## Facts

- The Okinawa dugong is an endangered marine mammal under Japanese law and is recognized as a culturally significant “natural monument” in Japan.
- The United States Department of Defense (DoD) supported construction of the Futenma Replacement Facility (FRF), a U.S. military installation to be built by coastal reclamation near Henoko/Oura Bay in Okinawa, Japan.
- Plaintiffs (individuals and organizations) alleged the FRF would harm dugong habitat through reclamation, construction, and operation, thereby damaging the dugong and its cultural value.
- In earlier rulings in the same litigation, the court held that the dugong qualified as a protected “property” under National Historic Preservation Act (NHPA) § 402 and that the FRF was a covered federal “undertaking,” triggering a duty to “take into account” effects on that foreign cultural property.
- DoD conducted a § 402 “take into account” process that included expert biological and cultural reports, review of Japan’s Environmental Impact Statement (EIS) and related materials, consideration of scientific and technical information about impacts, and consultation with multiple experts (including experts suggested by plaintiffs).
- DoD issued a “Finding of No Adverse Effect,” concluding the FRF would have little to no potential impact on the dugong’s cultural value.
- After appellate proceedings confirming justiciability, the parties filed cross-motions for summary judgment challenging whether DoD complied with NHPA § 402 and whether its finding was arbitrary and capricious under the Administrative Procedure Act (APA).

## Issues

1. Whether DoD satisfied NHPA § 402’s requirement to “take into account” the effects of the FRF on the Okinawa dugong as a protected foreign cultural property.
2. Whether DoD’s “no adverse effect” determination was arbitrary and capricious under the APA.

## Decision

- The court denied plaintiffs’ motion for summary judgment and granted defendants’ cross-motion.
- The court held DoD met NHPA § 402’s procedural obligations through its studies, consideration of relevant materials, and consultation efforts.
- The court held DoD’s “no adverse effect” determination was not arbitrary and capricious because it was supported by the administrative record, including evidence regarding low dugong presence in the affected area and mitigation and monitoring measures.
- The court emphasized that judicial review did not authorize substituting the court’s judgment for the agency’s on technical and scientific questions.

## Legal Principles

- NHPA § 402 imposes primarily procedural duties for federal undertakings abroad: the agency must consider effects on qualifying foreign historic properties and provide a reasonable opportunity for Advisory Council comment, but the statute does not mandate a particular outcome.
- Compliance under § 402 is evaluated by the reasonableness of the agency’s process and consideration of relevant information, not by whether the agency adopted the best possible methodology or reached a preferred substantive result.
- Under APA arbitrary-and-capricious review, a court asks whether the agency reasonably considered important aspects of the problem and explained its decision based on the record; courts generally defer to agency resolution of technical disputes when supported by evidence.
- Consultation under § 402 is flexible; an agency retains discretion in how it gathers views and information so long as the process reasonably informs the agency’s consideration of potential effects.

## Conclusion

The court upheld DoD’s § 402 review for the FRF project and sustained its “no adverse effect” finding, concluding the agency’s process satisfied NHPA’s procedural requirements and its determination was reasonable under the APA.


Okinawa Dugong (Dugong Dugon) v. Mattis, 330 F. Supp. 3d 1167 (N.D. Cal. 2018)