by John M. Simpson.
On May 6, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment to the government in a case brought by the Center for Biological Diversity and other plaintiffs to challenge a decision by the Department of Defense (DOD) approving a plan to construct a replacement aircraft base in Okinawa, Japan, for the U.S. Marine Corps. Center for Biological Diversity v. Esper, __ F.3d __, No. 18-16836 (9th Cir. May 6, 2020). In this case, which had originated in 2003, the issue was whether DOD had complied with section 402 of the National Historic Preservation Act (NHPA), 54 U.S.C. § 307101(e).
The NHPA implements U.S. participation in the World Heritage Convention. Under the NHPA, before a federal agency may approve an undertaking outside the U.S. that may adversely affect a “property” listed on the World Heritage List or the applicable country’s equivalent, the agency must “take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect.” Plaintiffs argued that DOD had not properly taken into account the potential effect that the new base would have on the dugong, a species of marine mammal that is listed as endangered under U.S. law. The dugong is one of four species of the order Sirenia, which also includes manatees.
The Ninth Circuit affirmed the district court, ruling that the process followed by DOD in approving the plan complied with NHPA, and the DOD’s decision that the base would not adversely affect the dugong was not arbitrary and capricious under the Administrative Procedure Act. The latter ruling was based on substantial evidence that the presence of dugong in the area of the new base was “sporadic” and amounted to a “remnant population” of less than 50 individuals. Slip. Op. at 27-28.
What is interesting about this case from an animal law standpoint is that, for the NHPA to even apply, the plaintiffs had to demonstrate that the dugong was “property.” The NHPA implementing regulations define “historic property,” in pertinent part, as “any prehistoric or historic district, site, building, structure, or object ….” 36 C.F.R. § 800.161(1) (emphasis added). The district court ruled that the dugong was “property” because it fit the definition of “object” which is defined 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.” Id. § 60.3(j). As the Ninth Circuit observed, the district found that the dugong is an “object” because “it was a ‘material thing’ that was ‘movable, yet related to a specific setting or environment.’” Slip Op. at 7. The district court reached this result because the plaintiffs had argued, in the alternative, that the dugong was eligible for inclusion on the U.S. National Register. The government had actually opposed this argument in the district court, but was unable to raise the issue on appeal, because the appellate panel determined that it had been waived due to the government’s failure to notice a cross-appeal. Id. at 12 n.2.
It is a rare occasion when an activist group affirmatively argues that an animal is “property” or an “object.” Usually it is the other way around, and the activists argue that animals are not “things” or “property,” as was the case when the Animal Legal Defense Fund sought, unsuccessfully, to persuade the Ninth Circuit that a tiger is an “individual” for purposed of the Freedom of Information Act (a case we reported on here).