ELR Citation: 50 ELR 20111
No(s). 18-16836 (9th Cir. May 6, 2020)

The Ninth Circuit affirmed summary judgment for DOD in a challenge to construction and operation of a new aircraft base in Okinawa, Japan, and its potential adverse effects on the endangered Okinawa dugong. Individuals and environmental groups argued that DOD failed to take into account the adverse effects on the dugong in violation of the National Historic Preservation Act (NHPA). The court found the Department identified the protected property at issue—the Okinawa dugong—and consulted with outside entities to determine how the new base could affect the dugong, and thus that its process for complying with the NHPA was reasonable. Plaintiffs also argued that DOD's finding that the new base would have no adverse impact on the dugong was arbitrary and capricious because the Department did not have the baseline biological data to make a reliable determination of the effects on the dugong and did not consider the full range of impacts on the mammal. The court disagreed, finding that DOD reviewed survey data covering the new base in addition to neighboring, unaffected areas and reasonably concluded that the dugong's presence was sporadic and intermittent, and thus that there would be no adverse effects on the mammal as a result of the base. It further found that while the Department could have addressed the full range of impacts more explicitly and obtained more data, it could not say that DOD's failure to do so rendered its ultimate finding arbitrary or capricious. It therefore affirmed summary judgment for the Department.