Ctr. for Biological Diversity v. Hagel

• Decision Date: 13 February 2015
• Docket Number: No. C–03–4350 EMC,C–03–4350 EMC
• Citation: 80 F.Supp.3d 991
• Court: U.S. District Court — Northern District of California
• Parties: Center for Biological Diversity, et al., Plaintiffs, v. Chuck Hagel, et al., Defendants.

80 F.Supp.3d 991

Center for Biological Diversity, et al., Plaintiffs

v.Chuck Hagel, et al., Defendants.

No. C–03–4350 EMC

United States District Court, N.D. California.

Signed February 13, 2015

J. Martin Wagner, Sarah Helen Burt, J. Martin Wagner, Earthjustice, San Francisco, CA, for Plaintiff.

Peter Kryn Dykema, U.S. Department of Justice, Washington, DC, for Defendant.

AMENDED ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

(Docket No. 163)

EDWARD M. CHEN, United States District Judge

Plaintiffs are three Japanese individuals and four environmental groups that are challenging a U.S. Department of Defense (DoD)¹ decision, made jointly with the Government of Japan, to construct a new military base on Okinawa. According to Plaintiffs, construction of two aircraft runways on landfill in Henoko Bay will destroy critical feeding grounds and habitat for the Okinawa dugong, a species of marine mammal similar to a manatee. It is undisputed that the Okinawa dugong is critically endangered.

Plaintiffs originally filed this lawsuit in 2003, arguing that DoD failed to “take into account” any adverse effects that construction of the military base might have on the dugong. Plaintiffs contended that such action was necessary pursuant to section 402 of the National Historic Preservation Act (NHPA). This Court (Patel, J.) agreed with Plaintiffs, and in 2008 ordered the DoD to comply with the NHPA. DoD completed a report intended to satisfy its NHPA obligations in April 2014.

Now, with construction of the military base apparently underway, Plaintiffs seek to challenge the DoD's NHPA findings under the Administrative Procedures Acts (APA). Specifically, Plaintiffs ask this Court for (1): a declaratory judgment that the DoD's NHPA findings are arbitrary and capricious, or otherwise violate the APA; (2) an order setting the Government's NHPA findings aside; and (3) an injunction prohibiting the DoD from building the military base until it complies with its NHPA obligations.

The Government moves to dismiss Plaintiffs' case pursuant to the political question doctrine. According to the Government, this Court lacks jurisdiction to grant any of the relief requested by Plaintiffs because the DoD's decision to construct a military base overseas is an unreviewable Executive decision made at the apex of the President's foreign policy and national defense powers.

For the reasons explained below, the Court grants the Government's motion to dismiss, albeit on slightly different grounds than the Government requests. The Government is correct that Plaintiffs' claim for injunctive relief is barred by the political question doctrine. Put simply, this Court lacks the power or necessary competence to enjoin or otherwise interfere with the construction of a U.S. military facility overseas that is being built consistent with American treaty obligations and in cooperation with the Japanese Government. And while this Court does have the power to grant Plaintiffs' request for declaratory relief that the DoD did not comply with the NHPA, and similarly has the power to order the DoD's NHPA findings set aside, the Court will nevertheless grant the Government's motion to dismiss these claims because any action the Court takes with respect to the NHPA findings will not redress Plaintiffs' injuries. 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 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, for the reasons explained at length below, Plaintiffs' entire lawsuit is hereby dismissed with prejudice.

I. BACKGROUND

A. Factual Background

1. The Okinawa Dugong

The dugong is a species of herbivorous marine mammal related to the manatee.

See Okinawa Dugong v. Gates, 543 F.Supp.2d 1082, 1083 (N.D.Cal.2008).² The dugong is listed as “endangered” under the United States Endangered Species Act (ESA), and is classified as vulnerable by the Word Conservation Union “due to habitat destruction and degradation, as well as human exploitation.” Id. at 1084. The dugong is also listed as “critically endangered in Japan.” Id.

“The Okinawa dugong (Dugong dugon ) is a small, isolated population of the Dugong species found in the waters off the eastern coast of Okinawa.” Dugong v. Rumsfeld, No. 03–cv–4350–MHP, 2005 WL 522106, at *3 (N.D.Cal. Mar. 2, 2005). As admitted by the Government, the Okinawa dugong population is quite small: it “was estimated at fewer than 50 by the Mammalogical Society of Japan in 1997.” Docket No. 152–1, Ex. 1 (Government's NHPA Findings) at 7.

Plaintiffs and the Government agree that dugong were once “significant in Okinawan culture.” Okinawa Dugong, 543 F.Supp.2d at 1084. “They are associated with traditional Okinawan creation mythology, sometimes being considered the progenitor of the local people.” Id. The dugong “was featured in myths and songs, and had a traditional role in Okinawan culture that included use of its meat for consumption and its bones for tool-making.” NHPA Findings at 7. The Government contends (and Plaintiffs dispute) that in modern times, the dugong's cultural significance is acknowledged “by only very small segments of the Okinawa population rather than society as a whole.”Id. at 9–10. But what is not disputed is that the Okinawa dugong “is a protected ‘natural monument’ under [Japan's] ‘Law for the Protection of Cultural Properties.’ ” Dugong, 2005 WL 522106, at *3.

2. The Plaintiffs

Plaintiffs in this case are three individual Japanese citizens and four international environmental organizations—Center for Biological Diversity, Turtle Island Restoration Network, Japan Environmental Lawyers Foundation, and Save the Dugong Foundation. See Docket No. 152–1 (Plaintiffs' Supplemental Complaint) at ¶¶ 8–14. Each of the three individual plaintiffs appears to live in Japan, and at least two appear to live on Okinawa. See id. at ¶¶ 12–14. Two of the individual plaintiffs lead “regular eco-tours to Okinawa dugong habitat,” and one guides tours that include “up-close snorkeling and scuba diving” in dugong habitat. Id. at ¶¶ 12–13. Each of the four plaintiff associations claims to have members with an interest in the preservation and/or enjoyment of the Okinawa dugong. Id. at ¶¶ 8–11. This Court previously ruled that all of the current plaintiffs have standing to bring this lawsuit. See Okinawa Dugong, 543 F.Supp.2d at 1096–1097.

3. The United States Military Presence on Okinawa

The United States has maintained military bases on Okinawa since the end of World War II. Dugong, 2005 WL 522106, at *1. Between 1945 and 1972, the United States administered Okinawa pursuant to international agreements, while Japan retained residual sovereignty over the island chain. Okinawa Dugong, 543 F.Supp.2d at 1084. Full Japanese sovereignty was restored in 1972 pursuant to the “Agreement Between the United States Concerning the Ryuku Islands and the Daito Islands” (the Agreement), and the “United States relinquished to Japan all administrative rights and interests it had over the Okinawa Islands.” Id. The Agreement did, however, grant the “United States exclusive use of facilities and areas [on Okinawa] in accordance with the ‘Treaty of Mutual Cooperation and Security’ (‘Treaty’) and the ‘Status of Forces Agreement’ (‘SOFA’).” Id. SOFA is a bilateral agreement between the United States and Japan governed by the Treaty, which provides that “for the purpose of contributing to the security of Japan and the maintenance of international peace and security in the Far East, the United States of America is granted the use by its land, air and naval forces of facilities and areas in Japan.” Id.

One such military facility operated by the United States is the Marine Corps Air Station Futenma (MCAS Futenma), which “operates facilities and provides services and materials to support Marine Corps aircraft operations.” Dugong, 2005 WL 522106, at *1. “MCAS Futenma is located in Ginowan City and due to social and economic changes [since it first opened], is now completely surrounded by urban development. Japanese officials have called for its closure and relocation to a more suitable site in order to ease the health and safety burdens on the citizens of Ginowan City.” Okinawa Dugong, 543 F.Supp.2d at 1085. American officials have also sought to relocate MCAS Futenma, “citing a desire to relocate military activities to a less congested area,” and have been pursuing that goal jointly with the Japanese since at least 1996. Id . ; see also Docket No. 91–3 (Declaration of Takemasa Motiya, Administrative Vice Minister for Defense, Japanese Ministry of Defense) at ¶ 3 (describing 1996 agreement between President Clinton and Prime Minister Hashimoto to close and relocate MCAS Futenma).

The relocation process since 1996 has been long and tortured, but significant headway was made in 2006 when then-Secretary of Defense Donald Rumsfeld and then-Secretary of State Condoleezza Rice agreed with their Japanese counterparts on a bilateral executive agreement entitled the “United–States–Japan Roadmap for Realignment Implementation” (Roadmap). See Okinawa Dugong, 543 F.Supp.2d at 1086. The Roadmap “covers a number of restationing and military realignment issues in addition to the planned closure, return, and relocation of MCAS Futenma.” Id. Specifically with respect to MCAS Futenma, the Roadmap establishes that Japan will construct a replacement base, known as the Futenma Replacement Facility (FRF) offshore from Camp Schwab, an existing onshore military base located adjacent to Henoko and Oura Bays. See generally id. ; see also Docket ...