9th Circuit Revives Fight for Endangered Dugong on Okinawa

SAN FRANCISCO (CN) – The U.S. Department of Defense must reassess the impacts of a controversial new military base on Okinawa in order to protect the endangered Okinawa dugong, a manatee-like marine mammal, the Ninth Circuit ruled Monday.

Affirming in part and reversing in part, a three-judge panel ruled that the Center for Biological Diversity and its American and Japanese co-plaintiffs have standing to seek declaratory and injunctive relief over the base, known as the Futenma Replacement Facility, and that neither set of claims present political questions that prohibit judicial review.

The plaintiffs seek a ruling that the Defense Department failed to consider in its National Historic Preservation Act (NHPA) analysis whether the base would harm the dugongs, in violation of that statute and the Administrative Procedure Act. They also want the military’s findings vacated, and an injunction barring construction until the military issues an NHPA-compliant analysis.

The government, however, had insisted that the plaintiffs didn’t have standing to bring the case and that the court shouldn’t consider it because it implicated foreign relations with Japan.

But on Monday, the Ninth Circuit panel found otherwise.

“[C]ourts are able to weigh equitable considerations when security or foreign affairs interests are at stake,” Circuit Judge Mary Murguia wrote for the panel. “To hold otherwise would introduce an overbroad rule in conflict with controlling precedent.”

The dugong, a marine mammal with smooth, dark gray or bronze skin, a fluked tail and downturned muzzle, lives in seagrass beds in the shallow coastal waters of the Pacific and Indian oceans. The animals grow up to 9 feet long, weigh up to 1,000 pounds and can live as long as 70 years.

The Okinawa dugong, a genetically isolated population inhabiting the waters east of Okinawa, are critically endangered. Overhunting and a fragile habitat have taken a toll: The Mammalogical Society of Japan estimated in 1997 that there are roughly 50 left on Okinawa.

The dugong is significant in traditional Okinawan culture and mythology, and the Japanese government has designated them for protection under Japan’s Law for the Protection of Cultural Properties.

But the Futenma replacement base is being built next to Henoko and Oura bays, and includes a V-shaped set of runways built on top of landfill dumped into the bays. The plaintiffs say the dumping could ravage the seagrass beds on which the dugongs feed, and that noise, excessive light and pollution from construction could harm the animals.

The plaintiffs aren’t alone in opposing the new base. Okinawans have long resented its predecessor –U.S. Marine Corps Air Base Futenma – which sits in the middle of a bustling city. After U.S. military men raped a 12-year-old girl on Okinawa in the mid-1990s, the United States and Japan agreed in 2006 to move Futenma from Ginowan City to the more sparsely populated area around Camp Schwab. But most residents want it moved off Okinawa completely, to Japan’s main island.

Okinawa’s strategic location makes that unlikely, however. Situated 400 miles off the coast of China, the island is ideal for responding to Chinese military threats in the region and it has been crucial to U.S. campaigns since World War II, including the Korean War, the Vietnam War and the wars in Afghanistan and Iraq.

Siding with the military, U.S. District Judge Edward Chen dismissed the case with prejudice in 2015. Chen found the plaintiffs’ request for an injunction raised political questions the court lacked the authority to hear.

Chen also found the plaintiffs lacked standing to pursue declaratory relief, concluding that although the political question issue didn’t bar their declaratory relief claims, they lacked standing to bring them because the court couldn’t order injunctive or other relief to protect the dugong. He did not rule on whether the plaintiffs had standing to pursue injunctive relief.

On Monday, the Ninth Circuit held the plaintiffs have standing to pursue both their declaratory and injunctive relief claims, finding they had satisfied the requirement to prove that a court order requiring the government to issue a new NHPA analysis, including mitigation measures, would redress their injury. The government had argued that construction of the base is already underway, and that factors such as flight paths, stormwater management plans, and nighttime illumination can’t be changed to mitigate its impact on the dugong.

“But this does not defeat standing, given the allegations in the operative complaint,” Murguia wrote in the panel’s 49-page opinion. “If the government has reached its conclusions about effects and mitigation after a sound NHPA Section 402 process, then it has complied with NHPA Section 402; the claim fails not for lack of standing but on the merits. If the government has not followed NHPA Section 402, then these arguments are unavailing, because the underlying determinations about effects and mitigation lack validity.”

The Justice Department said it was reviewing the decision Monday.

The panel also found that neither the plaintiffs’ declaratory nor injunctive relief claims present political questions that bar judicial review under the six factors established in the landmark case Baker v. Carr, which the Supreme Court decided in 1962.

The military had argued that allowing the case to proceed would require the judicial branch to question the political branches’ decision to complete the base, which Baker prohibits. Among other things, it argued there are no statutory or regulatory standards a court can use to review its implementation of the NHPA, and that the case should be thrown out due to its foreign relations implications.

The plaintiffs argued on appeal that dismissing their suit based on foreign relations implications would essentially adopt a per se rule that no request for injunctive relief related to foreign relations can be adjudicated.

The panel agreed, finding that such a rule would be “out of step” with Supreme Court precedent. It also rejected the military’s contention that the injunctive relief claim implicates Baker.

Earthjustice attorney Martin Wagner, who represents the plaintiffs, said Monday he was pleased with the decision.

“It’s affirming the right of the people to ask courts to ensure that the government comply with the law. It’s pretty basic democracy, rule-of-law kind of stuff,” he said in an interview. “The Ninth Circuit said that there is no obstacle to a decision requiring the federal government to do that and finding that what the government has done so far has not satisfied its legal obligation to be thoughtful before acting.”

Although the panel was optimistic about the threshold issues in the case, it was less so about the plaintiffs’ ability to win an injunction on remand. Murguia wrote that national security interests would likely outweigh those of the plaintiffs’.

However, the panel cautioned that losing out on an injunction would not preclude the lower court from ordering the military to conduct a new NHPA analysis.

“This is a clear indication that the federal government and the Department of Defense need to do a full assessment before making these decisions,” Wagner said.

Senior Circuit Judge Ferdinand Fernandez and Circuit Judge Paul Watford joined Murguia on the panel.

Justice Department attorney Mark Haag represented the government.

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