Judge Marilyn Hall Patel today issued a final ruling in (Okinawa Dugong v. Gates, N.D.Cal., C-03-4350) finding the Department of Defense (DOD) in violation of the National Historic Preservation Act (NHPA) and requiring DOD to consider impacts of a new airbase on the endangered Okinawa dugong in order to avoid or mitigate any harm.
Local communities and conservationists are concerned that the 1.5-mile-long runway, proposed to be built over seagrass beds, would destroy the remaining habitat of the endangered Okinawa dugong, a cultural icon of the Okinawan people.
The lawsuit sought to compel the U.S. Department of Defense to comply with the National Historic Preservation Act by conducting a complete public assessment of the impacts of the proposed project on the dugong (a relative of the manatee, also known as seacow) so that actions could be taken to avoid or mitigate any adverse affects. The NHPA requires agencies of the U.S. government to consider the impacts on cultural and historic resources in other nations when undertaking activities outside the United States.
The legal wrangling began in September 2003 when members of the local Okinawan community joined with an international coalition of conservation groups to file suit in U.S. district court on behalf of the dugong. In March 2005, Judge Patel denied a motion by the Department of Defense to dismiss the lawsuit and rejected the government's argument that Japanese cultural properties like the dugong do not merit protection under the NHPA.
In today's ruling, Judge Patel said:
"The current record contains no evidence that a single official from the DOD with responsibility for the FRF has considered or assessed the available information on the dugong or the effects of the FRF." (p. 37)
"The court is troubled that the 2006 Roadmap embodying final plans for the construction of the FRF [Futenma Replacement Facility] has received the highest levels of approvals from the U.S. Secretaries of Defense and State. Yet, the impacts of the FRF on the dugong are currently not well-understood....Satisfaction of defendants' obligations under section 402 [(extraterritorial provision of the) National Historic Preservation Act] , therefore, cannot be postponed until the eve of construction when defendants have made irreversible commitments making additional review futile or consideration of alternatives impossible." (p.43)
In her 46-page decision, Judge Patel reaffirmed her 2005 decision that the endangered dugong, listed on Japan's register of protected cultural properties, is entitled to protection under the NHPA. She also found that DOD's involvement in the plan to construct a new military base is a 'federal undertaking' that may directly harm the dugong, and so subject to the requirements of the statute. The judge also held that DOD's failure to produce, gather and consider information about effects of the new base on the Okinawa dugong for purpose of determining whether protective measures are necessary, constitute a violation of the NHPA.
"This is a significant victory for the people of Okinawa concerned with the preservation of their cultural heritage," commented Sarah Burt of Earthjustice, who is representing plaintiffs in the lawsuit. "With this ruling, Judge Patel has made clear that the Department of Defense has an obligation to take a serious look at the impacts of its actions overseas to avoid causing irrevocable harm to the cultural heritage of another nation. This ruling will ensure that the DOD affords the dugong the protection it deserves."
Peter Galvin, Conservation Director for the Center for Biological Diversity stated, "The U.S. airbase expansion at Henoko Bay would involve filling in large areas of critical ocean habitat. It would destroy some of the last remaining habitat for the Okinawa dugong. We are hopeful that the court ordered review and public airing of the impacts of the project will cause the U.S. and Japanese governments to halt the base expansion plans and avoid driving the Okinawa dugong further toward extinction."
Okinawa Dugong: A Japanese "Natural Monument"
The dugong is a large sea mammal related to the manatee and the extinct Steller's sea cow. Its northernmost range is among the coral reefs off Okinawa, Japan. The Okinawa dugong has been listed by the government of Japan since 1955 as a "Natural Monument" under Japan's "Cultural Properties Protection Law." On August 6th, 2007, the Japanese Ministry of Environment listed the Okinawa dugong as "critically endangered" -- the most severely threatened category before "extinct." It has long been revered by native Okinawans as a significant part of their culture and history, celebrated as "sirens" or "mermaids" who bring friendly warnings of tsunamis.
U.S. plaintiffs in this case were the Center for Biological Diversity and the Turtle Island Restoration Network. They were joined by Japanese groups: Save the Dugong Foundation, Committee Against Heliport Construction and Japan Environmental Lawyers Federation. Earthjustice represented all the plaintiffs.