Author ORCID Identifier

0000-0001-9690-0326

Document Type

Article

Publication Date

2014

Keywords

NHPA, NEPA, Historic preservation, Japan, Extraterritorial application, Foreign relations, Dugong, Cultural and natural heritage

Abstract

Japanese Prime Minister Shinzo Abe, the highest political leader in Japan, shook his head in disbelief. His tenure as Prime Minister had been tense, partly due to the ongoing question of a replacement airfield for the U.S. Marines in Futenma. A predecessor, Yukio Hatoyama, also suffered political fallout stemming from his reversal of a public promise to find a replacement location for the U.S. Marine Corps Air Station. Prior to the Hatoyama administration, the Japanese government had selected a new location for the Marine Air Station, a remote area far removed from the busy city of Okinawa in Henoko. Moving to Henoko was intended to be a “win-win” for both Japan and the United States as it would alleviate the environmental concerns and urban encroachment that plagued the Futenma Air Station’s operations while complying with United States’ military operational requirements. Yet Japan will not be moving the Marines from Futenma to Henoko anytime soon. The National Historic Preservation Act (NHPA), enacted in 1966 with the goal of preserving the “cultural foundations of the [n]ation . . . in order to give a sense of orientation to the American people,” effectively stopped Japan’s proposed movement of the Marines to Henoko.

Many Japanese citizens and American environmentalists were incensed as the new Henoko location included the habitat for the dugong, a species of marine mammal listed as a protected “natural monument” on the Japanese Register of Cultural Properties. Lacking a judicial remedy in Japan, they turned to U.S. law with success—the NHPA when used in conjunction with the Administrative Procedures Act (APA) authorizes a lawsuit against federal agencies to include the Department of Defense (DoD) in a U.S. federal court. Following several years of litigation, the court ruled in favor of the plaintiffs, requiring the DoD to account for the effect of the move on the dugong and effectively thwarting Japan’s decision to move the Marines to the new location at Henoko.

In Dugong v. Rumsfeld (Dugong I) in 2005 and Dugong v. Gates (Dugong II) in 2008, a U.S. district court interpreted the NHPA to protect a wild animal outside the United States in another sovereign territory, calling into question Japan’s decision to move a U.S. military installation from one part of Japan to another. In the Dugong rulings, the court applied the litigants’ innovative use of the NHPA’s extraterritorial provision to protect foreign cultural and historical properties as defined by the foreign sovereign’s law. This application went beyond the traditional scope of the NHPA. While the precedent is limited to a single federal district, it downplays broader prudential foreign policy concerns that have traditionally constrained the judiciary in such areas, most recently reaffirmed in Kiobel v. Royal Dutch Petroleum Co. by the U.S. Supreme Court. The NHPA now no longer functions solely as a domestic preservation statute of limited scope and jurisdiction. In light of the Dugong rulings, the NHPA impacts broader foreign relations and national security and must be addressed. Two novel issues are discussed in this Article.

First Page

388

Publication Title

Berkeley Journal of International Law

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