SAN FRANCISCO (CN) – Despite fierce opposition from environmental groups over potential harm to the endangered dugong, a federal judge ruled Wednesday that a military base the U.S. government plans to build in Okinawa, Japan, can move forward.
U.S. District Judge Edward Chen said the Pentagon had done all it could to consider the impact of the base on the sacred marine mammal, including commissioning biological and cultural reports, interviewing cultural experts, and relying on a Japanese environmental impact report that included extensive public and Okinawa Prefectural Government comment.
Environmental groups had fought to stop the base from being built, challenging its planned construction in a 2003 lawsuit. Chen inherited the case from U.S. District Judge Marilyn Hall Patel, who awarded the groups summary judgment in 2008 and administratively closed the case due to uncertainties about the project’s future. In August 2014 the case was reopened and assigned to Chen after Patel retired, and Chen initially dismissed the case in 2015.
In 2017, a three-judge panel of the Ninth Circuit overturned Chen’s dismissal, finding the Center for Biological Diversity and its American and Japanese co-plaintiffs had standing to contest the construction in court.
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.
Pentagon officials plan to build the Futenma replacement base next to Henoko and Oura bays, and includes a V-shaped set of runways built on top of landfill dumped into the bays. But 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.
At a hearing on cross-motions for summary judgment in June, Earthjustice attorney Sarah Burt, who represents the environmental groups, said the government did too little in evaluating the base’s effect on the dugong.
Burt said the Defense Department J is required under the National Historic Preservation Act to consult with the Okinawan government and affected communities, but instead hired contractors to speak with the Japanese government and outside academics. Section 402 of the act says federal agencies must “take into account” the effect of a planned project on any effected property.
In his ruling, Chen found the Pentagon’s efforts passed legal muster, and that its finding of “no adverse effect” on the dugong was reasonable.
“The court is aware of the high stakes at issue. The court understands the concern of plaintiffs and those of affected citizens about the potential harm to the endangered dugongs of Okinawa,” Chen wrote. “But Section 402, while requiring the U.S. government to take account the effect of its undertaking in constructing the [Futenma Replacement Facility], offers a limited scope of judicial review. Under that limited scope of review, the efforts taken by defendants to comply with Section 402, including implementation of mitigating measures, fulfill the requirements of Section 402 and support a finding of no adverse effect.”
In a phone interview, Burt said Chen’s ruling was “disappointing but not surprising,” as courts tend to show deference to government agencies.
“Judge Chen basically says without regulations saying what ‘take into account’ means, anything they did sounds reasonable enough. The statute is vague and courts tend to give deference to agencies and that’s what happened in this case,” she said.
Burt said she will be conferring with her clients as to their next steps, but the fight continues even outside the courtroom.
“I will be talking about the decision with the clients in the coming days and we’ll make a decision about whether or not to appeal,” Burt said. “For the plaintiffs, for the local communities in Okinawa, the fight goes on. They’ve been organizing and campaigning and trying to make their voices heard to protest against the increasing militarization of their communities for a long time now. This lawsuit is just one tool. The law is a powerful tool, but they will continue organizing and fighting for their way of life.”
Efforts to get comment from the government were unsuccessful as of press time.