著者

関根 孝道 堀尾 朋世 Takamichi Sekine Tomoyo Horio

雑誌

総合政策研究 (ISSN:1341996X)

巻号頁・発行日

no.39, pp.61-92, 2012-02-29

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.

著者

関根 孝道 Takamichi Sekine

雑誌

総合政策研究 (ISSN:1341996X)

巻号頁・発行日

no.35, pp.53-73, 2010-11-20

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.16, pp.11-52, 2004-05-25

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The IUCN Second World Conservation Congress in Amman, Jordan, adopted a Recommendation for the conservation of Okinawa dugongs in October 2000. This is because their critical habitat areas in Henoko offshore Okinawa are to be landfilled for the construction of U. S. seabase facilities in return for the U. S. military airport at Futenma. Since Okinawa dugongs are not only designated as one of Japan's natural monuments but also seriously endangered with the remaining number estimated at the most less than 50, the proposed seabase facilities are determinatively detrimental to the continued existence of Okinawa dugongs. Given the ineffectiveness of Japan's nature conservation laws, the last resort for their protection is to initiate a lawsuit under the U. S. environmental law in their court. This article examines the possibility of extraterritorial application of U. S. environmental laws for the protection of Okinawa dugongs with the conclusion that the National Historic Preservation Act ("NHPA") is most applicable due to the section 402's declaration of its extraterritorial application. In addition, since Okinawa dugongs are listed as an endangered species under the U. S. Endangered Species Act ("ESA"), an ESA lawsuit under its citizen suits provision is prospective and significant as a test case challenging ESA's overseas application.

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.28, pp.205-242, 2008-03

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The day of January 23, 2008, turned out to be a memorable day for Okinawa dugongs. On this day, the Judge Marilyn Hall Patel, U.S. District Court Judge Northern District of California, ruled in favor of Okinawa dugongs in the case that was brought by 3 Okinawa individual residents and 6 Japan/U.S. environmental organizations against the U.S. Department of Defense (hereinafter "DOD") for the purpose of preserving Okinawa dugongs as a Japanese national monument and their habitats in Henoko areas. The court opinion begins with a comprehensive summary of the factual background, a description of the procedural history of the case, and an explanation of the statutes under which plaintiffs bring the case, that is, the National Historic Preservation Act (hereinafter "NHPA") and the Administrative Procedures Act (hereinafter "APA"). The judge then turns to the legal arguments. The legal issues here are divided into three sections: DOD's jurisdictional arguments; applicability of the NHPA; and the merits of the plaintiffs' NHPA claim. First, as for the DOD's jurisdictional arguments, they consist of five distinctive assertions; (1) final agency action, (2) standing, (3) ripeness, (4) act of state, (5) necessary and indispensable party. The judge addresses each of the five arguments that DOD presents for barring the court's review and strikes down all of them with detailed persuasive reasons. Secondly, regarding the applicability of the NHPA to the case, the NHPA imposes on DOD the obligation to "take into account" under sec.402 of the statute. This DOD's obligation is triggered when and where there is a federal undertaking outside the U.S., which may directly and adversely affect a property on the applicable country's equivalent of the National Register. These are issues of first impression for the courts in the context of extraterritorial provision of sec.402. Having decided in support of plaintiffs' arguments with regard to these legal issues, the court concluded that the NHPA is applicable to this case. Finally, the judge examines whether DOD has complied with its obligation under the NHPA to "take into account" the impacts on the dugongs. According to the court, the "take into account" process, at a minimum, must include (1) identification of protected property, (2) generation, collection, consideration, and weighing of information pertaining to how the undertaking will affect the historic property, (3) a determination as to whether there will be adverse effects or not adverse effects, and (4) if necessary, development and evaluation of alternatives or modifications to the undertaking that could avoid or mitigate the adverse effects. As a conclusion, the judge holds: "In sum, the current record reflects a failure by the DOD to comply with NHPA section 402. This failure constitutes agency action that is unreasonably delayed and unlawfully withheld as provided by the APA. Defendants have failed to produce, gather, and consider information necessary for taking into account the effects of the Futenma Replacement Facilities on the Okinawa dugong and for determining whether mitigation or avoidance measures are necessary and possible." Therefore, the court's "CONCLUSION", on the last page of its judgment is as follows: 1. Defendants have failed to comply with the requirements of the NHPA section 402, 16 U.S.C. sec.470a-2, and this failure to comply is agency action that is unreasonably delayed and unlawfully withheld, 5 U.S.C. sec. 706 (1). 2. Defendants are ordered to comply with NHPA section 402 and this case is held in abeyance until the information necessary for evaluating the effects of the FRF on the dugong is generated, and until defendants take the information into account for the purpose of avoiding or mitigate adverse effects to the dugong. 3. Defendants are ordered, within ninety (90) days of the date of this order, to submit to the court documentation describing what additional information is necessary to evaluate the impacts of the FRF on the dugong; from what sources, including relevant individuals, organizations, and government agencies, the information will be derived; what is currently known or anticipated regarding the nature and scope of Japan's environmental assessment and whether that assessment will be sufficient for meeting defendants' obligations under the NHPA; and identifying the DOD officials with authorization and responsibility for reviewing and considering the information for purposes of mitigation. 4. If plaintiffs desire to respond to this submission, they shall file their response within forty-five (45) days of the defendants' filing. At the end of this summary, it is worth noting the following warning which the court dared to make clear: "Satisfaction of defendants' obligation under section 402, therefore cannot be postponed until the eve of construction when defendants have made irreversible commitments making additional review futile or consideration of alternatives impossible." This is exactly why the NHPA requires the take into account process "prior to approval of an undertaking," at the time early in the planning stages of a federal undertaking when there is still a meaningful opportunity to consider adverse impact and mitigation measures.

著者

関根 孝道 Takamichi Sekine

雑誌

総合政策研究 (ISSN:1341996X)

巻号頁・発行日

no.20, pp.165-197, 2005-09-20

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.117-156, 2005-09-20

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The Amami lawsuit for "the rights of nature" was filed in 1995 at Kagoshima District Court. Since Amami's black rabbit population and other 3 birds' species were named as co-plaintiffs together with humanbeings, the case was so well-publicized that the notion of rights of nature has come to attract a wide range of public attention. In societies where the proposition that nature should have its own rights is often seriously advocated, co-existence between humanbeings and nature is more vigorously sought for the sake of nature. Although the part of complaint in which the animals' species are designated as co-plaintiffs was ordered to delete and the case itself was dismissed for the lack of standing, the court decision implied the defect of the modern civil law's dichotomy that only humanbeings were allowed to enjoy the status of right-holders. Also the court shared the view that such a legal system as enabled those who were acquainted with the nature and motivated for its protection to file a lawsuit for the environment need to be contemplated given the seriousness of environmental destruction in this century. This article points out the court decision's significance together with its limitations as well. First, the case's factual settings are introduced and analyzed. Secondly, the plaintiff's assertions are examined according to the decision's summary of assertions in contrast with the complaint and other legal briefs submitted. Then the court' judgement are explained and commented with the emphasis on environmental standing issues. Finally, this article raises the queries with regard to the right of nature and pinpoints the unsolved legal issues that the decision left for us as a homework.

著者

関根 孝道 若狭 健作 綱本 武雄 大隅 要 高田 幸治 有田 泰子 中橋 文夫 北尾 進 片寄 俊秀

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.25, pp.105-123, 2007-03