Ctr. for Biological Diversity v. Mattis

• Decision Date: 21 August 2017
• Docket Number: No. 15-15695,15-15695
• Citation: 868 F.3d 803
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Turtle Island Restoration Network; Japan Environmental Lawyers Federation; Save the Dugong Foundation; Anna Shimabukuro; Takuma Higashionna; Yoshikazu Makishi, Plaintiffs-Appellants, v. James MATTIS, in his official capacity as the Secretary of Defense; United States Department of Defense, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

868 F.3d 803

CENTER FOR BIOLOGICAL DIVERSITY; Turtle Island Restoration Network; Japan Environmental Lawyers Federation; Save the Dugong Foundation; Anna Shimabukuro; Takuma Higashionna; Yoshikazu Makishi, Plaintiffs-Appellants,

v.James MATTIS, in his official capacity as the Secretary of Defense; United States Department of Defense, Defendants-Appellees.

No. 15-15695

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2017, San Francisco, California

Filed August 21, 2017

Sarah Burt (argued) and J. Martin Wagner, Earthjustice, San Francisco, California, for Plaintiffs-Appellants.

Mark R. Haag (argued), Peter Kryn Dykema, and Andrew C. Mergen, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Jonathan C. McKay, Office of General Counsel, Department of the Navy, Washington, D.C.; Phillip J. Riblett, Office of the Legal Adviser, United States Department of State, Washington, D.C.; for Defendants-Appellees.

Brian R. Turner, San Francisco Field Office, National Trust for Historic Preservation, San Francisco, California; Elizabeth S. Merritt and William J. Cook, National Trust for Historic Preservation, Washington, D.C.; for Amicus Curiae National Trust for Historic Preservation.

Before: Ferdinand F. Fernandez, Mary H. Murguia, and Paul J. Watford, Circuit Judges.

OPINION

MURGUIA, Circuit Judge:

The U.S. Department of Defense (the Government) approved the location, construction, and specifications for a military base in Okinawa, Japan. Individuals and organizations seek to protect a local animal population and cultural property from the base's alleged adverse effects by bringing claims for declaratory and injunctive relief based on the Government's alleged violations of Section 402 of the National Historic Preservation Act (NHPA), 54 U.S.C. § 307101(e),¹ and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq . The plaintiffs allege the Government failed to "take into account" the base's impact on their cultural, aesthetic, economic, and environmental interests. The district court dismissed the case, concluding that it lacked jurisdiction to hear the claims for declaratory relief because plaintiffs lacked standing to seek declaratory relief, and concluding that it could not hear the claim for injunctive relief because resolving that claim involved deciding a political question. We conclude that the plaintiffs have standing to bring their declaratory relief claims and that plaintiffs' injunctive relief claim does not present a political question. We therefore affirm the district court's conclusion that plaintiffs' claims for declaratory relief do not present a political question; reverse the district court's conclusion that plaintiffs lack standing to seek declaratory relief; and reverse the district court's conclusion that plaintiffs' claim for injunctive relief presents a political question. We remand to the district court for further consideration of plaintiffs' claims for declaratory and injunctive relief.²

I. Background and Procedural History

A. The Okinawa Dugong

The dugong is a species of marine mammal resembling a manatee. See Ctr. for Biological Diversity v. Hagel , 80 F.Supp.3d 991, 994 (N.D. Cal. 2015) ( Okinawa Dugong III ). Dugong populations are often small and isolated, and live only in saltwater. See generally 68 Fed. Reg. 70185 (Dec. 17, 2003). Dugongs have long lifespans, but do not reproduce at a high rate, and because of their exclusively plant-based diet may face difficulty in moving to new locations to find food. See id. at 70186. The dugong largely depends on seagrass communities for survival and must stay close to the coastal habitats where seagrass grows. See id. (noting that the dugong's "close ties to the shore increase its chances of local extinction"). The same food sources are vulnerable to development on or soil runoff from coastal lands. See, e.g. , Okinawa Dugong III , 80 F.Supp.3d at 997–98. Hunting and the fragility of the dugong's habitat have taken a toll on its numbers: the United States lists the dugong as an "endangered" species under the Endangered Species Act (ESA), the World Conservation Union considers the dugong "vulnerable," and Japan considers the dugong "critically endangered." Id. at 995.

Okinawa is the largest of the Ryukyu Islands in Japan. See Okinawa Dugong v. Gates , 543 F.Supp.2d 1082, 1084 (N.D. Cal. 2008) ( Okinawa Dugong II ). Okinawa has a culture and local mythology distinct in some ways from the Japanese mainland. See id. The dugong is significant within traditional Okinawan culture, and continues to hold special significance for at least some Okinawans. Okinawa Dugong III , 80 F.Supp.3d at 995.

At present, the Okinawa dugong population is the northernmost dugong population in the world. The population is small—perhaps as few as 50 in number, according to a 1997 estimate by the Mammalogical Study of Japan—and located in the waters to the east of Okinawa. Id. at 995. Because of its significance in Okinawan culture, the Japanese government has designated the Okinawan dugong population for protection under Japan's Law for the Protection of Cultural Properties. See Okinawa Dugong II , 543 F.Supp.2d at 1084. Under Japanese law, therefore, the dugong is a "natural monument" or "cultural property." Id. The designation of the Okinawa dugong in this fashion provides the legal hook for the challenge at the heart of this appeal.

Plaintiffs-appellants are individuals and organizations, including the Center for Biological Diversity, the Turtle Island Restoration Network, the Japan Environmental Lawyers Federation, and the Save the Dugong Foundation (collectively, CBD). Among the plaintiffs-appellants are three individual Japanese citizens and four international environmental organizations. Okinawa Dugong III , 80 F.Supp.3d at 995. The individual plaintiffs reside in Japan, and either live on Okinawa or guide dugong tours. Id. The organizations have members who allege aesthetic and environmental interests in the Okinawa dugong. Id.

B. Diplomatic Framework for Okinawan Territory

The Government's interests in Okinawa include a longstanding security relationship with the Government of Japan. The United States military has maintained a presence on Okinawa from the close of World War II up to the present day. Okinawa Dugong II , 543 F.Supp.2d at 1084. The military has several bases in Okinawa. Okinawa Dugong III , 80 F.Supp.3d at 995–96.

"Today, as throughout our Nation's history, there is significant variation in the ownership status of U.S. military sites around the world." United States v. Apel , ––– U.S. ––––, 134 S.Ct. 1144, 1151, 186 L.Ed.2d 75 (2014). The Government's operation of military bases in Japan involves "complex and long standing treaty arrangements." NEPA Coal. of Japan v. Aspin , 837 F.Supp. 466, 467 (D.D.C. 1993). From 1945 to 1972, the United States administered Okinawa, while Japan retained residual sovereignty. Okinawa Dugong III , 80 F.Supp.3d at 995. In 1972, after years of negotiations, Japan and the United States entered into a new arrangement, restoring full Japanese sovereignty over Okinawa. See The Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands , June 17, 1971, 23 U.S.T. 447 (the Okinawa Reversion Treaty) ; Okinawa Dugong III , 80 F.Supp.3d at 995–96 ; Okinawa Dugong II , 543 F.Supp.2d at 1084. Under the Okinawa Reversion Treaty, the United States ceased to administer Okinawa and the island chains, which became a prefecture of Japan, but the United States retained "the use of facilities and areas in" Okinawa. Okinawa Reversion Treaty, arts. I, ¶1, III, 23 U.S.T. 447 ; see Okinawa Dugong II , 543 F.Supp.2d at 1084. The United States continued to use Okinawan territory pursuant to two additional agreements: the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, Jan. 19, 1960, 11 U.S.T. 1632 (Security Treaty) and the Agreement Under Article VI of the [Security Treaty] Regarding Facilities and Areas and the Status of United States Forces in Japan, Jan. 19, 1960, 11 U.S.T. 1652 (Status of Forces Agreement). See Okinawa Dugong II , 543 F.Supp.2d at 1084. The Security Treaty and Status of Forces Agreement set up a bilateral Security Consultative Committee (Consultative Committee) consisting of two principals from each of the two nations: Japan's Ministers of Defense and Foreign Affairs, and the United States' Secretaries of State and Defense. Id. at 1084–85. The Consultative Committee provides the forum for the two countries to consult when deciding what areas and facilities the United States will use for the defense purposes of the Security Treaty. Id. Article XXV of the Status of Forces Agreement also establishes a "Joint Committee"—separate from the Consultative Committee—with one representative from each nation. The functions of the two committees appear broadly similar.

In effect, this diplomatic framework is an agreement by the United States to provide security to Japan in exchange for the space to do so. To that end, Article III of the Status of Forces Agreement provides that "within the facilities and areas granted for use of the United States, the United States may take all measures necessary for the establishment, operation, safeguarding, and control of assigned facilities." This includes authority for the United States to control which individuals may access bases or facilities.

One longstanding base is Marine Corps Air Station Futenma (MCAS-Futenma), which supports Marine air operations. Dugong v. Rumsfeld , No. C 03-4350 MHP, 2005 WL 522106, at *1 (N.D. Cal. Mar. 2, 2005) ( Okinawa Dugong I ); see Okinawa Dugong III , 80 F.Supp.3d at 996. MCAS-Futenma is located in Ginowan City, a site of growing urban development on Okinawa. Okinawa Dugong III , 80 F.Supp.3d at 996. The growth and resulting change in...