on the Additions and Revisions to the
Environmental Impact Assessment Scoping Document” for the FRF. US 1567. This also includes

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comments regarding seagrass beds and dugong, including, for example, that the EIS should

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consider “[c]hanges in the use and visit to the sea area and seagrass beds,” “[c]hanges in the

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function and value of habitat, and their impacts on sustainability of individuals or population of

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dugongs in the Henoko coastal area,” and “[i]mpacts on sustainability of dugong‟s population in

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Okinawa based on the degree of impacts on sustainability in the coastal area of Henoko.” See US

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1575-77.

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Governor Nakaima also submitted comments regarding the final EIS document, sharply

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criticizing the Japanese central government‟s report, generating significant attention in Japanese

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media. Defendants were aware of these criticisms and internally circulated media coverage. See

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US 8150-8158 (e-mail thread reproducing media coverage of Okinawa prefecture‟s criticism of

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the Japanese EIS). This included criticism of the report‟s findings regarding potential effects on

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the dugong but the substance of the critique is unclear from the record.

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2.

Substantive Findings of Japanese EIS

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Whereas the Welch and Jefferson reports only identify potential adverse effects to the

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dugong from military activities, the Japanese EIS purports to determine the likelihood such harm

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will occur in light of the specific construction and operation plans for the FRF. The Japanese

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EIS‟s analysis with respect to construction and operation are summarized below.

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a.

Adverse Effects Related to Construction

The Japanese EIS considered adverse effects related to noise, vibrations, night lighting,
and ship collision as summarized below.
i.

Noise

The report focused on construction activities likely to produce noise below the surface:
piling work and riprapping work. US 6140. It calculated the decibel range that could affect

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dugongs and the geographic range in which harm could result. US 6141. It concluded that

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because there are shore reefs at the mouth of the Oura Bay between the construction site and sea

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areas off Kayo where dugongs live, “it is expected that these shore reefs will block the underwater

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noise.” Id. Thus, dugongs near Kayo would not be adversely affected. However, the report notes

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that noise could reach the dugong to the southwest if they were to move to that area or if they

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actually entered the Oura Bay. Id.

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ii.

Vibration

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The Japanese EIS also analyzed the effect of construction-related vibrations of the sea

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floor. It noted the likely magnitude of such vibrations, how far they could be felt, and at what

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magnitude they might affect dugong. The report concluded that because “[d]ugongs rarely touch

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the sea bed except when they graze seagrasses,” and because “the feeding ground for dugongs that

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live around the project implementation site is located in sea areas off Kayo, over 5km away from

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the piling site,” “it is projected that sea bed vibrations during the construction work will have little

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practical effect on the behavior of dugongs.” US 6141.

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iii.

Night Lighting

The report explained that marine construction would only occur in the day time, and that

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night lighting was expected only to be used for a short three-month period during pavement work

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at the airport. Because dugongs “are highly likely to stay in sea areas off Kayo . . . it is assumed

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that little light from the lighting apparatuses . . . will reach [them].” Id.

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iv.

Navigation of Work Ships

The Japanese EIS noted that ship routes would be set to avoid areas where the dugong
have been observed so encounters between the ships and the animals would be unlikely, but that if
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dugong moved out of those spaces, they might encounter ships. US 6141. Alternatively, if they

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entered Oura Bay, the dugong might be caught in gill nets. US 6141.

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In sum, with respect to construction activities, the Japanese EIS concludes: “it is projected
that the effects of muddy water, noise, and the navigation of work ships during the construction

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work will not reach the sea areas where the seagrass beds that dugongs use as feeding grounds are

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distributed. It is also projected that if dugongs remain within their hitherto observed habitat, there

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is no possibility that implementation of the project will change the functions and value of

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dugongs‟ living environment. Nor will implementation of the project practically affect the lives of

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individual dugongs that live around the project implementation site. [Finally] nor is there

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practically any possibility that implementation of the project affects the conservation of all

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individual dugongs in Okinawa prefecture.” US 6142.

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b.

Adverse Effects Related to Operational Use

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The Japanese EIS considered the following impacts of operational use of the FRF (post-

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construction): decreased availability of sea surface (due to reclamation of sea land to expand the

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runways); water quality; aircraft noise; and ship navigation.

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i.

Reduction in Sea Surface

The report considered whether the reduction in sea surface would affect the dugong‟s

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habitat or feeding grounds. It concluded that “the habitat . . . will not decrease much” and “will

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not decrease areas where seagrass beds . . . grow” because the main dugong feeding grounds are in

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a different location, off Kayo. AR 6145. The report also concluded that “changes in ocean flows,

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waves, and water quality due to the existence of facilities . . . will practically not alter the living

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environment of seagrass beds, the main feeding grounds for dugongs.” Id. The new marine

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structures will not interfere with dugong travel routes because they are not observed in the areas

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where the land will be reclaimed, or where fuel piers and approach lights are to be installed. Id.

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ii.

Aircraft Noise

The report considered the noise levels of aircrafts, their flight paths, and the extent to

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which noise might penetrate the sea in light of the particular flight trajectories and the noise levels

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that might affect the dugong. The report concludes that “it is projected that sound pressure levels
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that exceed those which affect dugongs will be limited to small areas directly below the flight

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routes,” and that “low-frequency sounds . . . are projected to go below the lowest low-frequency

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sound pressure level that affects dugongs.” Id. at 6145-46.
iii.

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The report concludes “there will be practically no change to the quality of water around

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seagrass beds off Kayo, a major feeding ground for dugongs.” US 6146.
iv.

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routes were planned through areas where dugong are not known to live and have not been
observed. Id.
In sum, the Japanese EIS concludes that “if dugongs remain within their hitherto observed

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Northern District of California

Ship Routes

The report projected that ship routes would be unlikely to affect the dugong because the

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Water Quality

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habitat, there is no possibility that implementation of the project changes the functions and value

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of their living environment,” and that “[t]here is practically no possibility that implementation of

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the project affects the conservation of all individual dugongs in Okinawa Prefecture.” US 6147.

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H.

Defendants‟ Findings
Defendants considered the aforementioned reports in making their independent findings.

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They determined the dugong had cultural significance for four distinct segments of Japanese

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society, identified “those aspects of the dugong that are intrinsic to its cultural significance,” and

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then determined whether the FRF would adversely affect such aspects. As in the Welch report,

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Defendants considered both direct impacts on the dugong‟s cultural significance and indirect

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impact that could result from biological harm to the dugong.

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Direct Effects on Cultural Significance

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Defendants‟ findings regarding cultural significance are summarized in the table below.

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Group For Whom Dugong
Is Significant

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1. Researchers and scholars
who “perceive the Okinawa
dugong as having cultural
significance related to its
historical role and its
inclusion in Okinawa
mythology, songs, and oral
traditions,” US 10986

Cultural knowledge or data
available for conducting
research, which is contained
in archives, archeological
deposits, and memories of
people who practice rituals
and pass on oral traditions

Little or no potential to affect
the repositories housing
cultural knowledge

2. Ritual practitioners who
“possess some specialized
knowledge about the role of
dugong in traditional myths,
oral histories, rituals, and
songs,” including some for
whom “dugongs are perceived
as intermediaries between the
world of humans and the
world of the supernatural,” US
10986

Cultural and historic
knowledge embodied in
songs, oral traditions, myths,
and rituals, although the
places where rituals are
conducted and their timing
may also have elements of
significance

Little or no potential to affect
because no rituals actually
occur within the various
named seagrass bed areas

3. Aragusuku-jima Island
community for whom “oral
traditions and records
document[] the past
requirement that they hunt the
dugong and furnish dugong
meat in lieu of paying taxes to
the Kingdom,” US 10986

Oral traditions and written
records regarding hunting
dugong during the Ryuku
Kingdom Period and practices
such as hunting, dugongrelated rituals, and the shrines
where they occur

No potential to affect islands
where rituals and festivals are
performed and little to no
potential to affect the
knowledge of the people of
the islands

4. Popular culture in the
sense that “Okinawans have
rallied [around the dugong
symbol] to protest the
continued use of areas on
Okinawa by the U.S.
military,” relating to “public
perception of the animal as an
endangered species having
special ties to Okinawa,” id.

The dugong‟s image and
arguably its survival as a local
population because “symbols
are more effective if they are
tied to something tangible and
able to be seen periodically by
the community that uses the
symbol,” US 10987

Minimal potential to result in
extinction or significant
degradation of the species, so
“no potential to affect the use
of the dugong as a political
symbol”

6
7
8
9

Intrinsic Cultural
Significance

Finding of Adverse Effect

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

14

1

Relatedly, Defendants recognized potential indirect effects on the performance of dugong-

2

related rituals in Henoko Village as a result of noise or visual intrusions during construction and

3

operation. But “[t]he secretive nature of the ritual practitioners has prevented the USMC from

4

acquiring information important to determining the affect [sic], if any,” US 10993, that would be

5

caused. The report states that if the information becomes available, Defendants will make a

6

determination. Id.

7

2.

8

Defendants also recognized that biological harm to the dugong could adversely affect the

9

Indirect Effects on Cultural Significance Through Biological Harm

creature‟s cultural significance. Defendants‟ analysis presumed that “an activity is deemed to
have an adverse effect either on the dugong as a natural monument, or on an intrinsic element of

11
United States District Court
Northern District of California

10

the dugong from a cultural perspective, if the activity destroys, harms, or alters either the dugong

12

or its intrinsic elements.” US 10987. Thus, “in order for the Undertaking to have an adverse

13

effect on the Okinawa dugong, dugongs would have to be present in the [Area of Potential Effects

14

(“APE”)] and subject to activities that could destroy, harm or alter those intrinsic characteristics

15

that make the Okinawa dugong a natural monument.” US 10988.

16

A key basis for Defendants‟ analysis is that although “the data are not sufficient to

17

establish population size, status, and viability,” the data were “sufficient to conclude that a

18

remnant population of dugongs exists around Okinawa,” sighted “sporadically” or “intermittently”

19

in the FRF or FRF footprint area. US 10988. Moreover, seagrass beds used for feeding were

20

found to the north of the FRF at Kayo and south in Henoko Bay, outside the FRF area. Id. The

21

low density of dugong presence in the FRF area is critical to Defendants‟ ultimate finding of “no

22

adverse effect” “because of the extremely low probability of Okinawa dugongs being in the APE”

23

and the conclusion that, to the extent they were present, “the construction and operational activity

24

is primarily of the type that would not have an adverse effect.” Id. The only exception noted was

25

construction noise. Id.

26
27

Defendants‟ analysis of each of the adverse effects associated with construction and
operation is summarized below.

28
15

a.

1

With respect to construction effects, Defendants considered vessel impacts, land

2
3

Construction Effects

reclamation, red soil runoff, and acoustic and visual disturbance:
Vessel Impacts: Defendants concluded that adverse effects from collisions “are highly

4
5

unlikely given the observed low presence numbers of individual dugong in Henoko and Oura

6

bays.” US 10988. Further, with respect to ship noise, Defendants cited a study that noise would

7

interrupt feeding time only 0.8-6% of the time, which “would not affect survivorship.” Id.

8

Though reduced nutrition could reduce reproductive rates, “due to the very small and infrequent

9

presence of Okinawa dugong in the APE, there would be no adverse effect on reproductive rates.”

10

Id.

United States District Court
Northern District of California

11

Land reclamation: The FRF-construction will result in loss of 7.3% of the seagrass beds in

12

the sea area in front of Henoko Bay and 37.7% of the seabeds on the side of Oura Bay (13% of the

13

areas in both bays combined). US 10989. Defendants‟ analysis of seabeds is specific and non-

14

conclusory. Defendants explained:

15
16
17
18
19
20
21

22
23
24

As shown in Table 6.15.2.3.3 of the GoJ DEIS (Okinawa Defense
Bureau 2009), the total area of seagrass beds with 5% coverage or
more that would disappear due to FRF construction is 78.1 ha: 3.6
ha in the sea area in front of Henoko Bay and 42.5 ha on the side of
Oura Bay. This amounts to the loss of 7.5% of the seagrass beds in
the sea area in front of Henoko Bay and 37.7% of the beds on the
side of Oura Bay (13% of the 600.4 hectares in both bays
combined). Based on an independent evaluation of the data
provided in the GoJ DEIS and the data collected and presented in
the USMC [United States Marine Corps]‟s expert's report (Encl 1),
the USMC finds that, while the seagrass beds in Henoko and Oura
bays are a potential natural habitat and food source for the Okinawa
dugong, because these seagrass beds are not consistently or
routinely used by resident dugong and there are other seagrass beds
sufficient to maintain the current population of Okinawa dugong, the
loss of some of the seagrass beds in Henoko and Oura bays is not
considered an adverse effect on the Okinawa dugong as a natural
monument. Accordingly, loss of seagrass beds from FRF
construction will have no adverse effects on the Okinawa dugong.

25

US 10989. For the proposition that other seagrass beds outside of Henoko and Oura Bays are

26

sufficient, Defendants cite DEIS Figure 3.1.5.4 in the Japanese EIS. Id., n. 5. The text

27

accompanying that chart states that “[t]here is about 2,000 ha of seaweed beds distributed around

28

Okinawa Main Island” and “the larger beds are concentrated on the east side of the island.” US
16

1

5008. The Japanese EIS identifies evidence of feeding trails showing that the dugong frequent the

2

seabeds off of Kayo (outside the FRF area) and only use the Henoko Bay seabeds (in or near the

3

FRF area) infrequently. See US 5020-5022. Thus, although the Henoko Bay seabeds represent

4

69% (173 ha) of the 249 ha of available seabeds around Nago City and Ginoza Village, the

5

dugongs do not presently utilize them with frequency. Id. Defendants explicitly considered this

6

research in reaching their finding regarding the relationship between lost seagrass beds and

7

potential adverse effects on the dugong.

8
9

Red Soil Runoff: Soil runoff has the potential to carry toxins into the sea and lead to bioaccumulation in seagrass beds. Defendants‟ review of the literature “indicates mixed findings
regarding whether or not dugong are susceptible to toxin bio-accumulation.” Id. Defendants state

11
United States District Court
Northern District of California

10

that despite the lack of evidence of harm to Okinawa dugong or the presence of contaminants in

12

the red soil at Camp Schwab, various mitigation measures will be implemented to reduce the risk.

13

Thus, Defendants conclude that “[w]ith implementation of these avoidance, minimization and

14

mitigation efforts, combined with very low and infrequent presence of Okinawa dugong in the

15

APE, the USMC finds there will be no adverse effects.” US 10989-90.

16

Acoustic Disturbance: Defendants reviewed the Japanese EIS and agreed with its findings

17

regarding impacts associated with noise. US 10990. Specifically, “the impact of underwater

18

sound is not expected to cause physical damage to dugongs, should they be present while

19

construction noise occurs.” Id. “[A]lthough sound pressure levels during stage 1 of construction

20

could cause impacts [if they are present], cumulative sound exposure is not expected to

21

significantly affect dugong behavior in this area.” Id. Underwater sound would not cause

22

physical damage but could impact behavior, but only if dugongs are present. Id. In light of

23

known dugong behavior, “[s]hould [they] be present when construction activities are initiated, it is

24

anticipated that they will vacate the area while construction noise is occurring.” US 10991. In

25

consideration of all the factors, Defendants concluded that “no adverse effects will occur due (1)

26

to the limited use of Henoko and Oura bays by dugongs, (2) the implementation by [Japan] of

27

noise minimization techniques during construction, (3) the suspension by [Japan] of noise-

28

generating activities when Okinawa dugongs are present, and (4) the tendency for Okinawa
17

1

dugongs to move to deeper waters when exposed to such noise.” Id.

2

Visual Disturbance: With respect to lighting that may make the area undesirable for

3

dugong feeding, Japan “does not intend to conduct any marine construction at night hours with the

4

possible exception of runway paving over a three month period,” for which Defendants

5

recommended that Japan “place lighting cones to direct lighting up and away from the water so

6

that light pollution is reduced in the water column.” Id. No adverse effect was anticipated.

7
8
9
10

United States District Court
Northern District of California

11

b.

Operational Effects

Defendants also considered possible adverse effects related to day-to-day operation of FRF
after construction is completed, including vessel impacts, storm-water runoff, and acoustic and
lighting disturbance.
Vessel Impacts: Defendants concluded such impacts were “highly unlikely” due to “the

12

infrequency of individual dugong in Henoko and Oura Bays, and the minimal vessel traffic in and

13

out of the FRF with most vessels being large, slow-moving support vehicles.” US 10992. If

14

dugong sightings increase, the USMC will evaluate mitigation measures. Id.

15

Stormwater Runoff: Sedimentation from runoff presents “an indirect threat . . . due to

16

potential decline of seagrass habitat.” Id. Accordingly, the FRF will release stormwaters through

17

sewers that “avoid the seagrass areas in Henoko and Oura Bays.” Id. It will also use treatment

18

plants and best management practices to ensure “there should be no operational adverse effects

19

from stormwater runoff.” Id.

20

Acoustic Disturbance: Possible operational noise includes aircraft operations and

21

relatively infrequent vessel traffic. Experts suggested that “dugong would have to be directly

22

under the flight path of an aircraft to receive any significant sound exposure, and even this

23

exposure would vary according to sea state.” US 10993. Japan conducted aerial surveys tracking

24

dugong in helicopters for several hours but observed no behavioral effects on the dugong. Id.

25

Accordingly, Defendants concluded there would be no adverse noise effects.

26

Lighting Disturbance: Night lighting is limited to approach lights along the runway, which

27

is “generally low wattage and typically points upward and away from the water,” so it would not

28

have adverse effects. Id.
18

c.

1
2

Overall Effect on Dugong Population

Defendants also considered declarations previously filed by Plaintiffs in this litigation,
arguing that the FRF would contribute to the extinction of the dugong. US 11055 (“The process

4

of analyzing the potential effects of the Undertaking on the Okinawa dugong as a historic property

5

involved considering the declarations submitted by Plaintiffs . . . in the litigation . . . .”).

6

Defendants concluded that “the construction and operation of the FRF will not have adverse

7

effects on the local Okinawa dugong population [Henoko and Oura bays] and consequently will

8

not substantially contribute to the extinction of the entire Okinawa dugong.” US 10993. The

9

substance of these declarations is discussed in further detail below in connection with Plaintiffs

10

challenge to Defendants‟ failure to consult them directly during the take-into-account (“TIA”)

11
United States District Court
Northern District of California

3

process.

12

3.

13

Defendants also considered and adopted several mitigation measures. See US 10994-

14
15
16

Mitigation Measures

10996. These are not material to the parties‟ cross-motions.
II.

STATUTORY CONTEXT AND LEGAL STANDARD

Where, as here, a case involves review of a final agency action under the Administrative

17

Procedure Act (“APA”), 5 U.S.C. § 706, and review is limited to the administrative record, there

18

are no genuine issues of material fact and summary judgment is appropriate. Nw. Motorcycle

19

Ass’n v. USDA, 18 F.3d 1468, 1471-72 (9th Cir. 1994). The Court‟s role is to “determine whether

20

or not as a matter of law the evidence in the administrative record permitted the agency to make

21

the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

22

Plaintiffs allege that the agency action was unlawful for failure to comply with procedural

23

requirements of Section 402 of the National Historic Preservation Act (NHPA), codified at 54

24

U.S.C. § 307101(e). Because the NHPA is a procedural statute which does not create a private

25

cause of action, Plaintiffs‟ challenge is brought pursuant to the APA. Ctr. for Biological Diversity

26

v. Mattis, 868 F.3d 803, 816 n.5 (9th Cir. 2017). Section 402 of the NHPA provides:

27
28

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
19

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.

1
2
3

54 U.S.C. § 307101(e) (emphasis added).
Section 402 is the international parallel to Section 106 of the NHPA, codified at 54 U.S.C.

4
5

§ 306108, which similarly requires federal agencies to “take into account the effect of [an]

6

undertaking on any historic property” “prior to the approval of the expenditure of any Federal

7

funds.” Id. § 306108. Sections 106 and 402 of the NHPA are “„stop, look, and listen‟ provision[s]

8

that require[] each federal agency to consider the effects of its programs.” Te-Moak Tribe of W.

9

Shoshone of Nev. v. U.S. Dep’t of the Interior, 608 F.3d 592, 607 (9th Cir. 2010) (quoting
Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999)). Section 402‟s

11
United States District Court
Northern District of California

10

requirements are procedural. “If the Government has reached its conclusions about effects and

12

mitigation after a sound NHPA Section 402 process, then it has complied with NHPA Section

13

402.” Ctr. for Biological Diversity, 868 F.3d at 818. In contrast, “[i]f the Government has not

14

followed NHPA Section 402 [then] the underlying determinations about effects and mitigation

15

lack validity.” Id. Section 402 requires the agency to “take into account the effect of [the project]

16

for purposes of avoiding or mitigating any adverse effects.” 54 U.S.C. § 307101(e) (emphasis

17

added).

18

In addition to the procedural requirements of Section 402, findings thereunder are subject

19

to review under the APA. Plaintiffs challenge certain of Defendants‟ findings as arbitrary and

20

capricious under the APA. See 5 U.S.C. § 706(2)(A). “The scope of review under the „arbitrary

21

and capricious‟ standard is narrow and a court is not to substitute its judgment for that of the

22

agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

23

43 (1983). Nevertheless, the agency must “examine the relevant data and articulate a satisfactory

24

explanation for its action,” and agency action may be struck down as “arbitrary and capricious if

25

the agency has relied on facts which Congress has not intended it to consider, entirely failed to

26

consider an important aspect of the problem, offered an explanation for its decision that runs

27

counter to the evidence before the agency, or if the agency‟s decision is so implausible that it

28

could not be ascribed to a difference in view or the product of agency expertise.” Turtle Island
20

1

Restoration Network v. U.S. Dept. of Commerce, 878 F.3d 725, 732-33 (9th Cir. 2017) (quotation

2

and citation omitted).
III.

3
4
5

A.

DISCUSSION

Did Defendants Comply With NHPA‟s “Take Into Account” Requirements?
Plaintiffs challenge Defendants‟ failure to directly consult Plaintiffs; to consult the local

6

Okinawa government; to speak directly with cultural practitioners; or to give public notice or

7

solicit feedback from other interested parties. To the extent Defendants‟ consultants spoke to

8

academics and others to assess the dugong‟s cultural significance, Plaintiffs challenge the

9

consultants‟ failure to specifically query their interlocutors about the FRF‟s potential impact on

10

United States District Court
Northern District of California

11
12

cultural significance.
The Court addresses each argument in turn. However, before doing so, the Court
determines the legal standard of review for Defendants‟ compliance with Section 402.

13

1.

Legal Standard

14

Judge Patel held that the Section 402 TIA process should include “engag[ing] the host

15

nation and other relevant private organizations and individuals in a cooperative partnership” and

16

“consultation with interested parties and organizations.” Dugong II, 543 F.Supp.2d at 1104.

17

Judge Patel did not, however, identify any particular organizations or persons that Defendants

18

were required to consult. Section 402 itself does not offer any specific guidance on what

19

Defendants‟ “take into account” process must encompass. Nor have Defendants issued formal

20

regulations or informal guidance interpreting Section 402.

21

In the absence of statutory text or formal regulations under Section 402, the Court looks to

22

two other sources for guidance: (1) the regulations governing the analogous Section 106 domestic

23

undertakings and (2) informal guidance issued by the U.S. Department of the Interior regarding

24

Section 402 undertakings.

25
26

a.

Section 106 Regulatory Framework

Section 106 is the domestic analog for Section 402. Its language is identical to Section 402

27

in all material respects, requiring that “[t]he head of any Federal agency having direct or indirect

28

jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of
21

any Federal department or independent agency having authority to license any undertaking, prior

2

to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance

3

of any license, shall take into account the effect of the undertaking on any historic property.” 54

4

U.S.C. § 306108. Regulations issued pursuant to that provision guarantee certain entities formal

5

“consulting party” status, which confers the right to provide input regarding potential adverse

6

effects for the agency‟s consideration, 36 C.F.R. § 800.5(a), to review the agency‟s draft finding

7

of adverse effect and offer input before it becomes final, id. § 800.5(c), and, if an adverse effect is

8

found, to provide input and review proposals for mitigation efforts, id. § 800.6. Only four groups

9

of entities are entitled to formal consulting party status under those regulations: a designated State

10

Historic Preservation Officer, Indian tribes and Native Hawaiian organizations, representatives of

11
United States District Court
Northern District of California

1

local governments in whose jurisdiction an undertaking occurs, and applicants for Federal

12

assistance permits, licenses, and approvals. See 36 C.F.R. § 800.2(c)(1)-(4).

13

Section 106 regulations also permit agencies, at their discretion, to grant consulting party

14

status to other “individuals and organizations with a demonstrated interest in the

15

undertaking . . . due to the nature of their legal or economic relation to the undertaking or affected

16

properties, or their concern with the undertaking‟s effects on historic properties.” 36 C.F.R. §

17

800.2(c)(5) (emphasis added). To qualify for this category, an individual or organization must

18

submit a written request for the agency‟s consideration. See 36 C.F.R. § 800.3(f)(3). An

19

organization that fails to make a request for discretionary consulting party status cannot later

20

challenge the Section 106 TIA process for excluding them. See Neighborhood Ass’n of the Back

21

Bay, Inc. v. Fed. Transit Admin., 407 F.Supp.2d 323, 334-35 (D. Mass. 2005) (plaintiffs who did

22

not request admission to process as formal consulting parties were not entitled to such status and

23

so their participation rights were comparable only to the general public‟s).

24

Finally, the Section 106 regulations provide for public notice and comment to solicit “[t]he

25

views of the public [which] are essential to informed Federal decisionmaking.” 36 C.F.R. §

26

800.2(d)(1). This provides a mechanism for parties who do not qualify as “consulting parties” to

27

submit their views to the agency for consideration, although the public at large does not have the

28

same procedural rights as consulting parties to review and comment on the agency‟s draft findings
22

1
2

regarding adverse effects and mitigation efforts.
The parties agree that the Section 106 regulations are not binding in this case.

3

Nevertheless, Section 106 and Section 402 have broadly the same purpose; hence, the Section 106

4

regulations may be informative. Dugong II, 543 F.Supp.2d at 1105-1107. At the same time,

5

because Section 402 applies to overseas undertakings, it raises foreign affairs and international

6

relations concerns absent from the Section 106 context. Keeping both these similarities and

7

distinctions in mind, whether Defendants failed to consult with entities analogous to those entitled

8

to consulting status as a matter of right under the Section 106 regulatory framework may be a

9

relevant consideration here. The Court does so as noted below.

10

b.

U.S. Department of the Interior Guidance Re Section 402

United States District Court
Northern District of California

11

Although there are no formal regulations interpreting Section 402, in 1998, the U.S.

12

Department of the Interior (DoI) issued “Standards and Guidelines” for federal agencies to follow

13

when fulfilling their obligations under the NHPA, including Section 402. See The Secretary of the

14

Interior‟s Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant

15

to the National Historic Preservation Act, 63 Fed. Reg. 20496 (Apr. 24, 1998). With respect to

16

foreign historic properties under Section 402, Standard 4 provides that “[e]fforts to identify and

17

consider effects on historic properties in other countries should be carried out in consultation with

18

the host country‟s preservation authorities, with affected communities and groups, and with

19

relevant professional organizations.” Id. at 20504. In a section referring both to consultation

20

under both Sections 106 and 402, the Guidelines provide that “[w]hile specific consultation

21

requirements and procedures will vary among agencies depending on their missions and programs,

22

the nature of historic properties that might be affected, and other factors, consultation should

23

always include all affected parties.” Id.

24

The parties agree that the DoI guidelines are non-binding, and they are correct: the

25

guidelines say so explicitly. 63 Fed. Reg. at 20496 (stating the guidelines “have no regulatory

26

effect”). As “guidelines,” they are best understood as “goals, not requirements.” Western

27

Watersheds Project v. Bennett, 392 F.Supp.2d 1217, 1228 (D. Idaho 2005); see also Muckleshoot

28

Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 807 (9th Cir. 1999) (noting that “[c]ontravention
23

1

of [DoI guidelines under NHPA Section 106], standing alone, probably does not constitute a

2

violation of NHPA”). In light of the statute‟s ambiguity and express delegation to the DoI the task

3

of coordinating and directing federal agencies,3 the Guidelines carry weight under Skidmore v.

4

Swift & Co., 323 U.S. 134 (1944) to the extent they have the “power to persuade.” Id. at 140.
In connection with the questions who Defendants should have consulted in this case and to

6

what extent, the DoI guidelines are not of significant assistance. Although the guidelines urge that

7

“consultation should always include all affected parties,” 63 Fed. Reg. at 20504, the guidelines‟

8

use of the word “should” means it is not directive. Moreover, they provide no standard for

9

determining what parties meet the criteria for being “affected.” Nor do the guidelines consider the

10

possibility that in some cases, the nature of a property or of a particular undertaking might be such

11
United States District Court
Northern District of California

5

that the number of interested parties is intractable. In this case, the property is the Okinawa

12

dugong, an animal species without a fixed location, and the potential effects on the dugong range

13

from cultural to biological. That sets this case apart from the typical NHPA Section 106 cases in

14

which the cultural property is a geological or archeological feature with a fixed location and only a

15

small number of groups with an entitlement to consulting party status claim to live in or use the

16

affected property.4 In contrast, here, the cultural significance of the dugong to Okinawan society

17

at large means that a variety of different groups (if not all individuals), could claim an interest in

18

the dugong. Moreover, special concerns arise because most potentially interested parties under

19

Section 402, by definition, live in the jurisdiction of another sovereign nation, not in the United

20

States. Because this case is unlike the typical Section 106 case, the Court affords minimal weight

21

22
23
24
25
26
27
28

3

The NHPA charges the DoI with “direct[ing] and coordinat[ing] participation by the United
States in the World Heritage Convention.” 54 U.S.C. § 307101(b). Section 402(e) codifies and is
intended to carry out the United States‟ obligations under the convention.
4

See, e.g., Te-Moak Tribe of Western Shoshone of Nev. V. U.S. Dept. of Interior, 608 F.3d 592
(9th Cir. 2010) (cultural property was a landscape inextricably linked with tribes‟ religion and
culture, a mountain summit used for prayer and meditation, pinyon pine trees with dietary and
ceremonial importance, and burial sites); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d
800 (9th Cir. 1999) (claimed areas of historical importance were sites and trails near Huckleberry
Mountain); Tyler v. Cisneros, 136 F.3d 603 (9th Cir. 1998) (cultural properties were privatelyowned homes of historic importance); Quechan Tribe of Fort Yuma Indian Reservation v. U.S.
Dept. of Interior, 755 F.Supp.2d 1104 (S.D. Cal. 2010) (cultural properties included burial sites,
religious sites, ancient trails, and buried artifacts).
24

1

to the DoI guidelines to the extent they urge that “consultation should always include all affected

2

groups.” 63 Fed. Reg. at 20504.
The Court, in interpreting Section 402 in the absence of persuasive agency guidance on

4

point, must consider that this is a complex case where the nature of the property is atypical, the

5

adverse effects are both tangible and intangible, and there are sensitive foreign relations concerns

6

at play. Under these circumstances, Section 402 affords deference to an agency‟s determination

7

which parties should be consulted and to what extent. The agency‟s choices need only be

8

reasonable. Cf. ONRC Action of Bureau of Land Mgmt., 150 F.3d 1132, 1139 (9th Cir. 1998) (an

9

agency interpretation will be upheld if reasonable and does not conflict with the clear language of

10

the statute). Such flexible standard is what Judge Patel envisioned. See Dugong II, 543 F.Supp.2d

11
United States District Court
Northern District of California

3

at 1106 (agreeing that “an agency has some discretion in deciding who will be consulted, to what

12

extent, and at precisely what time”).
In sum, in the absence of any specific requirement that Defendants consult with any

13
14

particular person or group, the Court will review the exclusion of certain parties for

15

reasonableness, taking into consideration the analogous requirements under Section 106 described

16

above.

17

2.

Failure to Directly Consult Plaintiffs

18

In light of the litigation history, it is somewhat puzzling that Defendants did not notify

19

Plaintiffs when they initiated the TIA process. But it is equally puzzling that, after pressing this

20

litigation forward for a decade, Plaintiffs, after prevailing on summary judgment before Judge

21

Patel, apparently did nothing to inquire with Defendants about the TIA process or attempt to

22

insinuate themselves in it.

23

Though the reasons for this mutual silence are unclear, considering all of the

24

circumstances, Defendants‟ failure to directly consult with Plaintiffs during the TIA was not

25

unreasonable. Plaintiffs are private individuals and environmental organizations with an interest

26

in the dugong, but they do not qualify as a group analogous to those entitled to formal consulting

27

party status under Section 106. They are not local government representatives or the Japanese

28

equivalent of an official Indian tribe or Native Hawaiian organization in the United States. Thus,
25

1

even under the Section 106 regulatory framework, Plaintiffs would not be entitled to consulting

2

party status.
Furthermore, Plaintiffs had other opportunities to make their views concerning the FRF‟s

4

impact on the dugong known to Defendants. Nearly all of the Plaintiffs are Japanese nationals or

5

organizations. They had an opportunity to participate in the public notice-and-comment EIS

6

process conducted by the Japanese government, which was then considered by the United States

7

government. Although Defendants had obligations under Section 402 independent of the Japanese

8

government‟s own review, “[d]uplicative, inconsistent efforts are not required.” Dugong II, 543

9

F.Supp.2d at 1108. Plaintiffs do not allege that the Japanese notice-and-comment was inadequate

10

to convey their views about the FRF and its potential impact on the dugong. Indeed, even under

11
United States District Court
Northern District of California

3

the analogous Section 106 framework, because Plaintiffs would not have been entitled to

12

consulting party status, they would have been limited to a similar notice-and-comment framework.

13

See 36 C.F.R. § 800.2(d)(1).

14

Additionally, Defendants did take Plaintiffs‟ views into account, albeit indirectly. In

15

particular, four declarations that Plaintiffs filed in earlier stages of this litigation were ultimately

16

included in the administrative record and considered by Defendants. See US 10980 (“The process

17

of analyzing the potential effects of the Undertaking on the Okinawa dugong as a historic property

18

involved considering the declarations submitted by Plaintiffs . . . in the litigation . . . .”). These

19

declarations include:

20

1.

Declaration of Isshu Maeda, a Special Researcher at Okinawa Kokusai University.

21

Maeda‟s specialty is “the significance of natural and living things on human culture in Okinawa

22

Prefecture,” and he prepared a declaration “for the purpose of explaining . . . various aspects of the

23

Dugong‟s historic and cultural importance in Okinawa.” Maeda Decl. ¶¶ 1-2 (US 164). In the 13-

24

page declaration, Maeda describes the dugong‟s role in creation mythology and tsunami legends

25

(id. ¶¶ 6-9), its source as a sacred royal food (id. ¶¶ 10-12), the use of dugong bones for tools

26

based on religious beliefs (id. ¶¶ 13-20), the different names given to the dugong (id. ¶¶ 21-25),

27

blessings related to the dugong (id. ¶¶ 26-34). Maeda does not opine on the impacts of the FRF.

28

2.

Declaration of Sekine Takamichi, a lawyer with the Japanese Environmental
26

1

Lawyers Federation (a plaintiff). US 177. This declaration explains the Japanese legal framework

2

for preservation of cultural properties and that the dugong are considered cultural property under

3

Japanese law.

4

3 & 4. Declaration of Dr. Ellen Hines, a professor of geography and human environmental

5

studies who has researched dugongs. US 888. Dr. Hines‟ 30-page declaration is the most

6

substantive with regard to the FRF‟s potential impact on the dugong. She discusses the threats to

7

the dugong, the importance of seagrass beds to dugong sustenance, threats to seagrass beds,

8

acoustic disturbances and their potential impact on the dugong, and then specifically threats to the

9

Okinawa dugong, Hines Decl. ¶¶ 25-29. She also identifies prospective impacts of base
construction and operation on the Okinawa dugong, including noise and acoustic pollution,

11
United States District Court
Northern District of California

10

destruction and degradation of seagrass beds, contaminant pollution, and increased activity

12

(general disturbances and possibility of ship strikes). Hines Decl. ¶¶ 30-34. Dr. Hines later

13

submitted a second declaration in opposition to Defendants‟ experts on the first round of summary

14

judgment setting forth her critique of their views. See US 1195.

15

Thus, these fairly robust viewpoints about how the FRF might adversely affect the dugong

16

and how the dugong had cultural importance were part of the record considered by Defendants.

17

Indeed, all the prospective impacts identified by Dr. Hines were addressed in the Japanese EIS and

18

Defendants‟ independent analysis.

19

In addition, Defendants consulted experts that Plaintiffs themselves had identified in the

20

course of this litigation. See US 4170. Thus, Defendants consulted many persons designated by

21

Plaintiffs as sources of relevant information.

22

Finally, Plaintiffs have not identified any additional information that they would have

23

provided to supplement or broaden Defendants‟ analysis. Courts have considered the absence of

24

prejudice in rejecting challenges to the sufficiency of consultation under the NHPA. Cf. Te-Moak,

25

608 F.3d at 609 (“Plaintiffs do not identify any new information that the Tribe would have brought

26

to the attention of the BLM had it been consulted earlier in the approval process,” “fail to show or

27

even argue that early consultation would have prevented any adverse effect on any yet-to-be-

28

identified National Register eligible PCRI [properties of cultural and religious importance],” and
27

1

“do not identify any new information regarding how additional exploration would adversely affect

2

the identified PCRIs”); Concerned Citizens and Retired Miners Coalition v. United States Forest

3

Serv., 279 F.Supp.3d 898, 942 (D. Ariz. 2017) (noting that tribe did not “identify any cultural sites

4

that were not properly considered in the EA”); Coyote Valley Band of Pomo Indians of Cal. v.

5

United States Dept. of Transp., Case No. 15-cv-04987-JSW, 2018 WL 1569714, at *11 (N.D. Cal.

6

Mar. 30, 2018) (tribe had adequate opportunity for consultation and “do[es] not identify any new

7

information they would have provided to the Federal Defendants if they had been consulted earlier

8

in the construction process”).

9
10

In light of all these factors, Plaintiffs have failed to demonstrate that Defendants acted
unreasonably by failing to directly consult them during this process.

United States District Court
Northern District of California

11

3.

Failure to Directly Consult Cultural Practitioners

12

Defendants retained IARII, a private research institute, to research the cultural significance

13

of the dugong. As explained above, IARII assembled a team of archeologists, a cultural

14

anthropologist, and a biologist to consult 16 interviewees. The team did not directly speak with

15

cultural practitioners. Instead, the research team formed a list of persons to be interviewed. A

16

team anthropologist, Dr. Arne Rokkum, with three decades of fieldwork in the region, conducted

17

archival research and “knew individuals who were likely to have information about the dugong in

18

Okinawan culture.” US 4170. Cultural and natural resource specialists were also “consulted for

19

the names of individuals who might have expertise regarding the cultural role of the dugong.” Id.

20

The research team “made it a point to include a number of people from the plaintiffs‟ list [of

21

individuals and organizations with expertise in regard to the cultural and historical role of the

22

dugong from the court case], but field time was not sufficient to allow us to contact and interview

23

all the people on the list.” Id. Rather, the research team selected six cultural experts from

24

Plaintiffs‟ list. Id. In addition, IARII‟s team consulted subject matter experts, museum personnel

25

from several Okinawa area museums, prefectural cultural authorities and several local Boards of

26

Education located near the proposed project, and the Japanese government. US 11072.

27

Plaintiffs fault Defendants for failing to consult cultural practitioners directly rather than

28

indirectly through academics and other experts. It is true that two members of Defendants‟ team
28

1

recognized the importance of local practitioners. See US 3207 (Mr. Hideo Henzan‟s advice “that

2

if [DOD] really want[s] to learn about the role of Dugongs in Okinawa life then they should take

3

to the local ward mayors and/or the elders living around Henoko Bay”); US 4149 (Dr.

4

Goodfellow‟s e-mail stating that “the one place where we are really weak is that we did not have

5

sufficient time to contact and get meetings arranged with cultural practitioners. And this is

6

probably an area where the Marine Corps should expect to be challenged in any kind of court case.

7

To do this would have required the Marines to have radically altered the time allowed for this

8

project.”).

9

However, on the facts of this case, Defendants‟ reliance on academic experts was not
unreasonable under Section 402. The agency acknowledged it did not speak directly with cultural

11
United States District Court
Northern District of California

10

practitioners, but determined its analysis was nevertheless reliable because it obtained sufficient

12

information on cultural significance from other sources. In the view of the Navy‟s cultural

13

resource expert, the “cultural experts [who were consulted] and cultural practitioners [who were

14

not] both do have overlap with one another so if [the investigators] talked to one [group] that

15

could get the gist of what the other does.” US 4149. Furthermore, some of IARII‟s interviewees

16

had spoken directly with cultural practitioners who passed on their views to the research team.

17

See US 4172-73 (“A few of the informants had talked to cultural practitioners to whom the

18

interview team could not get access and had information regarding rituals and other cultural

19

practices that has never been published . . . . In particular as [a] result of his own research Mr.

20

Isshu Maeda possessed extensive knowledge of unpublished cultural practices related to the

21

dugong.”). Plaintiffs have not identified any information that cultural practitioners would have

22

provided that might have led Defendants to discover adverse effects that were not considered.

23

In addition, the cultural practitioners do not appear to be analogous to any of the four

24

analogous entities entitled to consulting party status as a matter of right under the Section 106

25

guidelines. They are not analogous to State Historic Preservation Officers, local government

26

representatives, applications for a permit or license, or native tribal organizations. See 36 C.F.R. §

27

800.2(c)(1)-(4).

28

Finally, it is worth noting that Defendants did not have free access to the cultural
29

1

practitioners. See US 10987 (“[T]he secretive nature of this group has limited the ability of the

2

study researchers to obtain detailed information concerning the locations, times and activities of

3

most such rituals.”). As Plaintiffs‟ counsel recognized at the hearing, “the traditional native

4

Okinawan communities are quite secretive about some of their practices.” Docket No. 230 at

5

27:9-10. Additionally, the researchers were required to obtain advanced permission from the

6

Japanese embassy before speaking to any Japanese nationals. See US 4149. The limited access to

7

the persons in question must be taken into consideration. Plaintiffs have not claimed that cultural

8

practitioners attempted to consult with Defendants but were refused.

9

In light of these factors, Defendants‟ decision to rely on academic cultural experts was not
unreasonable where, in Defendants‟ judgment, direct sources were inaccessible but the researchers

11
United States District Court
Northern District of California

10

could access the necessary information through other means.

12

4.

13

Plaintiffs also claim that Defendants did not consult the local Okinawa government. This

14
15

Failure to Consult Local Okinawa Government

is not an accurate characterization of the record.
In fact, Defendants‟ researchers consulted the Okinawa Prefectural Board of Education and

16

municipal Boards of Education in nearby towns, see US 11072, which have responsibility over

17

cultural properties and are equivalent to State Historic Preservation Offices in the U.S. (with

18

which consultation is required under Section 106 of the NHPA). See 36 C.F.R. § 800.2(c)(1).

19

Furthermore, as discussed above, Defendants indirectly took into consideration the views

20

of the Okinawa Prefectural Government as set forth in detailed, comprehensive comments

21

submitted by then-governor Hirokazu Nakaima during the Japanese EIS amounting to

22

approximately 60 pages of comments. See US 1251, 1319, 8150. Defendants also considered

23

comments from Okinawa‟s Department of Cultural Affairs. See US 1567. These entities could be

24

considered an analog to local government representatives under the Section 106 framework. See

25

36 C.F.R. § 800.2(c)(3).

26

Plaintiffs‟ only evidence of a failure to consult the local government is an April 2018 letter

27

from Takeshi Onaga, a newly elected Governor of Okinawa, claiming the Okinawa Prefectural

28

Government was not consulted or notified and that it would have provided (unspecified) views
30

1

contrary to those presented in the Japanese EIS. See Mot. at 12, n. 3. However, Mr. Onaga was

2

elected after Defendants completed the TIA process, and his letter was sent four years after the

3

process was completed. The record demonstrates that the views of Okinawa‟s prior leadership

4

were in fact considered.

5

Importantly, throughout this entire process, Defendants have been in direct consultation

6

with the Japanese national government. Defendants‟ direct consultation with the Japanese

7

government is reasonable; “the Okinawa dugong is Japan‟s cultural and historical property and

8

therefore, Japan‟s judgment regarding how best to protect that property should be of great concern

9

to [Defendants].” Dugong II, 543 F.Supp.2d at 1108. Of course, it is rarely the case that a single
government entity can purport to represent the full panoply of views held by a country‟s entire

11
United States District Court
Northern District of California

10

population. Although the Japanese national government‟s position regarding the FRF may be in

12

tension with or different from the views held by the Okinawa Prefectural government or the

13

population of Okinawa, Defendants did receive the views of local government actors and agencies.

14

Given the political complexity of Japan‟s internal political divisions on the matter, NHPA‟s

15

Section 402 should be read to afford deference to Defendants‟ judgment of how to conduct a

16

Section 402 consultation in a manner sensitive to Japan‟s sovereignty, diplomatic relations

17

between Japan and the United States, and international norms.

18

In light of these considerations, it was not unreasonable for Defendants to engage in direct

19

consultation only with the Japanese national government, and to consider the views of the local

20

Okinawa province indirectly through the Japanese EIS public-and-comment and through the

21

contacts made by Defendants‟ researchers with Okinawan cultural authorities and practitioners.

22

Moreover, as above, Plaintiffs have not identified what information would have been obtained that

23

might have led to the evaluation of additional potential adverse effects had Defendants engaged in

24

direct (as opposed to indirect) consultation with local representatives.

25

5.

Failure to Give Public Notice or Solicit Public Comment

26

Plaintiffs also criticize Defendants for failing to give public notice of their TIA process or

27

to solicit public comment from the Japanese public. Section 402 does not create an express

28

obligation for such notice-and-comment. Although Section 106 regulations require such a process
31

1

in the context of domestic undertakings, no such input is mandated by the Section 402 guidelines.

2

It was not unreasonable for Defendants to refrain from doing so under the circumstances of this

3

case. As discussed above, the Japanese government performed its own robust public notice-and-

4

comment process in connection with its EIS. See, e.g., 3032 (flow chart describing at what steps

5

there were opportunities for public comment in Japanese EIS process, including public comment

6

before and after the draft and final EIS); US 3062 (PowerPoint apparently summarizing local

7

residents‟ opinions on draft EIS); US 3069 (chart apparently indicating over 700 public comments

8

received); US 1218 (33-page English translation of the summary of public comments on EIS).

9

That EIS is part of the record considered by Defendants.

10

Plaintiffs claim that this process was inadequate because the Japanese EIS did not assess

United States District Court
Northern District of California

11

the effects of the FRF on the dugong as a cultural resource. See Reply at 10. However, the

12

Japanese EIS involves extensive discussion of the dugong and potential impacts of the FRF. See,

13

e.g., US 5015 (beginning of section summarizing surveys of dugong sightings); US 5027 (noting

14

that dugongs have been designated as “national protected animals under the Act on Protection of

15

Cultural Properties”); US 5108 (noting that one effect considered is on seaweed beds “which

16

provide a feeding ground to dugongs”). Furthermore, the public comment submitted in connection

17

with the Japanese EIS did, in fact, include extensive discussion of the FRF‟s potential impact on

18

the dugong. See US 1238-41. Plaintiffs have not established what would have been gained had

19

Defendants pursued their own, separate public notice-and-comment. See Dugong II, 543

20

F.Supp.2d at 1108 (“Duplicative, inconsistent efforts are not required.”).

21

22

Plaintiffs have thus failed to demonstrate that Defendants‟ reliance on the public noticeand-comment undertaken by Japan‟s government was unreasonable under Section 402.

23

6.

Failure to Inquire About Adverse Impact

24

Plaintiffs also argue that Defendants‟ consultation with academics and cultural figures

25

through the Welch report was inadequate because they consulted those figures only regarding the

26

cultural significance of the dugong, without asking their views on “the effect of the undertaking

27

[i.e., FRF] on the property [i.e., dugong].” 54 U.S.C. § 307101(e) (emphasis added). It is true that

28

the informants contacted by the consultants were told only that they would be interviewed
32

1

“concerning the role of the dugong in Okinawan culture” to “help the Marine Corps carry out its

2

mission and future planning in Okinawa.” US 3252. The outreach letter does not identify the FRF

3

or state that the purpose was to understand “the effect” of the FRF on the Okinawa dugong. 54

4

U.S.C. § 307101(e). Arguably, that reflects a weakness in the TIA process.
However, standing alone, that weakness does not render Defendants‟ TIA process

6

unreasonable under Section 402. The Section 402 TIA process does not necessarily require that

7

every consultation address both the cultural significance of the monument and the expected

8

effects. Indeed, certain interlocutors may have expertise on one aspect (cultural significance) but

9

not the other (assessing the physiological or biological impact of the FRF). It was not necessarily

10

unreasonable for the IARII consultants to speak with cultural experts about cultural significance,

11
United States District Court
Northern District of California

5

and then analyze separately the biological research to determine, scientifically, how the FRF

12

would impact those cultural features. As Judge Patel noted, “an agency has some discretion in

13

deciding who will be consulted, to what extent, and at precisely what time.” Dugong II, 543

14

F.Supp.2d at 1106 (emphasis added). It was not unreasonable to limit the scope of consultation

15

with certain parties to issues germane to their expertise or knowledge.5

16

Moreover, even if the IARII consultants did not specifically ask their interlocutors about

17

the effects of the FRF, the Japanese public had an opportunity to comment through Japan‟s EIS

18

about such effects, as discussed above. The record demonstrates that Defendants‟ analysis of the

19

effects was based on a consideration of the information collected through both processes. Further,

20

Defendants engaged in a full consultation with the Japanese government itself and considered the

21

views of local agencies. The Court cannot conclude that the failure to specifically ask local

22

cultural experts about the impacts of the FRF rendered the TIA process unreasonable or non-

23

compliant under Section 402 in these circumstances.

24
25
26
27
28

5

Plaintiffs cite only Montana Wilderness Ass’n v. Fry, 310 F.Supp.2d 1127, 1153 (D. Mont.
2004) as an example of inadequate consultation, but in that case the defendants failed to undertake
any consultation at all. Here, the challenge is to the scope of consultation. Moreover, Montana
Wilderness was a case under NHPA Section 106, for which the formally promulgated and binding
regulations require consultation with Indian tribes regarding the effects of an undertaking. As
noted, Section 106 regulations do not apply here, except by analogy.
33

1

7.

Conclusion

2

Plaintiffs have not shown that Defendants‟ scoping of the consultation was unreasonable

3

and violative of Section 402. Nor have Plaintiffs identified any new or additional material

4

information that Defendants would have learned by consulting Plaintiffs or cultural practitioners

5

directly. The Court DENIES Plaintiffs‟ motion for summary judgment and GRANTS

6

Defendants‟ cross-motion for summary judgment with respect to Section 402 of the NHPA.

7

B.

Was Defendants‟ Finding of “No Adverse Effect” on the Dugong Population “Arbitrary

8

and Capricious”?

9

Plaintiffs‟ remaining challenges are brought directly under the APA to challenge
Defendants‟ conclusions as arbitrary and capricious to the extent they rely on scientifically

11
United States District Court
Northern District of California

10

indefensible studies, fail to consider important aspects of the problem, or reach findings contrary

12

to the evidence. Each issue is discussed below.
Were Defendants‟ Findings “Scientifically and Legally Defensible”?

13

1.

14

Plaintiffs attack Defendants‟ reliance on the Japanese government‟s EIS despite statements

15

by a few government consultants criticizing the Japanese EIS and recommending further study to

16

come up with precise, scientifically-reliable estimates of the size of the total Okinawa dugong

17

population in the affected area. Despite these criticisms, Defendants did not act unreasonably

18

under these circumstances because they considered other sources of information about the

19

intermittent and sporadic presence of Okinawa dugong in the affected FRF area. As explained

20

below, that is sufficient under the arbitrary and capricious standard of review.

21

2.

22

Plaintiffs rely on certain examples of internal criticism but, as explained below, these

23
24

Internal Criticism

remarks are taken out of context.
First, Plaintiffs identify a March 2010 e-mail by Dr. Thomas Jefferson who stated that

25

“[t]he quality of the EIA itself think [sic] it was extremely poorly-done and does not withstand

26

scientific scrutiny in my opinion am happy to change the wording in the report to reflect this but

27

as we discussed we need to do this in diplomatic fashion.” US 4706. However, it is not clear to

28

which specific aspect of the 1,600-page Japanese EIS Dr. Jefferson was referring. This stray
34

1

comment provides little insight about the nature of Dr. Jefferson‟s criticism and whether it is

2

material in particular to Plaintiffs‟ complaint about the population studies, or otherwise

3

undermines Defendants‟ conclusions.

4

Second, Plaintiffs claim that Defendants “concede” that “the data are not sufficient to

5

establish population size, status, and viability” of the dugong and that “it would be beneficial for

6

[the Government of Japan] to conduct new systematic surveys or modeling” to develop

7

information about the Okinawa dugong population. US 10988, 10993. In fact, Defendants‟

8

complete findings state:

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19

The USMC has reviewed all available studies regarding the
distribution of the Okinawa dugong in waters around Okinawa.
Observations include at least one mother-calf pair, which indicates
that reproduction is still occurring in the population. Estimates
made over the past thirteen years of the Okinawa dugong population
range between 3 to 50 individuals. The available data are sufficient
to conclude that a remnant population of dugongs exists around
Okinawa. However, the data are not sufficient to establish
population size, status, and viability. In the immediate vicinity of
the FRF, seagrass beds are found to the north at Kayo and south of
the FRF, in Henoko Bay. As noted in Section 2.4, dugongs have
been sighted in the vicinity of the FRF or FRF footprint only
sporadically since June 2009. During that time, steady and routine
dugong activity has been documented off Kayo (north and east of
the FRF), with only sporadic dugong activity observed directly in
Henoko and Oura Bays (6/09, 4/12, 5/12, 6/1, 3/13, 5/13, and
11/13).
US 10988 (emphasis added).
Thus, although Defendants acknowledged the lack of scientifically reliable estimates about

20

the total size of the Okinawa dugong population, they had sufficient information about the

21

relatively sporadic and intermittent presence of dugong in the FRF-affected areas and those

22

immediately adjacent (Henoko and Oura Bays and Kayo). Further, with respect to their statement

23

that “it would be beneficial” if Japan conducted further studies, Plaintiffs ignore the immediately

24

subsequent statement that: “Notwithstanding the absence of recent total population data, we do

25

have current and valid population data for Henoko and Oura bays.” Findings at 17 (emphasis

26

added). Thus, Plaintiffs‟ claim that no data was available about the dugong population in the

27

FRF-area is incorrect.

28

Third, Plaintiffs identify a July 28, 2011 e-mail from Morgan Richie, a Marine Resources
35

1

Specialist at the Naval Facilities Engineering Command—Pacific (Navfac-Pac) who co-authored

2

the 2011-2012 Survey of Marine Mammals in Okinawa (SuMMO), which discusses the proposed

3

scope of a project designed to monitor cetacean and dugong presence in the Henoko and Oura

4

Bays. See US 8095. Richie states that “[a]s background . . . in the Fall of 2010, Navfac-Pac

5

provided an estimate on placing 3 passive acoustic monitoring devices in the Henoko and Oura

6

Bay area in order to monitor for dugongs. However, after performing additional analysis since

7

that time, it became clear to us that monitoring for a population of dugongs with such extremely

8

low density would require techniques in addition to the 3 PAM devices as well as increased

9

monitoring effort overall.” Id. (emphasis added). She thereafter criticized the current proposal as
providing “a greater understanding of the presence . . . of cetaceans,” but only “opportunistic

11
United States District Court
Northern District of California

10

detections of dugongs.” Id. She also stated that the data “will have a high likelihood of not being

12

able to conclusively tell us if, where, when, or how dugongs are using seagrass beds near Henoko

13

and Oura Bay,” and that she did not recommend using the resulting data “to make legally

14

defensible claims regarding the presence or absence of dugongs.” Id. (emphasis added). In

15

response, Dr. Sue Goodfellow, the supervisor of the project, stated that “[t]he USMC sees no need

16

for the more elaborate SOW that NAVFACPAC is now proposing,” and noted that the lack of

17

resolution was delaying execution of the survey contract and funds might be lost until the

18

following budget cycle if not used soon. US 8094. In line with Richie‟s prediction, the SuMMO

19

final report states that “[i]t is not possible to say anything definitive about densities of dugongs,”

20

because the study did not involve an “effective dugong monitoring program.” AR 9269 (emphasis

21

added).

22

Although Richie stated a more thorough method was required to provide “conclusive” and

23

“definitive” information about dugong density, that does not render Defendants‟ ultimate

24

conclusions arbitrary and capricious. Indeed, as Richie made clear in the e-mail, the need for

25

more rigorous methods was caused by the very low density of dugong in the FRF area itself. See

26

US 9269. In other words, the available data confirmed a very low density of dugong in the FRF

27

area. See, e.g., US 10979(citing data revealing intermittent observance in Oura Bay in several

28

months between September 2010 and November 2013 and in the seagrass beds in the FRF-area
36

1

between June 2009 and November 2013); US 10984(citing Japan‟s EIS surveys reporting

2

sightings of dugong); US 5015-19 (citing surveys reporting sporadic sightings in Okinawa waters,

3

analysis of feeding trails, and so on); USREF 1580, 2064 (external academic literature re: dugong

4

sightings and feeding trails around Okinawa). Defendants‟ conclusion of low dugong presence in

5

the FRF area was not unreasonable in light of the available data. Cf. Env. Protection Info. Ctr. v.

6

U.S. Forest Serv., 451 F.3d 1005, 1018 (9th Cir. 2006) (under National Forest Protection Act,

7

which imposes certain substantive requirements, “monitoring difficulties [of a species‟ presence in

8

a particular area] do not render a habitat-based analysis [of the species‟ viability in that area]

9

unreasonable, so long as the analysis uses all the scientific data currently available”).

10

That low density, in turn, was the basis for Defendants‟ conclusion that the FRF was

United States District Court
Northern District of California

11

unlikely to have an adverse effect (e.g., because of the low probability of vessel impact). Indeed,

12

this close connection between the low density in the FRF-area and Defendants‟ conclusion

13

confirms why it was not unreasonable to refrain from a more detailed scientific study. Defendants

14

recognized there was a lack of reliable global population studies. See US 9243 (“There are many

15

recent records of sightings, strandings, and captures (both direct and indirect), although by all

16

accounts the species is now badly depleted and considered endangered in Okinawa. There are no

17

statistically-defensible estimates of abundance for the species around Okinawa, but six individuals

18

were observed in a single group in 1999.”). But Section 402 did not require Defendants to

19

determine the total global Okinawa dugong population; it only required them to take into account

20

the impacts on the dugong in the FRF-area based on data sufficient to show their relative density

21

in the affected area and resulting potential impact.

22

This situation is very much unlike the case cited by Plaintiffs, Bonnichsen v. United States,

23

217 F.Supp.2d 1116, 1163-64 (D. Or. 2002), aff’d, 357 F.3d 962 (9th Cir. 2004), amended by 367

24

F.3d 864 (9th Cir. 2004). There, in a dispute under Section 106 of the NHPA, the defendant was

25

required to consider the potential adverse effects of burying a site where culturally significant

26

human remains were found. An Army Corps of Engineers scientist had noted that “the erosion at

27

the site was „not as serious as that occurring at many other Corps of Engineers Reservoirs,‟” but

28

advised “„cautio[n] about long term deleterious effects of engineering site protection measures.‟”
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1

Id. Nevertheless, “the project proceeded without significant study to determine the characteristics

2

of the site, including what archaeological resources might exist, and there [was] little evidence that

3

alternative methods of erosion[] control that might mitigate potential data loss were seriously

4

considered.” Id. at 1163-64.

5

In contrast, here, Richie did not warn about potential adverse effects that went unstudied,

6

but rather, described what would be needed for a scientifically defensible population study of the

7

dugong in light of their very low density. There is no reason to construe Richie‟s criticisms

8

(premised on the difficulty of a low density population) to suggest that the local dugong

9

population was even greater than believed and thus at greater risk of negative encounters with FRF
construction or operational activities. Plaintiffs do not suggest that a more detailed study would

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Northern District of California

10

have revealed that the dugongs in fact traversed the area more than “intermittently” or feed more

12

than “occasionally.” See US 10979. Defendants had sufficient material information on which to

13

base their analysis. Defendants adequately explained why existing data was sufficient for their

14

purposes. See City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1151 (9th Cir.

15

1997) (NEPA only requires “a „reasonably thorough‟ discussion of the environmental

16

consequences in question, not unanimity of opinion, expert or otherwise”); see N. Plains Res.

17

Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1078 (9th Cir. 2011) (holding that an agency

18

is “afforded deference in choosing its scientific method for modeling data” even under NEPA‟s

19

more stringent “hard look” analysis); Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1088

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(9th Cir. 2013) (under NEPA “hard look,” “[i]t is not the role of th[e] court to decide whether an

21

[environmental impact study] is based on the best scientific methodology available” (citation

22

omitted)).

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3.

24

Plaintiffs also argue that Defendants failed to consider the full range of impacts of the FRF

25

on the dugong including “population fragmentation, the disruption of travel routes, and the loss of

26

habitat that may be required in the future to sustain a viable population, which would be larger

27

than the present population.” Mot. at 19; see Turtle Island Restoration, 878 F.3d at 732 (agency

28

action may be arbitrary and capricious if the agency “entirely fail[s] to consider an important

Full Range of Impacts

38

1

aspect of the problem”). Instead, Defendants allegedly “limited [their] inquiry into the possible

2

impacts of the FRF on the dugong to a list of potential impacts identified by this Court before

3

[Defendants] had undertaken any inquiry at all.” Id; see also US 10980. Judge Patel had

4

identified potential effects to include “physical destruction of the Okinawa dugong resulting from

5

contamination of seagrass feeding grounds and collisions with boats and vessels, as well as long-

6

term immune and reproductive damage resulting from exposure to toxins and acoustic pollution.”

7

Dugong II, 543 F.Supp.2d at 1101.

8

The Court agrees that Judge Patel did not purport to offer an exhaustive list of potential

9

impacts on the dugong. Nevertheless, it is not accurate to state that Defendants simply limited
their study to the impacts identified by Judge Patel. Rather, the Welch 2010 report identified six

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Northern District of California

10

general threats to the dugong as a species: hunting, bycatch/incidental catch (including in gill

12

nets), vessel traffic, acoustic disturbance, chemical pollution, and habitat loss/destruction. US

13

4180-83. It opined that threats from military activities could include pollution, habitat

14

destruction/alteration, and vessel collisions. US 4183. The Jefferson report identified the same

15

six general threats and noted that the primary threats were bycatch and habitat

16

destruction/alteration. US 3369-70. Notably, these are the same threats identified by Plaintiffs‟

17

expert, Dr. Hines. See Hines Decl. ¶¶ 30-34 (listing noise and acoustic pollution, destruction and

18

degradation of seagrass beds, contaminant pollution, and increased vessel activity as potential

19

threats to the dugong).

20

Defendants properly focused on and discussed each of the threats identified by all the

21

relevant experts, both their own and Plaintiffs‟. The Japanese EIS, which Defendants relied upon,

22

considered the impact of ship routes, including the possibility of incidental capture in gill nets if

23

dugongs entered the Bay, effects on water quality, and effects on habitat by harm to seabeds. See

24

US 6141-47. Defendants considered those issues as well. US 10988-93. It was not unreasonable

25

for Defendants to examine and consider the threats specifically identified by three experts as the

26

most significant to the dugong possibly exacerbated by the FRF.

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Although Plaintiffs suggest the study should have also considered population
fragmentation, none of the experts (including Plaintiffs‟ own expert, Dr. Hines) identified that
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issue as a threat to the Okinawa dugong. Plaintiffs also claim Defendants did not consider the

2

disruption of dugong travel routes, but Defendants considered whether ship routes and aircraft

3

noise would alter dugong “behavior.” Finally, the Welch report explicitly notes that “[r]egardless

4

of whether [seabeds in Henoko and Oura Bay] are currently being used by dugongs, destruction of

5

seagrass beds along Henoko Bay will limit areas that could provide habitat in the event of

6

recovery and increase in the current dugong populations.” US 4156. Thus, the issue of how the

7

FRF might impede future recovery efforts (if not harm the current population) was before

8

Defendants.
In short, Plaintiffs have not shown a failure to consider an important aspect of the problem.

9

The NHPA 402 does not identify particular issues that must be considered, and the agency‟s

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identification of the scope of issues—based on the threats to the dugong identified in the Welch

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and Jefferson reports, which were consistent with the threats identified by Plaintiffs‟ expert Dr.

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Hines—was reasonable.

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C.

Whether “No Adverse Effect” Is Supported By Record
Finally, Plaintiffs challenge Defendants‟ conclusion of no adverse effect on the merits,

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16

arguing that the record shows the FRF is likely to adversely impact the dugong. They claim that

17

Defendants‟ conclusion runs counter to the 2010 Welch Report. However, the Welch report

18

identified potential or possible effects without any attempt to quantify the likelihood they would

19

materialize. As explained above, the Japanese EIS, like Defendants‟ own findings, concluded that

20

because of the very low presence of dugong in the FRF-area, the potential adverse effects

21

identified in part by the Welch report were unlikely to materialize in practice. That conclusion,

22

though debatable, was based on a reasonable interpretation of the data, and was not arbitrary and

23

capricious. See Protect Our Comtys. Found. v. Jewell, 825 F.3d 571, 583 (9th Cir. 2016) (“When

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the agency‟s determination is founded on reasonable inferences from scientific data, a reviewing

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court will not „substitute its judgment for that of the agency.‟” (citation omitted)).6

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6

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An August 2010 bi-lateral expert study group that examined the FRF which stated that “the
impact on animal and plant habitat remains to be assessed,” US 7311, does not support Plaintiffs‟
claim. As explained above, supra at 8, this language refers to the alternative “I” runway plan, not
the “V” runway plan that Defendants adopted and for which effects on animal habitat were
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1
2

Moreover, Defendants‟ finding of “no adverse effect” was based in part on the extensive
mitigation measures that will be adopted, including, inter alia:

3



standoff and speed limits for vessel traffic, US 10989, 10992;

4



measures to prevent red-soil runoff such as the installation of contamination prevention
covers and other management practices, US 10990, 10992;

5
6



measures intended to minimize acoustic impact such as using pile driving methods that

7

generate the least amount of noise, monitoring for any changes in dugong activity and

8

responding accordingly, using weak strikes at the start of activity and gradually

9

increasing force in order not to startle dugong, and halting activity if dugong are
observed approaching the construction zone, US 10991, 10993; and,

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Northern District of California

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

measures to reduce the impact of lighting at night such as refraining from night-time

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construction and using lighting cones to direct lighting up and away from the water, US

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10991, 10993.

14

Far from undermining the conclusion of “no adverse effects,” these mitigation measures show that

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the Section 402 achieved its purpose of having the agency take into consideration what steps could

16

be taken to avoid or mitigate any potential harm to the dugong. See 54 U.S.C. § 307101(e) (the

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TIA process is undertaken “for purposes of avoiding or mitigating any adverse effect”). The

18

extensive mitigation measures combined with infrequent dugong presence bolster the

19

reasonableness of the conclusion that an adverse effect is unlikely to manifest.

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21

IV.

CONCLUSION

The scoping of Defendants‟ TIA process was not unreasonable: they commissioned a

22

biological report and a cultural report, the latter of which involved outreach to cultural experts,

23

some of whom had knowledge of ritual practices and the views of cultural practitioners.

24

Defendants also relied on the Japanese EIS, which involved a public outreach process in which

25

Plaintiffs and others had an opportunity to participate, and in which the Okinawa Prefectural

26

Government submitted extensive comments. Defendants also considered Plaintiffs‟ views as

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assessed. See US 7309. In any case, this bilateral study was not the only one performed and
Defendants had other data at their disposal to assess the impact on the dugong.
41

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presented in this litigation. Defendants engaged in direct consultation with the Japanese national

2

government. While Defendants‟ outreach could and perhaps should have been broader to

3

individuals, inter alia, Plaintiffs, the Court cannot say Defendants violated to procedural

4

requirements of Section 402. On the facts of this case, defendants discharged their obligations to

5

“take into account” potential adverse effects of the FRF on the Okinawa dugong under Section

6

402 of the NHPA.
Furthermore, Defendants‟ conclusions of no adverse effect were not arbitrary or

8

capricious. They had sufficient scientific information upon which to conclude there was a very

9

low density of dugong in the Oura and Henoko Bays. They reasonably concluded it was unlikely

10

that events related to the FRF would harm the dugong, particularly in light of the particular details

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7

of their construction and operational plans. Their conclusion of no adverse effect was not arbitrary

12

and capricious.
The Court is aware of the high stakes at issue. The Court understands the concern of

13
14

Plaintiffs and those of affected citizens about the potential harm to the endangered dugongs of

15

Okinawa. But Section 402, while requiring the U.S. government to take account the effect of its

16

undertaking in constructing the FRF, offers a limited scope of judicial review. Under that limited

17

scope of review, the efforts taken by Defendants to comply with Section 402, including

18

implementation of mitigating measures, fulfill the requirements of Section 402 and support a

19

finding of no adverse effect.

20

///

21

///

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///

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///

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///

25

///

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///

27

///

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///
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1

For these reasons stated above, the Court DENIES Plaintiffs‟ motion for summary

2

judgment and GRANTS Defendants‟ cross-motion for summary judgment. The Court‟s holding

3

renders the question of remedies moot.

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5

This order disposes of Docket Nos. 220 and 221. The Clerk is directed to enter Judgment
for Defendants and to close the case.

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7

IT IS SO ORDERED.

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9

Dated: August 1, 2018

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United States District Court
Northern District of California

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______________________________________
EDWARD M. CHEN
United States District Judge

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