[CPEO-MEF] Okinawa (Japan) Dugong decision

[Lenny Siegel <lennysiegel@gmail.com>]

[I find interesting here the extra-territorial applicability of U.S. 
laws. - LS]

For Immediate Release, January 24, 2008
Center for Biological Diversity

Federal Judge Rules Against U.S. Defense Department Plans for
Airbase in Habitat of Okinawa Dugong;
Species Considered Cultural Icon by Okinawan People

SAN FRANCISCO - 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 in violation of the National Historic Preservation Act and 
requiring it 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 a 
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 sometimes known as "sea cows" - so that 
actions could be taken to avoid or mitigate any adverse affects. The 
National Historic Preservation Act 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 law.

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 [Futenma Replacement 
Facility] 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 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 U.S.'s National Historic 
Preservation Act. She also found that the Department of Defense's 
involvement in the plan to construct a new military base is a "federal 
undertaking" that may directly harm the dugong, and so is subject to the 
requirements of the statute. She held that the department's failure to 
produce, gather, and consider information about the effects of the new 
base on the Okinawa dugong, for the purpose of determining whether 
protective measures are necessary, constitutes a violation of the law.

"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 at the Center for Biological 
Diversity, said: "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 6, 2007, the Japanese Ministry of 
Environment listed the Okinawa dugong as "critically endangered" - the 
most severely threatened category before "extinct." The animal 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.

Read the decision here:
http://www.earthjustice.org/library/legal_docs/dugong-decision-12408.pdf

-- 


Lenny Siegel
Executive Director, Center for Public Environmental Oversight
a project of the Pacific Studies Center
278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org



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