The Okinawa Dugong and the Creative Application of U.S

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					09 SCHOENBAUM PUB FINAL.DOCPUB FINAL                     4/12/2009                                                     9:26 PM




        The Okinawa Dugong and the Creative
         Application of U.S. Extraterritorial
                Environmental Law

                                LAUREN JENSEN SCHOENBAUM

I.      INTRODUCTION ................................................................................................... 457

II.     THE THREAT TO THE OKINAWA DUGONG ...................................................... 459
        A. The Okinawa Dugong Habitat ................................................................... 459
        B. Futenma Replacement Facility ................................................................... 460

III.    NEPA AND ESA FAIL TO PROTECT THE DUGONG ........................................ 462
        A. National Environmental Protection Act .................................................... 463
        B. Endangered Species Act.............................................................................. 464

IV.     NHPA SUCCESSFULLY PROTECTS THE DUGONG ........................................... 466
        A. Federal Undertaking ................................................................................... 467
        B. Directly and Adversely Affect .................................................................... 467
        C. Property on National Register Equivalent ................................................ 468
        D. Take into Account ....................................................................................... 470
        E. Court Orders ................................................................................................ 471

V.      RECONCILING DUGONG AND U.S. ENVIRONMENTAL LAW ........................... 471

VI.     USING DUGONG AS A CATALYST FOR PROTECTION....................................... 473
        A. U.S. Military Faces the Dugong ................................................................. 473
        B. Using Dugong to Respond to NEPA Coalition of Japan ........................ 475
        C. Using Dugong to Promote Defenders of Wildlife .................................... 477

VII.    CONCLUSION ....................................................................................................... 478




    * The University of Texas School of Law, J.D. expected May 2009. I would like to thank Jeff Civins
for his invaluable guidance in writing this note as well as the staff of the TEXAS INTERNATIONAL LAW
JOURNAL and my husband, Alex.

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                                   I.    INTRODUCTION
     The successful protection of the Okinawa dugong is not just a simple victory for
species preservation, but has significant implications to U.S. international
environmental law. The international application of U.S. environmental law is
possible only in rare situations. It is equally unusual for U.S. environmental law to
apply to a Department of Defense (DOD) action abroad. Even international
pressure generally does little to achieve sufficient environmental safeguards. Despite
these significant obstacles, a recent case overcame the typical legal hurdles for
extraterritorial application of U.S. environmental law to protect the Okinawa dugong
from a planned U.S. naval base in Okinawa, Japan.1
      The plaintiffs utilized the National Historic Preservation Act (NHPA) as the
grounds for protecting the dugong. Triggering Section 402, the international
component of the act, is a multi-step process: there must be a federal undertaking
outside the United States, which directly and adversely affects a property listed on
the applicable country’s equivalent of the National Register.2 If the property meets
this definition, then the federal agency must “take into account” the effect of the
undertaking on that property.3 The Dugong v. Rumsfeld court first evaluated
whether the dugong was listed on a list equivalent to the National Register,4 and
more recently, Okinawa Dugong v. Gates considered whether there was a federal
undertaking, the potential direct and adverse effects of that undertaking, and
whether the DOD took the dugong into account.5 Thus, there are two important
separate holdings on this issue. Rumsfeld affirmed the dugong is “property” and
therefore qualifies for protection under the NHPA.6 Gates concluded Section 402 of
the NHPA does indeed hold the DOD accountable to consider the impacts of the
new facility on the dugong.7 This paper will use “Dugong” when referring to the two
cases collectively. The court’s justification of the use of the NHPA, in this proper yet
highly unusual application, indicates that the well established rationalizations for
failing to protect wildlife outside U.S. borders should be reevaluated.
      In this recent victory for animal habitat protection, the U.S. District Court for
the Northern District of California applied the NHPA and determined that the DOD
did not take the necessary precautionary measures to assess the impacts of a new
military base on the habitat of the dugong.8 The decision in Gates is remarkable
because case law intending to expand the National Environmental Policy Act
(NEPA) expressly failed to extend domestic protection to concerns in other
sovereign nations. Expansion of the Endangered Species Act (ESA) abroad was
accepted, but the decision was overturned on a different ground and has not been
revisited. In addition, Dugong is noteworthy because the very narrow international
exception intended to protect culturally significant property in NHPA was applied
for the first time not to a building or statute, but to an animal.


  1. See generally Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082 (N.D. Cal. 2008) (holding that the
DOD failed to comply with the NHPA and must take steps to comply with the NHPA in the future).
  2. National Historic Preservation Act, 16 U.S.C. § 470a–2 (2000); Gates, 543 F. Supp. 2d at 1088.
  3. Id.
  4. Dugong v. Rumsfeld, No. C 03-4350 MHP, 2005 WL 522106, at *6–8 (N.D. Cal. Mar. 2, 2005).
  5. Gates, 543 F. Supp. 2d at 1082.
  6. Rumsfeld, 2005 WL 522106, at *12.
  7. Gates, 543 F. Supp. 2d at 1100.
  8. Id. at 1108.
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      Increasingly, environmental protection in the United States is restricted,
manipulated, and avoided in the name of economic development, national security,
or financial burden. While many of these policy choices are not unjustified, there is
also a strong indication that the more careful balancing of these interests could
provide significant improvements for the environment not just domestically, but
extraterritorially as well. One example of such a possible improvement is to address
the near absence of formal environmental protection policy on property controlled
by the DOD abroad.
      This comment will initially discuss the specific threat to the dugong as a result of
the planned U.S. naval base relocation. Next, it will explore the domestic limitations
of NEPA and ESA and why the plaintiffs in the Dugong cases were forced to rely on
NHPA for U.S. involvement. It will provide a detailed analysis of the court’s
reasoning through an explanation of how the court applied the rule in its initial test,
and also how the court determined an animal could be protected under an act better
known for protecting physical landmarks. Finally, this comment will show how
justification for the plaintiffs’ victory leads to analysis of how this case flies in the
face of established environmental policy not to expand U.S. protection
extraterritorially and why courts should reconsider extending U.S. environmental law
beyond its borders.


                 II. THE THREAT TO THE OKINAWA DUGONG
     The subject of this litigation, the dugong (Dugong dugon), is the only strictly
marine herbivorous mammal and “the only extant species in the Family
Dugongidae.”9 A relative of the manatee, dugongs feed on seagrass in coastal waters
and tend to congregate in wide shallow protected bays, wide shallow mangrove
channels, and lees of large inshore islands.10 The Okinawa dugong is also of
important cultural significance to the Okinawan people: it is associated with
traditional Okinawan creation mythology and is considered the progenitor of the
local people.11 It is also the basis for mermaid myths, and its presence is considered
by some to foreshadow tsunamis and other natural disasters.12 It is estimated that
only 50 dugong remain in the waters around Okinawa.13

A.    The Okinawa Dugong Habitat

     Despite a lack of concrete data, the dugong is considered an endangered
species, and it has been listed as vulnerable since 1982 by the International Union for
Conservation of Nature.14 The dugong’s habitat is a critical conservation issue.15 The


   9. U.N. Envtl. Programme [UNEP], Div. of Early Warning & Assessment [DEWA], Dugong Status
Report and Action Plans for Countries and Territories, at 5, U.N. Doc. UNEP/DEWA/RS.02-1 (2002)
(compiled by Helene Marsh) [hereinafter Dugong Status Report].
   10. Id. at 5, 7.
   11. Gates, 543 F. Supp. 2d at 1084.
   12. John Roach, Rare Japanese Dugong Threatened by U.S. Military Base, NAT’L GEOGRAPHIC
NEWS, Aug. 23, 2007, available at http://news.nationalgeographic.com/news/2007/08/070823-dugongs.html.
   13. Id.
   14. INT’L UNION FOR CONSERVATION OF NATURE, IUCN SPECIES SURVIVAL COMM’N, RED LIST
OF THREATENED SPECIES (2008), available at http://www.iucnredlist.org/search/details.php/6909/summ
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animal’s wellbeing is very dependent on the availability of its seagrass food, and
when dugongs do not have enough to eat they delay breeding.16 Even a slight
reduction in adult survivorship as a result of habitat loss, disease, hunting, or
incidental drowning in nets can cause a chronic decline.17 With only 50 remaining in
the area,18 any further degradation of their habitat could be catastrophic for the
dugong.
      The United Nations Environment Programme (UNEP) has recorded numerous
incidental sightings off the northeast coast of Okinawa Island from 1979 to the
present day.19 It also reports that areas off the coast of Okinawa Island, particularly
off the east coast between Katsuren Peninsula and Ibu beach, potentially support
significant numbers of dugongs.20 Because “[u]p to 75% of all U.S. military bases in
Japan are located within Okinawa,” the U.S. military poses a particular risk to the
dugong.21 UNEP reports that potential “[d]amage to the marine environment
resulting from U.S. military activities includes pollution resulting from noise caused
by ammunition drills and military practice, hazardous chemicals, soil erosion and the
disposal of deplete uranium weapons.”22 Any construction on Henoko Bay, a known
feeding ground of the Okinawa dugong, threatens to destroy some of the most
critical remaining dugong habitats in Japan.23

B.    Futenma Replacement Facility

     The latest threat to the Okinawa dugong is the planned relocation of the U.S.
military base on Okinawa Island, known as the Futenma Replacement Facility
(FRF).24 The U.S. has maintained some kind of military presence on Okinawa since
the end of World War II.25 In 1972, the United States and Japan agreed the U.S.
would relinquish all administrative rights and interests over the Okinawa Islands to
Japan.26 Article III of the Agreement “granted the U.S. exclusive use of facilities and
areas in the Islands in accordance with the ‘Treaty of Mutual Cooperation’ and
‘Security and the Status of Forces Agreement.’”27 The result of these agreements is
that while Japan fully controls its own territory, the U.S. was granted use of
Okinawa’s land, air, and facilities for the purpose of Japanese security and
international peace.28 The key U.S. security issue today in the region is the threat


[hereinafter IUCN].
   15. Id.
   16. Dugong Status Report, supra note 9, at 1.
   17. Id.
   18. Roach, supra note 12, at 1.
   19. Dugong Status Report, supra note 9, at 41.
   20. Id. at 42.
   21. See id. (arguing that although the effects of the military are not quantified, "the military exercises
can be detrimental to dugongs and their habitat by contributing to marine pollution . . . , acoustic pollution
and habitat destruction resulting from vehicle operations.").
   22. Id.
   23. Id. at 42–43.
   24. Gates, 543 F. Supp. 2d at 1085.
   25. Id. at 1084.
   26. Id.
   27. Id.
   28. Id.
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from North Korea; U.S. military presence in the area is focused on monitoring North
Korean provocations, including missile launches, and nuclear tests.29
      Due to the significant activity at the current Futenma base and the surrounding
area—currently, there are over 3,200 Marines stationed at the 480 hectare base—the
U.S. is planning to relocate.30 The U.S. military cited improving the surrounding
city’s infrastructure and promoting growth in the city as a key reason behind the
move.31 In 1996, a joint American-Japanese committee approved an offshore, sea-
based facility off the east coast of Okinawa as the new location.32 This plan was later
altered to incorporate both offshore and shoreline facilities.33
      On May 1, 2006, Japan and the U.S. issued an agreement entitled “United
States-Japan Roadmap for Realignment Implementation,” also known as the 2006
Roadmap.34 The 2006 Roadmap established a target date of 2014 to provide an
overall realignment plan for U.S. military involvement in Okinawa.35 This agreement
finalized the construction proposal to construct the FRF to combine the Henoko
Point section of Camp Schwab (currently leased by the U.S.) with the adjacent
waters of Oura and Henoko Bays.36 The 2006 Roadmap proposed a “V-shaped”
runway to be partially built on landfill extending into Oura and Henoko Bays.37
     The key remaining problem with this proposal is that the location of the FRF
encompasses dugong habitats in Henoko and Oura Bays.38 Research completed by
the UN and various environmental protection groups indicates that this particular
location for the FRF would be devastating to the dugong habitat.39 Both Henoko
Bay and Oura Bay are considered critical habitats for the Okinawa dugongs, and the
current plan requires landfilling of the coral reefs and seafloor slopes of the bays.40
Despite alterations to the original plan, a 2006 poll showed that 70% of Okinawans
remained opposed to the expansion.41 The New York Times also reported the FRF is
opposed by 400 international environmental groups, 889 international experts on
coral reefs, a majority of the voters in the adjacent town of Nago (in a 1997




    29. See U.S. DEP’T OF STATE, JOINT STATEMENT OF THE U.S.-JAPAN SECURITY CONSULTATIVE
COMMITTEE (2007) [hereinafter JOINT STATEMENT] (noting that provocations by North Korea are an
important consideration to this alliance), available at http://Tokyo.usembassy.gov/e/p/tp-20070502-77.html.
    30. Globalsecurity.org,     Futenma       Marine     Corps     Air   Station    at    Okinawa,   Japan,
http://www.globalsecurity.org/military/facility/futenma.htm (last visited Feb. 26, 2009).
    31. Id.
    32. Gates, 543 F. Supp. 2d at 1083–86.
    33. Id.
    34. Id. at 1086.
    35. JOINT STATEMENT, supra note 29.
    36. Gates, 543 F. Supp. 2d at 1086.
    37. Id.
    38. World Wide Fund for Nature Japan, Statement Against the Construction of the Futenma
Replacement Facility in the Habitat of the Threatened Okinawan Dugongs, May 12, 2006,
www.wwf.or.jp/news/press/2006/p06051202e.htm [hereinafter World Wide Fund].
    39. Press Release, Earth Justice, Okinawa Air Base Deal Still Controversial: New Plan Does Not
Guarantee Survival of Endangered Marine Mammal (Oct. 26, 2005), available at
http://www.earthjustice.org/news/press/005/okinawa_air_base_deal_still_controversial.html.
    40. Id. These bays are also home to numerous endangered species that live in the coral reefs, and
other animals that feed on the seagrass beds. Id.
    41. Id.
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referendum), and the thousands of individuals who have participated in sit-in
protests that have been a common occurrence around the bays since 2003.42
      U.S intervention through Dugong was necessary as a result of the inaction by
both Japan and the DOD. First, while Japan is involved in this process, unilateral
protection by the Japanese will not provide effective protection for the dugong.
Japan is currently performing an environmental impact assessment, but the current
system does not require the proposal to include a “zero option,” or no construction
alternative.43 The assessment will also not guarantee any affirmative action, as it is
only a procedural requirement.44 The Secretary of Defense argued that Japan alone
is responsible for determining the location and construction of the new facility, and
thus any efforts to minimize risks to the dugong fall to Japanese plans, but this is not
a proper characterization of the relationship.45 From the beginning, the U.S. has
worked with Japan in a bilateral Special Action Committee on Okinawa to develop
recommendations for the new facilities.46 And while it is true Japan chose the final
location, the decision was made with at least eight DOD sub-agencies’ approval.47
The DOD controls the property, will pay for the construction, and will use the new
facility.48 Any indication that the U.S. is not highly involved in the plans for the FRF
is a gross mischaracterization of the process that led to Dugong.
        Second, the overly general standards for U.S. military compliance in the area
of environmental protection provide insufficient protection for the dugong. In 2002,
the DOD issued a new environmental policy, calling for the “systematic integration
of environmental management into all missions, activities, and functions.”49 The
Overseas Environmental Baseline Guidance Document also established minimum
standards of environmental protection for DOD installations and overseas facilities.
50
   While the DOD’s environmental policy purports to consider environmental
protection concerns, no Environmental Impact Statement was attempted, and no
steps have been taken to protect Henoko Bay.


           III. NEPA AND ESA FAIL TO PROTECT THE DUGONG
     While the Dugong plaintiffs were successful in their attempt to require U.S.
consideration of the potential dangers to the dugong, the use of the NHPA seems
rather counterintuitive in light of other American laws that are seemingly better fit
for the protection of endangered wildlife. Specifically, the National Environmental




    42. James Brooke, A Crash, and the Scent of Pizzatocracy, Anger Okinawa, N.Y. TIMES, Sept. 13,
2004, available at http://www.nytimes.com/2004/09/13/international/asia/13japan.html?_r=1&oref=slogin.
    43. World Wide Fund, supra note 38.
    44. Id.
    45. Defendants’ Reply Memorandum in Support of Motion to Dismiss at *8–9, Dugong v. Rumsfeld,
No. C-03-4350 MHP, 2004 WL 3669984 (N.D. Cal. July 15, 2004).
    46. Gates, 543 F. Supp. 2d at 1085.
    47. Id.
    48. Id.
    49. News Release, Dep’t of Def., DOD Issues New Environmental Policy (Apr. 23, 2002), available at
http://www.defenselink.mil/releases/release.aspx?releaseid=3317.
    50. See LIEUTENANT COLONEL RICHARD A. PHELPS, ENVIRONMENTAL LAW FOR DEPARTMENT OF
DEFENSE INSTALLATIONS OVERSEAS 32 (1998).
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Policy Act51 and the Endangered Species Act52 seem to have similar goals in
protecting wildlife. The problem, however, is that courts have not expressly applied
the language in either statute to protect the environment in the territory of another
sovereign nation. 53 The primary reason behind this limitation is that unlike NHPA
Section 402, which expressly permits the protection of historical property abroad,
NEPA and ESA are restricted by the presumption that legislation passed by
Congress applies only within the U.S. unless there is clear congressional intent to
apply the statute more broadly.54

A.    National Environmental Policy Act

     NEPA requires federal agencies to “integrate environmental values into their
decision making processes by considering the environmental impacts of their
proposed actions and reasonable alternatives to those actions.”55 Major undertakings
by federal agencies that are found to significantly affect the quality of the
environment require the agency to prepare an Environmental Impact Statement
(EIS) to determine the environmental impacts of the proposed action. 56 NEPA itself
does not require any specific action based on the EIS; the findings go to the EPA,
which is then legally required to comply with the procedural requirements of the
EIS.57 It seems this law would be a germane method to require the DOD to consider
the impacts of the new base on the dugong, and the EIS is remarkably similar to the
court-ordered research in Gates. However, the courts have expressly rejected
international application of NEPA when there is a strong possibility of conflicting
laws of the two sovereign nations.
     Until 1993, the international application of NEPA was an “open question in the
courts.”58 This question was answered in part when the D.C. Circuit court held in
Environmental Defense Fund, Inc. v. Massey that NEPA protections could extend to
a U.S. research station in Antarctica.59 Although the court found NEPA could
extend beyond the U.S. border to the Antarctic, the court, in dicta, restricted the
extraterritorial application of the act to areas not expressly governed by another
nation.60 That same year, the D.C. district court considered the potential of requiring
the Department of Defense to complete an EIS for U.S. military installations in
Japan in NEPA Coalition of Japan v. Aspin.61 The court did not extend
Environmental Defense Fund beyond Antarctica, which it likened more to space

    51. See National Environmental Policy Act, 42 U.S.C. § 4321 (2006) (announcing that the purpose of
the EPA is to preserve wildlife).
    52. Endangered Species Act, 16 U.S.C. § 1351 (2006).
    53. Gates, 543 F. Supp. 2d at 1099.
    54. Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). This concept is commonly referred to as the
“Foley Doctrine,” relying on the assumption that Congress is primarily concerned with domestic issues.
    55. National Environmental Policy Act (NEPA), Compliance and Enforcement (Jan. 2, 2009)
http://www.epa.gov/oecaerth/nepa/index.html (last visited Mar. 9, 2009) [hereinafter EPA, National
Environmental Policy Act].
    56. Gates, 543 F. Supp. 2d at 1112.
    57. EPA, National Environmental Policy Act, supra note 55.
    58. Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n, 647 F.2d 1345, 1384 (D.C. Cir.
1981).
    59. Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528 passim (D.C. Cir. 1993).
    60. Id.
    61. NEPA Coal. of Japan v. Aspin, 837 F. Supp. 466, 466–67 (D.D.C. 1993).
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than to a foreign nation.62 The court gave three reasons for avoiding further
extraterritorial expansion of NEPA. First, the court found a “very real possibility” of
laws conflicting with another nation’s laws if the DOD was forced to prepare an EIS
on and near a U.S. base.63 Secondly, the court was concerned about the effect on
Japanese sovereignty, as the preparation of an EIS would necessarily require the
DOD to collect environmental data from areas outside the base itself such as the
surrounding residential and industrial areas.64 Finally, the court discounted the value
of environmental protection with the blanket assertion that U.S. foreign policy
interests outweigh any environmental benefits of preparing an EIS.65
     Unfortunately, the court provided little explanation or specific examples of this
threatened harm. This limitation of NEPA has continued as the accepted
interpretation of the statute by other courts,66 and no amendments have permitted
further protection of environmental causes extraterritorially.

B.    Endangered Species Act

     The Okinawa dugong is classified as endangered, and its habitat is threatened
by the occupation of the U.S. military, 67 so it seems ESA should also provide
protection for the dugong and its habitat. The purpose of the ESA is to:
       Provide a means whereby the ecosystems upon which endangered
      species and threatened species depend may be conserved, to provide a
      program for the conservation of such endangered species and threatened
      species, and to take such steps as may be appropriate to achieve the
      purposes of the treaties and conventions.68
Unfortunately, attempts to expressly expand ESA protection to endangered species
beyond U.S. borders have stalled.69
      In the 1970s there was a movement by the Fish and Wildlife Service and the
National Marine Fisheries Service, on behalf of the Secretary of the Interior and the
Secretary of Commerce respectively, to extend the obligations imposed by the ESA
to foreign nations.70 In the following years, however, the Department of the Interior
began to reexamine its position.71 Soon after, the ESA was amended expressly
stating “[t]he Secretary shall not designate as critical habitat any lands or other



   62. Id. at 467.
   63. Id.
   64. Id.
   65. Id. at 468.
   66. See, e.g., Basel Action Network v. Mar. Admin., 370 F. Supp. 2d 57, 71 (D.D.C. 2005).
   67. See IUCN supra note 14 (detailing the dugongs’ endangered status); see Dugong Status Report,
supra note 9, at 22, 42 (describing how the pollution by the U.S. military bases located within Okinawa are
detrimental to dugongs).
   68. 16 U.S.C. § 1531(b) (2006).
   69. See Amy J. Dona, Crossing the Border: The Potential for Trans-Boundary Endangered Species
Conservation Banking, 16 N.Y.U. ENVTL. L.J. 655, 661, 704–5 (2008) (illustrating that the ESA does not
expressly extend protection across U.S. borders and that unilateral action to deal with environmental
challenges is disfavored).
   70. 50 C.F.R. § 402 (1986).
   71. Defenders of Wildlife v. Lujan, 911 F.2d 117, 123 (8th Cir. 1990).
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geographical areas owned or controlled by the Department of Defense.”72 The
amendment did retain the obligation of the DOD to prevent extinction and harm to
endangered and threatened species, but did not include any specific mandates or
guidelines for DOD action extraterritorially.73 In other words, any lands controlled
by the DOD (notably military bases) get a free pass from U.S. environmental
protection laws, and military bases in the U.S. and those abroad do not have to abide
by the same environmental standards as required in the U.S. generally. The result is
that only very generic U.S. military guidelines and international environmental
standards from treaties and other agreements apply, and these guidelines typically do
not provide sufficient protection for the environment.
     There was a promising ruling in 1990, which again addressed the issue of
extending U.S. environmental protection abroad. The court in Defenders of Wildlife
v. Lujan looked to Section 7 of the ESA, which is similar to NHPA section 402.74
The section states,

      Each Federal agency shall, in consultation with and with the assistance of
      the Secretary, insure that any action authorized, funded or carried out by
      such agency. . . is not likely to jeopardize the continued existence of any
      endangered species or threatened species or result in the destruction or
      adverse modification of habitat of such species.75

The court unanimously found the ESA, viewed as a whole, “clearly demonstrates
congressional commitment to world-wide conservation efforts.”76 Like NHPA
section 402, the court placed a great deal of importance on the fact that the ESA is
directed at federal agencies, and not the actions of sovereign nations.77
Unfortunately, the Supreme Court reversed the decision two years later based on a
lack of standing, and the majority failed to address the issue of foreign application.78
Only Justice Stevens in his concurrence took up the issue, and he agreed with the
government that ESA did not apply to activities abroad.79 While the case was
reversed on grounds other than the extraterritorial issue, no court has readdressed
the issue of expansion in Section 7.
     The failure to apply these national environmental regulatory provisions in other
nations is illuminating. If the dugong had resided in U.S. waters, both the NEPA and
ESA would have mandated in-depth research to determine the possible adverse
consequences of the new facility to the dugong and its habitat. For example, in
another recent case out of California, the court applied not only the NEPA and ESA
to successfully protect whales off the coast of California from the adverse affects of



    72. 16 U.S.C. § 1533(3)(B)(i) (2006).
    73. Id. § 1533(3)(B)(iii).
    74. Defenders of Wildlife, 911 F.2d at 122.
    75. 16 U.S.C. § 1536(a)(2) (2006).
    76. Defenders of Wildlife, 911 F.2d at 123.
    77. Id. at 125.
    78. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 582 (1992) (holding that plaintiffs did not assert
sufficiently imminent injury and that the claimed injury was not redressable). Although the issue was not
addressed by the majority, in his concurrence, Justice Stevens agreed with the Government that ESA did
not apply to activities abroad. Id. at 585.
    79. Id.
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navy sonar testing, but it also applied the Administrative Procedures Act and Coastal
Zone Management Act.80
     The express rejection of extraterritorial application for NEPA and the lack of
further discussion of Section 7 of the ESA emphasize the creative application of the
NHPA. Dugong is even more thought provoking in that the same concerns in NEPA
Coalition of Japan apply to the Dugong orders—interfering with the laws and
sovereignty of another nation, and potential obstruction of foreign policy goals.81
The detailed opinions in Rumsfeld and Gates help clarify this result.


             IV. NHPA SUCCESSFULLY PROTECTS THE DUGONG
     The initial opinion on the dugong issue, Rumsfeld, was the first time a district
court applied the specific provision extending NHPA protection outside U.S.
borders. Two specific details of this case – the cultural significance of the Okinawa
dugong and its categorization in Japanese law – presented an exceptional
opportunity for the U.S. to mandate Federal action to quantify and avoid potential
damage to the dugong.
     NHPA sets out the “broad historic preservation responsibilities of Federal
agencies and is intended to ensure that historic preservation is fully integrated into
the ongoing programs of all Federal agencies.”82 Unlike the NEPA and ESA, NHPA
includes a specific reference to protection outside the U.S., Section 402, which states:

      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
      over such undertaking shall take into account the effect of the undertaking
      on such property for purposes of avoiding or mitigating any adverse
      effects.83

NHPA is unique in this area of environmental protection in that it expressly provides
for international action. While not the only environmental regulatory scheme to
extend protection extraterritorially, it is certainly in the minority.84



     80. See generally Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859 (9th Cir. 2007) (successfully
applying the NEPA, the Administrative Procedures Act, and the Coastal Zone Management Act and
unsuccessfully applying the EPA).
     81. See NEPA Coal. of Japan v. Aspin, 837 F. Supp. 466, 467 n.5 (D.D.C. 1993) (noting that requiring
the Department of Defense to prepare environmental impact studies for installations in Japan would
intrude on Japanese sovereignty); see id. at 468 (citing Envtl. Def. Fund v. Massey, 986 F.2d 528, 535 (D.C.
Cir. 1993) and considering whether the NEPA, if enforced, would threaten foreign policy).
     82. The Secretary of the Interior's Standards and Guidelines for Federal Agency Historic
Preservation Programs Pursuant to the National Historic Preservation Act, 63 Fed. Reg. 20,496, 20,499
(Apr. 24, 1998) [hereinafter Guidelines].
     83. 16 U.S.C. § 470a–2 (1980).
     84. See, e.g., The Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 (2006) (calling for
immediate negotiations regarding international agreements for research and conservation of marine
mammals); see Paul Hagen, The Extraterritorial Reach of United States Environmental Laws, 46 ALI-ABA
151, 157 COURSE OF STUDY 151, 157 (2005) (noting that other acts have been extended only with
litigation).
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      The Secretary of the Interior’s standards for the NHPA provide additional
explanation for its proper application. These standards emphasize that the
procedure should be similar to that of any NHPA domestic application.85 It suggests
that agency officials consult personnel with appropriate levels and kinds of expertise
in historic preservation to help manage the property.86 Additionally, the standards
stress the importance of working with the other nation, including the home country’s
historic preservation authorities, affected communities and groups, and relevant
professional organizations.87 Finally, the standards provide that the U.S. should
consult with parties outside itself in its attempt to preserve historic property.88
     When the NHPA is applied, the Department of Defense is required to “take
into account” the effect of its undertaking on the protected property, here the
Okinawa dugong.89 What that means is not precisely detailed, but undertaking
mandated actions similar to those required by an Environmental Impact Statement,
as established in NEPA, is a reasonable assumption. It is also of note that NHPA
does not provide independent judicial review of agency action. The Administrative
Procedures Act (APA) authorizes judicial review of final agency actions “for which
there is no other adequate remedy in a court.”90 The court accepts this interpretation
of the two acts as sufficient grounds for its judicial review in both Rumsfeld and
Gates.91

A.    Federal Undertaking

      Federal undertaking, as defined in Section 402 of NHPA includes those actions
outside the United States.92 Undertaking is defined in NHPA as, “a project, activity,
or program funded in whole or in part under the direct or indirect jurisdiction of a
Federal agency.”93 Although contested in Rumsfeld in 2005, the defendants conceded
that the FRF qualified under this definition in Gates three years later, acknowledging
specifically the provision of operational requirements and the approval of the 2006
Roadmap.94 The court agreed and found no issue of material fact as to whether the
FRF activities constituted a federal undertaking, as they were clearly projects funded
by the DOD. 95

B.    Directly and Adversely Affect

    “Directly and adversely affect” in section 402 of NHPA “requires a threshold
showing that the undertaking may have direct and adverse effects on the dugong, not


   85. See Guidelines, supra note 82 (theses standards emphasize that the procedure should be similar to
that of any NHPA domestic application).
   86. 63 Fed. Reg. at 20,504.
   87. Id.
   88. Id. at 20,503.
   89. Gates, 543 F. Supp. 2d at 1082, 1102.
   90. 5 U.S.C. § 704 (1966).
   91. Rumsfeld, 2005 WL 522106, at *5; Gates, 543 F. Supp. 2d at 1089.
   92. 16 U.S.C. § 470a–2 (1980).
   93. 16 U.S.C. § 470w(7) (2000).
   94. Gates, 543 F. Supp. 2d at 1093.
   95. Id. at 1112.
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that the undertaking necessarily will have those effects.”96 An adverse effect occurs
when a project alters, directly or indirectly, any of the characteristics of an historic
property.97 The provision does not require immediate harm, but allows reasonably
foreseeable effects to occur later in time, and also considers cumulative impacts.98
     The court properly acknowledged that the “actual consequences [to the dugong
may be] currently unknown,” and the lack of concrete data is the reason NHPA
requires defendants to gather, examine and assess information to determine the
consequences and future impacts of an action.99 Thus the court looks to the ways the
FRF may have adverse effects. The potential and adverse effects identified by the
court include “physical destruction of the Okinawa dugong resulting from
contamination of seagrass feeding grounds and collisions with boats and vessels, as
well as long-term immune and reproductive damage resulting from exposure to
toxins and acoustic pollution.”100

C.    Property on National Register Equivalent

      The Rumsfeld court analyzed two separate issues: whether the dugong was
listed on Japan’s equivalent of the National Register, and whether the dugong itself
could qualify as property.101 First, the court considered whether the dugong is
protected as an equivalent to the U.S. National Register.102 The court determined
that the applicability of NHPA to the Okinawa dugong is based on whether the
Japanese law, designating it for preservation in Japan, the Law for the Protection of
Cultural Properties, is Japan’s equivalent of the National Register.103 This very high
standard requires the foreign list to correspond or be “virtually identical, especially in
effect or function.”104 However, the court also recognizes that too high a standard
would require the lists to be identical to the American version. 105 The court feared
this result would contradict the international aspect of the NHPA as well as destroy
the clear intent of the recognition of “equivalent” foreign lists.106
     According to the court, Japan’s Law for the Protection of Cultural Properties is
comparable to the National Register in three important ways. First, the language
and express goal of the law is identical to the National Register.107 It strives to
“preserve and utilize cultural properties, so that the culture of the Japanese people
may be furthered and a contribution…made to the evolution of world culture.”108


    96. Id. at 1101 (emphasis in original).
    97. 36 C.F.R. § 800.5(a)(1) (2000).
    98. Id.
    99. Gates, 543 F. Supp. 2d at 1102.
    100. Id.
    101. Rumsfeld, 2005 WL 522106 at *6.
    102. Id.
    103. Id.
    104. Id. at *7.
    105. See id (stating that an unfavorable interpretation of the requirement that the foreign list be
“virtually identical, especially in effect or function,” is to require the foreign list to be identical to the
American list).
    106. Id.
    107. See Rumsfeld, 2005 WL 522106 at *7 (stating that the effects of both registers include the
protection of culturally important animals in specific settings).
    108. Bunkazai Hogo-ho [Law for the Protection of Cultural Properties], Law No. 214 of 1950, art. 1,
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Second, it is the only law protecting cultural property in Japan, serving the same
purpose as the National Register.109 Finally, the Protection of Cultural Properties,
like the National Register, includes extensive lists of protected property. 110 The chief
difference between them is explicitly defining “property” to include animals as
cultural properties capable of protection under the law: the Protection of Cultural
Properties does, while the National Register does not.111
      The Rumsfeld court identified a critical similarity between the lists that helps
reconcile such a material distinction. It observed that there are several listings on the
National Register that protect the physical location of culturally significant animals,
and indeed the use of such criteria appears to be a well established standard to
determine eligibility for the list.112 Most noticeably the list includes animal habitats
important to Native American history.113 Therefore, the use of the name of a site
rather than the name of the culturally significant animal itself does not undermine
the equivalence argument of Japan’s Law for the Protection of Cultural Properties.114
Here it is apparent that both lists are capable of serving the same function: to protect
animals in a specific culturally important setting, making the different labels used in
the lists merely incidental.115
      The court then addressed whether the dugong specifically, rather than its
habitat, can be construed as property. Historic Property is defined in NHPA as “any
prehistoric or historic district, site, building, structure, or object included in, or
eligible for inclusion on the National Register, including artifacts, records, and
material remains related to such a property or resource.”116 In comparison, Japan’s
Law for the Protection of Cultural Properties lists animals in its definition of
“cultural properties,” and includes their habitats, breeding places, and summer and
winter resorts “which possess a high scientific value for country.”117
      The Rumsfeld court determined there must be a different standard for
“property” when NHPA is applied in the international context, as opposed to the
specific definition of “historic property,” which is limited to the statute’s application
in the domestic context.118 Thus, without additional guidance for defining “property”
from NHPA, the court looked to an international standard for a proper definition.
The foreign standard requires the object in question be on UNESCO’s World
Heritage List or on the foreign country’s equivalent of the National Register.119 Thus
the court concluded the plaintiffs’ only burden was to prove the dugong is
“property.” 120 The court easily confirmed the dugong met the National Register’s
definition of an object, “a material thing of functional, aesthetic, cultural, historical
or scientific value that may be, by nature or design, moveable yet related to a specific

translated in http://www.tobuken.go.jp/~kokusen/ENGLISH/DATA/Htmlfg/japan/japan01.html.
    109. Rumsfeld, 2005 WL 522106 at *6.
    110. Id. at *7.
    111. Id. at *8–12.
    112. Id. at *7.
    113. Id.
    114. Id.
    115. Rumsfeld, 2005 WL 522106 at *7.
    116. 16 U.S.C. § 470w(5) (2000).
    117. Bunkazai Hogo-ho, art. 2, no. 4.
    118. Rumsfeld, 2005 WL 522106 at *9.
    119. 16 U.S.C. § 470a–2 (1980).
    120. Rumsfeld, 2005 WL 522106 at *9.
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setting or environment.”121 As the court reasoned, NHPA can apply to the Okinawa
dugong because, while it is moveable, it is related to a specific setting and it is
protected under Japanese law on the basis of its cultural and historical importance
and therefore satisfies the requirement of an equivalent statutory scheme for cultural
preservation.122

D.    Take into Account

     The court in Gates considered as the final element of its analysis whether the
DOD failed to “take into account” the potential harm to the site requiring protection
under NHPA.123 To analyze this issue, the court first determined the meaning of the
phrase “take into account,” and then evaluated the DOD’s compliance with the Act.
     The court explained that under NHPA, the meaning of “take into account” for a
foreign undertaking is an issue of first impression.124 Without a statutory definition,
the court looked to the plain meaning of the term and discerned, on its face, the
phrase means, “consider, contemplate, study and weigh.”125 The court established
that its use of plain meaning was consistent with the goals of NHPA: to “generate
information about the impact of federal actions on the environment,” to require the
relevant federal agency to “carefully consider the information produced,” and to
“weigh effects in deciding whether to authorize a federal undertaking.”126
     Using this definition, the court established the minimum process required by
NHPA, which included identification and consideration of the protected property,
determination of whether there will be adverse effects, and, if needed, evaluation of
alternatives or changes to the plan that could avoid or mitigate those adverse
effects.127 This mandate by the court establishes a very high duty for the federal
agency to perform its own data collection and research as well as independent
analysis. The court also emphasized the fact that the international location of the
property was not a legitimate reason for creating a specialized standard. 128 In a shift
from the general interpretation of U.S. environmental law, the court found no
grounds for a distinction based on the geographic location of the undertaking or the
location of the protected property.129 Thus, the court held the DOD must apply the
same standards for taking into account the Okinawa dugong that it would apply to
any threatened domestic property under NHPA.
     Defendants argued that Japan has already taken dramatic steps toward
protecting the dugong and understanding the potential impact of the new base on its
habitat.130 While Japanese law requires continued environmental review, and the


   121. 36 C.F.R. § 60.3(j) (2008).
   122. Rumsfeld, 2005 WL 522106 at *12.
   123. Gates, 543 F. Supp. 2d. at 1102.
   124. Id.
   125. Id. at 1103. (quoting WEBSTER’S INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
(3d ed. (1976)).
   126. Id. (quoting San Carlos Apache Tribe v. United States, 417 F. 3d 1091, 1097 (9th Cir. 2005) &
Save Our Heritage v. Fed. Aviation Admin., 269 F.3d 49, 58 (1st Cir. 2001)).
   127. Id. at 1104.
   128. Id. at 1105.
   129. Gates, 543 F. Supp. 2d at 1105.
   130. Id. at 1107.
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2009]             THE OKINAWA DUGONG AND U.S. ENVIRONMENTAL LAW                   471


Government of Japan has developed a plan to “avoid shallow water areas to the
extent possible,” the court found those steps were not adequate to excuse the DOD
from U.S. environmental standards under NHPA.131 The court held that “the
obligation to take into account, therefore, lies with the DOD and the DOD alone.”132
     The court emphasized this distinction, stressing that the “court’s review is not
directed at whether Japan has complied with Japanese law, but whether the
Department of Defense has complied with its obligations under NHPA.”133 The
court refused to let the DOD off the hook based solely on the actions of another
nation, it has direct jurisdiction over the FRF.134
     The court found a failure to comply with NHPA because the record contained
no evidence that “a single official from the DOD with responsibility for the FRF has
considered or assessed the available information on the dugong or the effects of the
FRF.”135 Thus, the defendants failed to produce the necessary information to allow
the court to evaluate the potential of the FRF to adversely affect the dugong, and
also to determine what mitigation and avoidance measures would be required or
feasible.136

E.     Court Orders

     The court in Gates and Rumsfeld found that the defendants failed to comply
with the requirements of NHPA and ordered them to comply with section 402. It
ordered that the case be held in abeyance until the necessary research to determine
any adverse effects to the dugong could be developed, including information about
ways to avoid or mitigate those effects.137 The court ordered the defendants to
submit
       documentation describing what additional information is necessary to
       evaluate the impacts of the FRF on the dugong; from what sources,
       including relevant individuals, organizations, and government agencies,
       the information will be divided; what is currently known or anticipated
       regarding the nature and scope of Japan’s environmental assessment and
       whether that assessment will be sufficient for meeting defendants’
       obligations under the NHPA; and identifying the DOD officials with
       authorization and responsibility for reviewing and considering the
       information for purposes of mitigation.138


        V. RECONCILING DUGONG AND U.S. ENVIRONMENTAL LAW
    In the inaugural application of NHPA Section 402, the unexpected expansion of
a type of property not typically protected under the National Register raises


     131.   Id.
     132.   Id. at 1108.
     133.   Id. at 1107.
     134.   Gates, 543 F. Supp. 2d at 1112.
     135.   Id.
     136.   Id. at 1111.
     137.   Id at 1112.
     138.   Id.
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questions about the legitimacy of the decision. While the ability of NHPA to apply
abroad is well established, its expansion to protect animals is less certain. There is a
significant indication that the U.S. did not intend for its legislation to protect animals
abroad, but at the same time there is also clear justification for the reasoning behind
this distinction.
      The text of Section 402 assumes protection of property similar to that protected
by the National Register of Historic Places. The National Register encompasses a
wide range of historic places “reflecting the diversity of the nation’s history and
culture.”139 It defines culture as “the traditions, beliefs, practices, lifeways, arts, crafts,
and social institutions of any community, be it an Indian tribe, a local ethnic group,
or the people of the nation as a whole.”140 The types of properties considered for
protection include buildings, structures, and sites; individually or forming historic
districts, and also landscapes and objects.141 Because of its historical value to the
people of Okinawa, the dugong meets the National Register’s historical and cultural
criteria. However, its place in the list of protected properties is less clear. The
National Register does not include animals in its definition of object as is done in
Japan. The express exclusion calls into question whether protecting the dugong was
the intent of the expansion of the NHPA.
      Also revealing is that the Rumsfeld court expressly recognized that like the
National Register, “no animals are individually listed on the UNESCO World
Heritage List.”142 While the court acknowledged that the presence of animals on the
list “would have strongly indicated Congress’s intention to protect wild animals (and
include them under the definition of property) through the NHPA,” the court also
concluded that “their absence from this list is not dispositive to the case at hand.”143
Thus the court failed to recognize another strong signal that the congressional intent
of this statute was to exclude animal protection.
     Another indication of the unusual manipulation of U.S. law to protect the
dugong is the break with lay expectation; there is a general understanding that a
primary goal of NHPA is to protect physical property, whereas a primary goal of
NEPA and ESA is to protect the living environment. Even the United Nations in its
extensive report on the dugong assumed NEPA and ESA were the appropriate
channels for the dugong’s protection. The report recommended:
      [a]s the dugong is listed under the U.S. Endangered Species Act [of] 1973,
      the IUCN recommends that the government of the United States be
      included in the Environmental Impact Assessment process to ensure the
      assessment complies with standards outlined in U.S. environmental
      legislation.144




  139. PATRICIA L. PARKER & THOMAS F. KING, NATIONAL REGISTER BULLETIN, GUIDELINES FOR
EVALUATING AND DOCUMENTING TRADITIONAL CULTURAL PROPERTIES 1 (1998).
  140. Id.
  141. Id.
  142. Rumsfeld, 2005 WL 522106 at *8, n.4.
  143. Id.
  144. Dugong Status Report, supra note 9, at 45.
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The U.N. report also suggests that NEPA and ESA could be used to evaluate “the
environmental impacts of the construction in Okinawa of United States military
bases by the United States Marine Corps.”145
      This distinction is not meant to assert that the application of NHPA was
inappropriate or that Gates and Rumsfeld were wrongly decided. The Japanese
equivalent to the National Register clearly includes the dugong as an historic
landmark.146 The two countries simply define the term differently. Japan is not alone
in its categorization of animals as culturally significant objects. Canada, Denmark,
and Australia also include select wildlife in their cultural heritage programs, and
therefore culturally significant animals in these nations appear to potentially qualify
for protection under NHPA as well.147 Protecting animals was most likely not an
intention of NHPA, yet in this instance Section 402 provided an appropriate claim
for the Dugong plaintiffs.
     The use of section 402 outside the scope of the probable congressional intent
has considerable implications for the current fear of extraterritorial wildlife
protection. If a species in one sovereign nation could be protected in compliance
with U.S. law, the historical justifications against such U.S. interference are called
into question.


           VI. USING DUGONG AS A CATALYST FOR PROTECTION
     Assuming the intent of U.S. environmental law is to protect only domestic
wildlife and maintain a presumption against extraterritorial application of the vast
majority of environmental law, did the Dugong plaintiffs unearth a singular
exception, or is this holding an indication that U.S. environmental law could extend
environmental protection to other federal agency locales, and perhaps further?
Dugong suggests the possibility of greater extraterritorial legal protection for the
environment in three areas: the U.S. military’s environmental policy, NEPA, and
ESA Section 7. The lack of environmental consideration for the FRF by the DOD
before Dugong suggests that a greater role must be played by domestic
environmental policy. The dicta in Dugong implies NEPA could apply abroad as the
concerns in NEPA Coalition of Japan—infringing on another nation’s sovereignty,
violating laws of the other nation, or receiving threats to foreign policy—are all
dismissed by the Dugong court. The analysis in Dugong also provides a strong
argument to apply the dicta in Defenders of Wildlife and extend ESA section 7
extraterritorially.

A.    U.S. Military Faces the Dugong

     Promoting the expansion of U.S. environmental policy extraterritorially is
essential to an understanding of the obstacles arising out of the current policies of the
U.S. government. Military bases are one of the most obvious threats to the
environment by U.S. federal agencies. Because U.S. environmental statutes have a


   145. Id.
   146. Ingrid Brostrom, Note, The Cultural Significance of Wildlife: Using the National Historic
Preservation Act to Protect Iconic Species, 12 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 147, 158–59 (2006).
   147. Id. at 163–64.
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domestic focus, the obligations of the military abroad are governed by presidential
orders or bilateral agreements with the foreign nation.148 As a result, overseas
environmental policy does not hold the DOD accountable for its practices on
international bases as it does domestically. The focus abroad is on base operations
rather than protection of the local environment. While the DOD has made some
efforts to improve environmental compliance and develop standards both at home
and abroad, those guidelines only provide direction for commanders in the field and
serve as a basis for bilateral relations with host nations.149 When developing those
guidelines, the DOD considered U.S. environmental standards but did not
incorporate them.150 The result of this lax policy is that the U.S. military has no clear
standards, lacks proportional punishment for violations, and is at no risk of public
disclosure for environmental degradation.151 While it is certainly possible U.S.
security concerns can outweigh environmental concerns, this rationale does not seem
to be a satisfactory argument against ever applying U.S. environmental law abroad.
Indeed it seems equally possible that potential irreversible environmental impacts
might also on their face outweigh agency action.
      Unfortunately, the results of the current approach to extraterritorial
environmental protection have yielded severe repercussions for host nations. Yusu
Woo details the sad state of U.S. military treatment of environmental regulation
abroad, focusing on the Republic of Korea. For example, in 2000 the U.S. military
admitted to illegally dumping toxic chemicals that polluted the Han River, a major
source of drinking water for residents of Seoul, South Korea.152 The U.S. Congress
determined that “the environmental restoration is a host nation responsibility.”153 To
compound the problems of the host nation, the U.S. military was exempted from
liability because the South Korean government waived jurisdiction.154 Not only did
the U.S. military not have to abide by specific environmental regulations, but also,
when environmental harms resulted to the Han River, the U.S. did not have to take
any responsibility for mitigation, future prevention, or restitution.155
     Examples of environmental protection trading off with so-called military
readiness with few adverse effects provide success stories. In a domestic incident on
Hawaii’s Oahu Island, violations of environmental laws successfully stopped training
on the Makua military range. The military did not use the range for three years and
“told the judges and the press that the lack of training degraded their military
readiness.”156 However, training records revealed the local commanders recorded


    148. See Yusun Woo, Note, Environmental Problems on the U.S. Military Bases in the Republic of
Korea: Who Is Responsible for the Cleanup Expenses and Whose Environmental Standards Will Apply?,
15 SE. ENVTL. L.J. 577, 592 (2007) (noting that a default presumption by courts that statutes do not apply
territorially results in reliance on executive orders and bilateral agreements regarding the environmental
obligations of U.S. military bases abroad).
    149. U.S. DEP'T OF DEF., 1996 ANN. DEF. REP. pt. III, ch. 15.
    150. Woo, supra note 148, at 594.
    151. Id. at 611.
    152. Id. at 578.
    153. Id. at 595.
    154. Id. at 611.
    155. Id. at 594–95.
    156. Paul D. Thacker, Are Environmental Exemptions for the U.S. Military Justified?, ENVTL. SCI. &
TECH.          ONLINE,         Sept.      22,       2004,       http://pubs.acs.org/subscribe/journals/esthag-
w/2004/sep/policy/pt_military.html.
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2009]          THE OKINAWA DUGONG AND U.S. ENVIRONMENTAL LAW                                   475


they were “ready to perform [their] wartime mission.157 The California court also
recently required “extraordinary circumstances” to allow a presidential exemption to
ignore the stay on sonar testing off the coast of California where research indicated
the sonar endangered the health of the whales.158 These instances are examples of
using a balancing test to weigh the benefits of military action with the potential for
environmental degradation.
     The U.S. military’s focus abroad is national security, as it should be. However,
the extensive reach of the U.S. military impacts the land and people of host nations.
In Dugong, the reason for the base location was not national security but to
accommodate the expanding suburban areas in Okinawa.159 While certainly a
worthwhile goal, at some point environmental considerations simply must be
balanced with the security goals of the military. Dugong implies that evaluating
potential hazards including destruction of the habitats of endangered animals,
chemical spills, and other environmental degradation, should be a part of military
presence abroad just as it is for its domestic locations.

B.    Using Dugong to Respond to NEPA Coalition of Japan

     Dugong does not have to be a special exception to extraterritorial
environmental law. The case rejects the enumerated harms in NEPA Coalition of
Japan and provides justification for a balancing test to use NEPA abroad. There are
clear distinctions between NEPA and NHPA, but both are procedural acts and both
place an emphasis on gathering information rather than taking specific action based
on that information. The scope of NEPA is significantly larger than NHPA, and thus
any international expansion would have more far-reaching effects than NHPA
Section 402. However, despite this distinction, the arguments for extraterritorial
application in Dugong indicate that the NEPA Coalition of Japan justifications are
overstated, regardless of the scope of the two acts.
      The three different justifications in NEPA Coalition of Japan for failing to
extend NEPA—avoiding conflict of laws, protecting the sovereignty of the other
nation, and preventing foreign policy from outweighing environmental interests—are
all addressed and dismissed in Dugong v. Gates. The NEPA Coalition of Japan court
was concerned that U.S. interference in foreign environmental policy would conflict
with other nations’ environmental and other laws. However, as one commentator,
Anna Stasch, recognized, “NEPA, like the NHPA provision in Dugong, is
preemptive, agency-focused, and procedural, and thus limited in its ability to conflict
with local laws.”160 Paul Boudreaux emphasizes that concerns of conflicting foreign
laws are unreasonable in areas where there is limited foreign control of the area such
as embassies and the high seas.161 In these areas, he correctly points out, there is far




   157. Id.
   158. Winter, 502 F.3d 859 at 1235–36.
   159. Gates, 543 F. Supp. 2d at 1085.
   160. Anna D. Stasch, ARC Ecology v. United States Department of the Air Force: Extending the
Extraterritorial Reach of Domestic Environmental Law, 36 ENVTL. L. 1065, 1084 (2006).
   161. Paul Boudreaux, Biodiversity and the New “Best Case” for Applying the Environmental Statutes
Extraterritorially, 37 ENVTL. L. 1107, 1122 (2007).
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less opportunity for conflicting laws because often the foreign nation will lack
jurisdiction over the area.162
     The Gates court also dismissed this potential conflict and, in fact, encouraged
the United States and Japan to work together. The court emphasized that this
cooperative attitude “does not preclude DOD from considering information
generated by Japan and coordinating with Japan to gather and compile relevant
information.”163 The court even went so far as to order the U.S. military to take steps
beyond Japan’s research and did not allow it to simply rely on Japan’s conclusions in
its research.164 The court’s general reasoning for fostering an atmosphere of
cooperation is that when Congress discussed the foreign context of this act, there was
a noted coherency for all programs in requiring consultation with the Secretary of the
Interior.165 The court recognized that the absence of an express mandate for
consistency between domestic and foreign undertakings was not sufficient to show
Congress intended the procedures to differ.166
      Another concern, expressed by the NEPA Coalition of Japan court was the U.S.
impairment of another nation’s sovereignty within its territories.167 The U.S. is
arguably already encroaching on Japan’s sovereignty by operating a military base on
its territory. The same could be said for every international military installation: just
the physical placement of those facilities is impairing, at some level, the sovereignty
of the other nation. Also, while this concern applied to an expansion of NEPA,
similar concerns were not voiced when NHPA was expanded. There does not seem
to be a distinction as to why an EIS would impair sovereignty more than the research
and analysis required under Section 402, as an EIS is also only a study of the site. The
Gates court recounted that the legislative purpose of the NHPA was to “establish an
effective system of collective protection of the cultural and natural heritage.”168
Additionally, the Rumsfeld court emphasized that it is not sufficient to work alone,
indeed, “[i]t shall be the policy of the Federal Government, in cooperation with other
nations and in partnership with the States, local governments, Indian tribes, and
private organizations and individuals” to “provide leadership in the preservation . . .
of the resources of the United States and the international community of nations.”169
While sovereignty of other nations should not be undervalued, the key to these
environmental protection laws is cooperation, not domination over the other nation.
     The final concern expressed in NEPA Coalition of Japan is the assumption that
foreign policy outweighs the benefits to the environment. While it certainly is
possible that a national security issue would outweigh the interests of the natural
environment, this is not always the case. The DOD worries, “the environmental
issues are primarily a question of political will since any option will affect the
environment and opponents will use environmental-based arguments to advance



   162. Id.
   163. Gates, 2008 WL 215400 at *25.
   164. Id.
   165. Id. at *22.
   166. Id.
   167. NEPA Coal. of Japan, 837 F. Supp. at 467 n.5.
   168. Gates, 543 F. Supp. 2d at 1104 (citations omitted).
   169. Rumsfeld, 2005 WL 522106 at *4 (quoting National Historic Preservation Act, 16 U.S.C. § 470–
1(2) (2000) (emphasis added)).
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2009]         THE OKINAWA DUGONG AND U.S. ENVIRONMENTAL LAW                           477


their cause.”170    The DOD fears that if foreign policy does not outweigh
environmental requirements, key changes will be all but impossible due to the
inevitable environmental harms, which could be lodged by anti-military activists.
These fears do not seem to be supported by evidence domestically. Discussing DOD
exemptions during her Congressional testimony, former EPA Administrator
Christine Todd Whitman stated, “I’m not aware of any particular area where
environmental protection regulations are preventing the desired training [of the U.S.
military].”171 At this hearing, DOD Deputy Under-Secretary Ray DuBois admitted
“there was not a single incident where Superfund, solid-waste, or clean-air legislation
had interfered with military readiness.”172 Therefore, it is reasonable to assume that
similar environmental considerations could occur extraterritorially without impairing
foreign policy, particularly if a balancing test was in place to consider both concerns.

C.     Using Dugong to Promote Defenders of Wildlife

     Dugong provides credence to the argument that the Congressional intent of
ESA’s Section 7 was to apply the act extraterritorially as concluded in Defenders of
Wildlife. While the entities protected by NHPA and ESA differ greatly (generally),
the procedures of NHPA Section 402 and ESA Section 7 are quite similar. Like
NHPA, which focuses on the agency taking into account the specific property, ESA
Section 7 also has a procedural focus on a specific endangered animal, and mandates
and regulates a consultation process.173 If there is evidence of potential harm toward
the animal, the agency must take the appropriate steps to minimize that harm as
required by the ESA.174
      Some experts consider Section 7 of the ESA the best option for expanding
environmental protection extraterritorially.175 Although it has been sixteen years
since the Supreme Court reversed Defenders of Wildlife, the district court opinion is
still widely cited as evidence that there is potential for extraterritorial application of
the law. Similar arguments are made against ESA expansion as the NEPA, and thus
the same arguments in Dugong also apply to ESA. But it is important to remember
the similarities of ESA to the NHPA application in Dugong. If the ESA had been
used instead of the NHPA in Dugong, the orders could very well have been identical.
The dugong received protection via NHPA because it is culturally significant, but it
is difficult to see how its protection would have had a different impact on Japan, the
U.S. military or the FRF if it had simply been an endangered creature. The dugong
thus serves as an ideal example for revisiting Section 7 and applying it
extraterritorially as approved in Defenders of Wildlife sixteen years ago.




       U.S. DEP’T OF DEF., SUMMARIZING US-JAPAN NEGOTIATIONS 25 (2005).
     170.
       Thacker, supra note 156.
     171.
       Id.
     172.
       U.S. FISH & WILDLIFE SERV., CONSULTATIONS WITH FEDERAL AGENCIES: SECTION 7 OF THE
     173.
ENDANGERED SPECIES ACT 1 (2002), http://www.fws.gov/asheville/pdfs/consultations.pdf.
  174. Id.
  175. Boudreaux, supra note 161, at 1128.
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                                     VII. CONCLUSION
     The Rumsfeld court saw firsthand what happens when U.S. environmental laws
are not extended extraterritorially. The DOD did not comply with NHPA section
402, and as such did not “produce, gather and consider information necessary for
taking into account the effects of the FRF on the Okinawa Dugong and for
determining whether mitigation or avoidance measures are necessary and
possible.”176 Fortunately for the Okinawa dugong, the expansion of the NHPA to
apply protection in Japan provided a basis for the claim. The court found the
plaintiffs satisfied all four elements of the claim: there was a federal undertaking
outside the United States, the FRF; the proposed expansion of the FRF directly and
adversely affected the dugong habitat; the dugong was listed on the Japanese
equivalent of the National Register; and the DOD failed to take into account the
dugong when it proposed the plans for the new facility.
     While it is unlikely that NEPA and ESA would have successfully applied the
same protection for the dugong, the successful protection of an endangered animal in
another sovereign nation raises questions concerning the possibility of continued
expansion of U.S. environmental policy. While NEPA Coalition of Japan and Justice
Steven’s concurring opinion in Defenders of Wildlife expressly rejected
extraterritorial application of NEPA and ESA, the arguments for such action are
severely weakened by the analysis in Dugong. The court in Dugong does not
consider the possibility of a conflict of laws, the impairment of Japanese sovereignty,
or an infringement upon foreign policy to allow the DOD to avoid considering the
potential effects of the FRF on the dugong. Of course, there will always be
exceptions where national security will trump environmental concerns, but that
should not prevent federal agencies from considering the environmental impacts of
proposals generally. A better test balancing environmental concerns with those of
federal agencies would consider important environmental risks that at this time are
being grossly overlooked due to lack of U.S. mandates. This reasoning could be
applied to policy justifications for expanding both NEPA and current U.S. military
environmental policy to provide more protection abroad. Dugong also provides an
opportunity to revisit the expansion of ESA in Section 7 to provide additional
protection to endangered animals abroad.
     As Dugong was the initial application of NHPA Section 402, it is unclear
whether Section 402 will be used in the future to protect the environment beyond its
intended scope, as it was in Dugong to make up for the lack of other extraterritorial
protection. The result of this singular case could have far-reaching effects in the
application of other environmental laws abroad. There is now a success story for the
potential to expand environmental protection to supplement solutions, such as
framing international claims as domestic issues or attempting to show adverse effects
within the U.S.177 Dugong is admittedly a small step towards expanding U.S.
environmental standards extraterritorially, but it is an initial indication of the far-
reaching possibilities of such protection.




  176. Gates, 543 F. Supp. 2d at 1111.
  177. Stasch, supra note 160, at 1086–94.