Ctr. for Biological Diversity v. Esper

Citation958 F.3d 895
Decision Date06 May 2020
Docket NumberNo. 18-16836,18-16836
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. Mark ESPER, Secretary of Defense; United States Department of Defense, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

JACK, District Judge:

In this environmental action, we are asked to consider two questions: (1) whether the Department of Defense, as part of a plan to construct a new base in Okinawa, Japan, complied with the procedural requirement that it "take into account" the effects of its proposed action on foreign property under Section 402 of the National Historic Preservation Act (NHPA), 54 U.S.C. § 307101(e) ; and (2) whether the Department’s finding that its proposed action would have no adverse effect on the foreign property was arbitrary, capricious, an abuse of discretion, and/or contrary to law in violation of Section 706 of the Administrative Procedure Act (APA), 5 U.S.C. § 706. We hold that the Department met its procedural obligations and that its finding of "no adverse impact" was not arbitrary and capricious and therefore affirm the district court’s grant of the Department of Defense’s motion for summary judgment.

I. Relevant Factual & Procedural Background

In a 2017 opinion, we detailed the background and lengthy procedural history of this case. See Ctr. for Biological Diversity v. Mattis , 868 F.3d 803 (9th Cir. 2017). In light of that discussion, we do not repeat it here. To give context to our opinion, however, we briefly recap the nature of the dispute and one of the district court’s critical rulings leading up to this appeal.

This action arises out of the Department’s construction and operation of the Futenma Replacement Facility in Okinawa, Japan, a replacement aircraft base for the U.S. Marine Corp Air Station Futenma, hereinafter referred to as the "new base," and its potential adverse effects on the Okinawa dugong, an endangered marine mammal that is culturally significant to many Okinawans.

In 2003, Appellants, who are private individuals and environmental organizations interested in the preservation of the Okinawa dugong population, filed the instant action under the APA alleging the Department failed to take into account the adverse effects of the new base on the Okinawa dugong in violation of Section 4021 of the NHPA. The Department moved to dismiss the action on the grounds that the Japanese Law for the Protection of Cultural Properties, under which the Okinawa dugong is protected as a natural monument, was not "equivalent" to the U.S. National Register of Historic Places for purposes of applying Section 402, and that the Okinawa dugong did not qualify as "property" subject to the requirements of Section 402.

In 2005, the district court denied the Department’s motion, holding that the Japanese Law for the Protection of Cultural Properties was the "equivalent of the National Register" and that the Okinawa dugong qualified as "property." Dugong v. Rumsfeld , No. C 03-4350, 2005 WL 522106, at *6–12 (N.D. Cal. Mar. 2, 2005) ( Okinawa Dugong I ).

Regarding its property holding, the district court noted that it could end its inquiry over whether the Okinawa dugong qualified as "property" upon finding that the Japanese Law for the Protection of Cultural Properties was equivalent to the National Register. Id . at *8. Instead, however, it addressed the Department’s main argument and analyzed whether the Okinawa dugong was "property" under the NHPA’s statutory framework. Id . at *8–12. The court explained that the Okinawa dugong fulfilled each element of the definition of an "object" under 36 C.F.R. § 60.3(j), which is sufficient to qualify as "property" under the NHPA. Id . at *9 ; see 36 C.F.R. § 800.16l(1) (defining "historic property" as "any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places"); 36 C.F.R. § 60.3(j) (defining "object" as "a material thing of functional, aesthetic, cultural, historical or scientific value that may be, by nature or design, movable yet related to a specific setting or environment"). The court found that the Okinawa dugong satisfied the definition of an "object" because it was a "material thing" that was "movable, yet related to a specific setting or environment." Id . at *10–12.

Following the denial of the Department’s motion, the parties conducted discovery regarding the adequacy of the Department’s take into account process on the adverse effects of the new base on the Okinawa dugong, and then filed cross-motions for summary judgment.

In 2008, the district court granted Appellantscross-motion, finding that the Department failed to take into account adequately the adverse effects of the new base on the Okinawa dugong. Crucial to the instant appeal, it held that a "take into account" process under Section 402 consisted of four basic components:

(1) identification of protected property, (2) generation, collection, consideration, and weighing of information pertaining to how the undertaking will affect the historic property, (3) a determination as to whether there will be adverse effects or no adverse effects, and (4) if necessary, development and evaluation of alternatives or modifications to the undertaking that could avoid or mitigate the adverse effects.

Okinawa Dugong v. Gates , 543 F. Supp. 2d 1082, 1104 (N.D. Cal. 2008) ( Okinawa Dugong II ). The district court also stated that "a federal agency does not complete the take into account process on its own, in isolation, but engages the host nation and other relevant private organizations and individuals in a cooperative partnership." Id. The district court concluded that the Department failed to comply with the requirements of Section 402 in connection with its plan to construct the new base. Id . at 1111. It found that there was "no evidence that a single official from [the Department] with responsibility for the [new base] ha[d] considered or assessed the available information on the dugong or the effects of the [new base]." Id . at 1108. Accordingly, it ordered the Department to comply with the requirements of Section 402 and held the case in abeyance until such time as the Department completed its "take into account" process on the effects of the new base on the dugong. Id . at 1112.

In the years following the district court’s order, the Department conducted a "take into account" process regarding the potential adverse effects of the new base on the dugong. In doing so, the Department relied on five sources:

(1) The Welch Report: an anthropological report by Dr. David A. Welch commissioned by the Department regarding the cultural significance of the Okinawa dugong in Okinawan culture;
(2) The Jefferson Report: a biological assessment of the Okinawa dugong by Dr. Thomas A. Jefferson commissioned by the Department;
(3) The Futenma Replacement Facility Bilateral Experts Study Group Report : an August 31, 2010 report by a bilateral group of U.S. and Japanese representatives studying the new base’s location, configuration, and construction method;
(4) The SuMMO Project Final Report : an August 28, 2013 report of the Survey of the Marine Mammals of Okinawa (SuMMO) Project conducted in 20112012, on behalf of the United States Marine Corps, to update the Integrated Natural Resources/Cultural Resources Management Plan for the Marine Corps Base Camp Smedley D. Butler;
(5) The Japanese Government’s Environmental Impact Statement/Assessment (EIS/EIA) : Translated excerpts of the Japanese government’s final and draft environmental impact statement/assessment on the effects of the new base on the dugong.

Based on its investigation, the Department concluded that there would be " ‘no adverse effect’ on the Okinawa dugong" as a result of the new base "because of the extremely low probability of Okinawa dugong being in" the area of the new base. U.S. Marine Corps Recommended Findings (April 2014) ("2014 USMC Findings"), § 3.1. It also concluded that "should dugongs in fact be present, the construction and operational activity [would] primarily [be] of the type that would not have an adverse effect" on them. Id.

In 2014, the Department filed a notice of completion of its "take into account" process, attaching its findings. In response to the Department’s notice, Appellants filed a first supplemental complaint, alleging that the Department violated the requirements for a "take into account" process under Section 402 by failing to (1) consult Appellants as interested parties in the "take into account" process, (2) provide information to the public about the proposed new base and its potential effects on the Okinawa dugong, and (3) seek public comment and input. First Suppl. Compl., ¶¶ 48–50. They also alleged that the Department’s finding that the new base would have no adverse effects on the dugong was arbitrary and capricious and violated Section 706 of the APA. Id ., ¶ 51.

The district court initially dismissed the supplemental complaint on the grounds of political question and standing. Ctr. for Biological Diversity v. Hagel , 80 F. Supp. 3d 991, 1019 (N.D. Cal. 2015) ( Okinawa Dugong III ). We reversed and remanded to the district court for consideration of Appellants’ claims on the merits. Ctr. for Biological Diversity , 868 F.3d at 830.

On remand, the parties filed cross-motions for summary judgment on the adequacy of the Department’s "take into account" process. The district court granted the Department’s motion for summary judgment, finding that Appellants had not demonstrated that the Department’s "take into account" process was unreasonable or violated Section 402, and the Department’s finding that the new base would have no adverse effects on the dugong was not arbitrary...

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