Federal Judge Rules Against U.S. Defense Department Plans for Airbase
in Habitat of Okinawa Dugong
Species considered cultural icon by Okinawan
people
January 24, 2008
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| Okinawa dugong, cousin
to the Florida manatee. |
| Photo by Suehiro
Nitta |
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San Francisco, CA --
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.
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