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No Help for the Endangered Dugong

SAN FRANCISCO (CN) - Threats to the endangered Okinawa dugong, a manatee-like marine mammal, are not enough to stop construction of a military base in Okinawa, a federal judge ruled.

"We are disappointed with the outcome and plan to appeal the decision to the Federal Court of Appeals," Peter Galvin, director of programs and co-founder of the Center for Biological Diversity told Courthouse News.

"The decision is not good news for the already critically imperiled Okinawa dugong. We plan to redouble our efforts with our partners to help the Okinawa dugong avoid imminent extinction," Galvin said of the Feb. 13 ruling by U.S. District Judge Edwin Chen.

The dugong is one of four species of the order Sirenia; the other three species are manatees. Dugongs live in sea-grass beds in shallow coastal waters of the Pacific and Indian Oceans. They grow up to 9 feet long, weigh 550 to 1,000 lbs, and can live for up to 70 years.

Okinawa dugongs have smooth, dark gray or bronze skin, fluked tails and downturned muzzles with stiff, whisker-like bristles they use to dig up sea grasses, their primary food source.

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

The dugong population off the eastern coast of Okinawa is a very small, isolated group with fewer than 50 members. Their existence is threatened by habitat destruction caused by U.S. military exercises, noise pollution, and marine water pollution, according to the Center for Biological Diversity's dugong web page.

Despite these threats, the U.S. Department of Defense and the Japanese government in May 2006 agreed to relocate U.S. Marine Corps Air Station Futenma from Ginowan City, Okinawa, to an offshore location near Camp Schwab next to Henoko and Oura Bays. Construction plans include two 1,600-meter-long runways built on landfill that may destroy sea-grass beds in Henoko Bay, according to the ruling.

The Center for Biological Diversity, three other environmental groups and three Japanese residents challenged the project in September 2003 and filed an amended complaint after the May 2006 agreement.

Among other things, they argued that construction of the military base would destroy Okinawa dugong habitat, and that noise, excessive light and pollution from construction activities would harm the animals.

They also claimed the Department of Defense violated section 402 of the National Historic Preservation Act by concluding that the project would have no significant impacts upon the Okinawa dugong and its habitat.

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 until August 2014, when it was reopened and assigned to Judge Chen after Judge Patel retired.

About a month later, the government moved to dismiss on the grounds that the court lacked jurisdiction.

Chen sided with the government, finding that the court could not stop construction of a military base being built on Japanese soil as part of treaty obligations between the United States and Japan.

Requests for the court to enjoin construction until the government fulfills its obligations under the National Historic Preservation Act fail because they are beyond the court's ability to grant, Chen said.

The court has no ability, or the responsibility, to weigh the balance of harm between protecting dugongs from possible extinction and the foreign policy issue of maintaining the United States' military presence in Asia in light of the nuclear threat posed by North Korea, or ensuring that relations between the United States and Japan remain friendly, the ruling states.

The environmentalists also sought declaratory judgment that the government's conclusion that the project would not harm Okinawa dugongs was arbitrary and capricious under the Administrative Procedures Act, and an injunction setting aside the NHPA findings.

Though Chen refused to dismiss these claims on the basis that they are enjoined by questions of foreign policy and national defense, as the government argued, he concluded that they must nevertheless be dismissed because the court cannot grant the plaintiffs any effective relief to protect Okinawa dugongs.

Since the plaintiffs' declaratory relief claims are strictly procedural, the government is not likely to halt construction on the base or alter its NHPA findings simply because the court deems the findings flawed and orders it to reconsider them, Chen wrote.

"After decades of negotiations, the American and Japanese governments have made a final and (apparently) irreversible decision to construct the challenged military base, and as suggested above, this court lacks the power to enjoin or otherwise alter that decision. Given that the military base will be built regardless of what this court might determine regarding the DoD's [Department of Defense] compliance with the procedural mandates of the NHPA, plaintiffs cannot show that an order requiring the government's compliance with a purely procedural statute will in any way redress their claimed injuries. Thus ... plaintiffs' entire lawsuit is hereby dismissed with prejudice," Chen wrote.

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