## Facts

- The U.S. Department of Defense (DoD), working with the Government of Japan, planned a replacement facility for U.S. military operations in Okinawa, involving construction in and around Henoko Bay near Camp Schwab.
- The planned construction included building runways supported by landfill in Henoko Bay, an area containing seagrass beds used by dugong.
- The Okinawa dugong is a small, geographically isolated population of a marine mammal related to the manatee; plaintiffs alleged the project would harm the dugong and damage its habitat.
- The dugong has recognized cultural significance in Okinawan tradition and is listed as a protected “natural monument” on Japan’s register under Japan’s Law for the Protection of Cultural Properties.
- Plaintiffs included the Okinawa dugong (named as a plaintiff), environmental organizations, and individual Japanese citizens concerned about the effects of the project on the dugong and its habitat.
- Plaintiffs sued the Secretary of Defense (Donald Rumsfeld) and DoD officials, alleging the agency approved or proceeded with the project without complying with § 402 of the National Historic Preservation Act (NHPA), which requires federal agencies to “take into account” the effect of certain federal undertakings outside the United States on specified protected properties recognized under foreign law.
- Plaintiffs sought review under the Administrative Procedure Act (APA), arguing that DoD’s failure to conduct the required § 402 consideration and consultation was unlawful.
- Defendants moved to dismiss, arguing that NHPA § 402 did not reach this overseas military project, that the dugong could not qualify as a protected “property” under § 402, that the suit raised a nonjusticiable political question involving foreign affairs and national defense, and that plaintiffs lacked a viable cause of action.

## Issues

1. Does NHPA § 402 apply to DoD actions connected to construction of a U.S. military facility outside the United States (in Okinawa, Japan)?
2. Can the Okinawa dugong—protected as a “natural monument” under Japan’s cultural-property law—qualify as a covered “property” for purposes of NHPA § 402?
3. Is the case barred by the political question doctrine because it relates to overseas basing and foreign-policy or defense decisions?
4. May plaintiffs use the APA to obtain judicial review of alleged noncompliance with NHPA § 402, even though § 402 does not provide an express private right of action?

## Decision

- The court denied the motion to dismiss in substantial part, allowing the NHPA § 402 claim (brought through the APA) to proceed past the pleading stage.
- The court held that § 402 is written to govern federal undertakings outside the United States and therefore can apply to DoD conduct tied to the Okinawa project.
- The court rejected the argument that § 402 is limited to buildings or archaeological sites and concluded that, given Japan’s cultural-property framework, the dugong’s designation as a protected “natural monument” could qualify as a protected property for § 402 purposes.
- The court concluded the claim was justiciable: requiring DoD to perform the statute’s procedural “take into account” analysis did not require the court to decide the wisdom of military basing or to control diplomatic choices.
- The court held that, although NHPA § 402 does not contain an express right to sue, plaintiffs could pursue review under the APA for unlawful agency action or failure to act where the statute imposes a procedural duty.

## Legal Principles

- NHPA § 402 expressly applies to federal undertakings outside the United States and requires the responsible agency to consider the effects of the undertaking on certain protected properties recognized under foreign law (or international listing regimes referenced in the statute).
- The § 402 duty is procedural: it requires that the agency take effects into account and engage in the required process before approval, rather than requiring a particular substantive result.
- A “property” protected by the relevant foreign nation’s cultural-property system may qualify under § 402, even if the protected item is not a traditional structure or site, where the foreign system treats it as a protected cultural property.
- The political question doctrine does not bar review when the court is asked to apply a statute’s manageable procedural requirements to agency conduct, rather than to decide military or diplomatic policy on the merits.
- Where a federal statute creates a reviewable duty but does not provide a private right of action, the APA may supply a vehicle for judicial review of final agency action or unlawfully withheld agency action, absent a statutory bar.

## Conclusion

In *Dugong v. Rumsfeld* (2005), the Northern District of California held that NHPA § 402 can reach DoD undertakings abroad tied to the Okinawa construction project, that the Okinawa dugong’s protection as a “natural monument” under Japanese cultural-property law could qualify it as a protected property under § 402, and that plaintiffs could seek APA review of alleged noncompliance; the court therefore denied the government’s motion to dismiss in substantial part and allowed the case to proceed.


Dugong v. Rumsfeld, No. C 03-4350 MHP (2005)