SAN FRANCISCO (CN) — The Ninth Circuit on Wednesday indicated that the Defense Department may have to reconsider how it will operate a controversial new military base on Okinawa, to protect the endangered Okinawa dugong, a manatee-like marine mammal.
Ninth Circuit Judge Paul Watford told government attorneys at the hearing that the Center for Biological Diversity and other U.S. and Japanese environmental groups have standing to seek a ruling that the Department of Defense failed to adequately consider whether the base would harm the dugongs, vacate the Pentagon’s findings that it would not, and order it to issue new ones.
”What I'm inclined to think is your position on standing is completely wrong,” Watford told Department of Justice attorney Mark Haag. “How in the world do they not have standing to seek that relief?”
Dugongs, a manatee-like mammal with smooth, dark gray or bronze skin, fluked tails and downturned muzzles, live in seagrass beds in the shallow coastal waters of the Pacific and Indian Oceans. They 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 surrounding Okinawa, are critically endangered. In 1997, the Mammalogical Society of Japan estimated the Okinawa dugong population had been reduced to fewer than 50, and the Japanese government recently estimated that there are at least three Okinawa dugongs left, according to the plaintiffs’ brief to the Ninth Circuit.
The plaintiffs are not alone in opposing the base. Okinawans have long resented 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 1995, the United States and Japan agreed to move Futenma to Camp Schwab, but most residents want it moved off Okinawa completely, to Japan’s main island.
That’s not likely to happen. Okinawa's strategic location, 400 miles off the coast of China, makes it 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 Iraq and Afghanistan.
Despite the dugongs’ precarious position, the United States and Japan agreed in 2006 to relocate U.S. Marine Corps Air Base Futenma from Ginowan City in Okinawa to an offshore site near Camp Schwab next to Henoko and Oura Bays. Construction of the replacement base includes two runways built on landfill dumped into both bays that the plaintiffs say could ravage the seagrass beds on which the dugongs feed.
The plaintiffs sued in 2003 and filed an amended complaint in 2006, saying construction would destroy Okinawa dugong habitat, and that noise, excessive light and pollution from construction would harm the dugongs.
In February, Defense Secretary James Mattis and Japanese Defense Minister Tomomi Inada reaffirmed their commitment to relocate the base on Okinawa, despite the protests of the island's residents. Construction on the replacement base resumed a week later.
In a fleeting victory for Futenma's detractors, U.S. District Judge Marilyn Hall Patel in 2008 ordered the Defense Department to examine the effects, under the National Historic Preservation Act (NHPA), that the replacement base would have on Okinawa dugongs.
The Defense Department found that the base would not harm the dugongs, and the plaintiffs filed a supplemental complaint in 2014 challenging the findings. They said the Pentagon had not opened the NHPA process to public comment, that it acknowledged it had used insufficient data and that the findings underestimated how much habitat would be lost.
The supplemental complaint sought declaratory relief and an injunction barring construction until the Department of Defense issued an NHPA-compliant analysis, according to the government’s answering brief to the Ninth Circuit.
U.S. District Judge Edward Chen dismissed the case in 2015, finding that the plaintiffs’ request for an injunction raised political questions that the court did not have authority to hear. Chen also concluded that the plaintiffs lacked standing to pursue claims for declaratory relief and an order setting aside the Defense Department's findings.
Seeking reversal Wednesday, Sarah Burt, an attorney with Earthjustice, told the Ninth Circuit that her clients do have standing. A declaration that the Defense Department's analysis fell short of NHPA requirements and a remand for new analysis would partially redress their harms, which Burt said was sufficient to establish standing.
Burt said that on remand, the Defense Department could determine whether there are certain post-construction measures it could take — such as adjusting the number of flights the base handles and the amount of light it emits — that would reduce its impact on the dugong.
Haag countered that base operations have already been determined and can’t be changed now.
“The Department of Defense itself is disabled from making any adjustments?” Watford asked. “That seems like totally within DoD’s control. You can’t say, ‘No, there is nothing whatsoever the Department of Defense can do to adjust the operations of a base that's under its control once it’s completed.’
“I'm wholly unpersuaded by your position," he added.
Haag conceded that the Defense Department could change how it chooses to run the base, then quickly pivoted to the NHPA. He said the NHPA does not require a public comment period before issuance of findings, and that the Pentagon’s findings satisfied its obligations under the statute.
Also Wednesday, the parties discussed injunctive relief, though the plaintiffs had not explicitly asked the Ninth Circuit in their brief to consider their injunctive relief claim. Burt said her clients plan to address the claim if they succeed on the merits back at the district court level.
But Watford’s reaction to the government's argument against injunctive relief may presage what happens in the lower court.
When Haag told the appellate panel that “the court is not well-equipped to determine what is in the public interest when the government of Japan is deciding what’s in its interest for a project on its sovereign territory, and which it is paying for itself pursuant to a treaty," Watford sat silently.
Finally, he said, chuckling: “OK, yeah. I hear you. That's your position.”
Senior Ninth Circuit Judge Ferdinand Fernandez and Ninth Circuit Judge Mary Murguia also sat on the panel.
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