Center for Bio. Diversity v. Mark Esper ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY; No. 18-16836
TURTLE ISLAND RESTORATION
NETWORK; JAPAN ENVIRONMENTAL D.C. No.
LAWYERS FEDERATION; SAVE THE 3:03-cv-04350-
DUGONG FOUNDATION; ANNA EMC
SHIMABUKURO; TAKUMA
HIGASHIONNA; YOSHIKAZU MAKISHI,
Plaintiffs-Appellants, OPINION
v.
MARK ESPER, Secretary of Defense; *
UNITED STATES DEPARTMENT OF
DEFENSE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted February 3, 2020
San Francisco, California
Filed May 6, 2020
*
Mark Esper is substituted for his predecessor, Patrick Shanahan, as
Secretary, Department of Defense, under FRAP 43(c)(2).
2 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and Janis Graham Jack, ** District Judge.
Opinion by Judge Jack;
Concurrence by Judge Bea
SUMMARY ***
National Historic Preservation Act /
Environmental Law
The panel affirmed the district court’s grant of summary
judgment for the U.S. Department of Defense in an action
raising challenges to the Department’s construction and
operation of a replacement aircraft base for the U.S. Marine
Corp Air Station Futenma in Okinawa, Japan, and its
potential adverse effects on the Okinawa dugong, an
endangered marine mammal that is culturally significant.
The panel held that the Department, as part of a plan to
construct a new base in Okinawa, Japan, complied with the
procedural requirement that it “take into account” the effects
of its proposed action on foreign property under Section 402
of the National Historic Preservation Act (“NHPA”), 54
U.S.C. § 307101(e). As a matter of first impression, the
panel outlined what is required by Section 402’s “take into
account” directive. The panel agreed with the district court
**
The Honorable Janis Graham Jack, United States District Judge
for the Southern District of Texas, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 3
that the process must include (1) identification of protected
property, (2) generation, collection, consideration, and
weighing of information pertaining to how the undertaking
will affect the protected property, (3) a determination as to
whether there will be adverse effects or no adverse effects
on the protected property, and (4) if necessary, development
and evaluation of alternatives or modifications to the
undertaking that could avoid or mitigate the adverse effects
on the protected property. The panel further held that
consultation with the host nation, outside experts, or private
parties will be necessary for an agency to meet its
obligations.
The panel rejected appellants’ challenges to this
consultation requirement, and held that Section 402
compliance does not require an agency to consult with
specific parties, or to permit direct public participation.
Specifically, the panel held that the regulations
implementing NHPA Section 106’s “take into account”
process did not apply to NHPA Section 402. The panel
construed Section 402 as requiring reasonable consultation
with outside entities to determine how an undertaking may
impact a protected property and what may be done to avoid
or mitigate any adverse effect. The panel held that Section
402 delegates to federal agencies the specific decisions of
which organizations, individuals, and/or entities to consult
(or not consult) and the manner in which such consultation
occurs. The panel declined to construe Section 402 as
requiring public participation. The panel applied the
requirements for complying with Section 402, and held that
the Department’s process for complying with Section 402
was reasonable, and that the Department was not required to
engage in the additional process appellants sought.
4 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
The panel held that the Department’s finding that its
proposed action would have no adverse effect on the dugong
was not arbitrary or capricious under Section 706 of the
Administrative Procedure Act, 5 U.S.C. § 706. Specifically,
the panel held that substantial evidence supported the
Department’s conclusion that the presence of the dugong in
the area on the new base was sporadic, even if it did not
possess more robust baseline population data; and the
Department reasonably concluded that there would be no
adverse effects on the dugong as a result of the new base.
The panel further held that the Department was not
unreasonable when it failed to consider population
fragmentation, disruption of travel routes, and loss of habitat
required to sustain the population, in evaluating the impacts
of the new base on the dugong. The panel also held that the
Department rationally concluded that the construction and
operation of the new base would not adversely impact the
dugong population, and would have no adverse effect on the
dugong’s cultural significance.
Judge Bea concurred, and joined the majority opinion in
full, apart from footnote 2. Judge Bea wrote separately
because he believed that a better resolution of the case would
be to affirm the district court judgment on the ground that
Section 402 does not apply to the dugong as a matter of law.
COUNSEL
Danny G. Thiemann (argued), Sarah H. Burt, and J. Martin
Wagner, Earthjustice, San Francisco, California; for
Plaintiffs-Appellants.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 5
John L. Smeltzer (argued), Mark R. Haag, Peter Kryn
Dykema, Taylor N. Ferrell, and Ragu-Jara “Juge” Gregg,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jeffrey Bossert Clark, Assistant Attorney General;
Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C.; Robert Smith and
Cara M. Johnson, Office of General Counsel, Department of
the Navy, Washington, D.C.; for Defendants-Appellees.
OPINION
JACK, District Judge:
In this environmental action, we are asked to consider
two questions: (1) whether the Department of Defense, as
part of a plan to construct a new base in Okinawa, Japan,
complied with the procedural requirement that it “take into
account” the effects of its proposed action on foreign
property under Section 402 of the National Historic
Preservation Act (NHPA), 54 U.S.C. § 307101(e); and
(2) whether the Department’s finding that its proposed
action would have no adverse effect on the foreign property
was arbitrary, capricious, an abuse of discretion, and/or
contrary to law in violation of Section 706 of the
Administrative Procedure Act (APA), 5 U.S.C. § 706. We
hold that the Department met its procedural obligations and
that its finding of “no adverse impact” was not arbitrary and
capricious and therefore affirm the district court’s grant of
the Department of Defense’s motion for summary judgment.
I. Relevant Factual & Procedural Background
In a 2017 opinion, we detailed the background and
lengthy procedural history of this case. See Ctr. for
Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017).
6 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
In light of that discussion, we do not repeat it here. To give
context to our opinion, however, we briefly recap the nature
of the dispute and one of the district court’s critical rulings
leading up to this appeal.
This action arises out of the Department’s construction
and operation of the Futenma Replacement Facility in
Okinawa, Japan, a replacement aircraft base for the U.S.
Marine Corp Air Station Futenma, hereinafter referred to as
the “new base,” and its potential adverse effects on the
Okinawa dugong, an endangered marine mammal that is
culturally significant to many Okinawans.
In 2003, Appellants, who are private individuals and
environmental organizations interested in the preservation of
the Okinawa dugong population, filed the instant action
under the APA alleging the Department failed to take into
account the adverse effects of the new base on the Okinawa
dugong in violation of Section 402 1 of the NHPA. The
Department moved to dismiss the action on the grounds that
the Japanese Law for the Protection of Cultural Properties,
under which the Okinawa dugong is protected as a natural
monument, was not “equivalent” to the U.S. National
Register of Historic Places for purposes of applying Section
402, and that the Okinawa dugong did not qualify as
“property” subject to the requirements of Section 402.
In 2005, the district court denied the Department’s
motion, holding that the Japanese Law for the Protection of
Cultural Properties was the “equivalent of the National
Register” and that the Okinawa dugong qualified as
“property.” Dugong v. Rumsfeld, No. C 03-4350, 2005 WL
1All references to Section 402 shall be to Section 402 of the NHPA.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 7
522106, at *6–12 (N.D. Cal. Mar. 2, 2005) (Okinawa
Dugong I).
Regarding its property holding, the district court noted
that it could end its inquiry over whether the Okinawa
dugong qualified as “property” upon finding that the
Japanese Law for the Protection of Cultural Properties was
equivalent to the National Register. Id. at *8. Instead,
however, it addressed the Department’s main argument and
analyzed whether the Okinawa dugong was “property”
under the NHPA’s statutory framework. Id. at *8–12. The
court explained that the Okinawa dugong fulfilled each
element of the definition of an “object” under 36 C.F.R.
§ 60.3(j), which is sufficient to qualify as “property” under
the NHPA. Id. at *9; see 36 C.F.R. § 800.16l(1) (defining
“historic property” as “any prehistoric or historic district,
site, building, structure, or object included in, or eligible for
inclusion in, the National Register of Historic Places”);
36 C.F.R. § 60.3(j) (defining “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”). The court found that the
Okinawa dugong satisfied the definition of an “object”
because it was a “material thing” that was “movable, yet
related to a specific setting or environment.” Id. at *10–12.
Following the denial of the Department’s motion, the
parties conducted discovery regarding the adequacy of the
Department’s take into account process on the adverse
effects of the new base on the Okinawa dugong, and then
filed cross-motions for summary judgment.
In 2008, the district court granted Appellants’ cross-
motion, finding that the Department failed to take into
account adequately the adverse effects of the new base on
the Okinawa dugong. Crucial to the instant appeal, it held
8 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
that a “take into account” process under Section 402
consisted of four basic components:
(1) identification of protected property,
(2) generation, collection, consideration, and
weighing of information pertaining to how
the undertaking will affect the historic
property, (3) a determination as to whether
there will be adverse effects or no adverse
effects, and (4) if necessary, development
and evaluation of alternatives or
modifications to the undertaking that could
avoid or mitigate the adverse effects.
Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082, 1104
(N.D. Cal. 2008) (Okinawa Dugong II). The district court
also stated that “a federal agency does not complete the take
into account process on its own, in isolation, but engages the
host nation and other relevant private organizations and
individuals in a cooperative partnership.” Id. The district
court concluded that the Department failed to comply with
the requirements of Section 402 in connection with its plan
to construct the new base. Id. at 1111. It found that there
was “no evidence that a single official from [the
Department] with responsibility for the [new base] ha[d]
considered or assessed the available information on the
dugong or the effects of the [new base].” Id. at 1108.
Accordingly, it ordered the Department to comply with the
requirements of Section 402 and held the case in abeyance
until such time as the Department completed its “take into
account” process on the effects of the new base on the
dugong. Id. at 1112.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 9
In the years following the district court’s order, the
Department conducted a “take into account” process
regarding the potential adverse effects of the new base on the
dugong. In doing so, the Department relied on five sources:
(1) The Welch Report: an anthropological report by
Dr. David A. Welch commissioned by the
Department regarding the cultural significance of the
Okinawa dugong in Okinawan culture;
(2) The Jefferson Report: a biological assessment of the
Okinawa dugong by Dr. Thomas A. Jefferson
commissioned by the Department;
(3) The Futenma Replacement Facility Bilateral Experts
Study Group Report: an August 31, 2010 report by a
bilateral group of U.S. and Japanese representatives
studying the new base’s location, configuration, and
construction method;
(4) The SuMMO Project Final Report: an August 28,
2013 report of the Survey of the Marine Mammals of
Okinawa (SuMMO) Project conducted in 2011–
2012, on behalf of the United States Marine Corps,
to update the Integrated Natural Resources/Cultural
Resources Management Plan for the Marine Corps
Base Camp Smedley D. Butler;
(5) The Japanese Government’s Environmental Impact
Statement/Assessment (EIS/EIA): Translated
excerpts of the Japanese government’s final and draft
environmental impact statement/assessment on the
effects of the new base on the dugong.
Based on its investigation, the Department concluded that
there would be “‘no adverse effect’ on the Okinawa dugong”
10 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
as a result of the new base “because of the extremely low
probability of Okinawa dugong being in” the area of the new
base. U.S. Marine Corps Recommended Findings (April
2014) (“2014 USMC Findings”), § 3.1. It also concluded
that “should dugongs in fact be present, the construction and
operational activity [would] primarily [be] of the type that
would not have an adverse effect” on them. Id.
In 2014, the Department filed a notice of completion of
its “take into account” process, attaching its findings. In
response to the Department’s notice, Appellants filed a first
supplemental complaint, alleging that the Department
violated the requirements for a “take into account” process
under Section 402 by failing to (1) consult Appellants as
interested parties in the “take into account” process,
(2) provide information to the public about the proposed new
base and its potential effects on the Okinawa dugong, and
(3) seek public comment and input. First Suppl. Compl.,
¶¶ 48–50. They also alleged that the Department’s finding
that the new base would have no adverse effects on the
dugong was arbitrary and capricious and violated Section
706 of the APA. Id., ¶ 51.
The district court initially dismissed the supplemental
complaint on the grounds of political question and standing.
Ctr. for Biological Diversity v. Hagel, 80 F. Supp. 3d 991,
1019 (N.D. Cal. 2015) (Okinawa Dugong III). We reversed
and remanded to the district court for consideration of
Appellants’ claims on the merits. Ctr. for Biological
Diversity, 868 F.3d at 830.
On remand, the parties filed cross-motions for summary
judgment on the adequacy of the Department’s “take into
account” process. The district court granted the
Department’s motion for summary judgment, finding that
Appellants had not demonstrated that the Department’s
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 11
“take into account” process was unreasonable or violated
Section 402, and the Department’s finding that the new base
would have no adverse effects on the dugong was not
arbitrary or capricious. Okinawa Dugong v. Mattis, 330 F.
Supp. 3d 1167, 1197–98 (N.D. Cal. 2018) (Okinawa Dugong
IV).
Appellants timely appealed.
II. Standard of Review
Because the NHPA is a procedural statute that provides
no independent basis for judicial review, a plaintiff who
brings a cause of action under the NHPA must do so under
the APA. San Carlos Apache Tribe v. United States,
417 F.3d 1091, 1099 (9th Cir. 2005). The APA authorizes
judicial review of final agency actions or decisions “for
which there is no other adequate remedy in a court.”
5 U.S.C. § 704; Ctr. for Biological Diversity, 868 F.3d
at 816 n.5. We therefore construe the instant action as being
brought under the APA. Ctr. for Biological Diversity,
868 F.3d at 816 n.5.
We review de novo a challenge to a final agency action
decided on summary judgment and pursuant to Section 706
of the APA. Turtle Island Restoration Network v. U.S. Dep’t
of Commerce, 878 F.3d 725, 732 (9th Cir. 2017).
12 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
III. Analysis 2
A. The Department’s Section 402 Compliance
1. Requirements for Section 402’s “Take Into
Account” Process
As a matter of first impression, we must decide what is
required by Section 402’s directive that an agency must
“take into account the effect of the undertaking on the
property for purposes of avoiding or mitigating any adverse
effect.” 54 U.S.C. § 307101(e). To begin, we agree with the
district court that the process must include (1) identification
of protected property, (2) generation, collection,
consideration, and weighing of information pertaining to
how the undertaking will affect the protected property, (3) a
determination as to whether there will be adverse effects or
2
We do not consider the Department’s challenge to the district
court’s 2005 ruling that Section 402 applies to the dugong. See Okinawa
Dugong I, 2005 WL 522106, at *6–12. While “a notice of cross-appeal
is a rule of practice [] . . . rather than a jurisdictional requirement,”
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1298 (9th Cir.
1999), the Department should have filed a notice of cross-appeal on this
issue given the unique circumstances of this litigation. The issue of
whether Section 402 applies to the dugong was litigated 13 years ago,
during which time the district court decided summary judgment twice.
See Okinawa Dugong II, 543 F. Supp. 2d 1082; Okinawa Dugong IV,
330 F. Supp. 3d 1167. Both rulings relied, in part, on the earlier ruling
that Section 402 applied to the dugong. To consider the Department’s
challenge now would effectively undermine 13 years of litigation, not to
mention the parties’ and the courts’ time and resources. Furthermore,
although the Department initially filed a notice of cross-appeal on this
issue in 2015, it later withdrew the notice. Since that time, the
Department has given no indication that it intended to appeal this issue
until its Answering Brief in this appeal, which was filed 14 years after
the ruling in question. On top of this, the Department’s failure to file a
cross-appeal is entirely unexplained.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 13
no adverse effects on the protected property, and (4) if
necessary, development and evaluation of alternatives or
modifications to the undertaking that could avoid or mitigate
the adverse effects on the protected property. These are
straightforward requirements that will allow agencies to
evaluate how their undertakings impact foreign protected
properties and enable agencies to take reasonable mitigation
measures. We also agree with the district court that “a
federal agency does not complete the take into account
process on its own, in isolation,” Okinawa Dugong II, 543 F.
Supp. 2d at 1104, and that consultation with the host nation,
outside experts, or private parties will be necessary for an
agency to meet its obligations. 3 It is the required scope of
this consultation that the parties contest today.
Appellants argue that the Department’s “take into
account” process violated the requirements of Section 402
because the Department failed to consult with Appellants
and local community members, provide an opportunity for
public participation, and consult with any entity regarding
the effect of the new base on the cultural characteristics of
the dugong. Appellants make their argument by citing to
regulations governing a separate provision of NHPA,
Section 106. We disagree with Appellants’ arguments and
hold that Section 402 compliance does not require an agency
3
Outside consultation is not a standalone requirement for Section
402 compliance. Rather consultation with the host nation, outside
experts, private parties, or others enables the agency to collect and
analyze data about whether and how the undertaking will impact
protected properties, and if so, develop avoidance or mitigation
measures. As discussed below, a decision to consult, or not, in any
specific instance or in any specific manner or with any specific person is
evaluated to ensure the agency’s process was reasonable.
14 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
to consult with specific parties, or to permit direct public
participation.
a. Applicability of Regulations
Governing Section 106
We initially decide whether the regulations governing a
Section 106 4 “take into account” process apply to Section
402 such that a federal agency must consult with specific
organizations, individuals, and/or entities, and provide a
period of public notice and comment, to comply with Section
402 the same as it must to comply with Section 106. We
conclude that regulations implementing Section 106 do not
apply to Section 402.
Unlike Section 106, there are no regulations governing
Section 402, and neither is there an agency empowered to
promulgate binding regulations for implementing Section
402. The full scope of Section 402’s requirements are found
in the statutory text that requires agencies performing an
“undertaking outside the United States that may directly and
adversely affect a property that is on the World Heritage List
or on the applicable country’s equivalent of the National
Register,” to “take into account the effect of the undertaking
4
NHPA Section 106 requires federal agencies to “take into account
the effect of the undertaking on any historic property” and to “afford the
[Advisory] Council [on Historic Preservation] a reasonable opportunity
to comment with regard to the undertaking.” 54 U.S.C. § 306108. Unlike
Section 402, which applies abroad, Section 106 applies to
“undertakings” that occur within the United States. The Advisory
Council on Historic Preservation is authorized by statute to issue binding
regulations regarding Section 106 implementation, and current
regulations require agencies to consult with certain organizations,
entities and/or individuals, and to seek public comment on proposed
undertakings effecting historic properties, before proceeding with the
project. See 54 U.S.C. § 304108(a); 36 C.F.R. § 800.2.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 15
on the property for purposes of avoiding or mitigating any
adverse effect.” 54 U.S.C. § 307101(e). Nevertheless,
Appellants argue that regulations governing Section 106, if
not directly, then implicitly, apply to Section 402 and require
a federal agency to adhere to those regulations in a Section
402 “take into account” process. See, e.g., 36 C.F.R.
§§ 800.2 et seq. (regulations outlining requirements for a
Section 106’s “take into account” process which include,
inter alia, consultation with parties, individuals, and/or
entities specified under the regulation and public
participation).
We look to NHPA’s statutory framework to determine
whether it is correct to apply regulations governing Section
106’s “take into account” process to Section 402. The fact
that Section 402 is identical in material aspects to its
domestic counterpart, Section 106, initially suggests that it
might be correct to apply Section 106’s regulations to
Section 402 because the phrase “take into account” is used
in both sections in the same manner. 5 Compare 54 U.S.C.
§ 306108 (under Section 106, a federal agency must “take
into account the effect of the undertaking on any historic
property” within the United States), with 54 U.S.C.
§ 307101(e) (requiring a federal agency to “take into account
the effect of the undertaking on the property” outside of the
United States under Section 402). Counseling against this
5
The Advisory Council on Historic Preservation (ACHP)
regulations implementing Section 106’s “take into account” process
requirements were also in existence by the time Congress enacted
Section 402 in 1980. See Hall v. U.S. E.P.A., 273 F.3d 1146, 1158 (9th
Cir. 2001) (“When Congress incorporates the text of past interpretations,
‘Congress’ repetition of a well-established term carries the implication
that Congress intended the term to be construed in accordance with pre-
existing . . . interpretations.’” (quoting Bragdon v. Abbott, 524 U.S. 624,
631 (1998)).
16 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
application, however, is the absence of an express delegation
of authority by Congress to a federal agency to promulgate
implementing regulations for Section 402. We construe this
absence as evidence of Congress’s intent to give a federal
agency flexibility in conducting a “take into account”
process under Section 402. See Envtl. Def. v. Duke Energy
Corp., 549 U.S. 561, 574 (2007) (“A given term in the same
statute may take on distinct characters from association with
distinct statutory objects calling for different
implementation strategies.”).
We therefore conclude that Section 106’s regulations do
not apply to Section 402 under the NHPA’s statutory
framework. However, this does not end our inquiry. Even
though Section 106’s regulations do not apply to Section
402, we must still consider whether Section 402 should
nevertheless be construed as requiring the specific
consultation and public participation Appellants seek.
b. Consultation Requirement
Requiring a federal agency to engage in reasonable
consultation with other nations, local governments, private
organizations, individuals, or others as part of the process for
taking into account the effects its projects may have on
foreign protected property is consistent with Section 402’s
purpose and congressional intent. When Congress enacted
Section 402, it declared that it was “the policy of the Federal
Government . . . to provide leadership in the preservation of
the historic property of the United States and of the
international community of nations” “in cooperation with
other nations and in partnership with the States, local
governments, Indian tribes . . . and private organizations
and individuals.” 54 U.S.C. § 300101(2) (emphasis added).
Additionally, the Department of Interior’s (DOI) Guidelines
provide, in relevant part, that “[e]fforts to identify and
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 17
consider effects on historic properties in other countries
should be carried out in consultation with the host country’s
historic preservation authorities, with affected communities
and groups, and with relevant professional organizations.”
63 Fed. Reg. 20,496, 20,504 (Apr. 24, 1998). 6 However, the
absence of regulations governing which specific parties,
individuals, and/or entities to consult demonstrates that
those decisions should be left to the discretion of the agency.
See id. at 20,504 (stating that “specific consultation
requirements and procedures will vary among agencies
depending on their missions and programs, the nature of
historic properties that might be affected, and other
factors”). 7
Accordingly, we construe Section 402 as requiring
reasonable consultation with outside entities to determine
how an undertaking may impact a protected property and
6
Although the DOI is charged with “direct[ing] and coordinat[ing]
participation by the United States in the World Heritage Convention,”
54 U.S.C. § 307101(b), its guidelines “have no regulatory effect.”
63 Fed. Reg. at 20,496.
7
Although the DOI Guidelines also state that “consultation should
always include all affected parties,” 63 Fed. Reg. at 20,504, we need only
accord these Guidelines Skidmore deference to the extent that they have
the “power to persuade.” Sierra Club v. Trump, 929 F.3d 670, 693 (9th
Cir. 2019) (under Skidmore deference, “we look to ‘the thoroughness
evident in [the agency’s] consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors
which give it power to persuade.’” (quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944))). The Guidelines are persuasive only to the
extent that they encourage consultation with all interested parties and
organizations, to the extent possible, during a Section 402 “take into
account” process. See, e.g., Marshall v. Anaconda Co., 596 F.2d 370,
375 (9th Cir. 1979) (explaining that “the intent to make mandatory is
unmistakable when ‘shall . . . unless’ language is used[;] “[s]hould . . .
unless” language is clearly [m]ore advisory”).
18 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
what may be done to avoid or mitigate any adverse effect.
But, because the nature of reasonable consultation will
naturally vary based on the agency involved and the scope
of the undertaking, we also find Section 402 delegates to
federal agencies the specific decisions of which
organizations, individuals, and/or entities to consult (or not
consult) and the manner in which such consultation occurs.
See, e.g., Okinawa Dugong II, 543 F. Supp. 2d at 1105(explaining that while “Congress may have been silent on
the regulatory specifics and implementation details,
allowing the precise letter of the statute to be filled in by a
particular agency depending on the agency’s mission and
undertaking, Congress was clear on the basic spirit and
framework of the take into account process” (emphasis
added)). An agency’s decision about the scope of outside
consultation for any given undertaking will be upheld unless
the decision was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
c. Public Participation Requirement
We decline to construe Section 402 as requiring public
participation because there is no evidence of congressional
intent to require public participation, and there are no
guidelines interpreting Section 402 to include public
participation. Public participation, such as through a period
of notice and comment, is simply one means by which an
agency may fulfill part of its procedural obligations under
Section 402, and an agency’s choice not to engage the public
directly will be upheld unless the decision was arbitrary and
capricious. See 5 U.S.C. § 706(2)(A).
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 19
2. The Department’s Section 402
Compliance Procedures
We now apply the requirements for complying with
Section 402 to the Department’s actions. Because this action
proceeds under the APA, we review the Department’s
decisions for reasonableness. Ctr. for Biological Diversity
v. Bureau of Land Mgmt., 833 F.3d 1136, 1146 (9th Cir.
2016). To determine whether an agency’s decision was
reasonable, we look to whether the agency’s decision was
“founded on a rational connection between the facts found
and the choices made . . . and whether [the agency] has
committed a clear error of judgment.” River Runners for
Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010)
(citation and internal quotation marks omitted).
The Department clearly complied with the first
requirement that it identify the protected property at issue.
The district court’s 2005 order made it explicit that the
Okinawa dugong was property protected by Section 402. To
comply with the second requirement that it generate, collect,
consider, and weigh information pertaining to how the new
base may affect the dugong, the Department commissioned
multiple studies, reviewed others that had previously been
completed, and issued a final report of its findings. Studies
conducted by the Department analyzed both potential
biological and cultural impacts from constructing the new
base. The anthropological study, headed by Dr. Welch,
included indirect consultation with Okinawans who engage
in cultural practices with the dugong. The Department also
directly engaged with the Japanese government as part of a
bilateral working group and incorporated the Japanese
government’s environmental impact study into its final
recommendation. For the third requirement, based on the
information the Department collected about the impact the
20 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
new base would have on the dugong, it determined there
would be no adverse effects on the dugong, 8 which relieved
the Department of the obligation to enact mitigation
measures under the fourth requirement for Section 402
compliance.
Appellants argue the Department’s process for
complying with Section 402 was not reasonable because as
part of the process for gathering and analyzing how the new
base may impact the dugong, the Department did not consult
with Appellants directly, consult directly with the local
community, seek public comment, or consult on how the
new base would impact the cultural significance of the
dugong. We disagree and find the Department’s process for
complying with Section 402 was reasonable, and that the
Department was not required to engage in the additional
process Appellants seek.
a. Direct Consultation with Appellants
and Local Community Members
Because the Department was not required to consult any
specific organization, individual and/or entity under Section
402, we consider only whether it was reasonable for the
Department not to consult Appellants and local community
members. We conclude that it was.
Although Appellants have certainly demonstrated an
interest in the dugong, Appellants have provided no
evidence that had the Department consulted them, they
would have contributed information material to the
Department’s “take into account” analysis. The evidence
8
Whether this determination was supported by substantial evidence
is discussed below.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 21
that Appellants cite, i.e., the Declarations of Anna Koshiishi
and Takuma Higashionna, is largely irrelevant. The
declarations were submitted seven years before the
Department conducted its “take into account” process.
Additionally, the Department noted that it had considered
the declarations submitted by Appellants in the litigation as
a part of its “take into account” process, which would have
presumably included these declarations, among others. 2014
USMC Findings, § 2.1.
While Appellants are correct that the Department did not
directly consult local community members or practitioners
to whom the dugong was culturally and spiritually
significant, the Department did obtain such information
indirectly. One such source was Appellants’ own expert, Mr.
Isshu Maeda, who “conducted extensive research both in
literature and in the field on the role of the dugong in folklore
and ritual,” among other cultural experts. Welch Report at
p.9. The Department also obtained information indirectly
from other interviewees who had talked to cultural
practitioners “to whom the interview team could not get
access and had information regarding rituals and other
cultural practices that [had] never been published.” Id. at pp.
10–11.
No evidence suggests that the information obtained from
these indirect sources was incomplete or inaccurate. Cf. Te-
Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior,
608 F.3d 592, 609 (9th Cir. 2010) (rejecting an argument that
the DOI’s failure to consult timely with plaintiffs violated
Section 106 because plaintiffs “[did] not identify any new
information that [the Native American Tribe] would have
brought to the attention of the [Bureau of Land
Management] had it been consulted earlier in the approval
process,” and “fail[ed] to show or even argue that early
22 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
consultation would have prevented any adverse effect . . .”). 9
Therefore, while it would have been preferable to Appellants
for the Department to have consulted directly with local
community members or practitioners, the Department’s
decision to obtain the same information indirectly, through
its other interviewees, was not unreasonable.
b. Public Participation
We also conclude that the Department’s decision not to
provide public notice and comment on its “take into
account” process was reasonable. As we have held, Section
402 does not require direct public participation in the “take
into account” process. Additionally, here, public notice and
comment occurred in connection with the Japanese EIS/EIA,
which the Department considered as part of its overall
process. 10
9
Appellants make a passing argument that the Department failed to
consult with the Okinawan government during the “take into account”
process. This contention is unpersuasive. The April 2018 letter from
Okinawa Governor Onaga to Secretary Mattis, referenced by Appellants,
was sent four years after the Department completed the “take into
account” process. Additionally, the then-governor of Okinawa
participated in the EIS process, submitting extensive comments.
10
Our discussion of the public notice and comment undertaken by
the Japanese government as part of producing its EIS/EIA should not be
understood as a holding that a U.S. federal agency is not required to
conduct notice and comment to comply with Section 402 only when the
host country has conducted its own notice and comment process. As we
have held, Section 402 does not mandate direct public participation in
the approval process, and a decision to forgo notice and comment will
be upheld if the decision was reasonable under the circumstances. Our
discussion of the Japanese notice and comment period serves to highlight
the reasonableness of the Department’s decision here not to engage in
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 23
Appellants challenge the adequacy of the Japanese
EIS/EIA. They contend that the Japanese EIS process was
inadequate because the Japanese EIS did not analyze the
effect of the new base on the dugong’s cultural significance,
only its biological impact on the dugong; and there was no
public comment on the final EIS or the proposed mitigation
measures.
These challenges are largely meritless. The record
shows that the Japanese EIS process included public
comment before and after the final EIS. Additionally, even
if there was no period of public comment on the mitigation
measures, Appellants do not explain how the absence of that
period of public comment would have affected the EIS’s
ultimate conclusions. See Te-Moak Tribe, 608 F.3d at 609.
Furthermore, while Appellants are correct that the
Japanese EIS measured the biological impact of the new
base on the dugong, there is no evidence that Appellants
were precluded from commenting on the dugong’s cultural
significance had they chosen to participate in the EIS’s
periods of public notice and comment. Moreover, the new
base’s biological impact on the dugong is also tied to its
impact on the dugong’s cultural significance. As explained
in the Welch Report, “[t]he most likely cultural impacts of
the [new base] [on the dugong] will be indirect . . . and will
stem from the biological harm that might be done to the
dugong population as a result of construction and use of the
[new base] in an area where dugongs feed (or at least fed in
the past).” Welch Report at p.92 (emphasis added); see id.(“Thus, our conclusion, based on this study, is that the
disappearance of the dugong population from Okinawa
additional public notice and comment in the face of Appellants’
challenge.
24 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
would have an adverse cultural impact. Thus, biological
conservation and management to help preserve and protect
the species . . . are related directly to cultural protection of
the dugong.”).
c. Consultation With Entities Regarding
the Effect of the New Base on the
Cultural Significance of the Dugong
Appellants argue that the Department failed to consult
with entities regarding the effect of the new base on the
dugong’s cultural significance. We conclude that the
Department’s decision not to consult these entities was
reasonable under the circumstances.
Contrary to Appellants’ contentions, notwithstanding the
Welch Report’s failure to disclose the purpose of the study
to the interviewees, the Welch Report made findings
regarding the cultural impacts of the new base on the
dugong. Specifically, it found that while the new base
should have “little direct adverse impact on the cultural
significance of the dugong or on traditional cultural practices
associated with the dugong,” the new base would have a
“direct impact[]” on the dugong’s bed, Jangusanumii,
seagrass beds in the vicinity of Henoko Village. Welch
Report at p.91. It, however, concluded that the “project
research found no indication” of any “culturally important
activities” being conducted in or associated with that area.
Id.B. The Department’s Finding of No Adverse
Effect
Appellants contend that the Department’s finding that
the new base would have no adverse effect on the dugong
was arbitrary, capricious, and contrary to law because the
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 25
Department did not have the baseline biological data to make
a reliable determination of the effects of the new base on the
dugong and did not consider the full range of impacts of the
new base on the dugong. Appellants also contend that the
finding is contradicted by the evidence in the record. We
disagree.
1. Legal Standard
Under Section 706 of the APA, a reviewing court must
“hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
“The arbitrary or capricious standard is a deferential
standard of review under which the agency’s action carries a
presumption of regularity.” San Luis & Delta-Mendota
Water Auth. v. Locke, 776 F.3d 971, 994 (9th Cir. 2014).
“Where the agency has relied on relevant evidence [such
that] a reasonable mind might accept as adequate to support
a conclusion, its decision is supported by substantial
evidence,” and this court must affirm the agency’s finding.
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d
581, 601 (9th Cir. 2014) (citation and internal quotation
marks omitted). “Even [i]f the evidence is susceptible of
more than one rational interpretation, [the court] must
uphold [the agency’s] findings.” Id. (citation and internal
quotation marks omitted).
Although the deference owed to an agency is neither
“unlimited” nor “automatic[],” San Luis & Delta-Mendota
Water Auth., 776 F.3d at 994, a reviewing court will “strike
down agency action as arbitrary and capricious [only] if the
agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
26 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency,” or made a decision “so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.” Turtle Island Restoration Network, 878 F.3d
at 732–33 (citation and internal quotation marks omitted)
(alteration added).
2. Analysis
a. Baseline Dugong Population Data
Appellants are correct that the Department lacked robust
baseline population data for the dugong population in
Okinawa. See 2014 USMC Findings, § 3.1 (commenting
that the available “data [is] not sufficient to establish
population size, status, and viability” of the dugong
population in Okinawa); id., § 3.4 (noting the “absence of
recent total population data” for the Okinawa dugong and
finding it would be beneficial for the Japanese government
“to conduct new systematic surveys or modeling using
methods currently accepted by marine mammal biologists to
confirm current estimates about the overall size and status of
the dugong population in Okinawa and the viability of a
population of this size”).
Indeed, as Appellants point out, the Department’s own
researchers criticized the lack of robust dugong population
data in its own studies and the Japanese EIS. See July 28,
2011 e-mail from a SuMMO researcher (recommending “a
targeted dugong monitoring project in [a] more rigorous
manner” and discouraging “using data from the currently
designed project to make legally defensible claims regarding
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 27
the presence or absence of dugongs”); 11 March 22, 2010 e-
mail from Dr. Jefferson (criticizing the Japanese EIA as
“extremely poorly-done” and “not withstanding scientific
scrutiny”); Welch Report at p.95 (critiquing the Japanese
EIS, and observing that without more robust data, “it
[would] be difficult to impossible to assess the potential
adverse effects of the [new base], develop appropriate
mitigation measures, and evaluate the success of mitigation
measures”); Jefferson Report at p.17 (recommending a
“better understanding of the current status of the dugong
population . . . in order to understand what impacts might be
expected from the construction of the [new base]”).
But these criticisms do not demonstrate that the
Department’s analysis was fundamentally “flawed.” See
Ctr. for Biological Diversity, 833 F.3d at 1148; River
Runners for Wilderness, 593 F.3d at 1070 (there need only
be a “rational connection between the facts found and the
choices made” to support an agency’s decision) (internal
quotation marks omitted). Baseline population data,
although preferable, is “not an independent legal
requirement.” Ore. Nat. Desert Ass’n v. Jewell, 840 F.3d
562, 568 (9th Cir. 2016) (citation and internal quotation
marks omitted).
Here, substantial evidence supports the Department’s
conclusion that the presence of the dugong in the area of the
new base was sporadic, even if it did not possess more robust
baseline population data. The Department’s baseline
population data suggested only a “remnant population” of
Okinawa dugongs, ranging from 3 to 50 individuals. 2014
USMC Findings, § 3.1; see also Jefferson Report at p.17
11
The Department appears to have not relied on the data in the
SuMMO Report to support its findings.
28 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
(opining that “[a]lthough no reliable abundance estimates
exist, the [dugong] population [in Okinawa] is believed to
number less than 50 individuals”).
Additionally, the monthly survey data showed only
sporadic or intermittent dugong activity in the area of the
new base (the Henoko and Oura Bays). During four years of
monthly surveys from 2009 to 2013, dugong feeding trails
were observed in the new base site and the area immediately
adjacent to the new base site only on seven occasions, in
June 2009, August 2009, April 2012, May 2012, March
2013, May 2013, and November 2013. 2014 USMC
Findings, § 2.4. Also, only one dugong was photographed
in the new base area. Id. By contrast, the monthly survey
data demonstrated “routine dugong activity,” including
dugong sightings and feedings trails, off Kayo, which is
between 2 and 3 miles northeast the new base. Id.
Oregon Natural Desert Association, relied on by
Appellants, is factually inapposite. In Oregon Natural
Desert Association, the Bureau of Land Management
approved an environmental impact statement for a wind-
energy project that was located on land that provided
potential winter foraging habitats for the sage grouse.
840 F.3d at 567. In approving the environmental impact
statement, the Bureau did not conduct surveys to determine
if sage grouse were present at the project during the winter
months, but instead, “assumed” that the sage grouse were not
present based on surveys done at neighboring sites, which
the Bureau mistakenly interpreted as showing the absence of
the sage grouse. Id. This court held the Bureau’s review
“did not adequately assess baseline sage grouse numbers
during winter” at the project site, because, contrary to the
environmental impact statement, the data showed that there
were, in fact, sage grouse present in one of the neighboring
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 29
sites during the winter months, so the Bureau’s data
extrapolation was arbitrary and capricious. Id. at 564; see
also id. at 569–70.
By contrast, the Department reviewed dugong survey
data covering the new base, as well as the neighboring,
unaffected areas (Kayo). Based on the limited presence of
the dugong in the new base site area, the Department
reasonably concluded that the dugong’s presence was
sporadic and intermittent, at best, and, as a result, that there
would be no adverse effects on the dugong as a result of the
new base.
b. Full Range of Impacts of the New Base
on the Dugong
Appellants argue that the Department failed to consider
population fragmentation, disruption of travel routes, and the
loss of habitat required to sustain the population, in
evaluating the impacts of the new base on the dugong.
While Appellants are correct that the Department did not
specifically consider population fragmentation and the
disruption of travel routes, there was no data suggesting that
the construction and operation of the new base would further
fragment the dugong population or interfere with existing
dugong travel routes to their habitats and/or potential feeding
groups. Accordingly, the Department’s failure to consider
these factors was not unreasonable.
Regarding the loss of habitat, the Welch Report and the
2014 USMC Findings identified the loss of certain seagrass
beds in Henoko and Oura Bays, which were a potential
natural habitat and food source for the dugong, as a result of
land reclamation due to the construction of the new base.
2014 USMC Findings, § 3.2.2; Welch Report at p.96. The
30 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
Department, however, concluded that the loss of these
seagrass beds would not adversely impact the dugong
“because these seagrass beds [were] not consistently or
routinely used by resident dugong and there [were] other
seagrass beds” that could maintain the dugong population.
2014 USMC Findings, § 3.2.2. Substantial evidence exists
to support that conclusion. The monthly survey data
demonstrated that the dugong’s regular feeding trails were
in Kayo, not in the Henoko or Oura Bays. 2014 USMC
Findings, § 2.4. Moreover, as the Department noted in the
2014 USMC Findings, the Japanese government had already
committed to monitoring the seagrass beds and to expanding
the seagrass habitat. 2014 USMC Findings, § 2.3.
Although the Department could have addressed these
factors more explicitly and obtained additional data, we
cannot say that its failure to do so renders its ultimate finding
arbitrary, capricious, or contrary to law. See Ctr. for
Biological Diversity, 833 F.3d at 1148 (explaining that while
plaintiff “could demonstrate persuasively numerous ways in
which [the Bureau’s] emissions analysis could be
improved,” “[m]ere differences in opinion, however, are not
sufficient grounds for rejecting the analysis of [the
agency]”).
c. The Record Evidence
The Department conducted extensive research on the
effect of the new base on the dugong, including, but not
limited to, studies commissioned on the biological and
cultural assessment of the dugong, see generally Welch
Report and Jefferson Report; all available survey data on the
dugong population in Okinawa, the area of the new base, and
the neighboring areas, see generally Draft Japanese
EIS/EIA; field work including visits to cultural museums,
the Okinawa Prefecture Board of Education, and
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 31
interviewing cultural experts, see Welch Report at pp. 8–9;
and the Japanese EIS/EIA which assessed the likelihood of
the adverse impact of the construction and operation of the
new base on the dugong. Based on these studies, interviews,
and field work, the Department rationally concluded that the
construction and operation of the new base would not
adversely impact the dugong population, and would have no
adverse effect on the dugong’s cultural significance. 12
Appellants’ contentions that the Department’s finding is
contradicted by the record evidence, including the Welch
Report, the Department’s own findings, and the inadequacy
of the mitigation efforts, are largely unsupported. 13
For example, the Welch Report concluded that
notwithstanding its conclusion, the mostly likely cultural
impacts on the dugong would stem from biological harm,
and that there was “reason to believe that the construction of
[the new base could] proceed without having an overall
adverse impact” on the Okinawa dugong with a “well-
planned approach that involve[d] cultural sensitivity,
adaptive management and state-of-the-art biological
monitoring, and cooperation with the Japanese and
Okinawan governments.” Welch Report at p.92. 14
12
But, regarding the dugong rituals performed in Henoko Village,
the Department conceded that it was unable to assess the impact of the
new base on these rituals given their secretive nature. 2014 USMC
Findings, § 3.5.
13
We do not address all of Appellants’ contentions here, and focus
instead on what appear to be Appellants’ main contentions.
14
Appellants also cite to dugong population data from the 2000 to
2003 time period, and ignore more recent survey results that show a
32 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
Additionally, Appellants’ contention that dugongs
would be harmed during construction by noise, vibration,
and light “if they enter[ed] Oura Bay,” (emphasis added),
discloses only a contingent and potential harm, not the
likelihood of these harms occurring. Given the dugong’s
sporadic presence in the Oura Bay and the “extremely low
probability” of dugong activity in the area of the new base,
the Department rationally concluded that there would be no
adverse effects on the dugong from the construction and the
operation of the new base.
Finally, the fact that the mitigation measures
“presuppose[]” the potential for adverse impact is not fatal
to the Department’s ultimate finding. As discussed above,
there was substantial evidence to support the Department’s
finding, apart from the mitigation measures.
IV. Conclusion
For the reasons discussed above, we affirm the district
court’s grant of summary judgment to the Department.
AFFIRMED.
sporadic dugong presence in the Henoko and Oura Bays, which supports
the Department’s conclusion that there was an “extremely low
probability” of dugongs in the area of the new base.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 33
BEA, Circuit Judge, concurring:
The majority is correct that the Department of Defense
(“the Department”) complied with the National Historic
Preservation Act (“NHPA”) Section 402 procedural
requirements and that its finding the new base in Okinawa
would not adversely impact the dugong population was not
arbitrary and capricious. For these reasons, apart from
footnote 2, I join the majority opinion in full.
I write separately, however, because I believe that rather
than expounding the requirements for Section 402
compliance and then evaluating the Department’s
procedures in light of the standard, a better resolution of the
case would have addressed the antecedent question: In
constructing the new base in Okinawa, was the Department
even bound by Section 402? Because, in my view, the
answer to that question is no, I would affirm the judgment of
the district court, but do so on the grounds that the
Department was not subject to the procedural requirements
of Section 402.
I
Early in the litigation, the Department filed a motion to
dismiss (later converted into a motion for summary
judgment) in which it argued Section 402, which creates
procedural requirements for overseas projects that
“adversely affect a property that is . . . on the applicable
country’s equivalent of the National Register [of Historic
Places],” did not apply to its new base because Japan’s Law
for the Protection of Cultural Properties was not the
“equivalent of the National Register” and because the
dugong was not “property.” 54 U.S.C. § 307101(e). The
district court disagreed and denied the motion. Dugong v.
Rumsfeld, No. C 03-4350 MHP, 2005 WL 522106, at *8, 12
34 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
(N.D. Cal. Mar. 2, 2005) (“2005 order”). Litigation
continued, and in 2015, the district court entered final
judgment in the Department’s favor after finding the court
lacked subject matter jurisdiction over the Center for
Biological Diversity’s (“CBD”) claims based on the political
question doctrine and a lack of standing. Ctr. for Biological
Diversity v. Hagel, 80 F. Supp. 3d 991, 1019 (N.D. Cal.
2015). CBD appealed that judgment, which we reversed and
remanded to the district court. Ctr. for Biological Diversity
v. Mattis (CBD I), 868 F.3d 803, 830 (9th Cir. 2017).
Before we considered the merits of CBD’s appeal of that
final judgment, however, the Department filed a timely
notice of cross-appeal stating it intended to challenge prior
orders from the district court that preceded the final
judgment. One of those orders was the 2005 order finding
the dugong was covered by Section 402. The following
month, before briefing began, the Department voluntarily
dismissed its cross-appeal. Later, in its answering brief to
CBD’s initial appeal, the Department reiterated “its
continuing objection” to the district court’s 2005 order, but
it did not ask us to sustain the judgment in its favor on the
ground that the 2005 order was wrongly decided. See CBD
I, 868 F.3d at 822 n.7. We endorsed the Department’s
decision to restrict its arguments to the issues of standing and
the political question doctrine and proceeded on the
assumption that the 2005 order was correct, without
addressing the issue. However, at the same time we noted
the Department reserved “the right to move for
reconsideration or further appellate review” of the 2005
order “[s]ubject to any waiver considerations.” See id.
On remand, the district court again entered judgment for
the Department, this time after finding that the Department
had complied with Section 402’s procedural requirements
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 35
and further finding its determination that there would be no
adverse impacts on the dugong was not arbitrary and
capricious. Okinawa Dugong v. Mattis, 330 F. Supp. 3d
1167, 1197–98 (N.D. Cal. 2018) (“2018 order”). Following
this judgment, CBD again filed a notice of appeal. This is the
matter we decide today. This time the Department did not
file a cross-appeal, but in its answering brief, the
Department’s primary argument is that we should sustain the
district court’s judgment in its favor, not on the reasoning in
the district court’s 2018 order, but on the grounds that the
2005 order was wrongly decided. Rather than viewing the
Department’s argument as a simple request for affirmance
on an alternative rationale, the majority believes that the
Department is advancing an unnoticed cross-appeal that we
may not consider. See Majority Op. at 2 n.2. Therefore, it
bypasses the issue and affirms the district court’s judgment
on the rationale that the district court put forth in the 2018
order.
I believe the majority is incorrect that, by arguing the
2005 order was wrongly decided, the Department is making
an unnoticed cross-appeal, and I believe the Department is
right on the merits of that argument. Because whether the
2005 order was correct that Section 402 applies to the
dugong is a threshold issue required to be addressed before
we can decide whether the Department acted in conformity
with Section 402 and the Administrative Procedure Act, I
would resolve the case by holding that the district court erred
by concluding, as a matter of law, that Section 402 applies
to the dugong and affirm the judgment in favor of the
Department on that ground.
II
We review, not a lower court’s opinion or reasoning, but
its judgment. Jennings v. Stephens, 574 U.S. 271, 277
36 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
(2015). For this reason, it is well-established that we may
affirm a district court’s judgment on any grounds supported
by the record. Cassirer v. Thyssen-Bornemisza Collection
Found., 862 F.3d 951, 974 (9th Cir. 2017). An appellee does
not need to file a notice of cross-appeal to seek affirmance
on an alternative ground, but if he does not raise the
alternative theory in his answering brief, the argument
usually is waived. United States v. Dreyer, 804 F.3d 1266,
1277 (9th Cir. 2015) (en banc). And though an appellee who
does not cross-appeal may urge affirmance on any ground in
the record, he may not “attack the decree with a view either
to enlarging his own rights thereunder or of lessening the
rights of his adversary.” El Paso Natural Gas Co. v.
Neztsosie, 526 U.S. 473, 479 (1999) (quoting United States
v. American Railway Express Co., 265 U.S. 425, 435
(1924)). Whether affirming a judgment on alternative
grounds impermissibly impacts the rights of a party is
measured against the party’s “rights under the judgment,”
not against the effect the alternative rationale may have on
future litigation. Jennings, 574 U.S. at 276; id. at 278
(“[M]aking alteration of issue-preclusive effects the
touchstone of necessity for cross-appeal would require
cross-appeal for every defense of a judgment on alternative
grounds.”). If the appellee’s theory would enlarge his own
rights under the judgment, or diminish the appellant’s, only
then must a cross-appeal must be taken.
CBD’s argument that the Department’s attack on the
2005 order requires a cross-appeal is primarily premised on
CBD’s belief that sustaining the district court’s judgment on
the reasoning that Section 402 does not apply to the dugong
would lessen CBD’s rights. However, CBD had no “rights
under the judgment” that was totally in the Department’s
favor. Jennings, 574 U.S. at 276. This is all the more clear
given today’s decision affirming the district court on the
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 37
rationale given in its 2018 order, whereby CBD continues to
have no rights stemming from this case, and therefore no
rights that could be impacted by affirming the judgment on
alternative grounds. What CBD is really trying to avoid by
arguing the Department is pursuing an unnoticed cross-
appeal is an adverse precedential decision that could
preclude CBD from arguing in a future case (at least in this
Circuit) that Section 402 protects animals. But an affirmance
on this rationale would not impact CBD’s rights under the
current judgment, even if it prevented CBD from
successfully advancing its legal theory in a future case. The
Supreme Court already rejected a similar, and stronger,
argument that a notice of cross-appeal was required in
Jennings when it held that affirming a judgment on an
alternative theory that makes the issue preclusive effect of
the judgment more favorable to the appellee, but does not
affect the scope of the judgment, does not require the
appellee to notice a cross-appeal. Id. at 278.
Of course, because we may affirm the district court on
any grounds supported by the record, we are not obligated to
address the Department’s arguments regarding the 2005
order. Although I disagree with the majority that the
Department needed to file a notice of cross-appeal if it
wanted us to consider the 2005 order, the majority ultimately
commits no legal error by declining to address the issue. But
I find any prudential rationale for sidestepping the question
lacking. To begin, that the challenged order is 15 years old
is of little consequence. The denial of the Department’s
motion for summary judgment in 2005 was not immediately
appealable. See 28 U.S.C. § 1291. The first opportunity for
review of the 2005 order was during the appeal of the initial
entry of judgment for the Department, which we reversed in
2017. See CBD I, 868 F.3d at 830. In that litigation the
Department did initially file a cross-appeal stating it
38 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
intended to challenge the 2005 order, which it later
voluntarily dismissed. Even after dismissing that cross-
appeal, the Department again noted its objection to the 2005
order in its answering brief, though it did not seek affirmance
on that ground. But just because the Department previously
filed an unnecessary notice of cross-appeal, it is not required
to do so again. In CBD I, though the Department ultimately
restricted its arguments to standing and political question
issues, it did preserve the argument that the 2005 order had
been wrongly decided. We endorsed that decision then, and
now, with the question properly presented and serving as a
predicate issue to the adequacy of the Department’s Section
402 compliance, we should address it.
III
In 2005 the district court erred when it found that Section
402 applied to the dugong, and I would resolve this case by
affirming the judgment in the Department’s favor under the
reasoning that the dugong is not “property” covered by
Section 402.
Section 402 reads:
Prior to the approval of any undertaking
outside the United States that may directly
and adversely affect a property that is on the
World Heritage List or on the applicable
country’s equivalent of the National Register
[of Historic Places], the head of a Federal
agency having direct or indirect jurisdiction
over the undertaking shall take into account
the effect of the undertaking on the property
for purposes of avoiding or mitigating any
adverse effect.
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 39
54 U.S.C. § 307101(e) (emphasis added). The statute
provides no specific definition for “property” nor guidance
on what defines a “country’s equivalent of the National
Register.” In this case, the dugong is listed for protection
under Japan’s Law for the Protection of Cultural Property.
For Section 402 to apply to the dugong, the Law for the
Protection of Cultural Property must be Japan’s equivalent
of the National Register, and the dugong must be property as
the term is used in Section 402.
First, I believe that the Law for the Protection of Cultural
Property is the equivalent of the National Register. The
purpose of the Law for the Protection of Cultural Property is
“to preserve and utilize cultural properties, so that the culture
of the Japanese people may be furthered and a contribution
made to the evolution of world culture.” Law for the
Protection of Cultural Property, art. 1 (2003), translated by
Agency for Cultural Affairs, Government of Japan
(“LPCP”). Likewise, the National Historic Preservation Act,
which established the National Register of Historic Places,
has the aim “to foster conditions under which our modern
society and our historic property can exist in productive
harmony and fulfill the social, economic, and other
requirements of present and future generations.” 54 U.S.C.
§ 300101. Both laws allow for the official designation of
certain properties and require actions to ensure preservation
of the designated properties. The key difference that is
relevant here is that Japan’s law allows for the protection of
greater types of property—such as customs and animals—
than the National Register of Historic Places, which is
limited to “districts, sites, buildings, structures, and objects.”
54 U.S.C. § 302101. However, Japan’s list of cultural
properties also includes these same categories of property.
See LPCP art. 2. Questions raised by items on Japan’s list of
protected properties that go beyond those eligible for
40 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
inclusion on the National Register, like the dugong, are
better conceptualized as issues of whether those items are
“property” as defined in Section 402, not whether Japan’s
list is equivalent to the National Register.
As to whether a dugong is “property” as the term is used
in Section 402, I would hold that it is not, and that “property”
protected by Section 402 is limited to a “district, site,
building, structure, or object,” 54 U.S.C. § 300308, or to
items that meet the definition of “cultural heritage” 1 or
“natural heritage” 2 as the terms are defined in the United
1
For the purpose of this Convention, the following shall be
considered as “cultural heritage”:
monuments: architectural works, works of
monumental sculpture and painting, elements or
structures of an archaeological nature, inscriptions,
cave dwellings and combinations of features, which
are of outstanding universal value from the point of
view of history, art or science;
groups of buildings: groups of separate or connected
buildings which, because of their architecture, their
homogeneity or their place in the landscape, are of
outstanding universal value from the point of view of
history, art or science;
sites: works of man or the combined works of nature
and man, and areas including archaeological sites
which are of outstanding universal value from the
historical, aesthetic, ethnological or anthropological
point of view.
World Heritage Convention art. 1.
2
For the purposes of this Convention, the following shall be
considered as “natural heritage”:
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 41
Nations World Heritage Convention, see Convention
Concerning the Protection of the World Cultural and Natural
Heritage, arts. 1–2, Nov. 16, 1972, 1037 U.N.T.S. 151. The
first part of this definition of “property” in Section 402—a
“district, site, building, structure, or object”—is derived
from the statutory definition of “historic property” in the
NHPA 3 that was enacted at the same time as Section 402.
See Pub. L. 96-515, §§ 402, 501, 94 Stat. 2987, 3000–01
(1980). The second part of the definition of “property” in
Section 402—items that meet the World Heritage
Convention definitions for “cultural heritage” or “natural
heritage,”—results from the enactment of Section 402 to
further “participation by the United States in the World
Heritage Convention.” 54 U.S.C. § 307101(b). The
alternative to limiting the definition of “property” in the
natural features consisting of physical and biological
formations or groups of such formations, which are of
outstanding universal value from the aesthetic or
scientific point of view;
geological and physiographical formations and
precisely delineated areas which constitute the habitat
of threatened species of animals and plants of
outstanding universal value from the point of view of
science or conservation;
natural sites or precisely delineated natural areas of
outstanding universal value from the point of view of
science, conservation or natural beauty.
World Heritage Convention art. 2.
3
“In this division, the term ‘historic property’ means any prehistoric
or historic district, site, building, structure, or object included on, or
eligible for inclusion on, the National Register, including artifacts,
records, and material remains relating to the district, site, building,
structure, or object.” 54 U.S.C. § 300308.
42 CTR. FOR BIOLOGICAL DIVERSITY V. ESPER
manner above is that all items included for protection on any
country’s equivalent of the National Register receive
protection under Section 402. See Dugong, 2005 WL
522106, at *8; Emily Monteith, Note, Lost in Translation:
Discerning the International Equivalent of the National
Register of Historic Places, 59 DePaul L. Rev. 1017, 1051
(2010). Such a broad definition would go well beyond
ensuring “participation by the United States in the World
Heritage Convention” and beyond extending NHPA-type
protection extraterritorially. 54 U.S.C. § 307101(b).
Therefore, I do not read any ambiguity over the definition of
“property” in Section 402 as exceeding the scope of property
protected by the World Heritage Convention and the NHPA,
or as delegating the definition to various foreign laws.
Applying this definition of “property” to Section 402, the
dugong is not covered. This is because both the NHPA and
the World Heritage Convention limit protection to specific
locations and to tangible, inanimate objects. In its 2005
order, the district court found that the dugong was an
“object” as the term was used in the NHPA, but this was in
error. See Dugong, 2005 WL 522106, at *9–10. Applying
noscitur a sociis, “object,” as part of a list containing
“district, site, building, [and] structure,” does not include
animals. See 54 U.S.C. § 300308. Although Department of
Interior regulations defining an “object” define it as “a
material thing,” and are not explicit that material things do
not include animals, the examples the regulation provides
are all inanimate objects. See 36 C.F.R. § 60.3(j). That the
NHPA definition of “object” excludes animals is all the
clearer considering there are no animals or wildlife listed on
CTR. FOR BIOLOGICAL DIVERSITY V. ESPER 43
the National Register of Historic Places. 4 Likewise, the
World Heritage Convention does not include animals as
eligible for inclusion on the World Heritage List as either
cultural heritage or natural heritage. See World Heritage
Convention arts. 1–2. The definition of “natural heritage”
eligible for inclusion on the World Heritage List includes
“precisely delineated areas which constitute the habitat of
threatened species of animals” but does not allow for the
protection of specific animals wherever they may be. Id.art. 2 (emphasis added).
Because Section 402’s definition of “property” does not
include animals, the district court’s decision to the contrary
misstated the law, and the Department was entitled to
judgment in its favor resulting from its 2005 motion for
summary judgment. Eventually, the district court correctly
entered judgment for the Department in 2018, after it found
the Department complied with Section 402. I would affirm
the district court’s judgment but do so on the ground that
Section 402 does not apply to the dugong as a matter of law.
4
In some instances, trees or groups of trees are listed on the National
Register, but one clear difference between a tree and an animal is that a
tree may constitute a “site,” while an animal may not.