Tom King’s CRM Plus --
Ruminations on "cultural resource management," environmental impact assessment, and related esoteric topics, by a curmudgeon who seldom has anything good to say about anything.
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Tuesday, November 25, 2014
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
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).
Henoko/Oura Bay Project
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
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) .
106 and 402 of NHPA
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.
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.
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.
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.
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.
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."
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.
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
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.
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
- 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
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
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
tuned. The dugong -- reported to have good hearing and long memories --
doubtless will, as though their lives depended on it.