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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 Follow this and additional works at: https://repository.uchastings.edu/ hastings_environmental_law_journal Part of the Environmental Law Commons 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 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Environmental Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. WEST NORTHWEST 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 iden- tity may not. While every species has bio- logical and ecological value, some deserve extra protection for the signifi- cance they derive from the human popu- lations around them. This note examines the cultural sig- nificance 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 provid- ing 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 acknowl- edge 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. 147 WEST NORTHWEST Ingrid Brostrom Volume 12, Number 2 cant species. This paper presents the cur- II. Background rent battle of the Okinawan people to pro- tect 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). 148 WEST 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.
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