Center for Biological Diversity v. Esper

The United States Department of Defense (DoD) (defendant) planned to build a naval base in Okinawa, Japan. Private persons and environmental organizations (the environmentalists) (plaintiffs) sued the DoD and DoD Secretary Mark Esper (defendant), arguing that the DoD violated § 402 of the National Historic Preservation Act (NHPA) by failing to take into account the base’s potential adverse effects on the Okinawa dugong, an endangered marine animal with cultural significance. The district court concluded that § 402 applied because the Japanese Law for the Protection of Cultural Properties was the equivalent of the National Register of Historic Places, the Japanese law listed the dugong for protection, and the dugong qualified as property under the NHPA’s statutory framework. The district court further concluded that the DoD had failed to conduct the required take-into-account process and ordered it to do so. The DoD collected and considered an anthropological report regarding the dugong’s cultural significance, a biological report, a joint American and Japanese construction report, a survey of marine life, and the Japanese government’s environmental-impact assessment. The DoD concluded that there would be no adverse effect on the dugong because dugong were unlikely to be in the base area and, even if present, would not be harmed. The environmentalists filed an amended complaint, arguing, among other things, that the DoD remained in violation of § 402 because it failed to consult with the environmentalists or seek public comment. The district court granted summary judgment in the DoD’s favor. The environmentalists appealed.