Center for Biological Diversity v. Esper, No. 18-16836 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's grant of summary judgment to the Department of Defense in an action challenging the Department's construction and operation of an aircraft base in Okinawa, Japan. Plaintiffs also challenged the potential adverse effects on the endangered Okinawa dugong.
The panel held that the Department complied with the procedural requirement that it "take into account" the effects of its proposed action on foreign property under Section 402 of the National Historic Preservation Act (NHPA). The panel also held that the Department's finding that its proposed action would have no adverse effect on the foreign property was not arbitrary, capricious, an abuse of discretion, and/or contrary to law in violation of Section 706 of the Administrative Procedure Act (APA). In this case, the Department met its procedural obligations and its finding of "no adverse impact" was not arbitrary and capricious.
Court Description: National Historic Preservation Act /. Environmental Law The panel affirmed the district court’s grant of summary judgment for the U.S. Department of Defense in an action raising challenges to the Department’s construction and operation of a replacement aircraft base for the U.S. Marine Corp Air Station Futenma in Okinawa, Japan, and its potential adverse effects on the Okinawa dugong, an endangered marine mammal that is culturally significant. The panel held that the Department, as part of a plan to construct a new base in Okinawa, Japan, complied with the procedural requirement that it “take into account” the effects of its proposed action on foreign property under Section 402 of the National Historic Preservation Act (“NHPA”), 54 U.S.C. § 307101(e). As a matter of first impression, the panel outlined what is required by Section 402’s “take into account” directive. The panel agreed with the district court ** The Honorable Janis Graham Jack, United States District Judge for the Southern District of Texas, sitting by designation. CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 3 that the process must include (1) identification of protected property, (2) generation, collection, consideration, and weighing of information pertaining to how the undertaking will affect the protected property, (3) a determination as to whether there will be adverse effects or no adverse effects on the protected property, and (4) if necessary, development and evaluation of alternatives or modifications to the undertaking that could avoid or mitigate the adverse effects on the protected property. The panel further held that consultation with the host nation, outside experts, or private parties will be necessary for an agency to meet its obligations. The panel rejected appellants’ challenges to this consultation requirement, and held that Section 402 compliance does not require an agency to consult with specific parties, or to permit direct public participation. Specifically, the panel held that the regulations implementing NHPA Section 106’s “take into account” process did not apply to NHPA Section 402. The panel construed Section 402 as requiring reasonable consultation with outside entities to determine how an undertaking may impact a protected property and what may be done to avoid or mitigate any adverse effect. The panel held that Section 402 delegates to federal agencies the specific decisions of which organizations, individuals, and/or entities to consult (or not consult) and the manner in which such consultation occurs. The panel declined to construe Section 402 as requiring public participation. The panel applied the requirements for complying with Section 402, and held that the Department’s process for complying with Section 402 was reasonable, and that the Department was not required to engage in the additional process appellants sought. 4 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER The panel held that the Department’s finding that its proposed action would have no adverse effect on the dugong was not arbitrary or capricious under Section 706 of the Administrative Procedure Act, 5 U.S.C. § 706. Specifically, the panel held that substantial evidence supported the Department’s conclusion that the presence of the dugong in the area on the new base was sporadic, even if it did not possess more robust baseline population data; and the Department reasonably concluded that there would be no adverse effects on the dugong as a result of the new base. The panel further held that the Department was not unreasonable when it failed to consider population fragmentation, disruption of travel routes, and loss of habitat required to sustain the population, in evaluating the impacts of the new base on the dugong. The panel also held that the Department rationally concluded that the construction and operation of the new base would not adversely impact the dugong population, and would have no adverse effect on the dugong’s cultural significance. Judge Bea concurred, and joined the majority opinion in full, apart from footnote 2. Judge Bea wrote separately because he believed that a better resolution of the case would be to affirm the district court judgment on the ground that Section 402 does not apply to the dugong as a matter of law.
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