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Okinawa Dugong v. Gates

ELR Citation: 38 ELR 20033
Nos. No. 03-4350, (N.D. Cal., 01/24/2008)

A district court held that the U.S. Department of Defense (DOD) violated §402 of the National Historic Preservation Act (NHPA) and the Administrative Procedure Act by approving plans for a military air station off the coast of Okinawa Island, Japan, without taking into account the effect of the military facility on the Okinawa dugong, a marine mammal of cultural and historical significance to the Japanese people. The DOD failed to produce, gather, and consider information necessary for taking into account the effects of the facility on the Okinawa dugong and for determining whether mitigation or avoidance measures are necessary and possible. Although the record contains an abundance of basic scientific knowledge regarding dugong behavior, migratory movements, feeding patterns, and seagrass habitats, this information alone is insufficient. The statute requires that the information considered bear on the “effects of the undertaking” on the protected property for the purpose of “mitigating or avoiding any adverse effects.” Here, there is insufficient evidence to evaluate the effects of the undertaking, a necessary predicate for determining whether mitigation is necessary and possible. The court, therefore, held the case in abeyance until the DOD complies with NHPA §402.