Okinawa Dugong v. Mattis (330 F. Supp. 3d 1167, 2018)

EDWARD M. CHEN, United States District Judge

This case concerns the planned Futenma Replacement Facility (FRF), a U.S. military facility in Okinawa, and its potential impacts on the Okinawa dugong, an endangered sea mammal important in Japanese culture. Negotiations between the United States and Japanese governments regarding the FRF have a long and fraught history. As explained in more detail below, they ultimately resulted in an agreement to relocate the Marine Corps Air Station Futenma from Ginawan City to an area adjacent to Camp Schwab and the Oura and Henoko Bays.

In 2003, Plaintiffs filed suit pursuant to Section 402 of the National Historic Preservation Act ("NHPA"), challenging Defendant U.S. Department of Defense's plans to pursue the FRF without first "taking into account" (TIA) its potential adverse effects on the Okinawa dugong. Judge Patel, assigned to this case, agreed that Defendants had failed to perform an adequate TIA process and granted summary judgment in Plaintiffs' favor. However, because of political uncertainty about the future of the FRF, Judge Patel administratively closed the case in 2012. In 2014, Defendants informed the Court that they had completed a TIA process.

Presently before the Court are the parties' cross-motions for summary judgment concerning the adequacy of Defendants' TIA process under Section 402 of the NHPA. Plaintiffs contend that the process was inadequate because Defendants failed directly to consult Plaintiffs, cultural practitioners, local and Okinawa government officials, and failed to notify the public or Plaintiffs that the TIA process was underway. Plaintiffs also contend that, even if the Section 402 TIA process was adequate, Defendants' finding that the FRF would have no adverse effect on the Okinawa dugong were arbitrary and capricious under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, et seq. , because it ran contrary to the scientific evidence and failed to consider important aspects of the problem.

For the reasons explained below, the Court finds in favor of Defendants. Though Defendants' Section 402 process could possibly have been more inclusive, Defendants' efforts were sufficient to satisfy Section 402's modest procedural requirements. Further, Defendants adequately explained their conclusions based on the evidence available to them, such that their conclusions were not arbitrary or capricious under the APA. Plaintiffs' motion for summary judgment is DENIED and Defendants' motion is GRANTED .

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The FRF and Okinawa Dugong

Since the end of World War II and pursuant to various treaty arrangements, the United States has maintained military facilities on the Japanese island of Okinawa. This case concerns the planned relocation of the existing Marine Corps Air Station Futenma ("MCAS Futenma") in Ginawan City. The United States and Japan agreed to relocate it because its current location became problematic after substantial population growth in the surrounding area. The new site is referred to as the Futenma Replacement Facility ("FRF"). The plans for the FRF have been evolving for more than a decade pursuant to negotiations between Japan and the United States. According to a 2006 roadmap agreement, the two countries agreed that the FRF would be located offshore the existing Camp Schwab, near Henoko Point. The FRF plan calls for a "V-shaped" runway that will be partially built on landfill extending into Oura and Henoko Bays.

The intrusion into the Bays prompted this litigation. The waters in question are a habitat used by the Okinawa dugong, an endangered sea mammal. Plaintiffs, a group of Japanese individuals and environmental organizations concerned about the Okinawa dugong's fate and the U.S.-based Center for Biological Diversity, filed suit in 2003 after relocation plans were first announced under Section 402 of the National Historic Preservation Act (NHPA). Section 402 of the NHPA provides:

Prior to the approval of any undertaking outside the United States that may directly and adversely affect a property that 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 the undertaking shall take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect.

54 U.S.C. § 307101(e). Plaintiffs alleged that the Okinawa dugong was "property" on Japan's equivalent of the National Register within the meaning of Section 402. Judge Patel, then-presiding over the case, agreed and declined to dismiss the case. See Dugong v. Rumsfeld , 2005 WL 522106 (N.D. Cal. Mar. 2, 2005) (" Dugong I "). Consequently, the NHPA required that, "[p]rior to the approval of any undertaking outside the United States [i.e. , the FRF] that may directly or adversely affect [the Okinawa dugong]," Defendants "shall take into account the effect of the undertaking on the [dugong] for purposes of avoiding or mitigating any adverse effect." 54 U.S.C. § 307101(e). After Judge Patel's earlier ruling and a 2006 announcement about a new roadmap for the FRF, plaintiffs filed a second amended complaint and Defendants produced an administrative record to prepare for summary judgment.

At summary judgment, Judge Patel held that the FRF was a "federal undertaking" within the meaning of Section 402 of the NHPA, Dugong v. Gates , 543 F.Supp.2d 1082, 1101 (N.D. Cal. 2008) (" Dugong II "), and that Defendants were therefore required to "take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect." 54 U.S.C. § 307101(e). This is referred to as the "take into account" (TIA) process. Judge Patel sketched the basic outline of what a Section 402 TIA

process should look like and held that Defendants had failed to comply. Dugong II , 543 F.Supp.2d at 1102-1111. She entered summary judgment for Plaintiffs and ordered Defendants to comply with NHPA Section 402. Due to subsequent uncertainty over the future of the FRF, Judge Patel held the case in abeyance and administratively closed it in February 2012, instructing the parties to move to re-open the case "[w]hen plans for Henoko become more finalized or are abandoned." Docket No. 147 at 4-5.

Over two years later, in April 2014, Defendants filed a notice that they had completed the Section 402 TIA process. See Docket No. 151. With the Court's leave, Plaintiffs thereafter filed a supplemental complaint. See Docket No. 152-1. Defendants successfully moved to dismiss for lack of jurisdiction, see Docket No. 186, 188, but the Ninth Circuit reversed and remanded. See Docket No. 198. On remand, the parties filed cross motions for summary judgment concerning the adequacy of Defendants' TIA process and the soundness of their conclusions under the APA. Those motions are now before the Court. See Docket Nos. 221, 222, 223.

B. Defendants' "Take Into Account" Process

Subsequent to Judge Patel's order, Defendants undertook a TIA process that involved several components. Each is described in more detail below, but the steps included, inter alia , (1) a report on the FRF's potential impact on the dugong's biological well-being prepared by Dr. Thomas Jefferson (the "Jefferson Report"); (2) a report on the FRF's potential impact on the dugong's cultural significance prepared by a private research institute, International Archeological Research Institute, Inc. (IARII) (the "Welch 2010 Report"); (3) the Japanese government's Environmental Impact Statement ("EIS") regarding the FRF; and (4) miscellaneous other reports or sources of information described below. See US 10997. After considering these reports, Defendants rendered their findings that the FRF would not have adverse effects on the dugong.

The various reports make reference to certain locations, including Henoko Bay, Oura Bay, and Kayo; the maps below illustrate the geography of the FRF and those areas.

The following reports constitute part of Defendants' TIA process.

C. Jefferson Report (Biological Assessment)

Defendants commissioned an internal study by Dr. Thomas A. Jefferson titled "Biological Assessment of the Okinawan Dugong: A review of Information and Annotated Bibliography Relevant to the Futenma Replacement Facility." US 3356. The report consists of a literature review concerning the taxonomy of the dugong, their distribution and abundance, typical lifespan, ecology, behavior and social organization, and threats to their population. Id. The general threats to the Okinawa dugong identified were hunting, bycatch, vessel traffic, chemical pollution, and habitat loss/degradation. US 3368-69. The threats directly linked to military activities were identified as pollution (noise, chemical, sedimentation, and radioactivity) and habitat destruction/alteration. US 3369.

Dr. Jefferson concluded that, for conservation purposes, "[m]anagement actions must be focused on human activities known to be actual causes of mortality for dugongs in this population, and this generally means the closure or relocation of gillnet and setnet fisheries that catch dugongs to locations outside the population's range." US 3373. He also noted that stopping the FRF would be futile in preserving the dugong without additional conservation efforts: "Eliminating activities that may have the potential to limit population recovery (e.g. , the FRF), while ignoring the issues known to be causing population decline (e.g., possible illegal hunting and incidental catches in fisheries), will not help the population." Id. (emphasis in original). Rather, "[a]n integrated management plan ... is the only way to preserve this dugong population." Id.

D. Welch 2010 Report (Cultural Assessment)

Defendants commissioned the IARII, a private research consulting firm, to produce a report on the cultural significance of the Okinawa dugong. US 4163. Although the bulk of the report focuses on the cultural significance of the dugong, it also reviews biological and ecological literature concerning the dugong, including threats to their existence. US 4175-4184.

1. Sources of Information

IARII assembled a team of archeologists, a cultural anthropologist, and a biologist to prepare the report. The team consulted with cultural and natural resource specialists at Marine Corps Base Camp Butler and ultimately interviewed 16 informants, including seven archaeologists, two biologists, three archivists/professors, and four folklorists or individuals with local traditional knowledge about the dugong. The researchers also visited a number of organizations and museums, including Uruma City Cultural Sea Museum, University of the Ryukyus Museum, Higashi Village Museum, Ishigaki City Yaeyama Museum, Nakijin Village Museum of Culture and History, Nago Museum, Okinawa Churaumi Aquarium, and the Okinawa Prefectural Archaeology Center (organizations which were on Plaintiffs' list). US 4170. Additionally, the team visited the Okinawa Prefectural Board of Education and municipal Boards of Education nearest to the proposed project (Chatan Town, Ginoza Village, Nakijin Village, and Nago City). The researchers also conducted a review of relevant academic literature.

2. Findings of Adverse Effect

Based on their research, the authors of the Welch report discussed both direct and indirect effects on the dugong's cultural significance. Direct effects were those that might directly affect the cultural importance of the dugong, while indirect effects were those that might cause biological harm to the species and thereby indirectly diminish its cultural significance.

With respect to the "direct" effects, the report concludes:

Based on the results of this study, the construction and operation of the FRF should have little direct adverse impact on the cultural significance of the dugong or on traditional cultural practices associated with the dugong. Since the area in which the FRF will be built ... is already off-limits to the general Okinawan population, no cultural events or social/religious ritual ceremonies involving the dugong take place in these areas. Because of the dugong's rareness, its status as a GOJ endangered biological species, and its designation as a protected cultural property, hunting has not taken place, except perhaps surreptitiously and only occasionally, since the immediate post-war years. Because hunting is now illegal, the FRF will not directly affect hunting.

US 4253. The study noted, however, that certain rituals honoring the sea deity are still held in Henoko Village adjacent to Camp Schwab and that "temporary construction activities and later operational activities could disturb the performance of these rituals." Id. It further concluded that although the seagrass beds in the vicinity of Henoko might be impacted by the FRF because of the feeding trenches in the area, "the project research found no indication that any culturally important activities are conducted in or associated with this area." Id.

The Welch report then discussed "indirect" effects on the dugong's cultural significance based on its assessment that "[i]f the dugong population is lost, then it is likely that those traditions that help create Okinawan identity will become increasingly meaningless to future generations." US 4254. The report identified six potential threats to the dugong's existence: hunting, bycatch/incidental catch, vessel traffic, acoustic disturbance, chemical pollution, and habitat loss/degradation. AR 4180-83. Among these, the report stated that habitat destruction/alteration, pollution, and vessel collisions are the potential threats from military activities. Based on review of biological literature, the report stated that although dugongs were not currently living in Henoko Bay, "destruction of seagrass beds along Henoko Bay will limit areas that could provide habitat in the event of recovery and increase in the current dugong populations." US 4254. It also states that "noise from the construction and operation of the FRF could still affect the dugongs in [the area to the east of Oura Bay]." US 4255.

Although the Welch report identified these "potential" or "possible" effects, it made no attempt to quantify the likelihood that the threats would materialize. In other words, the Welch report does not analyze the FRF or related operations and the likelihood that they would cause harm to the dugong. It merely identified a list of possible threats worth consideration.

E. Bi-Lateral Expert Study Group (2010)

The United States-Japan Security Consultative Committee also directed a group of experts to study the FRF's location, configuration, and construction method to help achieve the earliest possible relocation. US 7306. This study evaluated two alternative construction plans in consideration of the safety of local communities and U.S. military personnel, operational requirements for U.S. forces, noise impact, environmental concerns, and effects on the local community. US 7307. It concluded that one plan (the "V" plan) would require losing a beach on the east side of Camp Schwab and thus "result[ ] in the loss of some animal and plant habitat," without further elaboration. US 7309. The other plan (the "I" plan) would preserve the beach but "the impact on animal and plant habitat remains to be assessed." US 7311. Plaintiffs have cited the latter language as evidence of an incomplete process, but because Defendants have adopted the "V" plan, the language regarding the "I" plan is not material to the question of compliance with Section 402.

F. Survey of Marine Mammals in Okinawa (SuMMO) (2011-2012)

This report was commissioned to update the Integrated Natural Resources/Cultural Resources Management Plan for Marine Corps Base Camp Smedly D. Butler, of which Camp Schwab is a part. US 9245. This report did not draw conclusions about the density of dugong presence in or around Henoko and Oura Bay. AR 9269. It is discussed where relevant below.

G. Japanese Environmental Impact Study ("EIS")

Defendants relied heavily on an independent Environmental Impact Study undertaken by the Japanese government pursuant to Japanese law, a draft of which was released in 2009 and a final version published in December 2012. See US 11056. The Japanese EIS is over 1600 pages long. US 4793. It involves a comprehensive analysis of how likely the FRF's construction and planned manner of operation is to impact the Okinawa dugong. The Japanese EIS also underwent a robust public notice and comment process. These components are discussed below.

1. Public Notice and Public Comment

The Japanese EIS had 3 phases of public comment: first, about the planned scope of the EIS; second, about the draft EIS; and third, about the final EIS. See US 3032 (flow chart of process). The administrative record includes an English translation summary of 32-pages of public comments regarding the Japanese EIS's proposed scoping. See US 1218. With respect to seagrass beds and dugong, the comments include, inter alia , concerns that "[t]he sea areas in the vicinity of Henoko are considered as very important breeding ground for the small population of Japanese dugongs," comments regarding whether the planned survey period would be of sufficient duration, whether research about dugongs in other countries could be applied directly to the Okinawa dugong, whether the planned survey to observe dugong was sufficiently broad in its geographic scope, how the survey would account for measuring impact of sound on dugong, and so on. US 1238-41. Indeed, about four pages of translated public comment in the Japanese EIS are dedicated specifically to the Okinawa dugong.

Plaintiffs do not allege that they were unable to participate in this process. As explained above, the record indicates that members of the Japanese public were able to participate. The Okinawa Prefecture, akin to the regional government of Okinawa state, was also actively involved in the public comment process. The then-governor of Okinawa, Hirokazu Nakaima, submitted public comment regarding the proposed scope of the Japanese EIS on December 21, 2007 and January 21, 2008. See US 1251, 1319. The translated documents are 28-29 pages long. The comments are robust and detailed, and include, among other things, recommendations for how to assess impact caused by acoustic noise and vibrations, aircraft noise, water contamination, turbidity caused by sediments, impact on seaweeds and seagrasses used by dugong, and impacts on the dugong themselves. See , e.g. , US 1269-71.

On March 4, 2008, the Department of Cultural and Environmental Affairs of the Okinawa Prefectural Government also submitted "Comments on the Additions and Revisions to the Environmental Impact Assessment Scoping Document" for the FRF. US 1567. This also includes comments regarding seagrass beds and dugong, including, for example, that the EIS should consider "[c]hanges in the use and visit to the sea area and seagrass beds,"

"[c]hanges in the function and value of habitat, and their impacts on sustainability of individuals or population of dugongs in the Henoko coastal area," and "[i]mpacts on sustainability of dugong's population in Okinawa based on the degree of impacts on sustainability in the coastal area of Henoko." See US 1575-77.

Governor Nakaima also submitted comments regarding the final EIS document, sharply criticizing the Japanese central government's report, generating significant attention in Japanese media. Defendants were aware of these criticisms and internally circulated media coverage. See US 8150-8158 (e-mail thread reproducing media coverage of Okinawa prefecture's criticism of the Japanese EIS). This included criticism of the report's findings regarding potential effects on the dugong but the substance of the critique is unclear from the record.

2. Substantive Findings of Japanese EIS

Whereas the Welch and Jefferson reports only identify potential adverse effects to the dugong from military activities, the Japanese EIS purports to determine the likelihood such harm will occur in light of the specific construction and operation plans for the FRF. The Japanese EIS's analysis with respect to construction and operation are summarized below.

a. Adverse Effects Related to Construction

The Japanese EIS considered adverse effects related to noise, vibrations, night lighting, and ship collision as summarized below.

i. Noise

The report focused on construction activities likely to produce noise below the surface: piling work and riprapping work. US 6140. It calculated the decibel range that could affect dugongs and the geographic range in which harm could result. US 6141. It concluded that because there are shore reefs at the mouth of the Oura Bay between the construction site and sea areas off Kayo where dugongs live, "it is expected that these shore reefs will block the underwater noise." Id. Thus, dugongs near Kayo would not be adversely affected. However, the report notes that noise could reach the dugong to the southwest if they were to move to that area or if they actually entered the Oura Bay. Id.

ii. Vibration

The Japanese EIS also analyzed the effect of construction-related vibrations of the sea floor. It noted the likely magnitude of such vibrations, how far they could be felt, and at what magnitude they might affect dugong. The report concluded that because "[d]ugongs rarely touch the sea bed except when they graze seagrasses," and because "the feeding ground for dugongs that live around the project implementation site is located in sea areas off Kayo, over 5km away from the piling site," "it is projected that sea bed vibrations during the construction work will have little practical effect on the behavior of dugongs." US 6141.

iii. Night Lighting

The report explained that marine construction would only occur in the day time, and that night lighting was expected only to be used for a short three-month period during pavement work at the airport. Because dugongs "are highly likely to stay in sea areas off Kayo ... it is assumed that little light from the lighting apparatuses ... will reach [them]." Id.

iv. Navigation of Work Ships

The Japanese EIS noted that ship routes would be set to avoid areas where the dugong have been observed so encounters between the ships and the animals would be unlikely, but that if dugong moved out of those spaces, they might encounter ships. US 6141. Alternatively, if they entered Oura Bay, the dugong might be caught in gill nets. US 6141.

In sum, with respect to construction activities, the Japanese EIS concludes: "it is projected that the effects of muddy water, noise, and the navigation of work ships during the construction work will not reach the sea areas where the seagrass beds that dugongs use as feeding grounds are distributed. It is also projected that if dugongs remain within their hitherto observed habitat, there is no possibility that implementation of the project will change the functions and value of dugongs' living environment. Nor will implementation of the project practically affect the lives of individual dugongs that live around the project implementation site. [Finally] nor is there practically any possibility that implementation of the project affects the conservation of all individual dugongs in Okinawa prefecture." US 6142.

b. Adverse Effects Related to Operational Use

The Japanese EIS considered the following impacts of operational use of the FRF (post-construction): decreased availability of sea surface (due to reclamation of sea land to expand the runways); water quality; aircraft noise; and ship navigation.

i. Reduction in Sea Surface

The report considered whether the reduction in sea surface would affect the dugong's habitat or feeding grounds. It concluded that "the habitat ... will not decrease much" and "will not decrease areas where seagrass beds ... grow" because the main dugong feeding grounds are in a different location, off Kayo. AR 6145. The report also concluded that "changes in ocean flows, waves, and water quality due to the existence of facilities ... will practically not alter the living environment of seagrass beds, the main feeding grounds for dugongs." Id. The new marine structures will not interfere with dugong travel routes because they are not observed in the areas where the land will be reclaimed, or where fuel piers and approach lights are to be installed. Id.

ii. Aircraft Noise

The report considered the noise levels of aircrafts, their flight paths, and the extent to which noise might penetrate the sea in light of the particular flight trajectories and the noise levels that might affect the dugong. The report concludes that "it is projected that sound pressure levels that exceed those which affect dugongs will be limited to small areas directly below the flight routes," and that "low-frequency sounds ... are projected to go below the lowest low-frequency sound pressure level that affects dugongs." Id. at 6145-46.

iii. Water Quality

The report concludes "there will be practically no change to the quality of water around seagrass beds off Kayo, a major feeding ground for dugongs." US 6146.

iv. Ship Routes

The report projected that ship routes would be unlikely to affect the dugong because the routes were planned through areas where dugong are not known to live and have not been observed. Id.

In sum, the Japanese EIS concludes that "if dugongs remain within their hitherto observed habitat, there is no possibility that implementation of the project changes the functions and value of their living environment," and that "[t]here is practically no possibility that implementation of the project affects the conservation of all individual dugongs in Okinawa Prefecture." US 6147.

H. Defendants' Findings

Defendants considered the aforementioned reports in making their independent findings. They determined the dugong had cultural significance for four distinct segments of Japanese society, identified "those aspects of the dugong that are intrinsic to its cultural significance," and then determined whether the FRF would adversely affect such aspects. As in the Welch report, Defendants considered both direct impacts on the dugong's cultural significance and indirect impact that could result from biological harm to the dugong.

1. Direct Effects on Cultural Significance

Defendants' findings regarding cultural significance are summarized in the table below.

Group For Whom Dugong Intrinsic Cultural Finding of Adverse Effect Is Significant Significance 1. Researchers and scholars Cultural knowledge or data Little or no potential to affect who "perceive the Okinawa available for conducting the repositories housing dugong as having cultural research, which is contained cultural knowledge significance related to its in archives, archeological historical role and its deposits, and memories of inclusion in Okinawa people who practice rituals mythology, songs, and oral and pass on oral traditions traditions," US 10986 2. Ritual practitioners who Cultural and historic Little or no potential to affect "possess some specialized knowledge embodied in because no rituals actually knowledge about the role of songs, oral traditions, myths, occur within the various dugong in traditional myths, and rituals, although the named seagrass bed areas oral histories, rituals, and places where rituals are songs," including some for conducted and their timing whom "dugongs are perceived may also have elements of as intermediaries between the significance. world of humans and the world of the supernatural," US 10986 3. Aragusuku-jima Island Oral traditions and written No potential to affect islands community for whom "oral records regarding hunting where rituals and festivals are traditions and records dugong during the Ryuku performed and little to no document[] the past Kingdom Period and practices potential to affect the requirement that they hunt the such as hunting, dugongrelated knowledge of the people of dugong and furnish dugong rituals, and the shrines the islands meat in lieu of paying taxes to where they occur the Kingdom," US 10986 4. Popular culture in the The dugong's image and Minimal potential to result in sense that "Okinawans have arguably its survival as a local extinction or significant rallied [around the dugong population because "symbols degradation of the species, so symbol] to protest the are more effective if they are "no potential to affect the use continued use of areas on tied to something tangible and of the dugong as a political Okinawa by the U.S. able to be seen periodically by symbol" military," relating to "public the community that uses the perception of the animal as an symbol," US 10987 endangered species having special ties to Okinawa," id.

Relatedly, Defendants recognized potential indirect effects on the performance of dugong-related rituals in Henoko Village as a result of noise or visual intrusions during construction and operation. But "[t]he secretive nature of the ritual practitioners has prevented the USMC from acquiring information important to determining the affect [sic], if any," US 10993, that would be caused. The report states that if the information becomes available, Defendants will make a determination. Id.

2. Indirect Effects on Cultural Significance Through Biological Harm

Defendants also recognized that biological harm to the dugong could adversely affect the creature's cultural significance. Defendants' analysis presumed that "an activity is deemed to have an adverse effect either on the dugong as a natural monument, or on an intrinsic element of the dugong from a cultural perspective, if the activity destroys, harms, or alters either the dugong or its intrinsic elements." US 10987. Thus, "in order for the Undertaking to have an adverse effect on the Okinawa dugong, dugongs would have to be present in the [Area of Potential Effects ("APE") ] and subject to activities that could destroy, harm or alter those intrinsic characteristics that make the Okinawa dugong a natural monument." US 10988.

A key basis for Defendants' analysis is that although "the data are not sufficient to establish population size, status, and viability," the data were "sufficient to conclude that a remnant population of dugongs exists around Okinawa," sighted "sporadically" or "intermittently" in the FRF or FRF footprint area. US 10988. Moreover, seagrass beds used for feeding were found to the north of the FRF at Kayo and south in Henoko Bay, outside the FRF area. Id. The low density of dugong presence in the FRF area is critical to Defendants' ultimate finding of "no adverse effect" "because of the extremely low probability of Okinawa dugongs being in the APE" and the conclusion that, to the extent they were present, "the construction and operational activity is primarily of the type that would not have an adverse effect." Id. The only exception noted was construction noise. Id.

Defendants' analysis of each of the adverse effects associated with construction and operation is summarized below.

a. Construction Effects

With respect to construction effects, Defendants considered vessel impacts, land reclamation, red soil runoff, and acoustic and visual disturbance:

Vessel Impacts: Defendants concluded that adverse effects from collisions "are highly unlikely given the observed low presence numbers of individual dugong in Henoko and Oura bays." US 10988. Further, with respect to ship noise, Defendants cited a study that noise would interrupt feeding time only 0.8-6% of the time, which "would not affect survivorship." Id. Though reduced nutrition could reduce reproductive rates, "due to the very small and infrequent presence of Okinawa dugong in the APE, there would be no adverse effect on reproductive rates." Id.

Land reclamation: The FRF-construction will result in loss of 7.3% of the seagrass beds in the sea area in front of Henoko Bay and 37.7% of the seabeds on the side of Oura Bay (13% of the areas in both bays combined). US 10989. Defendants' analysis of seabeds is specific and non-conclusory. Defendants explained:

As shown in Table 6.15.2.3.3 of the GoJ DEIS (Okinawa Defense Bureau 2009), the total area of seagrass beds with 5% coverage or more that would disappear due to FRF construction is 78.1 ha: 3.6 ha in the sea area in front of Henoko Bay and 42.5 ha on the side of Oura Bay. This amounts to the loss of 7.5% of the seagrass beds in the sea area in front of Henoko Bay and 37.7% of the beds on the side of Oura Bay (13% of the 600.4 hectares in both bays combined). Based on an independent evaluation of the data provided in the GoJ DEIS and the data collected and presented in the USMC [United States Marine Corps]'s expert's report (Encl 1), the USMC finds that, while the seagrass beds in Henoko and Oura bays are a potential natural habitat and food source for the Okinawa dugong, because these seagrass beds are not consistently or routinely used by resident dugong and there are other seagrass beds sufficient to maintain the current population of Okinawa dugong, the loss of some of the seagrass beds in Henoko and Oura bays is not considered an adverse effect on the Okinawa dugong as a natural monument. Accordingly, loss of seagrass beds from FRF construction will have no adverse effects on the Okinawa dugong.

US 10989. For the proposition that other seagrass beds outside of Henoko and Oura Bays are sufficient, Defendants cite DEIS Figure 3.1.5.4 in the Japanese EIS. Id. , n. 5. The text accompanying that chart states that "[t]here is about 2,000 ha of seaweed beds distributed around Okinawa Main Island" and "the larger beds are concentrated on the east side of the island." US 5008. The Japanese EIS identifies evidence of feeding trails showing that the dugong frequent the seabeds off of Kayo (outside the FRF area) and only use the Henoko Bay seabeds (in or near the FRF area) infrequently. See US 5020-5022. Thus, although the Henoko Bay seabeds represent 69% (173 ha) of the 249 ha of available seabeds around Nago City and Ginoza Village, the dugongs do not presently utilize them with frequency. Id. Defendants explicitly considered this research in reaching their finding regarding the relationship between lost seagrass beds and potential adverse effects on the dugong.

Red Soil Runoff: Soil runoff has the potential to carry toxins into the sea and lead to bio-accumulation in seagrass beds. Defendants' review of the literature "indicates mixed findings regarding whether or not dugong are susceptible to toxin bio-accumulation." Id. Defendants state that despite the lack of evidence of harm to Okinawa dugong or the presence of contaminants in the red soil at Camp Schwab, various mitigation measures will be implemented to reduce the risk. Thus, Defendants conclude that "[w]ith implementation of these avoidance, minimization and mitigation efforts, combined with very low and infrequent presence of Okinawa dugong in the APE, the USMC finds there will be no adverse effects." US 10989-90.

Acoustic Disturbance: Defendants reviewed the Japanese EIS and agreed with its findings regarding impacts associated with noise. US 10990. Specifically, "the impact of underwater sound is not expected to cause physical damage to dugongs, should they be present while construction noise occurs." Id. "[A]lthough sound pressure levels during stage 1 of construction could cause impacts [if they are present], cumulative sound exposure is not expected to significantly affect dugong behavior in this area." Id. Underwater sound would not cause physical damage but could impact behavior, but only if dugongs are present. Id. In light of known dugong behavior, "[s]hould [they] be present when construction activities are initiated, it is anticipated that they will vacate the area while construction noise is occurring." US 10991. In consideration of all the factors, Defendants concluded that "no adverse effects will occur due (1) to the limited use of Henoko and Oura bays by dugongs, (2) the implementation by [Japan] of noise minimization techniques during construction, (3) the suspension by [Japan] of noise-generating activities when Okinawa dugongs are present, and (4) the tendency for Okinawa dugongs to move to deeper waters when exposed to such noise." Id.

Visual Disturbance: With respect to lighting that may make the area undesirable for dugong feeding, Japan "does not intend to conduct any marine construction at night hours with the possible exception of runway paving over a three month period," for which Defendants recommended that Japan "place lighting cones to direct lighting up and away from the water so that light pollution is reduced in the water column." Id. No adverse effect was anticipated.

b. Operational Effects

Defendants also considered possible adverse effects related to day-to-day operation of FRF after construction is completed, including vessel impacts, storm-water runoff, and acoustic and lighting disturbance.

Vessel Impacts: Defendants concluded such impacts were "highly unlikely" due to "the infrequency of individual dugong in Henoko and Oura Bays, and the minimal vessel traffic in and out of the FRF with most vessels being large, slow-moving support vehicles." US 10992. If dugong sightings increase, the USMC will evaluate mitigation measures. Id.

Stormwater Runoff: Sedimentation from runoff presents "an indirect threat ... due to potential decline of seagrass habitat." Id. Accordingly, the FRF will release stormwaters through sewers that "avoid the seagrass areas in Henoko and Oura Bays." Id. It will also use treatment plants and best management practices to ensure "there should be no operational adverse effects from stormwater runoff." Id.

Acoustic Disturbance: Possible operational noise includes aircraft operations and relatively infrequent vessel traffic. Experts suggested that "dugong would have to be directly under the flight path of an aircraft to receive any significant sound exposure, and even this exposure would vary according to sea state." US 10993. Japan conducted aerial surveys tracking dugong in helicopters for several hours but observed no behavioral effects on the dugong. Id. Accordingly, Defendants concluded there would be no adverse noise effects.

Lighting Disturbance: Night lighting is limited to approach lights along the runway, which is "generally low wattage and typically points upward and away from the water," so it would not have adverse effects. Id.

c. Overall Effect on Dugong Population

Defendants also considered declarations previously filed by Plaintiffs in this litigation, arguing that the FRF would contribute to the extinction of the dugong. US 11055 ("The process of analyzing the potential effects of the Undertaking on the Okinawa dugong as a historic property involved considering the declarations submitted by Plaintiffs ... in the litigation...."). Defendants concluded that "the construction and operation of the FRF will not have adverse effects on the local Okinawa dugong population [Henoko and Oura bays] and consequently will not substantially contribute to the extinction of the entire Okinawa dugong." US 10993. The substance of these declarations is discussed in further detail below in connection with Plaintiffs challenge to Defendants' failure to consult them directly during the take-into-account ("TIA") process.

3. Mitigation Measures

Defendants also considered and adopted several mitigation measures. See US 10994-10996. These are not material to the parties' cross-motions.

II. STATUTORY CONTEXT AND LEGAL STANDARD

Where, as here, a case involves review of a final agency action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and review is limited to the administrative record, there are no genuine issues of material fact and summary judgment is appropriate. Nw. Motorcycle Ass'n v. USDA , 18 F.3d 1468, 1471-72 (9th Cir. 1994). The Court's role is to "determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985).

Plaintiffs allege that the agency action was unlawful for failure to comply with procedural requirements of Section 402 of the National Historic Preservation Act (NHPA), codified at 54 U.S.C. § 307101(e). Because the NHPA is a procedural statute which does not create a private cause of action, Plaintiffs' challenge is brought pursuant to the APA. Ctr. for Biological Diversity v. Mattis , 868 F.3d 803, 816 n.5 (9th Cir. 2017). Section 402 of the NHPA provides:

Prior to the approval of any undertaking outside the United States that may directly and adversely affect a property that 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 the undertaking shall take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect .

54 U.S.C. § 307101(e) (emphasis added).

Section 402 is the international parallel to Section 106 of the NHPA, codified at 54 U.S.C. § 306108, which similarly requires federal agencies to "take into account the effect of [an] undertaking on any historic property" "prior to the approval of the expenditure of any Federal funds." Id. § 306108. Sections 106 and 402 of the NHPA are " 'stop, look, and listen' provision[s] that require[ ] each federal agency to consider the effects of its programs." Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of the Interior , 608 F.3d 592, 607 (9th Cir. 2010) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv. , 177 F.3d 800, 805 (9th Cir. 1999) ). Section 402's requirements are procedural. "If the Government has reached its conclusions about effects and mitigation after a sound NHPA Section 402 process, then it has complied with NHPA Section 402." Ctr. for Biological Diversity , 868 F.3d at 818. In contrast, "[i]f the Government has not followed NHPA Section 402 [then] the underlying determinations about effects and mitigation lack validity." Id. Section 402 requires the agency to "take into account the effect of [the project] for purposes of avoiding or mitigating any adverse effects." 54 U.S.C. § 307101(e) (emphasis added).

In addition to the procedural requirements of Section 402, findings thereunder are subject to review under the APA. Plaintiffs challenge certain of Defendants' findings as arbitrary and capricious under the APA. See 5 U.S.C. § 706(2)(A). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Nevertheless, the agency must "examine the relevant data and articulate a satisfactory explanation for its action," and agency action may be struck down as "arbitrary and capricious if the agency has relied on facts which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or if the agency's decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Turtle Island Restoration Network v. U.S. Dept. of Commerce , 878 F.3d 725, 732-33 (9th Cir. 2017) (quotation and citation omitted).

III. DISCUSSION

A. Did Defendants Comply With NHPA's "Take Into Account" Requirements?

Plaintiffs challenge Defendants' failure to directly consult Plaintiffs; to consult the local Okinawa government; to speak directly with cultural practitioners; or to give public notice or solicit feedback from other interested parties. To the extent Defendants' consultants spoke to academics and others to assess the dugong's cultural significance, Plaintiffs challenge the consultants' failure to specifically query their interlocutors about the FRF's potential impact on cultural significance.

The Court addresses each argument in turn. However, before doing so, the Court determines the legal standard of review for Defendants' compliance with Section 402.

1. Legal Standard

Judge Patel held that the Section 402 TIA process should include "engag[ing] the host nation and other relevant private organizations and individuals in a cooperative partnership" and "consultation with interested parties and organizations." Dugong II , 543 F.Supp.2d at 1104. Judge Patel did not, however, identify any particular organizations or persons that Defendants were required to consult. Section 402 itself does not offer any specific guidance on what Defendants' "take into account" process must encompass. Nor have Defendants issued formal regulations or informal guidance interpreting Section 402.

In the absence of statutory text or formal regulations under Section 402, the Court looks to two other sources for guidance: (1) the regulations governing the analogous Section 106 domestic undertakings and (2) informal guidance issued by the U.S. Department of the Interior regarding Section 402 undertakings.

a. Section 106 Regulatory Framework

Section 106 is the domestic analog for Section 402. Its language is identical to Section 402 in all material respects, requiring that "[t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property." 54 U.S.C. § 306108. Regulations issued pursuant to that provision guarantee certain entities formal "consulting party" status, which confers the right to provide input regarding potential adverse effects for the agency's consideration, 36 C.F.R. § 800.5(a), to review the agency's draft finding of adverse effect and offer input before it becomes final, id. § 800.5(c), and, if an adverse effect is found, to provide input and review proposals for mitigation efforts, id. § 800.6. Only four groups of entities are entitled to formal consulting party status under those regulations: a designated State Historic Preservation Officer, Indian tribes and Native Hawaiian organizations, representatives of local governments in whose jurisdiction an undertaking occurs, and applicants for Federal assistance permits, licenses, and approvals. See 36 C.F.R. § 800.2(c)(1)-(4).

Section 106 regulations also permit agencies, at their discretion, to grant consulting party status to other "individuals and organizations with a demonstrated interest in the undertaking ... due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effects on historic properties." 36 C.F.R. § 800.2(c)(5) (emphasis added). To qualify for this category, an individual or organization must submit a written request for the agency's consideration. See 36 C.F.R. § 800.3(f)(3). An organization that fails to make a request for discretionary consulting party status cannot later challenge the Section 106 TIA process for excluding them. See Neighborhood Ass'n of the Back Bay, Inc. v. Fed. Transit Admin. , 407 F.Supp.2d 323, 334-35 (D. Mass. 2005) (plaintiffs who did not request admission to process as formal consulting parties were not entitled to such status and so their participation rights were comparable only to the general public's).

Finally, the Section 106 regulations provide for public notice and comment to solicit "[t]he views of the public [which] are essential to informed Federal decisionmaking." 36 C.F.R. § 800.2(d)(1). This provides a mechanism for parties who do not qualify as "consulting parties" to submit their views to the agency for consideration, although the public at large does not have the same procedural rights as consulting parties to review and comment on the agency's draft findings regarding adverse effects and mitigation efforts.

The parties agree that the Section 106 regulations are not binding in this case. Nevertheless, Section 106 and Section 402 have broadly the same purpose; hence, the Section 106 regulations may be informative. Dugong II , 543 F.Supp.2d at 1105-1107. At the same time, because Section 402 applies to overseas undertakings, it raises foreign affairs and international relations concerns absent from the Section 106 context. Keeping both these similarities and distinctions in mind, whether Defendants failed to consult with entities analogous to those entitled to consulting status as a matter of right under the Section 106 regulatory framework may be a relevant consideration here. The Court does so as noted below.

b. U.S. Department of the Interior Guidance Re Section 402

Although there are no formal regulations interpreting Section 402, in 1998, the U.S. Department of the Interior (DoI) issued "Standards and Guidelines" for federal agencies to follow when fulfilling their obligations under the NHPA, including Section 402. See 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. 20496 (Apr. 24, 1998). With respect to foreign historic properties under Section 402, Standard 4 provides that "[e]fforts to identify and consider effects on historic properties in other countries should be carried out in consultation with the host country's preservation authorities, with affected communities and groups, and with relevant professional organizations." Id. at 20504. In a section referring both to consultation under both Sections 106 and 402, the Guidelines provide that "[w]hile specific consultation requirements and procedures will vary among agencies depending on their missions and programs, the nature of historic properties that might be affected, and other factors, consultation should always include all affected parties." Id.

The parties agree that the DoI guidelines are non-binding, and they are correct: the guidelines say so explicitly. 63 Fed. Reg. at 20496 (stating the guidelines "have no regulatory effect"). As "guidelines," they are best understood as "goals, not requirements." Western Watersheds Project v. Bennett , 392 F.Supp.2d 1217, 1228 (D. Idaho 2005) ; see also Muckleshoot Indian Tribe v. U.S. Forest Serv. , 177 F.3d 800, 807 (9th Cir. 1999) (noting that "[c]ontravention of [DoI guidelines under NHPA Section 106], standing alone, probably does not constitute a violation of NHPA"). In light of the statute's ambiguity and express delegation to the DoI the task of coordinating and directing federal agencies, the Guidelines carry weight under Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944) to the extent they have the "power to persuade." Id. at 140, 65 S.Ct. 161.

In connection with the questions who Defendants should have consulted in this case and to what extent, the DoI guidelines are not of significant assistance. Although the guidelines urge that "consultation should always include all affected parties," 63 Fed. Reg. at 20504, the guidelines' use of the word "should" means it is not directive. Moreover, they provide no standard for determining what parties meet the criteria for being "affected." Nor do the guidelines consider the possibility that in some cases, the nature of a property or of a particular undertaking might be such that the number of interested parties is intractable. In this case, the property is the Okinawa dugong, an animal species without a fixed location, and the potential effects on the dugong range from cultural to biological. That sets this case apart from the typical NHPA Section 106 cases in which the cultural property is a geological or archeological feature with a fixed location and only a small number of groups with an entitlement to consulting party status claim to live in or use the affected property. In contrast, here, the cultural significance of the dugong to Okinawan society at large means that a variety of different groups (if not all individuals), could claim an interest in the dugong. Moreover, special concerns arise because most potentially interested parties under Section 402, by definition, live in the jurisdiction of another sovereign nation, not in the United States. Because this case is unlike the typical Section 106 case, the Court affords minimal weight to the DoI guidelines to the extent they urge that "consultation should always include all affected groups." 63 Fed. Reg. at 20504.

The Court, in interpreting Section 402 in the absence of persuasive agency guidance on point, must consider that this is a complex case where the nature of the property is atypical, the adverse effects are both tangible and intangible, and there are sensitive foreign relations concerns at play. Under these circumstances, Section 402 affords deference to an agency's determination which parties should be consulted and to what extent. The agency's choices need only be reasonable. Cf. ONRC Action v. Bureau of Land Mgmt. , 150 F.3d 1132, 1139 (9th Cir. 1998) (an agency interpretation will be upheld if reasonable and does not conflict with the clear language of the statute). Such flexible standard is what Judge Patel envisioned. See Dugong II , 543 F.Supp.2d at 1106 (agreeing that "an agency has some discretion in deciding who will be consulted, to what extent, and at precisely what time").

In sum, in the absence of any specific requirement that Defendants consult with any particular person or group, the Court will review the exclusion of certain parties for reasonableness, taking into consideration the analogous requirements under Section 106 described above.

2. Failure to Directly Consult Plaintiffs

In light of the litigation history, it is somewhat puzzling that Defendants did not notify Plaintiffs when they initiated the TIA process. But it is equally puzzling that, after pressing this litigation forward for a decade, Plaintiffs, after prevailing on summary judgment before Judge Patel, apparently did nothing to inquire with Defendants about the TIA process or attempt to insinuate themselves in it.

Though the reasons for this mutual silence are unclear, considering all of the circumstances, Defendants' failure to directly consult with Plaintiffs during the TIA was not unreasonable. Plaintiffs are private individuals and environmental organizations with an interest in the dugong, but they do not qualify as a group analogous to those entitled to formal consulting party status under Section 106. They are not local government representatives or the Japanese equivalent of an official Indian tribe or Native Hawaiian organization in the United States. Thus, even under the Section 106 regulatory framework, Plaintiffs would not be entitled to consulting party status.

Furthermore, Plaintiffs had other opportunities to make their views concerning the FRF's impact on the dugong known to Defendants. Nearly all of the Plaintiffs are Japanese nationals or organizations. They had an opportunity to participate in the public notice-and-comment EIS process conducted by the Japanese government, which was then considered by the United States government. Although Defendants had obligations under Section 402 independent of the Japanese government's own review, "[d]uplicative, inconsistent efforts are not required." Dugong II , 543 F.Supp.2d at 1108. Plaintiffs do not allege that the Japanese notice-and-comment was inadequate to convey their views about the FRF and its potential impact on the dugong. Indeed, even under the analogous Section 106 framework, because Plaintiffs would not have been entitled to consulting party status, they would have been limited to a similar notice-and-comment framework. See 36 C.F.R. § 800.2(d)(1).

Additionally, Defendants did take Plaintiffs' views into account, albeit indirectly. In particular, four declarations that Plaintiffs filed in earlier stages of this litigation were ultimately included in the administrative record and considered by Defendants. See US 10980 ("The process of analyzing the potential effects of the Undertaking on the Okinawa dugong as a historic property involved considering the declarations submitted by Plaintiffs ... in the litigation...."). These declarations include:

1. Declaration of Isshu Maeda, a Special Researcher at Okinawa Kokusai University. Maeda's specialty is "the significance of natural and living things on human culture in Okinawa Prefecture," and he prepared a declaration "for the purpose of explaining ... various aspects of the Dugong's historic and cultural importance in Okinawa." Maeda Decl. ¶¶ 1-2 (US 164). In the 13-page declaration, Maeda describes the dugong's role in creation mythology and tsunami legends (id. ¶¶ 6-9), its source as a sacred royal food (id. ¶¶ 10-12), the use of dugong bones for tools based on religious beliefs (id. ¶¶ 13-20), the different names given to the dugong (id. ¶¶ 21-25), blessings related to the dugong (id. ¶¶ 26-34). Maeda does not opine on the impacts of the FRF.

2. Declaration of Sekine Takamichi, a lawyer with the Japanese Environmental Lawyers Federation (a plaintiff). US 177. This declaration explains the Japanese legal framework for preservation of cultural properties and that the dugong are considered cultural property under Japanese law.

3 & 4. Declaration of Dr. Ellen Hines, a professor of geography and human environmental studies who has researched dugongs. US 888. Dr. Hines' 30-page declaration is the most substantive with regard to the FRF's potential impact on the dugong. She discusses the threats to the dugong, the importance of seagrass beds to dugong sustenance, threats to seagrass beds, acoustic disturbances and their potential impact on the dugong, and then specifically threats to the Okinawa dugong, Hines Decl. ¶¶ 25-29. She also identifies prospective impacts of base construction and operation on the Okinawa dugong, including noise and acoustic pollution, destruction and degradation of seagrass beds, contaminant pollution, and increased activity (general disturbances and possibility of ship strikes). Hines Decl. ¶¶ 30-34. Dr. Hines later submitted a second declaration in opposition to Defendants' experts on the first round of summary judgment setting forth her critique of their views. See US 1195.

Thus, these fairly robust viewpoints about how the FRF might adversely affect the dugong and how the dugong had cultural importance were part of the record considered by Defendants. Indeed, all the prospective impacts identified by Dr. Hines were addressed in the Japanese EIS and Defendants' independent analysis.

In addition, Defendants consulted experts that Plaintiffs themselves had identified in the course of this litigation. See US 4170. Thus, Defendants consulted many persons designated by Plaintiffs as sources of relevant information.

Finally, Plaintiffs have not identified any additional information that they would have provided to supplement or broaden Defendants' analysis. Courts have considered the absence of prejudice in rejecting challenges to the sufficiency of consultation under the NHPA. Cf. Te-Moak , 608 F.3d at 609 ("Plaintiffs do not identify any new information that the Tribe would have brought to the attention of the BLM had it been consulted earlier in the approval process," "fail to show or even argue that early consultation would have prevented any adverse effect on any yet-to-be-identified National Register eligible PCRI [properties of cultural and religious importance]," and "do not identify any new information regarding how additional exploration would adversely affect the identif