SAN FRANCISCO / Imperiled mammal threatened by plan for Okinawa base / Court in S.F. hears activists advocate applying U.S. law
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News // Bay Area & State
Bob Egelko, Chronicle Staff Writer
Aug. 5, 2004 Updated: Jan. 25, 2012 5:31 p.m.
1of3Higashionna Takuma, center, a fisherman and boat captain from Okinawa, Japan, prepares to enter the U.S. District Court for the Northern District of California for the hearing of Okinawa Dugong v. Rumsfeld in San Francisco on Wednesday, Aug. 4, 2004. A dugong is a marine mammal related to the manatee. Higashionna is part of a delegation of Japanese residents contesting a plan by the U.S. military to build an airbase off the coast of Okinawa in a shallow bay that provides dugong feeding grounds. (AP Photo/Jeff Chiu)JEFF CHIUShow MoreShow Less
2of3Chronicle GraphicJohn BlanchardShow MoreShow Less
3of3A local fisherman watches a dugong at Yomitanson on the island of Okinawa on April 26, 2004. Japanese environmentalists urged a federal judge here Wednesday to block the U.S. military's proposed construction of a military base in Okinawa that they say could jeopardize giant ocean creatures that eat sea grass on the ocean shallows. (AP Photo/Ryukyu Shimpo) ** JAPAN OUT MANDATORY CREDIT ** Show MoreShow Less
The shy, grass-eating dugong is in peril in the waters off the Japanese island of Okinawa, where a planned U.S. Marine base threatens its habitat. Its only hope may be a U.S. law designed to preserve historic properties.
On Wednesday, environmentalists argued in a San Francisco courtroom that the federal law be applied to the dugong, a distant relative of the Florida manatee, revered by Okinawans and classified as a "natural monument" under Japanese law.
Their suit, filed last fall against the Defense Department, seeks a court order shelving plans -- at least until measures are taken to preserve the dugong -- for the relocation of the Futenma air base from central Okinawa to an offshore site alongside and atop a coral reef that plaintiffs say is the creature's chief remaining habitat.
The plaintiffs, environmental advocates from both the United States and Japan, say the U.S. courts are their only option because the Pentagon and the Japanese government have been unresponsive. The Justice Department challenges their unprecedented attempt to use the historic preservation law to protect a foreign species.
The 1966 National Historic Preservation Act requires the U.S. government to conduct an analysis, similar to an environmental impact report, before working on a project that would harm historically significant properties. The law defines those properties broadly to include subjects of cultural importance at home or abroad, the plaintiffs say.
The law "leaves it up to each nation to decide what's culturally significant," Marcello Mollo, a lawyer with Earthjustice in Oakland, told Chief U.S. District Judge Marilyn Hall Patel in a courtroom filled with supporters from Okinawa.
Other opponents of the project have occupied a beach encampment at the proposed airfield site for the past 100 days to protest preliminary undersea drilling in preparation of construction. The plaintiffs say noise from the drilling could harm the dugongs.
The Okinawan dugong, a distinct subspecies, has dwindled to about 50 in number -- a casualty, in part, of fierce battles near the end of World War II -- and could be extinguished by the impact of the Marine air base on an adjacent coral reef, environmentalists contend. The creatures, which in adulthood grow up to 111/2 feet long and weigh 800 pounds, spend their entire lives in sheltered, shallow waters.
Justice Department lawyer Charles Shockey argued that the environmentalist groups' suit should be dismissed, for two reasons: Animals aren't historic properties, and the U.S. government isn't involved in the site selection, funding or construction of the base. That is all being handled by Japan, Shockey said, and "the Japanese are very sensitive to protecting the dugong."
Patel suggested that Japan was acting on behalf of the United States, but she did not rule immediately on whether the suit could proceed. Lawyers said it was the first suit to test international application of the U.S. historic properties law.
Okinawa, 1,000 miles southwest of Tokyo at the southern edge of Japan, has been the location of many U.S. military bases since World War II that have been the focus of long-standing resentment. Protests erupted after three U.S. servicemen abducted and raped a 12-year-old girl in 1995.
Outside the courtroom Wednesday, Takamichi Sekine, a professor of policy studies at Kwansei Gakuin University in Japan who is a member of the Okinawan delegation, said the dugong has had a special meaning to Okinawa since the days of independence, when the creature's meat was ceremonially presented to the king.
Despite Shockey's assurances that Japan was sensitive to the dugong, Sekine said, "the ineffectiveness of Japanese environmental law" makes U.S. court intervention essential.
Patel, during the hearing, also questioned the effectiveness of Japanese law, saying it required Japan's government to study the environmental impact of the base but did not require it to take steps to protect the dugong.
On the other hand, the judge asked Mollo, "isn't it a little bit chauvinistic or paternalistic to impose our laws on them?"
Not really, the Earthjustice lawyer replied, because Patel would actually be "imposing our law on a U.S. agency."
Facts about dugongs / Dugong dugon (sea cows)
Maximum age: About 70 years
Length: 11 1/2 feet
-- Found in shallow, tropical waters throughout the Indo-Pacific region, the Okinawan animal is a distinct subspecies.
-- Diet consists of grazing on seagrasses in sheltered coastal waters.
-- Mothers produce one calf per litter with a gestation of 13-15 months.
Source: Great Barrier Reef Marine Park Authority, Australia
Bob Egelko
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Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.
His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.
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