Ninth Circuit Hears Fight Pitting Planned US Base and Okinawa’s Dugong

(CN) – The dugong once thrived along the shores of Okinawa, the smallest of Japan’s five main islands located about 400 miles south of the country’s mainland.

A relative of the manatee, the dugong is a medium-sized marine mammal that prowls the shallow waters around the coastal regions of various islands and continents.

A dugong and calf. (Nick Hobgood via Wikipedia)

The dugong has dark gray or bronze skin, a fluked tail and a downturned muzzle. The animals grow up to 9 feet long, weigh up to 1,000 pounds and can live as long as 70 years.

Prevalent in Australia and the islands of the South Pacific, the dugong has begun to slowly vanish around the waters of Okinawa, which represents the northernmost reach of its range.

The dugong has played an outsize role in the culture of Okinawa, with archaeological excavations revealing ancient societies used the butterfly-shaped bones that form the creature’s spine as talismans or props in various rituals of the hunt.

In the traditional folklore of the people of Okinawa, who are ethnically and culturally distinct from mainland Japanese, a fisherman captures a dugong that promises to save the fisherman’s life if he is released.

The fisherman complies and the dugong tells him of an imminent tsunami. When the fisherman returns to the village, he is able to use this knowledge to save himself, his family and his entire village.

The animal’s retreat away from the island’s shores prompted Japan to list the dugong as a national natural monument in 1972, around the time when the United States returned the island of Okinawa to Japanese control.

Okinawa has functioned as a critically strategic island for the United States Armed Forces since the end of World War II and continues to host about 26,000 armed personnel.

Tensions often arise between Okinawans and American military personnel. No incident crystallizes this tension more than the rape of a 12-year-old native Okinawan by U.S. servicemembers in the mid-1990s.

At this point the Pentagon agreed to remove its main facility from the densely populated Ginowan City to a more remote part along the east coast of the island, prompting the proposal of the Futenma Replacement Facility.

The Department of Defense says the facility is necessary to replace a base of operations in the center of the island, which not only exacerbates tensions with the local population but hinders the efficient execution of necessary military operations crucial to the region.

Locals say the construction of the replacement facility on the less populated shores of Henoko Bay will damage the seagrass beds and coral reefs so necessary to the survival of the dugong. Wildlife advocacy groups have also joined the chorus of voices attempting to stop the Pentagon from proceeding with construction.

“It shouldn’t take legal action to convince the Pentagon not to build an airbase that will wipe out an endangered marine mammal and cripple our relationship with the Okinawan people,” said Miyoko Sakashita, an attorney at the Center for Biological Diversity. “Paving over these beautiful bays and destroying some of the Okinawa dugong’s last habitat will forever stain our reputation around the world.”

In Japan, the local Okinawa government and various organizations have taken the matter to court, only to be repelled. The Supreme Court of Japan ruled current Okinawa Governor Takeshi Onaga could not revoke the permission of his predecessor to allow the Pentagon to proceed.

Nevertheless, the two sides were in court in San Francisco on Monday, with the environmental organizations trying out a novel legal theory that uses the protections afforded by the National Historic Preservation Act rather than the more traditional avenue of the Endangered Species Act.

In front of a three-judge panel of the Ninth Circuit, Center for Biological Diversity attorney Danny Thiemann said the National Historic Preservation Act contains a provision that requires the Pentagon to take into consideration the impacts on items of cultural significance created by construction in a given area of a foreign country.

“They are required to take into account the views of the host nation, relevant organizations and individuals,” Thiemann argued.

The attorney said the Pentagon has only taken into account the views of its own experts who repeatedly downplay the cultural significance of the dugong to both past and present Okinawans.

John Smeltzer, attorney for the Department of Defense, said the government has given sufficient weight to local views when going through the planning process, but also said the National Historic Preservation Act only requires the government to consider equivalent items in foreign countries.

Japan’s Law for the Protection of Cultural Properties includes plants, calligraphy, animals, music, books and even manners, none of which have an equivalent under the American law, which primarily governs buildings and building sites.

“There are a whole bunch of things we would not consider property,” Smeltzer said. “The two lists are not equivalent.”

Instead, Smeltzer said the environmental organizations are attempting to use a different law because they know the Endangered Species Act isn’t relevant in the current instance.

“They are taking a square peg of a law that applies to places and trying to pound it into a round hole,” Smeltzer said.

But Thiemann argued that argument is beside the point, saying the Pentagon failed to take into account the views of local islanders as required by the National Historic Preservation Act. He said the biological work done as part of the approval process was entirely inadequate.

“The site-specific impacts are totally inadequate,” he said. “The survey methods cannot be relied upon.”

U.S. Circuit Judges Robert Paez and Carlos Bea and Senior U.S. District Judge Janis Graham Jack, sitting by designation from the Southern District of Texas, asked few questions and did little to indicate which way they were leaning.

“It’s an interesting case,” Paez said at the end of the hearing.

Paez and Jack are Bill Clinton appointees, while Paez was appointed by George W. Bush.

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