Using the National Historic Preservation Act to Protect Iconic Species

Hastings Environmental Law Journal

Volume 12 Number 2 Spring 2006 Article 5

1-1-2006

The Cultural Significance of Wildlife: Using the National Historic Preservation Act to Protect Iconic Species

Ingrid Brostrom

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Recommended Citation Ingrid Brostrom, The Cultural Significance of Wildlife: Using the National Historic Preservation Act to Protect Iconic Species, 12 Hastings West Northwest J. of Envtl. L. & Pol'y 147 (2006) Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol12/iss2/5

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I have raised my children from the gifts from this sea. It’s our mission to pass this treasure to our offspring.1 - Oba San, 92-year-old Okinawan protestor The Cultural Significance of Wildlife: Using the National Historic I. Introduction Preservation Act to Protect Iconic Species Whether it be the emblematic bald eagle flying majestically overhead or the spawning salmon winding its way upstream, certain animals represent the By Ingrid Brostrom* cultural backbone of a people and bring meaning to the human world around them. A community can survive without these species but its unique cultural identity may not. While every species has biological and ecological value, some deserve extra protection for the significance they derive from the human populations around them. This note examines the cultural significance of wildlife and how the National Historic Preservation Act (NHPA or “Act”) can be used to protect culturally signifi-

* The author received her B.A. from U.C. Santa Cruz and is currently a J.D. Candidate at U.C. Hastings College of the Law. The author would like to thank Brent Plater and Peter Galvin at the Center for Biological Diversity for their dedication to preserving our natural heritage and for providing the inspiration for this note. I would also like to thank Marcello Mollo for providing me with documents and information used throughout this note and especially for all his work to preserve the Okinawa dugong. Finally, I would like to acknowledge and commend the countless individuals and community groups in Okinawa who have rallied so effectively for the preservation the Okinawa dugong in the face of numerous hardships and seemingly powerful adversaries.

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 cant species. This paper presents the cur- II. Background rent battle of the Okinawan people to protect one of their national icons—the A. Okinawa Dugong v. Rumsfeld dugong, an animal that has shaped the According to legend, dugongs3 mythology and history of their small fooled desperately lonely sailors into mis- island for centuries. Section II (A) dis- taking them for mermaids.4 Today, in cusses the general evolution of cultural Okinawa, these huge relatives of the man- laws which have steadily become more atee are themselves in danger of disap- inclusive and prevalent as people and pearing into mythology. In fact, Okinawa’s governments come to appreciate the dugong population is teetering on the value of cultural identity and heritage. brink of extinction, confined to a single Next, section II (B) examines the cultural bay off the east coast of the island. importance of wildlife in general and why Residents throughout northeast certain animal species should be protect- Okinawa,5 led by local village elders, are ed under cultural preservation laws engaged in an intense battle to protect because of their specific contributions to this only remaining natural dugong habi- the cultural heritage of many traditional tat in Japanese waters from becoming the societies. The next two sections describe latest U.S. military airbase, complete with in more detail the policy and procedures floating helipad. The villagers have of the National Historic Preservation Act organized a protracted sit-in at the site of and how it can be applied to protect the proposed military base, which has wildlife in the United States. The second slowed construction since April 19, 2004.6 half of the note applies this reasoning to Once preliminary seabed drilling began in 2 Okinawa Dugong v. Rumsfeld and concludes December 2004, the villagers further that the U.S. failed to meet its obligations attempted to stall the construction by under the NHPA with regard to the canoeing out to the drilling sites daily to Okinawa dugong. The last section explores protest the destruction of coral habitat. A the ramifications and potential usefulness 70-year-old protester, who recently of the NHPA both in the U.S. and abroad by learned to paddle a canoe as part of her discussing the applicability of the court’s effort in the protest, said that it had “been ruling in Okinawa Dugong v. Rumsfeld to other a life-threatening experience for me but I culturally significant species. am not going to quit it. If I cannot stop

1. ENVIRONMENTAL ASSESSMENT WATCH GROUP FOR ong_dugon/more_info.html (last visited Mar. 28, THE DUGONGS IN OKINAWA, LET THE SEA STAIN OUR 2006); see also Dennis Pfaff, ‘Historic’ Act May Keep Sea HEARTS (June 16, 2004). Creature From Being History, THE DAILY JOURNAL, Apr. 8, 2. Okinawa Dugong v. Rumsfeld, No. C 03-4350, 2004, available at http://www.mongabay.com/exter- 2005 U.S. Dist. Lexis 3123 (N.D. Cal. Mar. 1, 2005). nal/okinawa_dugong.htm (last visited Mar. 20, 2006). 3. The dugong (Dugong dugon) is a large sea- mammal distantly related to the manatee. 5. Okinawa is an island 1,000 miles southwest of Tokyo, at the southern edge of Japan. 4. It is theorized that the dugong’s mammary glands which are reminiscent of human breasts 6. Environment News Service, Reef Experts may have caused sailors to mistake them for mer- Object to U.S. Military Heliport off Okinawa, July 9, maids or sirens. ARKive: Images of Life on Earth, 2004, available at http://www.ens- Dugong Facts, newswire.com/ens/jul2004/2004-07-09- http://www.arkive.org/species/GES/mammals/Dug 09.asp#anchor3 (last visited Mar. 20, 2006).

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST them from making a new military base, While the protestors may have a diffi- what’s the meaning of my life?”7 That cult time beating elephants as large as the same month, a 64-year-old Okinawan U.S. and Japanese governments when it woman began a hunger strike, vowing to comes to sheer power, they hope to gain starve herself until Tokyo stopped boring an advantage with a strategic maneuver holes into the seabed.8 She told reporters that, in late 2003, moved the battle from that “before the vast power of the nation- the home front in Japan to the jurisdiction al government, our struggle is like a war of of the U.S. courts. A number of conserva- ants against a huge elephant,” but tion organizations from both the U.S. and declared she would do all she could as Japan, along with several individual long as her strength held up.9 To these Japanese citizens, filed suit in the villagers, the fight is not only about saving Northern District of California alleging a unique and rare species. It is about pro- that the U.S. government failed to comply tecting their way of life and preserving a with the NHPA by neglecting to take into cultural icon that has become a fixture of account the presence of the dugong Okinawan tradition over hundreds of before beginning construction on the new years. base.12 The Act specifically mandates that the U.S. consider the effect of any The battle between the villagers of international undertaking that may Okinawa and the Japanese and U.S. gov- adversely affect a property which is on the ernments stems from a 1995 agreement applicable country’s equivalent of the between the two governments to replace National Register of Historic Places13 10 the existing Futenma U.S. military base (“National Register”) for the purposes of with a sea-based facility off the east coast avoiding or mitigating any adverse 11 of Okinawa. In 2002, the two govern- affects.14 The dugong is a protected mon- ments agreed on Henoko Bay as the most ument under the Japanese Register of suitable location for the base. Henoko Cultural properties, a designation which Bay lies atop a fragile coral reef ecosystem serves to protect historic and cultural arti- and sea grass beds that serve as a critical facts and properties, much in the same way feeding ground for the small and isolated as the National Register does in the U.S. group of dugong that remain in Japan.

7. Chiyomi Sumida, Okinawan Begins Hunger 11. The Ministry of Foreign Affairs of Japan, Strike to Protest Plans for New Base, STARS AND STRIPES, The SACO Final Report on Futenma Air Station (an inte- Dec. 7, 2004, available at http://www.estripes.com/ gral part of the SACO Final Report), available at article.asp?section=104&article=24987&archive=tr http://www.mofa.go.jp/region/n-america/us/securi- ue (last visited Mar. 20, 2006). ty/96saco2.html (last visited Mar. 20, 2006). 8. Id. 12. See Okinawa Dugong v. Rumsfeld, No. C 03- 9. Id. 4350, 2005 U.S. Dist. Lexis 3123 (N.D. Cal. Mar. 1, 2005). 10. Futenma Air Station, home base for Marine Air Group 36, is one of the preeminent 13. The National Register is a list of historic Marine Corps air stations in Japan, located in the properties composed of districts, sites, buildings, center of Ginowen City. See Military Base Affairs structures, and objects significant in American his- Office, U.S. Military Issues in Okinawa 26 (2004), avail- tory, architecture, archeology, engineering, and able at http://www3.pref.okinawa.jp/site/contents/ culture. See 16 U.S.C. § 470a(a)(1)(A) (2000). attach/7005/pamphlet(English).pdf (last visited 14. 16 U.S.C. § 470a-2 (2000). Mar. 21, 2006).

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 B. Cultural Preservation in Law right to practice and revitalize their cultural traditions and cus- Culture serves to connect one gener- toms. This includes the right to ation to another and has an inherent maintain, protect and develop capacity to mold and reinforce our identi- the past, present and future 15 ties as social creatures. But as bound- manifestations of their cultures, aries between traditional and modern such as archaeological and his- societies have gradually faded away, many torical sites, artifacts, designs, communities are pressured to abandon ceremonies, technologies and their long-established traditions in favor visual and performing arts and of new, trendier lifestyles. Even the most literature.17 tucked away and forgotten societies have faced the encroachment of modern and Article 25 further provides that: westernized values. Faced with a pressing need to protect the heritage and identity Indigenous peoples have the of all communities, governments have right to maintain and strengthen recognized their role in protecting tradi- their distinctive spiritual and tions by adopting a series of international material relationship with the and domestic obligations and laws to pre- lands, territories, waters and serve and revitalize culture. coastal seas and other resources which they have traditionally “Culture” has been defined as “the owned or otherwise occupied or traditions, beliefs, practices, lifeways, arts, used, and to uphold their crafts, and social institutions of any com- responsibilities to future gener- munity, be it an Indian tribe, a local ethnic ations in this regard.18 group, or the people of the nation as a whole.”16 The international community International environmental treaties has acknowledged that cultural identity is have also contemplated the special role a fundamental human right, integrating it the natural environment plays in many into human rights laws. The Draft United traditional societies. The Convention on Nations Declaration on the Rights of Biological Diversity includes a provision Indigenous Peoples includes several pro- that mandates that each party to the visions on the preservation of cultural her- treaty respect and preserve indigenous itage. Article 12 recognizes that: traditional knowledge within the framework of their national legislation.19 Indigenous peoples have the

15. NAT’L PARK SERV., A.1. NPS-28: CULTURAL Sub-Comm. on Prevention of Discrimination & RESOURCE MANAGEMENT GUIDELINE (June 11, 1998) Prot. of Minorities, Report of the Sub-Commission on the [hereinafter NPS-28]. Prevention of Discrimination and the Protection of 16. See Patricia L. Parker and Thomas King, Minorities, 46th Sess., Annex., at 115, U.N. Doc. Nat’l Park Serv., Guidelines for Evaluating and E/CN.4/2 (1995), E/CN.4/Sub.2/56 (1994). Documenting Traditional Cultural Properties, 1 National 18. Id. at art. 25. See also arts. 13, 14 (protect- Register Bulletin 38, available at http:// ing cultural heritage). www.cr.nps.gov/nr/publications/bulletins/nrb38/ 19. United Nations Conference on (last visited Mar. 20, 2006) [hereinafter National Environment and Development, Convention on Register Bulletin 38]; see also NPS-28, supra note 15. Biological Diversity, Rio de Janeiro, June 5, 1992, 17. U.N. Econ. & Soc. Council [ECOSOC], art. 8(j), 31 I.L.M. 818 (1992). The U.S. has signed

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST While the U.S. is not bound by either ditional beliefs. Throughout history, cul- of these agreements, they are party to the tures have evolved with the environment UNESCO World Heritage Convention around them, making associations with which stipulates that those resources they depend on most. For example, the nomadic Moken people To ensure that effective and of Myanmar value the turtle not only as a active measures are taken for the food staple but a symbol of the female protection, conservation and spirit in rituals and practices.22 The turtle presentation of the cultural and is sanctified in the community’s most natural heritage situated on its sacred rituals, such as when a shaman territory, each State Party to this tastes the head, blood, and flippers of a Convention shall endeavor, in so fresh turtle before asking favors from his far as possible, and as appropri- ancestors and translating their replies for ate for each country: the community.23 When a Moken har- a. to adopt a general policy poons a turtle, it is a sign that he will soon 24 which aims to give the cultur- marry a woman. If the turtle were to al and natural heritage a func- become extinct, so too would many of the tion in the life of the commu- unique traditions and rituals of the Moken nity and to integrate the pro- belief system. tection of that heritage into Closer to home, animals have taken comprehensive planning pro- on a special significance for many Native 20 grammes. American cultures. According to Iroquois The U.S. satisfies its responsibility mythology, the land now known as North under the UNESCO World Heritage America was formed Convention through its implementation of when the Sky-Woman fell the NHPA, which is discussed in detail below. through a hole in the sky. At that C. The Cultural Significance of Wildlife time, the earth was covered with water. The creatures living in the When most people think of iconic water looked up and saw her species, the first thing that comes to mind falling and realized that they is the bald eagle, a symbol of the needed to make a place for her strength and freedom of America.21 to land. The great turtle offered Often, however, the significance of cer- his back. The duck said that tain species transcends mere symbolism there must be earth on turtle’s to embody deeply held religious and tra- back, and dove to the bottom but not yet ratified this treaty. of the United States, http://www.homeofheroes.com/ 20. U.N. Educational, Scientific and Cultural hallofheroes/1st_floor/flag/1bfc_eagle.html (last Organization, World Heritage Comm., 27th Sess., visited Mar. 20, 2006). Convention Concerning the Protection of the World Cultural 22. Jacques Ivanoff, Sea Gypsies of Myanmar, and Natural Heritage: Decisions Adopted by the 27th Sess., NATIONAL GEOGRAPHIC, April 2005, at 49. art. 5 U.N. Doc. WHC-03/27.COM/24 (Dec. 10, 23. Id. 2003), available at http://whc.unesco.org/ archive/decrec03.htm (last visited Apr. 2, 2006). 24. Id. 21. Home of Heroes.com, The Bald Eagle Symbol

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 but could not dive deep enough. not been disrupted by human activity— Loon and beaver both tried, but those places where the web of life flour- they could not reach the bottom ishes unscathed.27 From eagles to wolves either. Finally, muskrat was able and salmon to buffalo, particular species to reach the bottom and bring have heightened spiritual and cultural back a small piece of earth, status in Native American societies. which, when he placed it on tur- These and other species are valued not tle’s back, grew larger until it only for their ecological importance but became the whole world. A pair are critical to the cultural survival of many of swans flew up to catch Sky- traditional lifestyles by providing subsis- Woman and set her down gently tence, spiritual healing, religious symbol- on the earth on turtle’s back.25 ism and ceremonial artifacts.28 For the Gwitchen Indians of Canada and Alaska, That the tribe attributes the creation the survival of a caribou herd is essential of North America to the benevolence of to their culture and way of life. Sarah animals is typical of how many indige- James, a Gwitchen leader in Arctic Village, nous cultures view the interrelationship Alaska, explains that “the caribou is not between animals and humans as being just what we eat; it’s who we are. It is in harmonious rather than contentious, and our dances, stories, songs, and the whole integral rather than separate. According way we see the world.”29 to Ronald Trosper, Director of the National Indian Policy Center at George Difficulties arise when agencies, act- Washington University, many indigenous ing pursuant to U.S. laws and regulations, cultures of North America have fail to take into account traditional world- views in deciding which animal species a perception of the earth as an deserve protection. Some populations of animate being; a belief that animals that are not threatened or endan- humans are in a kinship system gered may still be of critical importance to with other living things; a per- the survival of traditional beliefs and prac- ception of the land as essential tices. If a species is valued not for its eco- to the identity of the people; a logical role, but for its significance to a concept of reciprocity and bal- human population, environmental laws ance that extends to relation- such as the Endangered Species Act (ESA) ships among humans, including will be insufficient to protect it. future generations, and between Indigenous communities have criticized 26 humans and the natural world. the ESA for its failure to address tribal For many indigenous cultures, the issues or recognize an ecosystem most sacred places are those that have approach that would acknowledge the

25. Dean B. Suagee, The Cultural Heritage of CULTURE & RES. J. 65, 67 (1995)). American Indian Tribes and the Preservation of Biological 27. Suagee, supra note 25, at 487. Diversity, 31 ARIZ. ST. L.J. 483, 485 (1999) (citing JOSEPH BRUCHAC, IROQUOIS STORIES: HEROES AND 28. Id. HEROINES, MONSTERS AND MAGIC 15-17 (1985)). 29. Canadian Embassy, Arctic National Wildlife 26. Id. at 488 (citing Ronald Trosper, Traditional Refuge: Protecting a Traditional Way of Life, American Indian Economic Policy, 19 AM. INDIAN http://www.canadianembassy.org/environment/gwi tchin-en.asp (last visited Mar. 21, 2006).

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST relationship between different life- Cultural and Natural Heritage (“World forms.30 A more appropriate legal tool to Heritage Convention”), Congress enacted protect culturally significant animals is section 402 of the NHPA to mitigate the National Historic Preservation Act, adverse affects to cultural artifacts stem- which serves to protect historic and cul- ming from federal undertakings outside turally significant resources and proper- the U.S. Section 402a-2 provides: ties. The NHPA, recognizing that “the historical and cultural foundations of the [p]rior to the approval of any Nation should be preserved as a living Federal undertaking outside the part of our community life and develop- United States which may directly ment in order to give a sense of orienta- and adversely affect a property tion to the American people,”31 provides a which is on the World Heritage mechanism to protect iconic and cultural- List or on the applicable coun- ly significant species. try’s equivalent of the National Register, the head of a Federal D. NHPA Policy and Procedure agency having direct or indirect jurisdiction over such undertak- Congress enacted the NHPA in 1966 to ing shall take into account the establish “the policy of the Federal effect of the undertaking on such Government . . . [to] provide leadership in property for purposes of avoid- the preservation of the prehistoric and his- ing or mitigating any adverse toric resources of the U.S. and of the inter- effects.36 national community of nations.”32 The NHPA creates a process similar to that used The Secretary of the Interior in 1998 in the National Environmental Policy Act of developed guidelines to help agencies 1969,33 whereby federal agencies must con- conform to section 402a-2. While not sider the effect on any property listed on binding on agencies, the guidelines the National Register of Historic Places explain that “efforts to identify and con- before they authorize or fund a project.34 sider effects on historic properties in The statute grants the Secretary of the other countries should be carried out in Interior the authority to maintain a consultation with the host country’s his- National Register “composed of districts, toric preservation authorities, with affect- sites, buildings, structures, and objects sig- ed communities and groups, and with rel- nificant in American history, architecture, evant professional organizations.”37 archeology, engineering, and culture.”35 Thus, using similar procedures as for domestic projects, agencies are obligated In 1980, in order to implement U.S. to consider adverse effects and instructed obligations under the Convention to consult with foreign bodies before Concerning the Protection of the World undertaking any international action.

30. Suagee, supra note 25, at 515. 35. 16 U.S.C. § 470a(a)(1)(A) (2000). 31. 16 U.S.C. § 470b-2 (2000). 36. Id. § 470a-2. 32. Id. § 470-1(2). 37. The Secretary of the Interior’s Standards 33. 42 U.S.C. §§ 4321-4347 (2000). and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National 34. GEORGE CAMERON COGGINS, ET AL., FEDERAL Historic Preservation Act, 63 Fed. Reg. 20,496, PUBLIC LAND AND RESOURCES LAW 1052 (5th ed. 2002). 20,504 (April 24, 1998).

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 E. Using NHPA to Protect Wildlife the statute precludes the listing of any animal species (even those with special Though NHPA provides that “proper- cultural significance) on the National ties of traditional religious and cultural Register. The Act is designed and written importance to an indigenous group may to protect and preserve specific categories be determined to be eligible for inclusion of historic property. Regulations imple- 38 in the National Register,” cultural prop- menting NHPA define historic property as erties were rarely protected prior to the “any prehistoric or historic district, site, 1980s. During these early years, the dom- building, structure, or object included in, inant federal agency view of the role of the or eligible for inclusion in, the National NHPA as protecting only those properties Register of Historic Places maintained by impressive to academics and profession- the Secretary of the Interior.”42 The basic als gave rise to an elitist pattern of pro- criteria used to determine whether or not tection. This agency interpretation was a specific property is eligible for inclusion fundamentally at odds with the NHPA’s on the National Register is whether: mandate to preserve the “cultural foundations of the Nation” in order to “give a The quality of significance in sense of orientation to the American peo- American history, architecture, ple.”39 The National Park Service (NPS) archeology, engineering, and and the Advisory Council on Historic culture is present in districts, Preservation (ACHP) became increasingly sites, buildings, structures, and concerned that places of traditional cul- objects that possess integrity of tural importance were being inappropri- location, design, setting, materi- ately regarded as ineligible for the als, workmanship, feeling, and National Register because they were not association, and: of historical interest to professional archeologists, historians, and architectur- A. that are associated with al historians.40 To address this concern, events that have made a signifi- the agencies drafted National Register cant contribution to the broad Bulletin 38 (“Bulletin 38”) in 1990 to patterns of our history; or define traditional cultural properties and B. that are associated with the to clarify that “wholly natural places can lives of significant persons in be found eligible for the National Register our past; or if they are ascribed cultural significance by living communities based on tradition- C. that embody the distinctive al beliefs.”41 characteristics of a type, period, or method of construction, or Even though traditional cultural that represent a significant and properties are increasingly being protect- distinguishable entity whose ed under the NHPA, the plain language of

38. 16 U.S.C. § 470a(d)(6)(A) (2000). See also 36 [hereinafter King Declaration] (emphasis added). C.F.R. § 800.1 (2006). 40. Id. 39. Declaration of Thomas F. King, Ph.D In 41. Id. ¶ 10 (citing National Register Bulletin Support of Plaintiffs’ Opposition to Defendants’ 38, supra note 16, at 2, 14). Motion to Dismiss at ¶ 9, Okinawa Dugong v. Rumsfeld, No. C-03-4350 (N.D. Cal. Aug. 4, 2004) 42. 36 C.F.R. § 800.16(l)(1) (2006).

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST components may lack individual species’ habitat, though not the animal distinction; or itself, can be protected by the NHPA. Some authority indicates that this is D. that may have yielded, or indeed the case, as Bulletin 38 directs may be likely to yield, informa- agencies to evaluate all attributes that tion important in history or pre- give a site its significance, even those that 43 history. are intangible, in determining their eligi- 47 The National Register is not an bility for the National Register. appropriate place to list purely intangible This interpretation fits easily within cultural resources or those that have no the framework of the regulatory language. 44 property referents. By its plain lan- A culturally significant natural landscape guage, the statute appears to preclude or the specific location where significant any listing of animals because wildlife are traditional events, activities, or cultural not “districts,” “buildings” or “structures.” observances have taken place may be Even if animals are classified as “objects,” classified as a “site,” even if no structures they still do not possess “integrity of loca- are in place. Bulletin 38 explicitly states tion.” Finally, wild animals are generally that natural objects that are untouched by 45 not regarded as historic property. human hands, such as trees or a rock out- Although animal species cannot be crop, may be eligible if they are associat- 48 listed on the National Register, their pro- ed with significant tradition or use. tection is not precluded by the statute. The intent of regulating agencies to The cultural significance of a historic include wildlife in the analysis of historic property is derived from the role the prop- properties is evident in Preservation Brief erty plays in a community’s historically 36.49 The Preservation Brief, which 46 rooted beliefs, customs, and practices. describes the step-by-step process for The land on which specific animal species preserving historic and vernacular land- are found may be valued by traditional scapes, defines cultural landscape as “a societies because of the presence of cul- geographic area, including both cultural turally significant wildlife. Therefore, a

43. National Register Criteria for Evaluation, what the National Register calls “contributing” and 36 C.F.R. 60.4 (2006), available at often “non-contributing” elements. The plants and http://www.cr.nps.gov/nr/publications/bulletins/nr animals within a natural cultural property usually b15/nrb15_2.htm. contribute to its significance. U.S. Dep’t of the 44. Id. at sec. IV. Interior, How to Complete the National Registration Form, Nat’l Register Bulletin 16a 45. See Christy v. Hodel, 857 F.2d 1324, 1335 (9th (1997) at Section III, available at Cir. 1988) (explaining that the federal government http://www.cr.nps.gov/nr/publications/bulletins/nr does not “own” wild animals). But see Okinawa b16a/nrb16a_III.htm (last visited Apr. 4, 2006). Dugong v. Rumsfeld, No. C 03-4350, 2005 U.S. Dist. LEXIS 3123, at *35 (N.D. Cal. Mar. 1, 2005) 48. National Register Bulletin 38, supra note (“Whether the government owns the property is 16, Determining Eligibility Step by Step. irrelevant to a determination of eligibility for the 49. CHARLES A. BIRNBAUM, NATIONAL PARK SERVICE, National Register.”). TECHNICAL PRESERVATION BRIEF 36: PROTECTING CULTURAL 46. National Register Bulletin 38, supra note LANDSCAPES: PLANNING, TREATMENT, AND MANAGEMENT OF 16, Introduction. HISTORIC LANDSCAPES 2 (1994) (emphasis added), available at http://www.cr.nps.gov/hps/TPS/briefs/ 47. Id. Every historic property is made up of brief36.htm (last visited Apr. 11, 2006).

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 and natural resources and the wildlife or nificance and therefore are regarded as domestic animals therein, associated with a eligible for the National Register include: historic event, activity, or person or exhibiting other cultural or aesthetic val- * The Mattaponi River in Virginia ues.”50 It describes the ethnographic . . . , regarded as eligible by the landscape as U.S. Army Corps of Engineers in part because of the cultural a landscape containing a variety importance of the shad fisheries of natural and cultural resources to the Mattaponi and Pamunkey that associated people define as Tribes. heritage resources. Examples are contemporary settlements, reli- * The Mushgigagamongsebe his- gious sacred sites and massive toric district in Wisconsin, geological structures. Small regarded as eligible by the Corps plant communities, animals, sub- of Engineers as one of the last sistence and ceremonial grounds places the Mole Lake Sokaogon are often components.51 Community of Great Lakes Ojibwe can carry out their tradi- The presence of culturally significant tional hunting and gathering. animals has been the basis of many listings and determinations of eligibility for * Mauna Kea in Hawaii, where the National Register, including several the weikiu bug, an insect that animal habitats important in Native lives at the mountain’s summit, American tribal histories.52 The National is regarded by Native Hawaiians Register includes three wildlife refuges: as a spiritually significant crea- the Lower Klamath Wildlife Refuge, the ture and contributes to the 55 Lake Merritt Wild Duck Refuge, and the mountain’s cultural importance. 53 Pelican Island Wildlife Refuge. Other Finally, while no animals are listed sites “such as Devil’s Tower in Montana on the UNESCO World Heritage List, sev- [sic] and Massacre Canyon in Nebraska eral natural areas are included because are listed based on cultural traditions and they provide marine mammal habitat or events associated with animals living at breeding grounds. In fact, Shark Bay of 54 the site.” Western Australia and the Great Barrier Other examples of natural places Reef of Australia are included, in part, 56 where animals contribute to cultural sig- because of their dugong populations.

50. Id. (emphasis added). Resources Name” hyperlink; then enter “wildlife 51. Id. (emphasis added). refuge” in search field and select “Execute”) (last visited Apr. 11, 2006). 52. Okinawa Dugong v. Rumsfeld, No. C 03-4350, 2005 U.S. Dist. Lexis 3123, at *24 (N.D. Cal. Mar. 1, 55. King Declaration, supra note 39, ¶ 35. 2005). See also King Declaration, supra note 39, ¶¶ 56. Okinawa Dugong, 2005 U.S. Dist. LEXIS 12, 34-35. 3123, at *26 n.4. See also World Heritage Sites, 53. Okinawa Dugong, 2005 U.S. Dist. LEXIS Shark Bay, http://www.wcmc.org.uk/protected_ 3123, at *36 n.6. areas/data/wh/sharkbay.html; World Heritage Site; Great Barrier Reef World Heritage Area, 54. Id. See also Nat’l Park Serv., National http://www.wcmc.org.uk/protected_areas/data/wh/ Register Information System, http:// gbrmp.html (last visited April 1, 2006). www.nr.nps.gov/nrname1.htm (follow “Nationwide

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST III. Applying the NHPA to Dugong v. scale by the World Conservation Union Rumsfeld (IUCN), are highly vulnerable to anthro- pogenic influences because of their According to a 2002 United Nations dependence on sea grasses that are Environment Programme report, the con- restricted to coastal habitats often under struction of a military base near Henoko pressure from human activities.60 could “destroy some of the most impor- Because the dugong delay breeding when tant remaining dugong habitat in Japan,” there is a short supply of sea grass, habi- with “potentially serious” repercussions tat conservation is a critical issue in pro- 57 for such a small population. The report tecting the species.61 While the dugong’s predicts that “unless measures are under- range spans 37 countries and territories taken to protect dugongs in the Okinawan from East Africa to Vanuatu, the animal is region they will soon be extinct in believed to be represented by relict popu- 58 Japanese waters.” lations separated by large areas where its As the seabed drilling in Henoko Bay numbers have been greatly reduced or 62 continues, and the protests of the where it has already been extirpated. Okinawan community go unheeded, the The waters surrounding the Japanese legal challenge to the military base is per- Island of Okinawa are home to some of haps the last resort to preserve the the few remaining Okinawa dugong, a Okinawan dugong and everything it rare, genetically isolated and unique 63 stands for in Okinawan culture. member of the dugong species. The Okinawan waters form the creature’s A. The Cultural Significance of the northernmost range, where it is believed Okinawan Dugong that only about fifty dugong remain.64 The dugong (dugong dugon) is a large Dugongs are deeply significant to sea mammal distantly related to the man- Okinawan culture and have been for cen- atee and the extinct Steller’s sea cow.59 turies.65 Archeological excavations of The slow-moving shy giants grow up to 11 Okinawa have uncovered dugong bones and a half feet long and can weigh as dating from before the 15th century.66 As much as 800 pounds. The creatures, list- early as 1919, it is thought that the ed as vulnerable to extinction on a global dugong was designated as a “Natural

57. U.N. Environment Programme (UNEP), border only 10 percent of the Okinawan coastline). Dugong Status Report and Action Plans for Countries and 62. Id. Territories, 42-43, U.N. Doc. UNEP/DEWA/RS.02-1 (2002) [hereinafter Dugong Status Report], available 63. See id. at 41; see also MARINE MAMMAL at http://www.tesag.jcu.edu.au/dugong/doc/ COMM’N, 2001 ANNUAL REPORT TO CONGRESS 129 (Mar. dugongactplan.pdf (last visited Apr. 7, 2006). 31, 2002), available at http://www.mmc.gov/reports/ annual/pdf/2001annualreport.pdf. 58. Id. at 46. 64. Earthjustice, Background: The Dugongs vs. the 59. Earthjustice, Background: The Dugongs vs. the Department of Defense, supra note 59. Department of Defense, http://www.earthjustice.org/ backgrounder/display.html?ID=103 (last visited 65. See Dugong Status Report, supra note 57, at Apr. 1, 2006). 10 (“Dugongs are culturally significant to communities throughout their range.”). 60. Dugong Status Report, supra note 57, at 1. 66. Id. at 41. 61. Id. (also noting that sea grass meadows

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 Symbol” under the Law to Protect Okinawan people in creation myths, but Historical and Scenic Sites, though the also have long been revered by native Agency for Cultural Affairs denies this des- Okinawans as “sirens” or “mermaids” who ignation.67 There is no dispute, however, bring friendly warnings of tsunamis.72 that the Okinawa dugong has been listed Legends also attribute the power to create by the government since 1955 as a “Natural tsunamis to dugongs.73 Monument” under Japan’s “Cultural Properties Protection Law.”68 In recogni- In past centuries, dugong meat was tion of the historic and cultural signifi- traditionally offered to royalty as sacred 74 cance of the Okinawa dugong, the Ryukyu food and medicine. Royalty and com- Islands government issued a postage mon people both used dried dugong to 75 stamp commemorating the Okinawa help ease the pain of childbirth. dugong in 1966, describing it as “Natural Carvings made from dugong rib bones 76 Monument Dugong (Mermaid).”69 have been found throughout Okinawa. The most common is a carving of a but- Okinawan oral history demonstrates terfly, which is believed to take the spirit the cultural importance of the dugong as it of the dead to another world.77 Dugong- is regularly associated with traditional bone ornaments and tools as much as Okinawan creation mythology. The 3500 years old have been found in dugong, according to some traditional Okinawa.78 Scholars believe that the peo- myths, is the progenitor of the local people who used these objects considered ple.70 In one such myth a dugong princess them to contain spiritual power.79 and a short-finned whale boy gave birth to an animal with a human form. That child Hunters traditionally chose dugong became the ancestor of Yabuchi Island bones for use as hunting tools presumably and the progenitor of the people of because of their belief that they were Yakena, an island in the Okinawa prefec- imbued with magic that would aid in their 80 ture. In another story, a naked man and quest. Until less than a century ago, woman became curious about sex after prayers to the dugong were considered observing a pair of mating dugongs and, essential to successful fishing expedi- 81 later, mimicked their behavior.71 Their tions. One legendary fishing practice had decedents are today’s Okinawans. young men expose their penises to attract the dugong, which they considered a mer- Not only has the dugong regularly maid spirit, and then try to capture it.82 appeared in the oral mythology of the

67. See id. at 43. 74. Id. ¶¶ 10-12. 68. See id. 75. Id. 69. See id. 76. Dugong Status Report, supra note 57, at 43. 70. Declaration of Isshu Maeda in Support of 77. Id. Plaintiff’s Opposition to Defendants’ Motion to 78. Maeda Declaration, supra note 70, at ¶¶ 13-20. Dismiss at ¶¶ 6-7, Okinawa Dugong v. Rumsfeld, No. C-03-4350 (N.D. Cal. Aug. 4, 2004) [hereinafter 79. Id. ¶¶ 18, 20. Maeda Declaration]. 80. Id. ¶ 20. 71. Id. 81. Id. ¶¶ 26-30. 72. Id. 82. Id. 73. Id. ¶¶ 8-9, 22.

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST Dugongs continue to play a role in which is limited to wild animal popula- Okinawan spiritual and cultural practices, tions that have special cultural signifi- including folk songs and religious cere- cance.89 The Japanese Law indicates that monies.83 Because of its cultural signifi- “animals (including their habitats, breed- cance, the Okinawa dugong is listed as a ing places and summer and winter protected “natural monument” on the resorts)” may be designated as protected Japanese Register of Cultural Properties, cultural properties.90 Japanese law expert established under Japan’s “Law for the Sekine Takamichi91 explained that “like Protection of Cultural Properties.”84 the NPHA, the only objective of the Japanese Cultural Protection Law is to B. The Equivalence of U.S. and protect objects of cultural value; species Japanese Historic Preservation Laws with no independent cultural value are The NHPA applies to “properties” not eligible for listing under the Japanese that are listed on another country’s equiv- Cultural Protection Law, no matter how 92 alent to the U.S. National Register.85 The endangered they might be.” Japan has Japanese Register of Cultural Properties is promulgated other laws for the protection considered by Japanese and American of flora and fauna for their biological sig- legal scholars to be equivalent to the U.S. nificance. The dugong is also protected National Register.86 The authorization for under Japan’s equivalent to the the Japanese Register is the Japanese Law Endangered Species Act: the Law for the for the Protection of Cultural Properties, Conservation of Endangered Species of which seeks to “preserve and utilize cul- Wild Fauna and Flora. tural properties, so that the culture of the C. The Ruling Japanese people may be furthered and a contribution made to the evolution of On March 1, 2005, the district court world culture.”87 This is the only law in issued its ruling on Okinawa Dugong v. Japan concerned with protecting cultural- Rumsfeld.93 The court dismissed the ly significant properties. No other law in defendant’s motion to dismiss and Japan could feasibly be considered an motion for summary judgment on the equivalent to the NHPA.88 One of the issue of the applicability of the National types of “properties” protected by the Historic Preservation Act to the dugong Japanese law is “Natural Monuments,” affected by the proposed military base.94

83. Id. ¶¶ 26-34. 89. Id. ¶ 9. 84. Declaration of Sekine Takamichi in 90. Id. ¶ 8. Support of Plaintiffs’ Opposition to Defendants’ 91. Sekine Takamichi is a member of the Motion to Dismiss at ¶ 16, Okinawa Dugong v. Japanese Environmental Lawyers Federation. He Rumsfeld, No. C-03-4350 (N.D. Cal. Aug. 4, 2004) lectures and publishes articles on Japanese, U.S., [hereinafter Takamichi Declaration]. and international law. 85. 16 U.S.C. § 470a-2 (2000). 92. Takamichi Declaration, supra note 86, at ¶ 12. 86. See Takamichi Declaration, supra note 86, ¶ 93. Okinawa Dugong v. Rumsfeld, No. C 03-4350, 2; Okinawa Dugong v. Rumsfeld, No. C 03-4350, 2005 2005 U.S. Dist. Lexis 3123 (N.D. Cal. Mar. 1, 2005). U.S. Dist. Lexis 3123, at *68, (N.D. Cal. Mar. 1, 2005). 94. Id. at *68. 87. Takamichi Declaration, supra note 86, ¶ 7. 95. Id. 88. See id. ¶¶ 2, 4.

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 The court considered, among other issues, basis of many listings on the National whether Japan’s Cultural Preservation Law Register in reasoning that “the statutes is equivalent to the NHPA and whether the demonstrate an equivalent commitment dugong could be considered “property” as to protecting significant bridges between defined by the NHPA.95 human culture and history, on the one hand, and wildlife on the other.”99 The The defendants argued that the court also noted that both statutes “have Japanese law could not be considered evolved in a similar direction towards equivalent to the National Register because greater inclusiveness of natural, as well as the Japanese law provides protection for cultural, places and things.”100 both inanimate and animate things, where- as the U.S. Register “provides no legal The second argument raised by recognition or protection whatever for any defendants is that even if the Japanese animal species.”96 The court rejected this law is equivalent, the dugong need not be argument by explaining that “by employing considered because the language of sec- the word ‘equivalent,’ section 470a-2 does tion 470a-2 only requires that “properties” not require that the National Register and on an applicable country’s equivalent of the foreign list in question be identical.”97 the National Register be taken into The court determined that a requirement account. The dugong, they argue, cannot that the two lists be identical would contra- be understood as property within the dict the international scope of the provision. NHPA’s statutory scheme. To evaluate The court explained: “To require that foreign this claim, this court looked to the defini- lists include only those types of resources tions within the NHPA. The statute does which are of cultural significance in the not define the term “property” but does United States would defy the basic proposi- define “historic property” as “any prehis- tion that just as cultures vary, so too will toric or historic district, site, building, their equivalent legislative efforts to pre- structure, or object included in, or eligible serve their culture.”98 The defendant’s read- for inclusion on the National Register, ing would render the provision meaningless including artifacts, records, and material because no other country will provide for remains related to such a property or the same identification and scope of protec- resource.”101 However, section 470a-2 tion as the U.S. The court ultimately looked does not refer to “historic property” and at the Japanese law’s function of protecting instead uses the term “property.” The cultural resources as being equivalent to the court concluded that the term “historic U.S. National Register. property” with its defined categories applies only to domestic activities, and The court noted that the presence of requiring otherwise would conflict with culturally significant animals has been the the statute’s explicit reference to foreign

96. Defendants’ Motion to Dismiss at ¶ 15, 100. Id. at *24 (citing King Declaration, supra Okinawa Dugong v. Rumsfeld, No. C-03-4350 (N.D. note 39, at ¶¶ 9-14, 45(b)). Cal. Aug. 4, 2004). 101. 16 U.S.C. § 470w-5 (2000). See also Hoonah 97. Okinawa Dugong, 2005 U.S. Dist. Lexis 3123, Indian Ass’n v. Morrison, 170 F.3d 1223, 1230 (9th Cir. at *20. 1999). 98. Id. at *22. 99. Id.

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST law. The court pointed to legislative his- that the Okinawan dugong is tory to determine that Congress intended “moveable yet related to a spe- that a different standard for domestic and cific setting or environment,” international provisions of the law be namely Henoko Bay.104 used, noting that Congress acknowledged that the UNESCO convention that gave The court dismissed out of hand defen- rise to section 470a-2 “leaves it to each dant’s contentions that dugong are not participating nation to identify and delin- property because of the Ninth Circuit’s rul- 105 eate the meritorious heritage properties ing in Christy v. Hodel that state and feder- situated in its own territory.”102 al governments cannot “own” wild animals.106 The court found that whether the The court then addressed whether the government owns the property is irrelevant dugong could be classified as property. In to a determination of eligibility for the deciding how the section 470a-2 meant to National Register, as is whether or not the define “property,” the court looked to the object is owned at all.107 The court found existing definition of “historic property” the case to be analogous to Hatmaker v. and removed the reference to American Georgia Department of Transportation, which held history to conclude that property is simply that an unaltered oak tree of significance in a “district, site, building, structure, or Native American history was potentially eli- object.” An object is defined as “a materi- gible for the National Register.108 al thing of functional, aesthetic, cultural, historical or scientific value that may be, The court considered and rejected by nature or design, moveable yet related several additional claims including the to a specific setting or environment.”103 allegation that Henoko Bay is not suffi- The court found that the plaintiffs demon- ciently bounded or defined to be protect- strated that the dugong could be classified ed, and that the military base relocation 109 as property because was not a federal undertaking. [t]he dugong is indisputably a D. Potential Effects of the Court’s Ruling “material thing,” as opposed to In determining the equivalence of the something of a spiritual or intel- Japanese Statute to the NHPA, the court lectual nature . . . the dugong noted that “[t]he presence of culturally possesses “functional, aesthetic, significant animals has been the basis of cultural, historical or scientific many listings and determinations of eligi- value,” particularly of special bility for the National Register, including cultural significance in Okinawa several animal habitats important in . . . and there can be no dispute Native American tribal histories.”110 The

102. Okinawa Dugong v. Rumsfeld, No. C 03-4350, 3123, at *35. 2005 U.S. Dist. Lexis 3123, at *30 (N.D. Cal. Mar. 1, 107. Id. See also 36 C.F.R. § 60.2. 2005). 108. 973 F. Supp. 1047 (M.D. Ga. 1995). 103. 36 C.F.R. § 60.3(j). 109. Okinawa Dugong v. Rumsfeld, No. C 03-4350, 104. Okinawa Dugong, 2005 U.S. Dist. Lexis 2005 U.S. Dist. Lexis 3123, at *37, *42 (N.D. Cal. 3123, at *31-32. Mar. 1, 2005). 105. 857 F.2d 1324, 1335 (9th Cir. 1988). 110. Id. at *24. 106. Okinawa Dugong, 2005 U.S. Dist. Lexis

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 court went even further, stating that the indigenous populations. If such habitat is National Register lists properties solely listed, a federal agency will have to under- for their biological value, without refer- go a NEPA-like process and take any ence to an explicit cultural dimension.111 adverse effect on the habitat-dependent As proof of this proposition, the court species into consideration before proceed- points to several wildlife refuges on the ing with the action. National Register which are listed without reference to any cultural or historical Furthermore, because of the court’s links.112 Implicit in this reasoning is that willingness to find equivalency between the refuges were protected only for the the U.S. and Japanese laws, in the future cultural significance of the species that the U.S. will have to take a closer look at reside within, not for any independent their actions abroad to determine if it may cultural values that may be found in the affect any property or animal protected by physical space listed. that country’s cultural preservation laws. The court referenced Cultural Resource The court’s ruling is important for two Specialist Thomas King’s Declaration reasons. First, it acknowledges the NHPA’s which noted that “[s]pecies are entitled to potential use in protecting wildlife habitat protection for their cultural value in many in the U.S. and secondly, it paves the way nations. Some, like Japan, protect cultur- for the Act to be applied directly to federal ally significant species directly; others, actions affecting culturally significant like the United States, protect culturally species abroad. Traditional groups should significant species by protecting the loca- be aware of the expansive reading the court tions in which that significance is gives the NHPA, and use the statute to pro- expressed.”114 A quick review of cultural pose listing habitat of culturally significant preservation laws of other countries sup- wildlife. For example, an area of a stream ports this view. Canada lists “heritage used for traditional salmon fishing may be animals” on the basis of a species’ historic protected, not for any features on the land, and cultural value.115 Denmark’s program but merely for the presence of a culturally for cultural heritage in planning protects important species.113 Such use of the cultural landscapes which it defines as statute may have far-reaching implications representing “the combined works of as it may protect culturally significant nature and humans.”116 Australia’s species that are not endangered or threat- Register of the National Estate explicitly ened but are facing local extirpations near covers both cultural and natural

111. Id. 2005 U.S. Dist. Lexis 3123, at *23 (N.D. Cal. Mar. 1, 112. Id. This is a reference to the listing of the 2005). Lower Klamath Wildlife Refuge, the Lake Merritt 115. See Government of Newfoundland & Wild Duck Refuge, and the Pelican Island Wildlife Labrador, Chapter H-2.1: An Act Respecting the Refuge. Protection of Heritage Animals, http:// 113. However, in Hoonah Indian Ass’n v. Morrison, www.gov.nf.ca/hoa/chapters/1996/H02-1.c96.htm 170 F.3d 1223, 1231 (1999), the court found that (last visited Mar. 22, 2006). properties listed on the National Register must be 116. See Danish Forest and Nature Agency, more concretely bounded and defined than a gen- Cultural Heritage in Planning, http://www.sns.dk/ eral area. udgivelser/2001/87-7279-298-1/default_eng.htm 114. Okinawa Dugong v. Rumsfeld, No. C 03-4350, (last visited Mar. 22, 2006).

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Spring 2006 The Cultural Significance of Wildlife NORTHWEST resources, and recognizes that cultural While the abandonment of the values are linked closely to plant and ani- Henoko Bay plan is a success for dugong mal populations.117 supporters, many still view the new plan as unacceptable.121 Refilling portions of The NHPA can be applied to species Oura Wan and Henoko Bays will destroy abroad when there is a U.S. undertaking habitat essential for dugong survival and (which may include U.S. funding or sup- recovery.122 Moreover, the new location is port), there is a culturally significant virtually inaccessible to community mem- species that may be affected by the U.S. bers, who need to be given clearance to action present, and where the species is enter the Camp Schwab Marine base if they protected under that country’s laws for its are to continue their protests.123 cultural importance. While international Construction in the new proposed area use may be limited, the NHPA is another would result in severe soil erosion into tool human rights activists and environ- Henoko and Oura Wan Bays which will mentalists can use to benefit both local diminish the sea grass beds vital to dugong communities and species. survival.124 Finally, some think that the E. The Current Situation new proposal was adopted in part to curtail the protestors’ use of canoes to stall con- After losing their initial court battle struction efforts, as the sea in Oura Wan is and pressured by long-term protests, the rough and inaccessible to small boats.125 U.S. Department of Defense and the Japanese government formally aban- Earthjustice, the lead organization doned the initial Henoko Bay military bringing the challenge, has indicated that 126 base plan.118 On October 29, 2005, the it will continue its lawsuit. However, U.S. and Japan released a proposal to most are hopeful that the tremendous will substitute the Henoko Bay airbase with a and strength exhibited by the people of smaller facility on the adjacent Marine Okinawa in fighting for the preservation of base, Camp Schwab.119 The new propos- the dugong will force the U.S. and al includes filling in part of Oura Wan Bay Japanese governments to withdraw all 127 and a small section of Henoko Bay.120 plans of building in the Henoko region.

117. See Australian Heritage Commission, 122. Earthjustice, Okinawa Air Base Deal Still Criteria for the Register of the National Estate, Controversial, Oct. 26, 2005, http://www.earthjustice.org http://www.ahc.gov.au/register/furtherinfo/crite- /news/display.html?ID=1069 (last visited Mar. 26, ria.html (last visited Mar. 22, 2006). 2006). 118. 2005 in Review, Okinawa: From Fighting Wars to 123. Buckley, supra note 121. Taking Part in Disaster Relief, an Eventful Year, STARS AND 124. Conversation with members of the STRIPES, Dec. 31, 2005, available at http:// Association to Protect Northernmost Dugong, in www.stripes.com/article.asp?section=&arti- San Francisco, Cal. (Feb. 3, 2006). cle=33184&archive=true (last visited Mar. 26, 2006). 125. Id. 119. Id. 126. Earthjustice, Urgent Cases: Okinawa 120. Id. Dugong and Proposed Military Base, http://earth- 121. Sarah Buckley, Okinawa Base Battle Resolved, justice.org/urgent/display.html?ID=154 (last visit- BBC NEWS, Oct. 26, 2005, available at ed Apr. 9, 2006). http://news.bbc.co.uk/1/hi/world/asia-pacif- 127. Earthjustice, Okinawa Air Base Deal Still ic/4357098.stm (last visited Apr. 9, 2006). Controversial, Oct. 26, 2005, http://www.earthjustice.org/ news/display.html?ID=1069 (last visited Mar. 26, 2006).

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NORTHWEST Ingrid Brostrom Volume 12, Number 2 IV. Conclusion The movement toward greater inclusiveness of cultural preservation laws took another step forward with the district court’s acceptance that wildlife may be protected under the National Historic Preservation Act. This acceptance, already alluded to in several agency documents and guidelines, has now been pre- liminarily confirmed with the ruling in Dugong v. Rumsfeld. The court’s reasoning will help pave the way for traditional groups to petition for the protection of habitat crucial to the survival of culturally significant animals, both in the U.S. and abroad.

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