Department of Defense Must Comply with National Historic Preservation Act

Okinawa Dugong v. Rumsfeld, 2005 U.S. Dist. LEXIS 3123 (N.D. Cal. March 1, 2005).

Danny Davis, 2L, University of Mississippi School of Law

Okinawa dugongs, relatives of the manatee, may be considered cultural property under the National Historic Preservation Act (NHPA), according to a federal district judge for the Northern District of California. Judge Patel, in denying a motion to dismiss brought by the Department of Defense (DOD), held that the dugongs were entitled to protection under the NHPA because the dugongs are listed as a “natural monument” under Japan’s Law for the Protection of Cultural Properties.

Background
In 1995, the U.S. and Japanese governments formed a commission for the purpose of finding ways to reduce the burden of the U.S. military presence on Okinawans. The commission recommended that the Marine Corps Air Station Futenma be replaced by a sea-based facility. In 1997, the DOD released a document which outlined the requirements and concepts of operation of the new facility, which contained a recommendation that the facility be located in Henoko Bay. Japanese government officials, including the governor of Okinawa, accepted Henoko Bay as the relocation site. In 2000, the Consultative Body of Futenma Relocation was formed. The Consultative Body, composed exclusively of local and national officials from Japan, produced the “2002 Basic Plan.” The Basic Plan identified location, size, construction method, and runway orientation of the 1.5 mile long sea-based facility.

Henoko Bay is rich with coral reefs and sea grass beds that are feeding grounds for the Okinawa dugongs. The Okinawa dugong population has decreased to about 50. Dugongs are currently listed as endangered under the U.S. Endangered Species Act. They are also listed as a protected “natural monument” under Japan’s Law for the Protection of Cultural Properties due to the central role they play in the creation mythology, folklore and rituals of traditional Okinawan culture. According to a 2002 United Nations Environmental Programme report, construction of the sea-base facility in Henoko Bay would have serious repercussions for the dugongs because it would destroy some of the last remaining dugong habitat in Japan.

Conservation groups in the U.S. and Japan joined in bringing a lawsuit against the DOD alleging that the DOD failed to comply with the requirements of the NHPA. The DOD filed a motion for summary judgment for failure to state a claim and for lack of subject matter jurisdiction.

National Historic Preservation Act
The purpose of the NHPA is to preserve the “historical and cultural foundations of the Nation . . . in order to give a sense of orientation to the American People.”1 The Act establishes a policy of the U.S. federal government to be a leader in the “preservation of the prehistoric and historic resources of the United States and of the international community of nations.”2 Under the NHPA, the Secretary of the Interior is to maintain a National Register of Historic Places which includes districts, sites, buildings, structures and objects that are significant in American history, architecture, archeology, engineering, and culture.
Section 470a-2 requires the head of a federal agency involved in an “undertaking” outside of the U.S. to take into account the effect on property listed on the World Heritage List or on the applicable country’s equivalent of the National Register.

The Issues
The DOD argued that § 470a-2 of the NHPA did not apply to their actions in Okinawa for several reasons. First, it claimed the dugongs’ listing on Japan’s Law for the Protection of Cultural Properties is not equivalent to being listed on the National Register because the dugong cannot constitute “property” under the Act. Second, the DOD has not taken any action that would be considered a federal “undertaking” under the NHPA because the base relocation was being done by the Japanese government. Third, since the relocation project is an action taken by the Japanese government the court lacked jurisdiction over the matter.

The DOD argued that “equivalent” in § 470a-2 meant equal to the U.S. National Register. According to the DOD, Japan’s Law for the Protection of Cultural Properties allows both inanimate and animate objects to be listed whereas the NHPA only allows inanimate objects and does not include animals. However, the court was not convinced by this interpretation. The court stated that if equivalent was to be read as “equal to,” it would defy the basic proposition that cultures vary and, furthermore, no foreign nation’s list would meet this standard.

To determine the proper meaning of equivalent, the court consulted Webster’s Third New International Dictionary which defines equivalent as “corresponding or virtually identical in effect or function.” Using this definition, the court interpreted the section to require the list be equivalent in effect or function.3 The court concluded that Japan’s list was equivalent with the U.S. National Register because both lists “reflect similar motives, share similar goals, and generally pertain to similar types of property.”4 Also, since § 470a-2 is concerned with property that is listed on a foreign government’s list, it only makes sense that “property” should be defined according to that government’s standards and not the U.S. domestic standard. So, if Japan considers the dugongs cultural “property” then any U.S. federal undertaking affecting the dugongs falls under § 470a-2 of the Act.

The court also rejected the DOD’s argument that the replacement facility was not a federal undertaking. Section 470a-2 defines an “undertaking” as: “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency.”5 This includes projects that are carried out on behalf of or for the agency, carried out with Federal financial assistance, or require agency approval. Since there are no cases that interpret the meaning of “undertaking” in § 470a-2, the court looked to cases interpreting the domestic application of the NHPA for guidance. Courts have broadly defined “undertaking” to include a wide range of direct or indirect federal support, such as financing, licensing, construction, land grants, and project supervision.6 The court concluded that it would amount to a legal absurdity for it to dismiss the case based on the replacement facility not being a federal undertaking when the facility is being built for the U.S. military according to the DOD’s specifications.

Finally, the court rejected the DOD’s argument that the court lacks jurisdiction because of the “act of state doctrine.” The doctrine bars judicial review if the action being challenged involves an official act of a foreign government within its own territory and court action would result in the invalidation of that official act. The court concluded the evidence before the court did not indicate the construction of the replacement facility was truly an official act of Japan within its own territory. Rather it appears that it is an action intertwined with DOD decision-making. For the doctrine to apply, the DOD would have to show that it has untangled itself from the project.

Conclusion
The denial of the motion to dismiss brought by the DOD does not in itself stop the replacement facility from being built. However, the court’s decision does require the DOD to argue more than simply “don’t blame us, blame the Japanese - they’re the ones building it.”

Endnotes
1. 16 U.S.C. §470(b)(2) (2004).
2. Id. § 470-1(2).
3. Okinawa Dugong v. Rumsfeld, 2005 U.S. Dist. LEXIS 3123 at *22 (N.D. Cal. March 1, 2005).
4. Id. at *20.
5. 16 U.S.C. §470a-2.
6. Dugong, 2005 U.S. Dist. LEXIS 3123 at *43.