著者

関根 孝道

出版者

関西学院大学

雑誌

総合政策研究 (ISSN:1341996X)

巻号頁・発行日

vol.20, pp.165-197, 2005-09-20

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On March 2, 2005, the United States District Court Nothern District of California gave an epochmaking decision. The decision held: in light of the many similarities between the lists generated by the Japanese Law for the Protection of Cultural Properties and the U.S. National Historic Preservation Act ("NHPA"), the Japanese Law is an "equivalent of the National Register" under the NHPA within the meaning of section 470a-2 thereof; since the Okinawa dugong is protected under Japanese Law on the basis of its cultural significance to the Okinawan people, section 470a-2 of the NHPA can apply to the Okinawa dugong, an animal protected for cultural, historical reasons under a foreign country's equivalent statutory scheme for cultural preservation; while section 470a-2 applies to "any federal undertaking outside the United States", it can as a matter of law apply to the undertakings alleged by plaintiffs in that case because plaintiffs have alleged and provided evidence to show that the contested actions and decisions were undertaken by the U.S. Department of Defense and thus constitute a federal undertaking which may directly and adversely affect a property, the Okinawa dugong; since the case at issue deals with a statute, unlike the NEPA, explicitly demonstrates Congress's intent that it apply abroad where a federal undertaking promises to have direct or adverse effects on protected foreign properties, the cort must construe section 470a-2 in accordance with the statutory text-to preclude enforcement as a blanket rule based on the act of state doctrine would empty section 470 of any meaning; since the record before the court does not currently describe an "official act of a foreign sovereign perfomed within its own territory," but rather a process intertwined with U.S. Department of Defense decision-making, the court evaluates the actions of a federal agency for the act of state doctrine not being implicated. This decison is extremely significant mainly for the Okinawa dugong protection and U.S. military facilities issues here in the future.