Ctr for Biological Diversity v. Ashton Carter, 2017 U.S. App. LEXIS 15841

Background

The U.S. Department of Defense supported construction of the Futenma Replacement Facility (FRF) in Okinawa, Japan; the FRF's landfill/runway design threatened the locally protected Okinawa dugong, a species designated as a cultural property under Japanese law.
Plaintiffs (Center for Biological Diversity and others) sued under NHPA §402 (54 U.S.C. § 307101(e)) and the APA, alleging the Government failed to “take into account” effects on the dugong (a procedural NHPA obligation) before approving or supporting the FRF.
Lower courts previously held NHPA §402 could apply extraterritorially and that a procedural take-into-account process is required, but factual/practical questions about whether the DoD satisfied that process remained unresolved.
The Government completed a Marine Corps report finding no adverse effect and notified plaintiffs, but did not provide a full administrative record to the court.
The district court dismissed: it held (1) plaintiffs lacked Article III standing to pursue declaratory relief (because a ruling would not redress their injuries) and (2) plaintiffs’ request for injunctive relief (to halt further FRF activities until NHPA compliance) presented a nonjusticiable political question.
The Ninth Circuit reversed on standing for declaratory and injunctive relief and held neither claim presented a political question, remanding for further proceedings on the merits and equitable relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing for declaratory relief	Plaintiffs suffered a procedural injury (NHPA §402 not followed) that threatens their concrete aesthetic and economic interests; declaratory relief that the process was inadequate would be redressive.	Any declaratory ruling would not redress injury because the FRF/2006 Roadmap and construction are executive-level, bilateral decisions beyond court power (Salmon Spawning analogy).	Plaintiffs have Article III standing for declaratory relief: procedural-injury doctrine applies, causation and redressability (relaxed) satisfied.
Standing for injunctive relief	Plaintiffs can show injury, causation, and redressability for an injunction halting FRF-related activities until NHPA compliance; APA-authorized injunctive remedies are available.	Injunctive relief would interfere with foreign affairs and national security and therefore is not redressable by courts.	Plaintiffs have Article III standing for injunctive relief; redressability satisfied.
Political question (declaratory relief)	Reviewing statutory compliance with NHPA §402 is a classic judicial task: courts can apply APA standards without supplanting foreign-policy choices.	NHPA §402 review would necessarily intrude upon foreign policy and military decisions committed to the political branches.	No political-question bar: Baker factors, especially the first two (textual commitment and manageable standards), do not preclude judicial review of declaratory claims.
Political question (injunctive relief)	Granting an injunction to enforce statutory procedural obligations is a judicially manageable equitable remedy; Winter and precedent show courts can balance national security and environmental harms.	Granting an injunction would require unacceptable judicial involvement in foreign affairs and military operations (lack of manageable standards).	No political-question bar: injunctive relief is justiciable; Baker factors do not foreclose equitable relief though courts must weigh Winter injunction factors on remand.

Key Cases Cited

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing requires concrete injury-in-fact)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (three-part Article III standing test)
Baker v. Carr, 369 U.S. 186 (1962) (political question / six-factor test)
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012) (political-question analysis; emphasis on first two Baker factors)
Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) (procedural-standing and limits on redressability where court cannot undo a foreign-agreement decision)
Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for injunctive relief balancing environmental harms and national security interests)
Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (standing for procedural and environmental injuries)
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (jurisdictional standing requirement)
Nixon v. United States, 506 U.S. 224 (1993) (political question doctrine analysis)