Ninth Circuit Sides With Pentagon in Case Pitting Okinawa Base & Dugongs

While the panel agreed the government could have done a better job consulting with cultural leaders on the significance of the Okinawa’s manatee cousin, the Pentagon did enough to greenlight the new Marine base.

A dugong and calf. (Nick Hobgood via Wikipedia)

SAN FRANCISCO (CN) — Environmental groups lost their bid to prevent a military base from being built on Okinawa, Japan, a project they claim will further decimate a species of manatee that used to thrive in the area.

A three-judge panel of the Ninth Circuit ruled Wednesday that the Department of Defense had met its burden to take into account the new base’s effect on the island under Section 402 of the National Historic Preservation Act, including consulting local cultural experts.

But the environmentalists claimed the Pentagon only considered the views of its own experts who repeatedly downplay the cultural significance of the dugong, a marine mammal that holds a sacred place in traditional Okinawan culture and mythology.

In 2018, a federal judge ruled that the military base could move forward. The Ninth Circuit’s opinion Wednesday upheld that decision.

The appellate panel, comprising U.S. Circuit Judges Carlos Bea and Richard Paez, and U.S District Judge Janis Jack from Texas, found the Pentagon was not required to consult with any specific person or group, and that it did an adequate job in interviewing cultural practitioners. The department also interviewed Isshu Maeda, a university researcher on the dugong’s role in Okinawan folklore and one of the environmental groups’ own experts.

“While appellants are correct that the department did not directly consult local community members or practitioners to whom the dugong was culturally and spiritually significant, the department did obtain such information indirectly,” Jack wrote for the panel. 

The government also consulted with sources who had interviewed cultural practitioners, which the judges found sufficient. “No evidence suggests that the information obtained from these indirect sources was incomplete or inaccurate,” Jack, a Bill Clinton appointee, wrote.

Paez, also a Clinton appointee, joined Jack’s ruling.

Bea — a George W. Bush appointee — said he concurred with his colleagues, but added separately that he did not believe that the National Historic Preservation Act applies because the dugong is not property covered by Section 402, which defines property as a “district, site, building, structure, or object.”

For many years, the Center for Biological Diversity, Turtle Restoration Network and Earthjustice have been fighting the government’s plan to relocate the Marine Corps Air Station Futenma base to an offshore site next to Henoko and Oura bays. In Japan, the local Okinawa government and various organizations have taken the matter to court, but the Supreme Court of Japan ruled current Okinawa Governor Takeshi Onaga could not revoke permission given by his predecessor for the Pentagon to proceed.

Construction of the base includes dumping landfill into the bays, which the groups say will decimate the seagrass beds on which the dugongs feed. They also claimed the Pentagon did not take into account the harm to the dugongs’ habitat, food source and migration route. 

The appellate court agreed that the department could have done a better job addressing those factors, but still found the department’s environmental analysis was not fundamentally flawed.

“While appellants are correct that the department did not specifically consider population fragmentation and the disruption of travel routes, there was no data suggesting that the construction and operation of the new base would further fragment the dugong population or interfere with existing dugong travel routes to their habitats and/or potential feeding groups,” Jack wrote. “Accordingly, the Department’s failure to consider these factors was not unreasonable.”

Earthjustice attorney Sarah Burt said she was disappointed in the ruling, though glad the court acknowledged the Department of Defense lacked robust dugong population data.

“Fundamentally this particular case may be over but the plaintiffs’ advocacy in protecting their homes, culture, and way of life is not,” Burt said. “They are continuing to work in Japan to protect their communities from the militarization that’s taking place in Okinawa and that work will continue.”

Pentagon deputy director of public affairs Wyn Hornbuckle said, “We’re pleased with the ruling.” Attorney John Smeltzer, who represented the government in the appeal, did not return an email seeking comment.

The fight to protect the Okinawa dugong, a sacred Sirenian species of marine mammal in Okinawa, dates back 15 years, when conservationists led by the Center for Biological Diversity sued the federal government over the relocation of the U.S. Marine Corps Air Station Futenma from Ginowan City, Okinawa, to an offshore location near Camp Schwab next to Henoko and Oura bays.

Though U.S. District Judge Marilyn Hall Patel in 2008 awarded summary judgment to the plaintiffs, the court 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.

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

Okinawa dugongs have smooth, dark gray or bronze skin, fluked tails and downturned muzzles with stiff, whisker-like bristles they use to dig up seagrasses, their primary food source. They grow up to 9 feet long, weigh 550 to 1,000 pounds, and can live for up to 70 years.

Dugongs were listed as endangered under the U.S. Endangered Species Act in 1972 and are considered critically endangered in Japan.

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 there are at least three Okinawa dugongs left.

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