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Center for Biological Diversity v. Mattis

United States Court of Appeals, Ninth Circuit

August 21, 2017

Center for Biological Diversity; Turtle Island Restoration Network; Japan Environmental Lawyers Federation; Save the Dugong Foundation; Anna Shimabukuro; Takuma Higashionna; Yoshikazu Makishi, Plaintiffs-Appellants,
James Mattis, in his official capacity as the Secretary of Defense; United States Department of Defense, Defendants-Appellees.

          Argued and Submitted March 15, 2017 San Francisco, California

         Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding D.C. No. 3:03-cv-04350-EMC

          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.


         National Historic Preservation Act / Administrative Procedure Act

         The panel affirmed in part, reversed in part and remanded for further proceedings in an action brought by environmental groups and individuals who challenged a decision by the U.S. Department of Defense to construct a new military base on Okinawa, Japan.

         Plaintiffs, seeking to protect a local animal population and cultural property from the base's alleged adverse effects, brought claims for declaratory and injunctive relief based on the Government's alleged violations of Section 402 of the National Historic Preservation Act, 54 U.S.C. § 307101(e), and the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

         Reversing the district court, the panel held that plaintiffs had standing to pursue declaratory relief, limited to whether the Government's evaluation, information gathering, and consultation process pursuant to the National Historic Preservation Act Section 402 discharged the Government's obligations under the Act and otherwise satisfied the requirements of the Administrative Procedure Act. Applying Baker v. Carr, 369 U.S. 186 (1962), the panel agreed with the district court that plaintiffs' claims for declaratory relief did not present a political question that would prevent judicial review.

         The panel held that plaintiffs also had Article III standing to pursue injunctive relief and that the claims for injunctive relief did not present a political question implicating any Baker factors. The panel remanded to the district court for further proceedings so that the district court could address the merits of the claims in the first instance.


          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, 134 S.Ct. 1144, 1151 (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 surrounding conditions since the base was first established has led Japanese officials to express concern about the effect of the base on the health and safety of Japanese citizens. Id. American officials have agreed the base's current location poses challenges, and the two nations have engaged in efforts to relocate MCAS-Futenma since at least 1996. Id. The two countries' efforts have focused primarily on moving the Okinawa base to a less densely populated area.

         Relocating MCAS-Futenma to a new site has taken a great deal of time and effort. See, e.g., Okinawa Dugong II, 543 F.Supp.2d at 1085-86. In 2006, the Consultative Committee released the "United States-Japan Roadmap for Realignment Implementation" (the Roadmap)-a bilateral executive agreement between the two nations that agreed on a plan of action for, among other things, relocation of MCAS-Futenma. Id. at 1086. The Roadmap sets forth that Japan will build a replacement military base, the Futenma Replacement Facility (FRF), near Camp Schwab, a military base already located adjacent to Oura and Henoko Bays. Okinawa Dugong III, 80 F.Supp.3d at 996. Officials from the two nations selected the site after considering other potential base sites, including a sea-based location. See Okinawa Dugong II, 543 F.Supp.2d at 1085-86.

         Critical to the design of the FRF is a "V-shaped" set of runways built on top of landfill and extending into what are now the waters of the Oura and Henoko Bays. Okinawa Dugong III, 80 F.Supp.3d at 996, 996 n.4. The runways are approximately 1600 meters long, with additional space for "overrun." Id. at 996. After the 2006 Roadmap, no "serious" construction work occurred for the next seven years. Id. at 997. The FRF Project continued to be the subject of active diplomatic negotiations between Japan and the United States. Id. This included attention to the environmental impact of the base on eastern Okinawa. In Japan, government officials prepared a draft environmental impact statement (EIS) in 2009, and issued a final EIS in 2012. Id. The Japanese EIS included attention to "potential impacts on the dugong" from the runways and other FRF construction. Id. The Japanese EIS concluded that there would be no adverse effects on the Okinawa dugong from the FRF.

         C. Prior Decisions

         CBD filed suit against the U.S. Department of Defense and the Secretary of Defense in his official capacity in September 2003. CBD filed its suit after it became clear that the likely site of the FRF might have effects on the Okinawa dugong, but prior to Japan and the United States entering into the 2006 Roadmap. In its complaint, CBD alleged that the FRF was a serious threat to the Okinawa dugong. CBD rested its claims on Section 402 of the NHPA and the APA. NHPA Section 402 requires that United States agency officials "take into account the effect" of any Government undertaking "[p]rior to the approval of any undertaking outside the United States that may directly and adversely affect" recognized cultural heritage sites or properties, "for purposes of avoiding or mitigating any adverse effect." 54 U.S.C. § 307101(e). CBD alleged that the Government had failed to "take into account" the effect the FRF might have on the Okinawa dugong, violating NHPA Section 402.

         The Government first argued that NHPA Section 402 does not provide a cognizable basis for relief. The Government moved to dismiss on the basis that the dugong was not "property" implicated by NHPA Section 402 and that the protected status of the dugong under Japanese law was not "equivalent" to being on the United States' National Register. See Okinawa Dugong I, 2005 WL 522106 at *6. The district court concluded that the NHPA could apply to the Government's design and construction of the FRF. Id. at *18. The district court found that Japan's cultural property protection law was equivalent to the United States' National Register, implicating NHPA Section 402, and that the dugong was a property the NHPA protects. Id. at *7-12. The district court also held that the NHPA applied extraterritorially because the statute on its face "explicitly demonstrate[d] Congress's intent that it apply abroad where a federal 'undertaking' promises to have direct or adverse effects on protected foreign properties." Id. at *18. The district court also ruled that relocation of MCAS-Futenma could be an "undertaking" for NHPA purposes, but that factual disputes precluded ruling on that question or on determining whether Japan's role made the action unreviewable under the act of state doctrine. See id. at *8, *10-11, *19-20. The parties had to develop the case further to allow for a conclusion on whether the FRF would actually have the potential to affect the dugong adversely and whether the Secretary of Defense had in fact discharged his NHPA Section 402 obligations. Id. at *16-18.

         After this decision, Japan and the United States announced the Roadmap, and CBD filed a second amended complaint. After development of the record, the parties filed cross-motions for summary judgment.

         In 2008, the district court ruled in favor of CBD on the cross-motions for summary judgment. Okinawa Dugong II, 543 F.Supp.2d at 1112. The district court held that the individual plaintiffs and most of the organizations had standing. Id. at 1096. The district court also dismissed a number of other threshold jurisdictional arguments from the Government, including arguments based on the lack of a "final agency action" under the APA, a failure of ripeness, the act of state doctrine, and Federal Rule of Civil Procedure 19's requirement to join necessary and indispensable parties (here, Japan). Id. at 1096-1100. The Government did not raise the political question doctrine at that time.

         The district court then held that NHPA Section 402 applied to the Government because the FRF was a "federal undertaking" within the meaning of the statute and the undertaking might have adverse effects on the dugong. Id. at 1101-02. Having reached this conclusion, the district court interpreted the requirements of NHPA Section 402, which was an issue of first impression. Id. at 1102. The district court concluded that satisfying NHPA Section 402's process must include, at a minimum:

(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. The person charged with responsibility for this basic process is the person with jurisdiction over the undertaking, and compliance with the process must occur before the undertaking is approved. In addition, 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. at 1104.

         The district court concluded that the Government had failed to comply with NHPA Section 402 because the "record contains no evidence that a single official from [the Government] with responsibility for the FRF has considered or assessed the available information on the dugong or the effects of the FRF." Id. at 1108. This, in turn, was a violation of the APA, because it was agency action "unreasonably delayed and unlawfully withheld." Id. at 1112 (citing 5 U.S.C. § 706(1)). The district court ordered the Government to comply with NHPA Section 402. Id.

         The district court then ordered the case "held in abeyance until the information necessary for evaluating the effects of the FRF on the dugong is generated, and until defendants take the information into account for the purpose of avoiding or mitigating adverse effects to the dugong." Id. The district court ordered the Government to submit additional information and documentation within 90 days,

describing [1] what additional information is necessary to evaluate the impacts of the FRF on the dugong; [2] from what sources, including relevant individuals, organizations, and government agencies, the information will be derived; [3] what is currently known or anticipated regarding the nature and scope of Japan's environmental assessment and whether that assessment will be sufficient for meeting defendants' obligations under the NHPA; and [4] identifying the DOD official or officials with authorization and responsibility for reviewing and considering the information for purposes of mitigation.

Id. The district court did not issue an appealable final order.

         Eventually, in February 2012, without motion from either party, the district court administratively closed the case, citing reported obstacles in FRF construction. The district court instructed the parties to reopen the proceeding via letter when the FRF Project's likely outcome was more certain.

         After the district court's 2008 decision in Okinawa Dugong II and the parties' attempts to comply with the district court's order, the U.S. Department of Navy engaged in an analysis pursuant to NHPA Section 402. Among other steps, the Navy (1) commissioned an independent study on the potential effects of the FRF on the Okinawa dugong, (2) engaged with the Government of Japan, (3) reviewed "multiple biological, environmental, and historical studies relating to the impact" of the project on the dugong, (4) reviewed Japan's EIS, including comments, (5) reviewed CBD's litigation materials, including the declaration of CBD's expert, and (6) consulted with sixteen experts in diverse disciplines, including some recommended by CBD. The Navy in a draft report also suggested a number of mitigation measures to the Government of Japan "to avoid possible adverse impacts to the Okinawa dugong." The Navy also identified mitigation measures to consider during operations of the base. The Government released its final report, the U.S. Marine Corps Recommended Findings (Marine Corps Findings), in April 2014. In its report, the U.S. Navy concluded that the FRF would have no adverse impact on the Okinawa dugong population. The parties continue to dispute whether the Government actually discharged its NHPA Section 402 obligations.

         The Government subsequently filed a notice of completion of the NHPA process for the FRF. The Government submitted the Marine Corps Findings to CBD, but did not provide the district court or CBD with an administrative record or underlying documentation.

         In the interim, during 2013, the FRF construction project had "gained significant momentum." Okinawa Dugong III, 80 F.Supp.3d at 997. The momentum included productive negotiations between the Government of Japan and the Governor of the Okinawa Prefecture. Id.

         CBD subsequently filed a supplemental complaint that alleged that limited construction work was underway, a fact to which both parties agreed as of 2015. Since 2015, the FRF has had setbacks. Construction stopped in late 2015, before restarting, reflecting local political disputes relating to the FRF. Though construction appears to be ongoing at this time, there is no reason to think completion of the base is imminent.

         D. Instant Federal Court Proceeding

         1. Claims for Relief

         In its first supplemental complaint, CBD brought a single claim for declaratory and injunctive relief, with several subparts. CBD stated that the Government's failure to consult CBD as "interested parties" and failure to provide information to the public or seek public comment constituted violations of the "take into account" requirement of NHPA Section 402. CBD also alleged that failing to follow the NHPA requirements violated the APA, 5 U.S.C. § 706(2)(A), (2)(D). Finally, CBD alleged that the Government's "conclusion that the construction and operation of the FRF will have no adverse effect on the Okinawa dugong" was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, within the meaning of the APA.

         In its prayer for relief, CBD asked for (1) "a judgment declaring" several violations of NHPA Section 402 and of the APA; (2) an order setting aside the Marine Corps Findings; (3) an order barring the Government from proceeding with the FRF project, including derivative procedural steps like permitting and construction approval, until the Government "complies with section 402 of the NHPA"; and (4) costs and fees. We will refer to the request for a declaratory judgment and an order setting aside the Marine Corps Findings as CBD's "claims for declaratory relief" and the request for an order enjoining construction work as CBD's "claim for injunctive relief."

         2. Motion to Dismiss and District Court Order

         In September 2014, the Government moved to dismiss. At that point, the Government took the position that all of CBD's claims presented political ...

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