BACKGROUND
The Okinawa dugong (Dugong dugon) is a marine mammal that lives in the waters of Okinawa, in the Ryukyu Islands of Japan. Sightings of dugongs, particularly females nursing their young, are deemed responsible for mermaid legends although only a sailor very long at sea would find a dugong an attractive companion. Be this as it may, dugongs figure prominently in the cultural traditions of Okinawa—for example, as elements in creation stories and as bringers of tsunamis.1
Declaration of Isshu Maeda in support of plaintiffs' opposition to defendants' motion to dismiss. August 4, 2004: 6–12.
Dugong and young. Photograph courtesy of the Great Barrier Reef Marine Park Authority
The Okinawa dugong population is small, perhaps comprising as few as 50 individuals. The dugongs feed on sea grass in Henoko Bay, on the northeast side of the island of Okinawa near Nago City and Camp Schwab, a United States Marine Corps base. In the mid-1990s the U.S. and Japanese governments executed an agreement providing for replacement of another Marine Corps base, Futenma Air Station, with a new base constructed on platforms over a coral reef in the bay. This plan sparked vigorous protests on Okinawa and elsewhere in Japan, in large part because of its potential impact on the dugong population. As part of a multipronged effort to halt the project, a group of Japanese and American plaintiffs filed suit on behalf of the dugongs in U.S. Federal Court, with representation by Earthjustice, the American legal assistance organization. The case was argued in the district court for the Northern District of California before the Honorable Marilyn Hall Patel. I was privileged to serve as an expert witness for the plaintiffs.
THE ISSUE
The plaintiffs in Dugong v. Rumsfeld2
Okinawa Dugong (Dugong Dugon); Center for Biological Diversity; Turtle Island Restoration Network; Japan Environmental Lawyers Federation; Save the Dugong Foundation; Dugong Network Okinawa; Committee Against Heliport Construction, Save Life Society; Anna Koshiishi; Takuma Higashionna; and Yoshikazu Makishi v. Donald H. Rumsfeld, in his official capacity as the Secretary of Defense; and U.S. Department of Defense; U.S. District Court for the Northern District of California, Civil Action No. C-03–4350 (MHP).
Prior to the approval of any Federal undertaking outside the United States which may directly and adversely affect a property which is on the World Heritage List or on the applicable country's equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction over such undertaking shall take into account the effect of the undertaking on such property for purposes of avoiding or mitigating any adverse effects.3
16 U.S.C. 470a-2. Rather confusingly, the statute includes another Section 402, codified at 16 U.S.C. 470x, comprising definitions pertaining to Title IV, creating the National Center for Preservation Technology and Training.
The national register referred to is the U.S. National Register of Historic Places, which includes “districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture.”4
16 U.S.C. 470a(a)(1)(a).
The term take into account, as used in Section 402, is the same term used in Section 106 of the statute, which requires agencies of the U.S. government to take into account the effects of their domestic actions on properties included in or eligible for the national register. As interpreted in the regulations5
36 C.F.R. 800.
THE ARGUMENTS
The U.S. government filed a motion to dismiss the case. The primary basis for this filing was the argument that the U.S. Department of Defense had no obligation to consider effects on the dugongs, because Japan's register was not that country's equivalent of the U.S. National Register. The key aspect of this nonequivalence, according to the defense, was that Japan's register can include animals, while the U.S. register does not.6
Defendants' Reply Memorandum in Support of Motion to Dismiss. August 4, 2004: 3–5.
The plaintiffs responded that the two registers are in fact equivalent, based on several lines of reasoning:
First, both registers have the same broad purpose: to encourage protection of the cultural environment.7
Memorandum of Points and Authorities in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss, August 4, 2004: 15.
Second, it would have been absurd for the U.S. Congress to intend for an equivalence of registers to demand that they be constructed in precisely the same way. No other historic register in the world is precisely the same as the U.S. National Register.8
Memorandum of Points: 19.
Third, although the U.S. National Register may not explicitly include animals as such, it does include animal habitats, in which the animals themselves are contributing or character-defining elements. The plaintiffs offered several examples of wildlife refuges, rivers, and other natural areas either included in the national register or regarded as eligible for inclusion based on, in whole or in part, their association with culturally significant animals. If it were in the United States, it was argued, the Henoko Bay dugongs themselves might be ineligible for the national register but the bay could be eligible, with dugongs as its character-defining element.9
Memorandum of Points: 20.
THE DECISION
On March 2, 2005, the court denied the defendants' motion to dismiss, in the process promulgating an opinion strongly supportive of the plaintiffs' arguments and giving the U.S. government little reason to expect to prevail at trial. In the context of continuing public protests and growing political opposition in Japan, the proposed Henoko Bay base project has apparently collapsed, and relocation of the Futenma facility to an on-land site is under consideration.
In her opinion Judge Patel essentially endorsed the plaintiffs' arguments for the applicability of Section 402 and the equivalence of the U.S. and Japanese registers. Interestingly, however, she went on to discuss whether an animal could, in theory, itself be a “property” eligible for the U.S. National Register as an “object significant in American history, architecture, archaeology, engineering, and culture”10
16 U.S.C. 470a(a)(1)(a).
Defendants contend that a wild animal cannot qualify as a “property” and that there is no indication in the NHPA (National Historic Preservation Act) and its amendments, the accompanying legislative history, the implementing regulations and guidelines, or case law that Congress “sought to expand the NHPA's statutory coverage in order to protect or preserve wild animals.” See Def. Mot. At 3, 13. “Wild animals” fails to describe the relevant group of animals at issue here, namely those with special cultural significance protected under foreign historical preservation laws which are deemed “equivalents” of the National Register of Historic Places. Taking defendants' point, nonetheless, very little precedent exists governing the question of whether a living thing can constitute a property eligible for the National Register. The decision of the one district court that has dealt with the issue undermines defendants' argument that the dugong is automatically disqualified. In Hatmaker v. Georgia Department of Transportation, 973 F. Supp. 1–47 (M.D. Ga. 1995), plaintiffs sought a preliminary injunction against continued construction of a federally-funded road widening project that involved destruction of an oak tree of significance in Native American history. The court held that the tree was at least potentially eligible for placement on the National Register and granted the preliminary injunction. Id. At 1056–57. In a subsequent case, in which the Department sought to have the injunction dissolved, the court again rejected the defense's argument that an unaltered tree could not qualify for the National Register. See Hatmaker v. Ga Dep't of Transp. 974. Sup. 1058, 1066 (M.D. Ga. 1997). In assessing the applicability of the statute, the court emphasized the verifiable nature of the contested object's historic qualities. Id. At 1067.
Hatmaker is analogous to the present case. While animals obviously differ from trees, their distinguishing qualities are not significant under the plain language of the statute. The dugong may, like a tree, fall under the category of “object” as “a material thing of functional, aesthetic, cultural, historical or scientific value that may be, by nature or design, movable yet related to a specific setting or environment.” 36 C.F.R. § 60.3(j).11
Memorandum and Order, No. C 03–4350 Mhp, filed March 2, 2005: I.B.
DISCUSSION
The court's discussion of the issues involved in Dugong v. Rumsfeld suggests that agencies of the U.S. government would be well advised to take seriously their responsibilities under Section 402: a requirement of law that has often been honored only in the breach (as, for example, in the U.S. military's prosecution of the Iraq war). However, there is probably little hope for systematic attention to Section 402's requirements in the absence of implementing regulations and an agency to perform the advocacy functions fulfilled with respect to Section 106 implementation by the Advisory Council on Historic Preservation.12
For information on the Advisory Council and Section 106, see www.achp.gov, accessed April 20, 2006.
The most novel feature of the Dugong decision, of course, is the court's observation that a living, breathing animals might meet the criteria of eligibility for inclusion in the U.S. National Register. I think, however, that the Court's more significant finding was more general. In concluding that the Japanese and U.S. preservation laws are equivalent the court noted, “The (Japanese and U.S.) statutes demonstrate an equivalent commitment to protecting significant bridges between human culture and history, on the one hand, and wildlife, on the other.”13
Memorandum and Order: I.A.
Cultural resource management and natural resource management have grown out of somewhat separate historical traditions, but they meet in the management of places where animals and plants important to human culture live, grow, congregate, spawn, flower, and fruit. Whether focused on the creatures themselves as in Japan or on their habitats as is more usual in the United States, significance evaluations and management strategies increasingly address the interface between nature and culture. Cultural resource managers need to be reminded from time to time, as the Dugong decision reminds us, that our business is not only management of the built environment or its archaeological remnants but of culturally valued nature as well. Just as Japanese environmentalists reached out to the U.S. historic preservation community in framing the Dugong litigation, the cultural heritage community must be prepared to work intimately with biologists, ecologists, and traditional communities to protect the natural environments on which so much culture depends.
