Pity the Dugongs: U.S. DOD Says Court Has No Jurisdiction

By Tom King

Posted 11/25/2014 in the Huffington Post, http://www.huffingtonpost.com/tom-king/pity-the-dugongs-us-dod-s_b_6203790.html

Dugongs?

The Okinawa Dugong (Dugong dugon) is a large, fleshy marine mammal related to the Manatee (Trichechus sp.). Its dwindling population lives in sheltered waters around the island of Okinawa in Japan, feeding on beds of seagrass. Traditionally, the dugong is a sacred animal on Okinawa, associated with the ancient origins of the Okinawan people and with their continuing welfare. As a result, the dugong is officially listed as a "Natural Monument" under Japan's "Law for the Protection of Cultural Properties" (LPCP).

The Henoko/Oura Bay Project

The U.S. Department of Defense (DOD), under pressure to reduce its military footprint on Okinawa , has proposed to consolidate operations at Camp Schwab, a Marine Corps base on Henoko and Oura Bays on the island's east coast. The proposal involves runway expansion over part of one of the few remaining seagrass beds available for the dugong. Per treaties with the U.S., the Japanese government supports the proposal.

Okinawa residents and Japanese environmentalists have fought the project, but have been thwarted by Japan's relatively weak and centralized environmental review laws, which give concerned citizens little opportunity to influence decision making. So the Japan Environmental Lawyers' Federation (JELF) and its allies turned to U.S. law. With the help of Earthjustice , in 2003 they found an obscure legal handle -- Section 402 of the U.S. National Historic Preservation Act (NHPA) .

Sections 106 and 402 of NHPA

The best-known section of the NHPA is Section 106, which requires U.S. government agencies to "take into account" the effects of their domestic activities -- such as highway construction, military base management, and energy development -- on historic places, which are defined as places included in or eligible for the National Register of Historic Places. Regulations of the Advisory Council on Historic Preservation (ACHP) spell out how this is to be done - it involves consultation with interested parties, studies to identify historic places and determine how they may be affected, and negotiation of agreements about how to deal with the effects.

Section 402 of the law is the international version of Section 106; it requires U.S. agencies to take into account the effects of their proposed actions on resources listed in any host nation's equivalent of the U.S. National Register. However, there are no regulations governing compliance with Section 402, so agencies tend to ignore it.

As did DOD in planning its expanded base at Henoko and Oura Bays.

The 2003 Litigation

On behalf of JELF and its allies, in 2003 Earthjustice filed suit in U.S. District Court in San Francisco, charging that DOD was in violation of NHPA Section 402. Obviously, they charged, destroying the habitat of the dugong would have serious impact on the animals, whose listing under Japan's LPCP brought them under NHPA's protection.

The U.S. government initially responded that Section 402 didn't apply, because Japan's LPCP wasn't "equivalent" to the U.S. NHPA. Why not? Well, because it didn't use quite the same words, and because it includes animals, like dugongs, while the U.S. National Register does not.

The plaintiffs pointed out that "equivalent" does not mean "identical," and showed that while the U.S. Register indeed doesn't list animals per se, it does list places made historically significant through association with animals, such as traditional fishing sites. The lists, they argued, and the laws that govern them, are functional equivalents.

The court agreed, and directed DOD to refrain from pursuing the project until it had complied with Section 402 - which meant, the court said, following the basic outline of Section 106 review in partnership with the Japanese government and "other relevant private organizations and individuals."

DOD's Response

On April 16 of this year, DOD informed the court that it had done its work and determined that the base expansion would have "no adverse effect" on the dugongs. But the procedures it employed to reach this determination seem to bear only rhetorical resemblance either to Section 106 review as conducted in the U.S., or to the direction of the court.

DOD says its determination is based on studies done by various professionals - but it refuses to release their reports, or even their full titles. I've personally made two requests for the key report, and been stiffed by DOD both times. They haven't even told me to seek it under the Freedom of Information Act -- the government's usually favored means of keeping the public in the dark while pretending "transparency."

DOD says it "consulted," but it did so only with Japanese government agencies and with its own selected groups and individuals. It consulted neither with any of any of the plaintiffs or other opposition groups or with the general Okinawan public - or even notify them as to what was going on. I've seen no evidence that they even consulted with the Advisory Council on Historic Preservation, whose Section 106 regulations lay out the processes that the court said DOD should emulate.

DOD relied on essentially uncontrolled secondary data and a questionable environmental study conducted by the Japanese government to conclude that dugongs really don't use Henoko or Oura Bays very much, and if they do, well, they won't be bothered much by the construction and operation of the base. And while it assures the court that the project will have no adverse effect on the dugongs, it promises a good many measures supposedly designed to mitigate the adverse effects it says won't happen. But unlike under Section 106 of NHPA, where binding agreements are executed on how mitigation will be done, DOD simply says "trust us."

Having now - to its own satisfaction if to no one else's -- "complied" with Section 402, DOD has petitioned the court to dismiss the plaintiffs' complaint.

And if the court isn't satisfied with the quality of DOD's "compliance?" Well, says DOD in its filings, that really doesn't matter, because the court has no jurisdiction anyway. The base consolidation/expansion is required for purposes of national defense and vital to our relationship with Japan, so under what DOD calls "a universal understanding ever since George Washington's administration," the court is barred from interfering in the executive branch's decisions.

Whither the Dugong?

The plaintiffs are not impressed; they have released their own studies, which criticize the inclusiveness and methodology of those relied on by DOD and predict that if the project proceeds, it will likely have disastrous consequences for the dugong. They have decried DOD's failure to consult or reach agreements in a manner parallel to ordinary practice under Section 106 of NHPA, and they have marshaled a considerable body of case law indicating that DOD is drastically overreaching in its interpretation of that so-called "universal understanding."

I'm told that arguments will be heard in court in San Francisco next week. What will become of the dugongs' case? Will the court find that whenever the U.S. Department of Defense decides that national security and international relations are involved, U.S. courts have no jurisdiction over how DOD planning considers environmental impacts and addresses the concerns of the affected public?

Stay tuned. The dugong -- reported to have good hearing and long memories -- doubtless will, as though their lives depended on it.