Court in SF reinstates environmental suit against US military base

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.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko