by John M. Simpson.<\/p>\n
On May 6, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court\u2019s 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.\u00a0 Center for Biological Diversity v. Esper<\/em>, __ F.3d __, No. 18-16836 (9th Cir. May 6, 2020)<\/a>.\u00a0 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. \u00a7 307101(e). <\/p>\n The NHPA implements U.S. participation in the World Heritage Convention.\u00a0 Under the NHPA, before a federal agency may approve an undertaking outside the U.S. that may adversely affect a \u201cproperty\u201d listed on the World Heritage List or the applicable country\u2019s equivalent, the agency must \u201ctake into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect.\u201d\u00a0 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.\u00a0 The dugong is one of four species of the order Sirenia<\/em>, which also includes manatees.<\/p>\n The Ninth Circuit affirmed the district court, ruling that the process followed by DOD in approving the plan complied with NHPA, and the DOD\u2019s decision that the base would not adversely affect the dugong was not arbitrary and capricious under the Administrative Procedure Act.\u00a0 The latter ruling was based on substantial evidence that the presence of dugong in the area of the new base was \u201csporadic\u201d and amounted to a \u201cremnant population\u201d of less than 50 individuals.\u00a0 Slip. Op. at 27-28.<\/p>\n 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 \u201cproperty.\u201d\u00a0 The NHPA implementing regulations define \u201chistoric property,\u201d in pertinent part, as \u201cany prehistoric or historic district, site, building, structure, or object<\/em><\/strong> \u2026.\u201d\u00a0 36 C.F.R. \u00a7 800.161(1) (emphasis added).\u00a0 The district court ruled that the dugong was \u201cproperty\u201d because it fit the definition of \u201cobject\u201d which is defined as \u201ca 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.\u201d\u00a0 Id<\/em>. \u00a7 60.3(j).\u00a0 As the Ninth Circuit observed, the district found that the dugong is an \u201cobject\u201d because \u201cit was a \u2018material thing\u2019 that was \u2018movable, yet related to a specific setting or environment.\u2019\u201d\u00a0 Slip Op. at 7.\u00a0 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.\u00a0 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\u2019s failure to notice a cross-appeal.\u00a0 Id<\/em>. at 12 n.2.<\/p>\n It is a rare occasion when an activist group affirmatively argues that an animal is \u201cproperty\u201d or an \u201cobject.\u201d\u00a0 Usually it is the other way around, and the activists argue that animals are not \u201cthings\u201d or \u201cproperty,\u201d as was the case when the Animal Legal Defense Fund sought, unsuccessfully, to persuade the Ninth Circuit that a tiger is an \u201cindividual\u201d for purposed of the Freedom of Information Act (a case we reported on here<\/a>).<\/p>\n","protected":false},"excerpt":{"rendered":" by John M. Simpson. On May 6, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court\u2019s 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 … <\/p>\n