The Okinawan Dugong And Application of Section 402 of the by wulinqing


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Ginowan City and the Futenma Air
The Futenma Replacement Facility
 The project to remove and replace MCAS Futenma is called the
                  Futenma Replacement Facility

 1996—US and Japan approved the “Special Action Committee on
  Okinawa” (SACO) to replace MCAS Futenma with an offshore, sea-based
  facility somewhere off the east coast of Okinawa.

 2006—Approved the “United States-Japan Roadmap for Realignment
  Implementation” (2006 Roadmap)
    finalized the construction proposal for the
    established a target date of 2014 for completion of project.
    proposed a “V-shaped” runway partially built on landfill extending into
     Oura and Henoko Bays adjacent to Camp Schwab and located in Nago
    The base is located immediately on top of the endangered and
     cherished dugong’s feeding grounds.
                   The “V” Plan
Futenma Replacement Facility Bilateral Experts Study Group Report
                      August 31, 2010
  Environmental Impact of the
          “V” Plan
 According to the Japan’s Draft Environmental Impact
 Statement, the facility would be approximately 205
 hectares in size:
   Approximately 160 hectares of sea area would be
    reclaimed, requiring 21 million cubic meters of fill
   Approximately 78.1 hectares of marine plants would be
   Approximately 6.9 hectares of coral would be impacted
 The existing beach on the east side of Camp Schwab
 would be lost due to reclamation, resulting in the loss of
 some animal and plant habitat
                   The “I” Plan
Futenma Replacement Facility Bilateral Experts Study Group Report
  Environmental Impact of the
           “I” Plan
 The I-shaped facility would be approx. 150 hectares in
    Approx. 120 hectares of sea area would be reclaimed,
     requiring 18.9 million cubic meters of fill
    Approx. 67 hectares of marine plants would be
    5.5 hectares of coral would be impacted
 The existing beach on the east side of Camp Schwab
  would remain, but the impact on animal and plant habitat
  remains to be assessed.
      Marine Life in Okinawa
 Often called the “Galapagos of the East.” It encompasses a
  vast diversity of life including 400 species of coral and more
  than 1,000 species of reef fish, marine mammals and sea
 The east coast of Okinawa supports approximately 1,205 ha of
  seagrass in comparison to 125 ha on the west coast.
  Comprising only 10% of the coastline, these seagrass beds,
  vital for dugong survival, will be threatened by terrestrial
  runoff due to military coastal construction.
 It is estimated that only 50 dugong or less remain in the
  pristine waters of Henoko Bay, on the northeast coast of
  Okinawa Island, and less than 100,000 in the South Pacific and
  Indian Oceans.
          Protection Measures For
            the Dugong In Japan:
 Dugongs are classified as vulnerable by the World
  Conservation Union (IUCN) and, therefore, are an
  internationally protected species.
 The Japan Ministry of Environment recently listed the dugong
  as critically endangered in Japan.
 The dugong is also a federally listed endangered species under
  the U.S. Endangered Species Act (ESA).
 Because of its cultural significance, the dugong is listed as a
  protected “natural monument” on the Japanese
  Register of Cultural Properties under Japan’s
  “Law for the Protection of Cultural Properties.”
       The World Heritage Convention:
     And the Making of the National Historic Preservation Act

 In 1972 the United Nations Educational, Scientific, and Cultural
  Organization (UNESCO) recognized that natural decay and man-made
  processes were threatening cultural and natural heritage.

 UNESCO held a meeting concerning the Protection of the World Cultural
  and Natural Heritage in order to develop an international system to
  protect these irreplaceable landmarks.

 The convention encourages State Parties to cooperate and assist each
  other to protect the World Heritage in their jurisdictions.

 When nominating an area, the State gives details of how
  the property is protected including a plan for management.
 Natural Heritage includes physical and biological formations or
  natural area of outstanding universal value from an aesthetic
  or scientific perspective. It also includes geological and
  physiographical formations or certain areas that house
  threatened species of animals and plants of outstanding
  universal value.

 Cultural Heritage is described as monuments, groups of
  buildings, or sites that have “outstanding universal value”
  from a historic, scientific, artistic, or anthropological
  perspective. This also includes natural sites such as seascapes,
  landscapes and other natural resources, living and nonliving.
     By Ratifying the World Heritage
     Convention, State Parties agree:
 To ensure the “protection, conservation, presentation and
  transmission to future generations of the cultural and
  natural heritage” within its territory.
   State parties must take active and effective measures to do so.

 To recognize that the obligation to protect these sites lies
  primarily on themselves to the extent of their own
  resources. (Only when necessary will international
  assistance be given.)
United States’ Implementation of the
     World Heritage Convention
 The Convention was ratified by the U.S. Senate on
  October 26, 1973 and incorporated into law through
 the National Historic Preservation Act Amendments
 of 1980.
   The Secretary of the Interior oversees the United States’
    involvement in the convention and has the obligation to
    make training programs and provide information on
    preservation to Federal agencies, State and local
    governments, private foundations, and individuals.
   International Implications of the
U.S. National Historic Preservation Act
 The NHPA imposes procedures for the consideration of adverse
         effects on international World Heritage sites in
                           Section 402:
     Prior to the approval of any Federal undertaking outside the
     United States which may directly and adversely affect a
     property which is on the World Heritage List or on the
     applicable country’s equivalent of the National Register, the
     head of a Federal agency having direct or indirect
     jurisdiction of such undertaking shall take into account
     the effect of the undertaking on such property for purposes
     of avoiding or mitigating any adverse effects.
   The Meaning of “Undertaking”
In Section 402 According to Section 106 of the NHPA:
  An undertaking is a project, activity, or program funded in
  whole or in part under the direct jurisdiction of a Federal
  Agency, including
  (a) those carried out by or on behalf of the agency;
  (b) those carried out with Federal financial assistance;
  (c) those requiring a Federal permit, license, or approval;
  (d) those subject to State or local regulation administered
  pursuant to a delegation or approval by a Federal agency.
 DoD Internal Policies Require:
 Be an international and national leader in the stewardship of
  cultural resources
 Reconcile the requirements of applicable international
  agreements, applicable host-nation environmental standards
  ...and the Overseas Environmental Baseline Guidance

 The OEBGD states that “Installation commanders shall take
  into account the effect of any action on any property listed on
  the World Heritage List or on the applicable country’s
  equivalent of the National Register of Historic Places for
  purposes of avoiding or mitigating any adverse effects”
        Court Cases Brought Against the
         Department of Defense’s FRF:

 There have been two significant cases brought against the United
  States DOD’s FRF in regard to their violations of the National
  Historic Preservation Act (NHPA):
   1.       The Dugong v. Rumsfeld (2005)—evaluated whether the dugong was
            enumerated on a list equivalent to the U.S. National Register in 2005,
            an official list of historic places worth preserving.
        o     Can the Dugong be considered a “property”?
   2.       Okinawa Dugong v. Gates (2008)—considered whether the 2006
            Roadmap constituted a federal undertaking, the potential direct and
            adverse effects of that undertaking, and whether the DOD took the
            dugong into account.
        o     Did the DOD take precautionary measures to consider
              the impacts of the new facility on the dugong?
Call me “property,” call
 me anything you like,

   Just Protect Me
“Equivalent National Register”
 Dugong v. Rumsfeld held that a country’s law does not have
  to be identical to the NHPA’s National Register, but is
  considered to be equivalent when the law serves a parallel
  role in that country for the protection of cultural property.
 The dugong is protected as a “natural monument” under
  Japan’s “Law for the Protection of Cultural Properties,”
  the Japanese equivalent to the NHPA.
 The dugong, a natural resource of cultural significance, was
  reasonably included in the meaning of “property” because
  congress acknowledged that it is the role of each party in
  the World Heritage Convention to determine what qualifies
  as valuable heritage within its territory.
 Applicability to Section 402
Once the notion of dugong as “property” was
established, the plaintiffs had to demonstrate their
standing in order to show how the defendants
violated section 402 by not “taking into account” the
“adverse effects” that the FRF would have on the
their cultural “property,” the dugong.
           Standing of Each Plaintiff:
 Dugong: Dismissed! (It is an animal that does not have standing
  to assert this action under the APA for violations of the NHPA)
 Individuals: have Standing.
   • Takuma Higashionna was born and raised near Henoko Bay and has
     been visiting area and observing Dugong since childhood. Leads weekly
     snorkeling and skuba diving tours.
   • Yoshikazu Makishi was born and raised in Okinawa and has been
     frequenting Henoko coast and observing dugong for over a decade.
   • Anna Koshiishi moved to the coast of Okinawa when she was 8 years
     old and also leads eco-tours to view the dugong.
• Four of the Associations: have Standing. (Save the Dugong
  Foundation, Center for Biological Diversity, Turtle Island
  Restoration Network, Japan Environmental Lawyers Foundation)
“I have learned many important things from nature. All life
on the Earth has close connection and plays an important
role. Every life is indispensible to keep the balance of this
connection. To save the Okinawa dugong, which is a
globally threatened species, is to save my own life.”
                      - Anna Koshiishi, Okinawan citizen
       Outcome of Standing
In sum, the three individual plaintiffs, and four
organizations suffered a procedural injury linked to
their concrete interest in preserving the culturally
significant Okinawa dugong.

The DOD failed to comply with procedure under
NHPA section 402.
    The Procedural Requirements for
         “Taking Into Account”
The court looked to section 106 of the NHPA that uses
  identical language to section 402 which states that
  agencies “undertaking” an action which may adversely
  affect a property on the National Register must:
• identify the historic property and consulting parties
• give notice to the consulting parties
• assess whether the project will have adverse effects
• if no adverse effect is found, give notice to the consulting
  parties and allow the parties to respond.
   The Procedural Requirements For
        “Taking Into Account”
If an adverse effect is found, the federal agency must:

• continue to consult with the public and other
  interested parties. (This includes the host nation’s
  preservation authorities, affected communities and
  relevant professional organizations.)
• consider alternatives or modifications to the
  undertaking that could mitigate adverse effects.
          The Meaning of
 “May Directly and Adversely Effect”
 “An adverse effect is found when an undertaking may alter,
  directly or indirectly, any of the characteristics of a historic
  property…Adverse effects may include reasonably foreseeable
  effects caused by the undertaking that may occur later in time,
  be farther removed in distance or be cumulative.” (Gates)
   This includes physical destruction of, or damage to a property
     such as the dugong.
      This applies to the FRF because the base is likely to
       contaminate seagrass, vessels will potentially collide with
       dugongs, and long term immune and reproductive damage
       from exposure to toxins and acoustic pollution will inherently
  (That the actual consequences may be currently unknown is
  precisely the reason the NHPA requires defendants to “take
  into account” information…)
Court’s Ruling in Dugong v. Gates
 The DOD did NOT comply with section 402.
    There was not a single piece of evidence on the
     record that showed an official from the DOD had
     “taken into account” (considered and evaluated)
     the information necessary to determine any
     adverse effects of the dugong.
 Court ruled that the DOD’s approval of the 2006
  Roadmap constitutes a federal undertaking for
 purposes of triggering obligations under NHPA
 section 402. The failure to take into account,
 therefore, was absolutely final.
               Court’s Orders
 The court mandated that the agency must consult with
 others and “engage the host nation and other relevant
 private organizations” in order to create an effective
 system of collective protection.
   Ultimately, however, it is still the agency’s decision to
    determine who will be consulted, to what extent, and
    at what time. The DOD, therefore, has its own
    discretion to decide what information will be gathered
    and considered, and if adverse effects are found, what
    mitigation efforts will be pursued.
Conclusion To Dugong v. Gates Case
1) Defendants failed to comply with the requirements of NHPA
   section 402.
2) Defendants must comply with 402 and until the DOD can
   come up with necessary information for evaluating the
   effects of the FRF on the dugong and ways of avoiding or
   mitigating these adverse effects, no action can take place.
3) Defendants ordered to submit statement of impact whereby
   Japan’s judgment should be of great concern when taking
   into account the effects on the dugong. The Department of
   Defense must determine if information is sufficient, examine
   information from multiple sources, determine adverse
   effects, and consider and evaluate options to mitigate/avoid
   the adverse effects.
      Will Section 402 Save the
 Although grassroots protests along with the court’s
  ruling of DOD violations of the NHPA’s section 402 have
  been successful in stalling construction thus far, as a
  procedural law, the NHPA alone does not impose
  substantive obligations on any federal agency.
   Agencies, thus, are permitted to continue with their
    undertakings even when such an action will lead to an
    adverse effect on a property.
  Section 402 is NOT Enough…
 In other words, because the NHPA is not
 outcome oriented, it neither forbids
 destruction of a protected property nor
 commands its preservation. It merely
 regulates the process by which an undertaking
 is approved with the hope that the adverse
 environmental impacts will be mitigated.
 Precedents Set By Section 402
1) Section 402 set a precedent for undertakings abroad and its
    effects on living and non-living marine resources provided
    that they are also listed as cultural heritage or “property”
    and, as such must be taken into account when adverse
    effects of an action are assessed.

2) In the future, federal activities outside the US, agencies must
    be more transparent and in compliance with 402. Because of
    the DOD’s violations of Section 402, they learned that
    consulting with appropriate environmental and wildlife
    conservancy groups is not only necessary but imperative
    prior to taking action.
                 Section 402…
 Although the outcome of the FRF now lies in the hands of
  high officials in the US and Japanese governments,
  Section 402 was successful in changing the dynamics of
  the debate over the past 15 years.
 Section 402’s creative application empowered Okinawan
  individuals and small environmental organizations to fight
  for the protection of their unique ecological oasis and
  their culturally significant dugong.
 Section 402 has provided a groundbreaking new tool for
  the protection of culturally and ecologically significant
UN Convention on the Law of the Sea

 UNCLOS expressly addresses the rights and
  responsibilities of the parties in relation to the
  protection of the ocean, and it requires the parties to
 protect underwater cultural heritage under the term
 “archeological and historical objects”

 Thus, the dugong may qualify under NHPA, but may
  not qualify under UNCLOS?
  “The environmental crises we face
  provides us with the most singular
opportunity for greatness ever offered
 to any generation in any civilization.”
                        -Roger Payne

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