San Francisco Chronicle

Court reinstates case against U.S. base on Okinawa

- By Bob Egelko

A federal appeals court on Monday reinstated a San Francisco lawsuit by environmen­tal groups challengin­g the constructi­on of a relocated U.S. Marine Corps air base on the Japanese island of Okinawa, a controvers­y that has been brewing for more than two decades.

The suit says constructi­on would threaten one of the few remaining population­s of dugong, an endangered marine mammal important to the culture of Okinawa. It was filed in 2003 by the Center for Biological Diversity, internatio­nal and Japanese environmen­tal groups and three Japanese citizens.

Acting under court order after extensive litigation, the Defense Department declared in 2014 that the base, relocated from a populous city to an area near the dugong’s habitat, would not harm the creature. Opponents’ challenge to that finding were dismissed by U.S. District Judge Edward Chen, who said the constructi­on was a political decision by the executive branch of government, affecting U.S. relations with Japan, that was beyond courts’ authority to review.

But the Ninth U.S. Circuit Court of Appeals in San Francisco said Monday that Congress had also made a decision — passing the National Historic Preservati­on Act of 1966, requiring government­al review and public input on projects with historic and cultural impact — that courts can enforce at home and abroad.

Enforcing that law “does not intrude on foreign policy judgment,” Judge Mary Murguia said in a 3-0 ruling that returns the case to Chen for considerat­ion of the government’s compliance with the law. “Judicial scrutiny to enforce the obligation­s of binding domestic law is unlikely to alter or damage our nation’s long-standing bond with Japan.”

Murguia cautioned that, even if the Defense Department has violated the law, “national security interests of the government are likely to outweigh” environmen­tal concerns and allow constructi­on to continue unimpeded. But at this point, she said, establishi­ng the possibilit­y of an injunction against the project “expresses respect for Congress” rather than a lack of respect for the executive branch.

Martin Wagner, a lawyer for the environmen­tal groups, said the court was fulfilling the law’s purpose “to ensure that the government doesn’t take shortcuts that would risk the survival of an endangered species that is of great cultural importance to the Japanese people.” Even if the new base is built, he said, the Defense Department could impose restrictio­ns to protect the dugong, which is similar to Florida’s manatee.

The existing Marine base, in the city of Ginowan, has been a target of protests for many decades, particular­ly after the 1995 rape of a 12-year-old girl by three U.S. servicemen, who pleaded guilty in a Japanese court. U.S. and Japanese government officials agreed in 1996 to relocate the base to the northern fishing village of Henoko, but the project has been slowed by legal and political objections to the remaining presence of a base anywhere on Japan’s southernmo­st island.

While Prime Minister Shinzo Abe favors keeping a Marine base on Okinawa, the island’s government filed its own lawsuit last month, accusing Abe’s government of violating Japan’s environmen­tal laws.

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