Okinawa Dugong (Dugong Dugon) v. Mattis

The U.S. Department of Defense (DOD) (defendant) sought to relocate a military facility located in Okinawa. The proposed site for the facility included waters used as a habitat by the Okinawa dugong. Groups of Japanese individuals and environmental organizations concerned about the Okinawa dugong and the United States-based Center for Biological Diversity (collectively, the dugong group) (plaintiffs) filed suit after relocation plans were announced. The dugong group alleged that the Okinawa dugong was property under § 402 of the National Historic Preservation Act (preservation act) and that DOD was required to take into account any adverse effects on the dugong. During the summary-judgment phase, the district court held that the relocation was a federal undertaking under § 402 of the preservation act and subject to that section’s review requirements. Accordingly, DOD undertook a review process for the site’s location that considered several components. In this process, DOD considered a report on the impact of the facility’s relocation on the dugong’s biological well-being, a report on the dugong’s cultural significance, an environmental-impact statement (EIS) prepared by the Japanese government, and various other reports. After considering this information, DOD found that the dugong had cultural significance in Japanese society but that the facility’s relocation would have little to no potential effect on the cultural significance of the dugong. While DOD did not consult directly with cultural practitioners in Japan for practical reasons, DOD did consult with cultural experts. In fact, DOD consulted with six experts who were included on a list offered by the dugong group. Further, the EIS process conducted by the Japanese government offered the opportunity for public notice and comment, including comment by the local Okinawa government and residents. After two years, DOD filed a notice that it had complied with § 402 of the preservation act. The dugong group filed a supplemental complaint, which DOD successfully moved to dismiss for lack of jurisdiction. The court of appeals reversed and remanded. The dugong group and DOD filed cross-motions for summary judgment on remand.