330 F. Supp. 3d 1167
N.D. Cal.2018Background
- The U.S. planned the Futenma Replacement Facility (FRF) in Okinawa, involving landfill and runway construction in Oura and Henoko Bays, areas used intermittently by the endangered Okinawa dugong.
- Plaintiffs (environmental groups and Japanese individuals) sued under Section 402 of the National Historic Preservation Act (NHPA), alleging the U.S. failed to "take into account" effects on the dugong and later challenged agency findings under the Administrative Procedure Act (APA).
- After prior proceedings (including Dugong I and Dugong II) the Navy/DoD completed a TIA process relying on: a biological review (Jefferson report), a cultural assessment (Welch/IARII), the Japanese EIS (with public comment), SuMMO surveys, and other materials, and concluded the FRF would have "no adverse effect."
- Plaintiffs argued Defendants inadequately consulted Plaintiffs, cultural practitioners, and local Okinawa officials, failed to give public notice, and reached arbitrary and capricious scientific conclusions that underestimated harms (habitat loss, noise, pollution, vessel strikes, fragmentation).
- The district court found Defendants’ TIA process met Section 402’s procedural requirements (giving deference in the foreign-affairs context), and that the "no adverse effect" finding was not arbitrary or capricious given the record of low dugong presence in the FRF area, the Japanese EIS, other studies, and proposed mitigation measures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Section 402 consultation | Plaintiffs: DOD failed to directly consult Plaintiffs, cultural practitioners, and local Okinawa gov't; no public notice | DOD: relied on Japanese EIS (public comment), commissioned cultural and biological studies, considered Plaintiffs' earlier litigation declarations and Okinawa input indirectly; direct consultation choices were reasonable | Court: Consultation scope was reasonable; Section 402 procedural requirements satisfied (Plaintiffs' motion denied) |
| Obligation to notify/solicit public comment under Section 402 | Plaintiffs: DOD should have provided direct public notice and solicited comment | DOD: Japanese EIS provided robust notice/comment; duplicative processes not required | Court: Reliance on Japanese EIS public process was reasonable; no separate U.S. notice required |
| Whether agency ignored important aspects or failed to consult relevant sources | Plaintiffs: DOD ignored cultural practitioners, did not ask consultants about FRF impacts specifically, failed to examine fragmentation or future recovery needs | DOD: consulted academics, local Boards of Education, Japanese gov't; cultural experts relayed practitioners' knowledge; issue scoping reasonably matched expertise | Court: Agency reasonably scoped consultations and considered relevant aspects; Plaintiffs failed to identify material information omitted |
| APA challenge to "no adverse effect" finding (scientific sufficiency) | Plaintiffs: Record shows likely harm; existing studies criticized internally; need more rigorous population/density data; mitigation insufficient | DOD: record shows intermittent/very low dugong presence in FRF-area, Japanese EIS and other studies support low risk; mitigation measures reduce remaining risks | Court: Agency relied on available scientific evidence and reasonable inferences; findings not arbitrary or capricious; cross-motion for Defendants granted |
Key Cases Cited
- Nw. Motorcycle Ass'n v. USDA, 18 F.3d 1468 (9th Cir. 1994) (summary judgment appropriate where review limited to administrative record)
- Occidental Eng'g Co. v. INS, 753 F.2d 766 (9th Cir. 1985) (court determines whether administrative record permitted agency decision)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (Sup. Ct. 1983) (arbitrary and capricious standard and required agency explanation)
- Te-Moak Tribe v. U.S. Dep't of the Interior, 608 F.3d 592 (9th Cir. 2010) (NHPA consultation principles and review of procedural adequacy)
- Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) (scope of NHPA consultation and agency discretion)
- Skidmore v. Swift & Co., 323 U.S. 134 (Sup. Ct. 1944) (weight of agency guidance under "power to persuade")
- Env. Protection Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) (monitoring difficulties do not render habitat-based analysis unreasonable)
- Turtle Island Restoration Network v. U.S. Dep't of Commerce, 878 F.3d 725 (9th Cir. 2017) (agency action arbitrary if it fails to consider important aspects of the problem)
- City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142 (9th Cir. 1997) (NEPA requires reasonably thorough discussion, not unanimity of expert opinion)