The Okinawa Dugong: Application of Section 402 of the National Historic Preservation Act

1. The Okinawa Dugong:Application of Section 402 of the National Historic Preservation Act http://www.oceanfdn.org/

2. Who is The Ocean Foundation? • We are an international public foundation with a mission to support, strengthen, and promote those organizations dedicated to reversing the trend of destruction of ocean environments around the world.  • We work with donors who care about our coasts and oceans to add value to marine conservation initiatives. • We do this by providing conservation grants, hosting projects and funds, and collaborating with important campaigns and opinion leaders. Tell us what you want to do for the ocean; we will take care of the rest!

4. Ginowan City and the Futenma Air Station

5. The Futenma Replacement Facility The project to remove and replace MCAS Futenma is called the Futenma Replacement Facility • 1996—US and Japan approved the “Special Action Committee on Okinawa” (SACO) to replace MCAS Futenma with an offshore, sea-based facility somewhere off the east coast of Okinawa. • 2006—Approved the “United States-Japan Roadmap for Realignment Implementation” (2006 Roadmap) • finalized the construction proposal for the • established a target date of 2014 for completion of project. • proposed a “V-shaped” runway partially built on landfill extending into Oura and Henoko Bays adjacent to Camp Schwab and located in Nago City. • The base is located immediately on top of the endangered and cherished dugong’s feeding grounds.

6. The “V” PlanFutenma Replacement Facility Bilateral Experts Study Group Report August 31, 2010

7. Environmental Impact of the “V” Plan • According to the Japan’s Draft Environmental Impact Statement, the facility would be approximately 205 hectares in size: • Approximately 160 hectares of sea area would be reclaimed, requiring 21 million cubic meters of fill • Approximately 78.1 hectares of marine plants would be impacted • Approximately 6.9 hectares of coral would be impacted • The existing beach on the east side of Camp Schwab would be lost due to reclamation, resulting in the loss of some animal and plant habitat

8. The “I” PlanFutenma Replacement Facility Bilateral Experts Study Group Report

9. Environmental Impact of the “I” Plan • The I-shaped facility would be approx. 150 hectares in size: • Approx. 120 hectares of sea area would be reclaimed, requiring 18.9 million cubic meters of fill • Approx. 67 hectares of marine plants would be impacted • 5.5 hectares of coral would be impacted • The existing beach on the east side of Camp Schwab would remain, but the impact on animal and plant habitat remains to be assessed.

10. Marine Life in Okinawa • Often called the “Galapagos of the East.” It encompasses a vast diversity of life including 400 species of coral and more than 1,000 species of reef fish, marine mammals and sea turtles. • The east coast of Okinawa supports approximately 1,205 ha of seagrass in comparison to 125 ha on the west coast. Comprising only 10% of the coastline, these seagrass beds, vital for dugong survival, will be threatened by terrestrial runoff due to military coastal construction. • It is estimated that only 50 dugong or less remain in the pristine waters of Henoko Bay, on the northeast coast of Okinawa Island, and less than 100,000 in the South Pacific and Indian Oceans.

11. Protection Measures For the Dugong In Japan: • Dugongs are classified as vulnerable by the World Conservation Union (IUCN) and, therefore, are an internationally protected species. • The Japan Ministry of Environment recently listed the dugong as critically endangered in Japan. • The dugong is also a federally listed endangered species under the U.S. Endangered Species Act (ESA). • Because of its cultural significance, the dugong is listed as a protected “natural monument” on the Japanese Register of Cultural Properties under Japan’s “Law for the Protection of Cultural Properties.”

12. The World Heritage Convention:And the Making of the National Historic Preservation Act • In 1972 the United Nations Educational, Scientific, and Cultural Organization (UNESCO) recognized that natural decay and man-made processes were threatening cultural and natural heritage. • UNESCO held a meeting concerning the Protection of the World Cultural and Natural Heritage in order to develop an international system to protect these irreplaceable landmarks. • The convention encourages State Parties to cooperate and assist each other to protect the World Heritage in their jurisdictions. • When nominating an area, the State gives details of how the property is protected including a plan for management.

13. Natural Heritage includes physical and biological formations or natural area of outstanding universal value from an aesthetic or scientific perspective. It also includes geological and physiographical formations or certain areas that house threatened species of animals and plants of outstanding universal value. • Cultural Heritage is described as monuments, groups of buildings, or sites that have “outstanding universal value” from a historic, scientific, artistic, or anthropological perspective. This also includes natural sites such as seascapes, landscapes and other natural resources, living and nonliving.

14. By Ratifying the World Heritage Convention, State Parties agree: • To ensure the “protection, conservation, presentation and transmission to future generations of the cultural and natural heritage” within its territory. • State parties must take active and effective measures to do so. • To recognize that the obligation to protect these sites lies primarily on themselves to the extent of their own resources. (Only when necessary will international assistance be given.)

15. United States’ Implementation of the World Heritage Convention • The Convention was ratified by the U.S. Senate on October 26, 1973 and incorporated into law through the National Historic Preservation Act Amendments of 1980. • The Secretary of the Interior oversees the United States’ involvement in the convention and has the obligation to make training programs and provide information on preservation to Federal agencies, State and local governments, private foundations, and individuals.

16. International Implications of the U.S. National Historic Preservation Act The NHPA imposes procedures for the consideration of adverse effects on international World Heritage sites in Section 402: Prior to the approval of any Federal undertaking outside the United States which may directly and adversely affect a property which is on the World Heritage List or on the applicable country’s equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction of such undertaking shall take into account the effect of the undertaking on such property for purposes of avoiding or mitigating any adverse effects.

17. The Meaning of “Undertaking”In Section 402 According to Section 106 of the NHPA: An undertaking is a project, activity, or program funded in whole or in part under the direct jurisdiction of a Federal Agency, including (a) those carried out by or on behalf of the agency; (b) those carried out with Federal financial assistance; (c) those requiring a Federal permit, license, or approval; and (d) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.

18. DoD Internal Policies Require: • Be an international and national leader in the stewardship of cultural resources • Reconcile the requirements of applicable international agreements, applicable host-nation environmental standards ...and the Overseas Environmental Baseline Guidance Document • The OEBGD states that “Installation commanders shall take into account the effect of any action on any property listed on the World Heritage List or on the applicable country’s equivalent of the National Register of Historic Places for purposes of avoiding or mitigating any adverse effects”

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

20. Call me “property,” call me anything you like, Just Protect Me

21. “Equivalent National Register” • Dugong v. Rumsfeld held that a country’s law does not have to be identical to the NHPA’s National Register, but is considered to be equivalent when the law serves a parallel role in that country for the protection of cultural property. • The dugong is protected as a “natural monument” under Japan’s “Law for the Protection of Cultural Properties,” the Japanese equivalent to the NHPA. • The dugong, a natural resource of cultural significance, was reasonably included in the meaning of “property” because congress acknowledged that it is the role of each party in the World Heritage Convention to determine what qualifies as valuable heritage within its territory.

22. Applicability to Section 402 Once the notion of dugong as “property” was established, the plaintiffs had to demonstrate their standing in order to show how the defendants violated section 402 by not “taking into account” the “adverse effects” that the FRF would have on the their cultural “property,” the dugong.

23. Standing of Each Plaintiff: • Dugong: Dismissed! (It is an animal that does not have standing to assert this action under the APA for violations of the NHPA) • Individuals: have Standing. • Takuma Higashionna was born and raised near Henoko Bay and has been visiting area and observing Dugong since childhood. Leads weekly snorkeling and skuba diving tours. • Yoshikazu Makishi was born and raised in Okinawa and has been frequenting Henoko coast and observing dugong for over a decade. • Anna Koshiishi moved to the coast of Okinawa when she was 8 years old and also leads eco-tours to view the dugong. • Four of the Associations: have Standing. (Save the Dugong Foundation, Center for Biological Diversity, Turtle Island Restoration Network, Japan Environmental Lawyers Foundation)

24. “I have learned many important things from nature. All life on the Earth has close connection and plays an important role. Every life is indispensible to keep the balance of this connection. To save the Okinawa dugong, which is a globally threatened species, is to save my own life.” - Anna Koshiishi, Okinawan citizen

25. Outcome of Standing In sum, the three individual plaintiffs, and four organizations suffered a procedural injury linked to their concrete interest in preserving the culturally significant Okinawa dugong. The DOD failed to comply with procedure under NHPA section 402.

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

27. The Procedural Requirements For “Taking Into Account” If an adverse effect is found, the federal agency must: • continue to consult with the public and other interested parties. (This includes the host nation’s preservation authorities, affected communities and relevant professional organizations.) • consider alternatives or modifications to the undertaking that could mitigate adverse effects.

28. The Meaning of“May Directly and Adversely Effect” • “An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property…Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.” (Gates) • This includes physical destruction of, or damage to a property such as the dugong. • This applies to the FRF because the base is likely to contaminate seagrass, vessels will potentially collide with dugongs, and long term immune and reproductive damage from exposure to toxins and acoustic pollution will inherently occur. (That the actual consequences may be currently unknown is precisely the reason the NHPA requires defendants to “take into account” information…)

29. Court’s Ruling in Dugong v. Gates • The DOD did NOT comply with section 402. • There was not a single piece of evidence on the record that showed an official from the DOD had “taken into account” (considered and evaluated) the information necessary to determine any adverse effects of the dugong. • Court ruled that the DOD’s approval of the 2006 Roadmap constitutes a federal undertaking for purposes of triggering obligations under NHPA section 402. The failure to take into account, therefore, was absolutely final.

30. Court’s Orders • The court mandated that the agency must consult with others and “engage the host nation and other relevant private organizations” in order to create an effective system of collective protection. • Ultimately, however, it is still the agency’s decision to determine who will be consulted, to what extent, and at what time. The DOD, therefore, has its own discretion to decide what information will be gathered and considered, and if adverse effects are found, what mitigation efforts will be pursued.

31. Conclusion To Dugong v. Gates Case • Defendants failed to comply with the requirements of NHPA section 402. • Defendants must comply with 402 and until the DOD can come up with necessary information for evaluating the effects of the FRF on the dugong and ways of avoiding or mitigating these adverse effects, no action can take place. • Defendants ordered to submit statement of impact whereby Japan’s judgment should be of great concern when taking into account the effects on the dugong. The Department of Defense must determine if information is sufficient, examine information from multiple sources, determine adverse effects, and consider and evaluate options to mitigate/avoid the adverse effects.

32. Will Section 402 Save the Dugong? • Although grassroots protests along with the court’s ruling of DOD violations of the NHPA’s section 402 have been successful in stalling construction thus far, as a procedural law, the NHPA alone does not impose substantive obligations on any federal agency. • Agencies, thus, are permitted to continue with their undertakings even when such an action will lead to an adverse effect on a property.

33. Section 402 is NOT Enough… • In other words, because the NHPA is not outcomeoriented, it neither forbids destruction of a protected property nor commands its preservation. It merely regulates the process by which an undertaking is approved with the hope that the adverse environmental impacts will be mitigated.

34. Precedents Set By Section 402 • Section 402 set a precedent for undertakings abroad and its effects on living and non-living marine resources provided that they are also listed as cultural heritage or “property” and, as such must be taken into account when adverse effects of an action are assessed. • In the future, federal activities outside the US, agencies must be more transparent and in compliance with 402. Because of the DOD’s violations of Section 402, they learned that consulting with appropriate environmental and wildlife conservancy groups is not only necessary but imperative prior to taking action.

35. Section 402… • Although the outcome of the FRF now lies in the hands of high officials in the US and Japanese governments, Section 402 was successful in changing the dynamics of the debate over the past 15 years. • Section 402’s creative application empowered Okinawan individuals and small environmental organizations to fight for the protection of their unique ecological oasis and their culturally significant dugong. • Section 402 has provided a groundbreaking new tool for the protection of culturally and ecologically significant animals.

36. UN Convention on the Law of the Sea • UNCLOS expressly addresses the rights and responsibilities of the parties in relation to the protection of the ocean, and it requires the parties to protect underwater cultural heritage under the term “archeological and historical objects” • Thus, the dugong may qualify under NHPA, but may not qualify under UNCLOS?

37. “The environmental crises we face provides us with the most singular opportunity for greatness ever offered to any generation in any civilization.” -Roger Payne