Okinawa Dugong v. Mattis

• Decision Date: 01 August 2018
• Docket Number: Case No. 03-cv-04350-EMC
• Citation: 330 F.Supp.3d 1167
• Parties: OKINAWA DUGONG (DUGONG DUGON), et al., Plaintiffs, v. James N MATTIS, et al., Defendants.
• Court: U.S. District Court — Northern District of California

330 F.Supp.3d 1167

OKINAWA DUGONG (DUGONG DUGON), et al., Plaintiffs,

v.James N MATTIS, et al., Defendants.

Case No. 03-cv-04350-EMC

United States District Court, N.D. California.

Signed August 1, 2018

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

Peter Kryn Dykema, Taylor Ferrell, Department of Justice, Washington, DC, for Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

Docket Nos. 221, 222

EDWARD M. CHEN, United States District Judge

This case concerns the planned Futenma Replacement Facility (FRF), a U.S. military facility in Okinawa, and its potential impacts on the Okinawa dugong, an endangered sea mammal important in Japanese culture. Negotiations between the United States and Japanese governments regarding the FRF have a long and fraught history. As explained in more detail below, they ultimately resulted in an agreement to relocate the Marine Corps Air Station Futenma from Ginawan City to an area adjacent to Camp Schwab and the Oura and Henoko Bays.

In 2003, Plaintiffs filed suit pursuant to Section 402 of the National Historic Preservation Act ("NHPA"), challenging Defendant U.S. Department of Defense's plans to pursue the FRF without first "taking into account" (TIA) its potential adverse effects on the Okinawa dugong. Judge Patel, assigned to this case, agreed that Defendants had failed to perform an adequate TIA process and granted summary judgment in Plaintiffs' favor. However, because of political uncertainty about the future of the FRF, Judge Patel administratively closed the case in 2012. In 2014, Defendants informed the Court that they had completed a TIA process.

Presently before the Court are the parties' cross-motions for summary judgment concerning the adequacy of Defendants' TIA process under Section 402 of the NHPA. Plaintiffs contend that the process was inadequate because Defendants failed directly to consult Plaintiffs, cultural practitioners, local and Okinawa government officials, and failed to notify the public or Plaintiffs that the TIA process was underway. Plaintiffs also contend that, even if the Section 402 TIA process was adequate, Defendants' finding that the FRF would have no adverse effect on the Okinawa dugong were arbitrary and capricious under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, et seq. , because it ran contrary to the scientific evidence and failed to consider important aspects of the problem.

For the reasons explained below, the Court finds in favor of Defendants. Though Defendants' Section 402 process could possibly have been more inclusive, Defendants' efforts were sufficient to satisfy Section 402's modest procedural requirements. Further, Defendants adequately explained their conclusions based on the evidence available to them, such that their conclusions were not arbitrary or capricious under the APA. Plaintiffs' motion for summary judgment is DENIED and Defendants' motion is GRANTED .

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The FRF and Okinawa Dugong

Since the end of World War II and pursuant to various treaty arrangements, the United States has maintained military facilities on the Japanese island of Okinawa. This case concerns the planned relocation of the existing Marine Corps Air Station Futenma ("MCAS Futenma") in Ginawan City. The United States and Japan agreed to relocate it because its current location became problematic after substantial population growth in the surrounding area. The new site is referred to as the Futenma Replacement Facility ("FRF"). The plans for the FRF have been evolving for more than a decade pursuant to negotiations between Japan and the United States. According to a 2006 roadmap agreement, the two countries agreed that the FRF would be located offshore the existing Camp Schwab, near Henoko Point. The FRF plan calls for a "V-shaped" runway that will be partially built on landfill extending into Oura and Henoko Bays.

The intrusion into the Bays prompted this litigation. The waters in question are a habitat used by the Okinawa dugong, an endangered sea mammal. Plaintiffs,¹ a group of Japanese individuals and environmental organizations concerned about the Okinawa dugong's fate and the U.S.-based Center for Biological Diversity, filed suit in 2003 after relocation plans were first announced under Section 402 of the National Historic Preservation Act (NHPA). Section 402 of the NHPA provides:

Prior to the approval of any undertaking outside the United States that may directly and adversely affect a property that is on the World Heritage List or on the applicable country's equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction over the undertaking shall take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect.

54 U.S.C. § 307101(e). Plaintiffs alleged that the Okinawa dugong was "property" on Japan's equivalent of the National Register within the meaning of Section 402. Judge Patel, then-presiding over the case, agreed and declined to dismiss the case. See Dugong v. Rumsfeld , 2005 WL 522106 (N.D. Cal. Mar. 2, 2005) (" Dugong I "). Consequently, the NHPA required that, "[p]rior to the approval of any undertaking outside the United States [i.e. , the FRF] that may directly or adversely affect [the Okinawa dugong]," Defendants "shall take into account the effect of the undertaking on the [dugong] for purposes of avoiding or mitigating any adverse effect." 54 U.S.C. § 307101(e). After Judge Patel's earlier ruling and a 2006 announcement about a new roadmap for the FRF, plaintiffs filed a second amended complaint and Defendants produced an administrative record to prepare for summary judgment.

At summary judgment, Judge Patel held that the FRF was a "federal undertaking" within the meaning of Section 402 of the NHPA, Dugong v. Gates , 543 F.Supp.2d 1082, 1101 (N.D. Cal. 2008) (" Dugong II "), and that Defendants were therefore required to "take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect." 54 U.S.C. § 307101(e). This is referred to as the "take into account" (TIA) process. Judge Patel sketched the basic outline of what a Section 402 TIA process should look like and held that Defendants had failed to comply. Dugong II , 543 F.Supp.2d at 1102-1111. She entered summary judgment for Plaintiffs and ordered Defendants to comply with NHPA Section 402. Due to subsequent uncertainty over the future of the FRF, Judge Patel held the case in abeyance and administratively closed it in February 2012, instructing the parties to move to re-open the case "[w]hen plans for Henoko become more finalized or are abandoned." Docket No. 147 at 4-5.

Over two years later, in April 2014, Defendants filed a notice that they had completed the Section 402 TIA process. See Docket No. 151. With the Court's leave, Plaintiffs thereafter filed a supplemental complaint. See Docket No. 152-1. Defendants successfully moved to dismiss for lack of jurisdiction, see Docket No. 186, 188, but the Ninth Circuit reversed and remanded. See Docket No. 198. On remand, the parties filed cross motions for summary judgment concerning the adequacy of Defendants' TIA process and the soundness of their conclusions under the APA. Those motions are now before the Court. See Docket Nos. 221, 222, 223.

B. Defendants' "Take Into Account" Process

Subsequent to Judge Patel's order, Defendants undertook a TIA process that involved several components. Each is described in more detail below, but the steps included, inter alia , (1) a report on the FRF's potential impact on the dugong's biological well-being prepared by Dr. Thomas Jefferson (the "Jefferson Report"); (2) a report on the FRF's potential impact on the dugong's cultural significance prepared by a private research institute, International Archeological Research Institute, Inc. (IARII) (the "Welch 2010 Report"); (3) the Japanese government's Environmental Impact Statement ("EIS") regarding the FRF; and (4) miscellaneous other reports or sources of information described below. See US 10997. After considering these reports, Defendants rendered their findings that the FRF would not have adverse effects on the dugong.

The various reports make reference to certain locations, including Henoko Bay, Oura Bay, and Kayo; the maps below illustrate the geography of the FRF and those areas.

The following reports constitute part of Defendants' TIA process.

C. Jefferson Report (Biological Assessment)

Defendants commissioned an internal study by Dr. Thomas A. Jefferson titled "Biological Assessment of the Okinawan Dugong: A review of Information and Annotated Bibliography Relevant to the Futenma Replacement Facility." US 3356. The report consists of a literature review concerning the taxonomy of the dugong, their distribution and abundance, typical lifespan, ecology, behavior and social organization, and threats to their population. Id. The general threats to the Okinawa dugong identified were hunting, bycatch, vessel traffic, chemical pollution, and habitat loss/degradation. US 3368-69. The threats directly linked to military activities were identified as pollution (noise, chemical, sedimentation, and radioactivity) and habitat destruction/alteration. US 3369.

Dr. Jefferson concluded that, for conservation purposes, "[m]anagement actions must be focused on human activities known to be actual causes of mortality for dugongs in this population, and this generally means the closure or relocation of gillnet and setnet fisheries that catch dugongs to locations outside the population's range." US 3373. He also noted that stopping the FRF would be futile in preserving the dugong without additional conservation efforts: "Eliminating activities that may have the potential to limit population recovery (e.g. , the FRF), while ignoring the issues known to be causing...