958 F.3d 895
9th Cir.2020Background:
- The Department of Defense planned the Futenma Replacement Facility (a new U.S. Marine base) in Henoko/Oura Bays, Okinawa, raising concerns about impacts on the endangered, culturally significant Okinawa dugong.
- Plaintiffs (individuals and environmental organizations) sued under the Administrative Procedure Act, alleging the DoD violated NHPA §402 by failing to "take into account" effects on foreign protected property (the dugong listed under Japan’s Law for the Protection of Cultural Properties).
- A 2005 district-court ruling held Japan’s law was an "equivalent" register and that the dugong qualified as "property" under NHPA; a 2008 ruling defined a four-step Section 402 "take into account" process and found the DoD initially failed to comply and ordered the DoD to complete that process.
- The DoD later completed a multi-source review (anthropological and biological reports, bilateral expert report, SuMMO surveys, Japanese EIS/EIA) and issued 2014 findings concluding "no adverse effect"—primarily because dugong presence in the proposed site was sporadic and of extremely low probability.
- Plaintiffs challenged the adequacy of the DoD’s process (lack of direct consultation and public participation) and argued the "no adverse effect" finding was arbitrary and capricious given limited baseline data; the district court on remand granted summary judgment for the DoD, and the Ninth Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of NHPA §402 "take into account" process (what procedures are required) | §402 requires consultation with interested parties, host‑nation stakeholders, and public participation analogous to §106 regs | §402 imposes a general obligation to "take into account" effects but does not mandate specific consultation or notice-and-comment procedures; agencies have discretion | §402 requires (1) identify protected property, (2) gather/consider/weigh information, (3) determine adverse effect or not, (4) if needed, evaluate alternatives/mitigation; agencies must engage in reasonable consultation but not with specific parties or mandatory public participation; agency discretion reviewed for reasonableness. |
| Applicability of §106 regulations to §402 (must agencies follow §106 regs abroad?) | §106 regs (36 C.F.R. pt. 800) should apply by analogy, requiring specified consultations and public participation | §106 regulations implement the domestic statute and derive from an express delegation not present for §402; they do not automatically apply to §402 | §106 regulations do not apply to §402; absence of a regulation-delegation indicates Congress left details to agency discretion. |
| Adequacy of DoD’s §402 process (identification, information gathering, consultation) | DoD failed to consult plaintiffs and local community directly and omitted cultural consultations; process unreasonable | DoD commissioned multiple studies, considered Japanese EIS, obtained cultural info indirectly, and engaged bilaterally with Japan; choice of consultation was reasonable | DoD satisfied §402’s procedural components; its approach to consultation (including indirect cultural inquiry and use of Japanese EIS) was reasonable under the circumstances. |
| Validity of DoD’s substantive finding of "no adverse effect" (arbitrary & capricious challenge) | Lack of robust baseline population data and potential impacts (habitat loss, fragmentation, noise) make "no adverse effect" conclusion arbitrary | Evidence (survey results, expert reports) showed sporadic dugong presence in project area and other seagrass elsewhere; substantial evidence supports low probability of adverse impact | Court applied deferential APA review and held the "no adverse effect" finding was not arbitrary or capricious—substantial evidence supported DoD’s conclusion despite imperfect baseline data. |
Key Cases Cited
- Ctr. for Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017) (prior appellate decision in this litigation on jurisdictional/merits issues)
- Turtle Island Restoration Network v. U.S. Dep't of Commerce, 878 F.3d 725 (9th Cir. 2017) (de novo review of agency action under APA on summary judgment)
- San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir. 2005) (NHPA is procedural; claims brought under APA)
- River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) (reasonableness standard: rational connection between facts and choices)
- Envtl. Def. v. Duke Energy Corp., 549 U.S. 561 (2007) (statutory terms may vary with context; deference in statutory interpretation)
- Oregon Natural Desert Ass'n v. Jewell, 840 F.3d 562 (9th Cir. 2016) (baseline data preferred but not an independent legal requirement)
- Te-Moak Tribe of W. Shoshone v. U.S. Dep't of Interior, 608 F.3d 592 (9th Cir. 2010) (failure to consult not reversible absent showing of missing material information)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (deference to agency guidance based on persuasiveness)
- Jennings v. Stephens, 574 U.S. 271 (2015) (appellate courts may affirm on any ground supported by record)