## Facts

- Plaintiffs (individuals and environmental organizations) challenged the U.S. Department of Defense’s role in planning and approving a replacement Marine Corps air facility offshore of Okinawa near Henoko Bay.
- The project (the Futenma Replacement Facility) was intended to replace an existing base under a U.S.–Japan realignment arrangement and was planned over/near coral reef habitat used by the Okinawa dugong.
- The dugong is a marine mammal with cultural significance in Okinawa and is listed as a protected “natural monument” on Japan’s Register of Cultural Properties, a functional equivalent to the U.S. National Register of Historic Places.
- Plaintiffs alleged DoD approved or participated in approving the facility without accounting for adverse effects on the dugong as required by § 402 of the National Historic Preservation Act (NHPA), enforceable through the Administrative Procedure Act (APA).
- The matter came to the district court on cross-motions for summary judgment on the NHPA § 402 claim.

## Issues

1. Whether DoD’s involvement with the offshore replacement facility constituted an “approval of any federal undertaking outside the United States” under NHPA § 402.
2. Whether the Okinawa dugong, as a Japan-designated “natural monument,” qualified as a protected “property” on the foreign country’s equivalent of the National Register for § 402 purposes.
3. Whether DoD satisfied § 402’s procedural duty to “take into account” the undertaking’s effects on the protected property before approval.
4. Whether § 402 compliance was judicially reviewable under the APA.

## Decision

- The court held DoD’s activities relating to the facility constituted a federal undertaking abroad covered by NHPA § 402.
- The court held the Okinawa dugong qualified as a protected “property” listed on Japan’s equivalent of the National Register, triggering § 402.
- The court held DoD failed to comply with § 402 because it did not adequately take into account the facility’s effects on the dugong as a protected cultural property before approval.
- The court held the claim was reviewable under the APA as a discrete, enforceable agency duty.
- The court granted summary judgment for plaintiffs on the § 402 claim and ordered DoD to conduct a compliant process, including collecting and considering information on dugong distribution and assessing the significance of that information to the dugong’s cultural-property status; the court held the case in abeyance pending that process.

## Legal Principles

- NHPA § 402 applies extraterritorially to federal undertakings outside the United States that may directly and adversely affect a property on the World Heritage List or on the foreign country’s equivalent of the National Register.
- A “property” under § 402 can include a non-built cultural resource where the host country has formally listed it on its cultural property register equivalent to the National Register.
- NHPA imposes a procedural obligation: before approval, the agency must identify and consider potential effects on protected properties for purposes of avoiding or mitigating adverse effects; the statute does not mandate a particular substantive outcome.
- A U.S. agency cannot satisfy § 402 solely by pointing to host-nation review; it must show, with a documented process, that it itself took the effects into account, even if it uses foreign information.
- The APA permits judicial review to compel performance of discrete NHPA procedural duties and to remedy unlawful agency action or failure to act.

## Conclusion

The court required the Department of Defense to carry out NHPA § 402’s documented, pre-approval consideration of impacts on the Okinawa dugong—recognized as a Japan-listed cultural property—before proceeding further with the overseas replacement facility project.


Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082 (N.D. Cal. 2008)