US federal appeals court reinstates Okinawa dugong lawsuit, plaintiffs’ argument partly supported

August 23, 2017 Ryukyu Shimpo

On August 21 (local time), the 9th Circuit U.S. Court of Appeals dismissed the lower court’s decision in the Okinawa dugong lawsuit in which Okinawan community members and American and Japanese conservation groups filed a lawsuit against the U.S. Department of Defense. The groups have been seeking to block construction of a new U.S. military base in Henoko, Nago, on the grounds that it will damage the habitat of the Okinawa dugong, an endangered marine mammal designated by the Japanese government as a natural monument. The U.S. District Court in San Francisco dismissed the suit in 2015 because it was not authorized to order the suspension of construction work.

The U.S. Federal Appeals Court’s ruling partly affirmed the plaintiffs’ argument that seeking suspension of the construction of the new base in Henoko is not a political issue. The lawsuit will enter into substantive examination, including whether to cancel the construction of the new base.

Local citizens who are opposed to the new base’s construction welcomed the ruling, saying, “the road has opened.”

In 2003, the Okinawan community members and the conservation groups, including the Japan Environmental Lawyers Federation (JELF) and the Center for Biological Diversity, filed a lawsuit seeking an injunction against the construction of the new base, arguing that the Department of Defense has an obligation to protect the dugongs based on the National Historic Preservation Act (NHPA).

However, the district court dismissed the plaintiffs’ suit on the basis that it had no legal authority to order suspension of the construction work, which the Japanese and the U.S. governments have been conducting based on a diplomatic agreement. The plaintiffs were dissatisfied with the ruling and appealed in April 2015.

Following the federal appeals court ruling, the Department of Defense has to negotiate with stakeholders including the Okinawa Prefectural Government, local residents, and environmental protection groups. The ruling asks the government to provide effective conservation measures for dugongs.

As of now, the Department of Defense has not given a view on the ruling.

The plaintiffs asserted in a statement that dugongs cannot survive under the current base construction plan, and praised the appeals court ruling saying that it would be a lifeline for the dugongs.
 
Takaaki Kagohashi, former president of the JELF, said, “The U.S. judiciary has confirmed it will strictly watch the administration’s power.”
 
Kagohashi spoke of his expectations, saying, “The way has opened towards suspension of the construction.”

Kagohashi pointed out the possibility of the U.S. government to appealing to the Supreme Court, and he said, “We will prepare our strategy to block the base construction with the support and understanding of the Okinawan people and U.S. citizens.”

(English translation by T&CT) 

 
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