Okinawa Dugong v. Gates

Citation543 F.Supp.2d 1082
Decision Date24 January 2008
Docket NumberNo. C 03-4350 MHP.,C 03-4350 MHP.
PartiesOKINAWA DUGONG (Dugong Dugon), et al., Plaintiffs, v. Robert GATES, et al., Defendants.
CourtU.S. District Court — Northern District of California

J. Martin Wagner, Oakland, CA, for Plaintiffs.

Charles Ray Shockey, U.S. Department of Justice, Sacramento, CA, for Defendants.

MEMORANDUM & ORDER

Re: Cross-Motions for Summary Judgment

MARILYN HALL PATEL, District Judge.

Plaintiffs, consisting of the Okinawa dugong, three individual Japanese citizens, and six American and Japanese environmental associations, brought this action against defendants Robert Gates, Secretary of Defense, and the United States Department of Defense ("DOD") for violations of section 402 of the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470a-2, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Plaintiffs allege that defendants have approved the plans for construction of the Futenma Replacement Facility ("FRF") — a military air station off the coast of Okinawa Island — without taking into account the effect of the military facility on the Okinawa dugong, a marine mammal of cultural and historical significance to the Japanese people. Now before the court are the parties' cross-motions for summary judgment. Having considered the arguments and submissions of the parties and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND
I. The Okinawa Dugong

The dugong (Dugong dugon) is a species of marine mammal related to the manatee. Joint Statement of Undisputed Facts ¶ 2 (hereinafter "Undisputed Facts"). The waters surrounding Okinawa Island are habitat for the dugong whose range extends the costal and territorial waters of many countries in the Far East. Id. The greatest population concentrations occur in Australia, the Philippines, and Thailand, and Japan is at the northern edge of the dugong's range. Id. The dugong is classified as vulnerable by the World Conservation Union (IUCN) due to habitat destruction and degradation, as well as human exploitation. Id. The Japan Ministry of the Environment recently listed the dugong as critically endangered in Japan. Id.

Dugong are significant in Okinawan culture. Id. ¶ 3. They are associated with traditional Okinawan creation mythology, sometimes being considered the progenitor of the local people. Id. Because of its cultural significance, the dugong is listed as a protected "natural monument" on the Japanese Register of Cultural Properties, established under Japan's "Law for the Protection of Cultural Properties." Id. Henoko Bay, on the northeast coast of Okinawa Island, is dugong habitat. Id. ¶ 4. There are many species of seagrass found in the shallow waters of Henoko Bay. Id. These seagrass beds are dugong feeding grounds, and dugong have been observed to feed in and traverse Henoko Bay. Id. The U.S. military's Camp Schwab — where defendants propose to construct a military facility to replace an existing air station — are located adjacent to and in Henoko Bay. Id.

II. The Futenma Replacement Facility ("FRF")

The United States has maintained a military presence on the Island of Okinawa, Japan, since the end of World War II in 1945. Undisputed Facts ¶ 5. After the U.S. military occupation of Japan ended, the Government of Japan permitted the United States to administer Okinawa pursuant to international agreements, while Japan retained residual sovereignty over Okinawa. Id. In November 1969, President Nixon and Prime Minister Sato agreed to terminate the United States' administrative control of Okinawa without detriment to the mutual defense interests of both governments. Defs.' Mem. at 7. United States administration of Okinawa officially ended in 1972 when the two governments signed the "Agreement Between the United States and Japan Concerning the Ryukyu Islands and the Daito Islands" ("Agreement"). Undisputed Facts ¶ 6. Okinawa is one island in the Ryukyu Island chain that now comprises the Prefecture of Okinawa. Id. Under the Agreement, the United States relinquished to Japan all administrative rights and interests it had over the Okinawa Islands. Id. Japan assumed full responsibility and authority for the exercise of any and all powers of administration, legislation, and jurisdiction over the territory and inhabitants of the Islands, and Okinawa regained its pre-World War II status as Japan's 47th prefecture. Id.

Under Article III of the Agreement, Japan granted the United States exclusive use of facilities and areas in the Islands in accordance with the "Treaty of Mutual Cooperation and Security" ("Treaty") and the "Status of Forces Agreement" ("SOFA"). Id. The Treaty and SOFA were both signed in 1960, but did not take effect until U.S. administration of Okinawa ended in 1972. Defs.' Mem. at n. 5. SOFA is a bilateral agreement between the United States and Japan entered into pursuant to Article VI of the Treaty which states, "[f]or 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." Pls.' Exhs. 14, 15. The Treaty and SOFA create the bilateral Security Consultative Committee ("SCC") consisting of four members — the Japanese Minister of Foreign Affairs, the Japanese Minister of Defense, the United States Secretary of Defense, and the United States Secretary of State. Id.; Defs.' Mem. at n. 7. SOFA instructs that the SCC "shall serve as the means of consultation in determining the facilities and areas in Japan which are required for the use of the United States in carrying out the purposes of the [Treaty]." Pls.' Exh. 15, SOFA, Art. XXV.

The United States Department of Defense ("DOD") maintains and controls a number of military bases on Okinawa, including the Marine Corps Air Station Futenma ("MCAS Futenma") which provides services and materials to support Marine Corps aircraft operations. Undisputed Facts ¶ 7. MCAS Futenma is located in Ginowan City and due to social and economic changes, is now completely surrounded by urban development. Moriya Dec. ¶ 3. Japanese officials have called for its closure and relocation to a more suitable site in order to case the health and safety burdens on the citizens of Ginowan City. Id. ¶ 3, 5. At the same time, American officials have also called for the relocation of MCAS Futenma citing a desire to relocate military activities to a less congested area. Lawless Dec. ¶ 4. The project to relocate and replace MCAS Futenma is referred to as the Futenma Replacement Facility ("FRF") project. Under the auspices of the SCC, the United States and Japan formed the bilateral Special Action Committee on Okinawa ("SACO") to develop recommendations for the SCC on ways to consolidate, realign, and reduce U.S. military facilities and to adjust operational procedures of U.S. forces in Okinawa. Undisputed Facts ¶ 8. SACO recommendations can only be adopted with bilateral SCC approval. Id. In December 1996, the SCC members approved the SACO recommendation to replace MCAS Futenma with an offshore, sea-based facility somewhere off the east coast of Okinawa. Id.; Pls.' Exh. 13, SACO Final Report.

The final site selection and design of the FRF depended upon, among other considerations, U.S. operational requirements which the DOD established in September 1997. Undisputed Facts ¶¶ 8, 10; Pls.' Exh. 16. The operational requirements were developed with the involvement of representatives of at least eight DOD subagencies and were approved by high-ranking officials in the U.S. Army, Navy, and Marines. Undisputed Facts ¶ 10. The 1997 operational requirements established parameters for any replacement facility Japan would construct and provide to the U.S. in accordance with the Treaty and SOFA. Id. While Japan would select the ultimate site of the FRF and fund and carry out its construction, DOD would oversee and monitor its design, engineering, and construction to ensure that the FRF met U.S. operational requirements. Id. ¶¶ 10, 11, 13.

In August 2000, the Consultative Body of Futenma Relocation, composed of local and national officials from the Government of Japan, was established to produce a "Basic Plan" to identify the location, size, construction method, and runway orientation of the FRF. Id. ¶ 11. The Basic Plan, issued by the Consultative Body in July 2002, approved the decision to relocate MCAS Futenma to Nago City's Henoko District, immediately offshore from Camp Schwab. Id. As already mentioned, the U.S. military's Camp Schwab is located adjacent to and in Henoko Bay which is a dugong habitat.

Although SACO's initial recommendation called for the construction of the FRF based facility, those plans were officially abandoned on October 29, 2005 when the SCC issued the "Alliance Transformation and Realignment Agreement" ("ATARA"). Id. ¶ 12; Pls.' Exh. 18. The ATARA stipulated that the U.S. and Japan would locate the FRF in an "L-shaped" configuration that combined the shoreline areas of Camp Schwab and adjacent water areas of Henoko and Oura Bays. Undisputed Facts ¶ 12. Although Japan suggested locating the FRF entirely on the land area of Camp Schwab and/or the adjacent Central Training Area, DOD's operational requirements made such an arrangement impossible. Id. The site selected to locate the FRF, as described in the ATARA, did meet DOD operational and safety concerns. Id. The ATARA also directed the respective staffs of both governments to develop plans for the initiatives agreed upon, including implementation schedules, no later than March 2006. Id.

On May 1, 2006, following a meeting of the SCC that included U.S. Secretary of Defense Donald Rumsfeld in addition to U.S. Secretary of State Condoleezza Rice and the other SCC members, Japan and the United States issued an agreement entitled "United States-Japan Roadmap for Realignment Implementation" ("2006 ...

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