Okinawa Dugong v. Gates

MEMORANDUM & ORDER

Re: Cross-Motions for Summary Judgment

Plaintiffs, consisting of the Okinawa du-gong, three individual Japanese citizens, and six American and Japanese environmental associations, brought this action against defendants Robert Gates, Secretary of Defense, and the United States Department of Defense (“DOD”) for violations of section 402 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470a-2, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Plaintiffs allege that defendants have approved the plans for construction of the Futenma Replacement Facility (“FRF”)— a military air station off the coast of Okinawa Island — without taking into account the effect of the military facility on the Okinawa dugong, a marine mammal of cultural and historical significance to the Japanese people. Now before the court are the parties’ cross-motions for summary judgment. Having considered the arguments and submissions of the parties and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND

I. The Okinawa Dugong

The dugong (Dugong dugon) is a species of marine mammal related to the manatee. Joint Statement of Undisputed Facts ¶ 2 (hereinafter “Undisputed Facts”). The waters surrounding Okinawa *1084 Island are habitat for the dugong whose range extends the costal and territorial waters of many countries in the Far East. Id. The greatest population concentrations occur in Australia, the Philippines, and Thailand, and Japan is at the northern edge of the dugong’s range. Id. The du-gong is classified as vulnerable by the World Conservation Union (IUCN) due to habitat destruction and degradation, as well as human exploitation. Id. The Japan Ministry of the Environment recently listed the dugong as critically endangered in Japan. Id.

Dugong are significant in Okinawan culture. Id. ¶ 3. They are associated with traditional Okinawan creation mythology, sometimes being considered the progenitor of the local people. Id. Because of its cultural significance, the dugong is listed as a protected “natural monument” on the Japanese Register of Cultural Properties, established under Japan’s “Law for the Protection of Cultural Properties.” Id. Henoko Bay, on the northeast coast of Okinawa Island, is dugong habitat. Id. ¶ 4. There are many species of seagrass found in the shallow waters of Henoko Bay. Id. These seagrass beds are dugong feeding grounds, and dugong have been observed to feed in and traverse Henoko Bay. Id. The U.S. military’s Camp Schwab — where defendants propose to construct a military facility to replace an existing air station — are located adjacent to and in Henoko Bay. Id.

II. The Futenma Replacement Facility (“FRF”)

The United States has maintained a military presence on the Island of Okinawa, Japan, since the end of World War II in 1945. Undisputed Facts ¶ 5. After the U.S. military occupation of Japan ended, the Government of Japan permitted the United States to administer Okinawa pursuant to international agreements, while Japan retained residual sovereignty over Okinawa. Id. In November 1969, President Nixon and Prime Minister Sato agreed to terminate the United States’ administrative control of Okinawa without detriment to the mutual defense interests of both governments. Defs.’ Mem. at 7. United States administration of Okinawa officially ended in 1972 when the two governments signed the “Agreement Between the United States and Japan Concerning the Ryukyu Islands and the Daito Islands” (“Agreement”). Undisputed Facts ¶ 6. Okinawa is one island in the Ryukyu Island chain that now comprises the Prefecture of Okinawa. Id. Under the Agreement, the United States relinquished to Japan all administrative rights and interests it had over the Okinawa Islands. Id. Japan assumed full responsibility and authority for the exercise of any and all powers of administration, legislation, and jurisdiction over the territory and inhabitants of the Islands, and Okinawa regained its pre-World War II status as Japan’s 47th prefecture. Id.

Under Article III of the Agreement, Japan granted the United States exclusive use of facilities and areas in the Islands in accordance with the “Treaty of Mutual Cooperation and Security” (“Treaty”) and the “Status of Forces Agreement” (“SOFA”). Id. The Treaty and SOFA were both signed in 1960, but did not take effect until U.S. administration of Okinawa ended in 1972. Defs.’ Mem. at n. 5. SOFA is a bilateral agreement between the United States and Japan entered into pursuant to Article VI of the Treaty which states, “[f]or the purpose of contributing to the security of Japan and the maintenance of international peace and security in the Far East, the United States of America is granted the use by its land, air and naval forces of facilities and areas in Japan.” Pls.’ Exhs. 14, 15. The Treaty and SOFA create the bilateral Security Consultative Committee (“SCC”) consisting of four *1085 members — the Japanese Minister of Foreign Affairs, the Japanese Minister of Defense, the United States Secretary of Defense, and the United States Secretary of State. Id.; Defs.’ Mem. at n. 7. SOFA instructs that the SCC “shall serve as the means of consultation in determining the facilities and areas in Japan which are required for the use of the United States in carrying out the purposes of the [Treaty].” Pls.’ Exh. 15, SOFA, Art. XXV.

The United States Department of Defense (“DOD”) maintains and controls a number of military bases on Okinawa, including the Marine Corps Air Station Fu-tenma (“MCAS Futenma”) which provides services and materials to support Marine Corps aircraft operations. Undisputed Facts ¶ 7. MCAS Futenma is located in Ginowan City and due to social and economic changes, is now completely surrounded by urban development. Moriya Dec. ¶ 3. Japanese officials have called for its closure and relocation to a more suitable site in order to ease the health and safety burdens on the citizens of Ginowan City. Id. ¶ 3, 5. At the same time, American officials have also called for the relocation of MCAS Futenma citing a desire to relocate military activities to a less congested area. Lawless Dec. ¶ 4. The project to relocate and replace MCAS Fu-tenma is referred to as the Futenma Replacement Facility (“FRF”) project. Under the auspices of the SCC, the United States and Japan formed the bilateral Special Action Committee on Okinawa (“SACO”) to develop recommendations for the SCC on ways to consolidate, realign, and reduce U.S. military facilities and to adjust operational procedures of U.S. forces in Okinawa. Undisputed Facts ¶ 8. SACO recommendations can only be adopted with bilateral SCC approval. Id. In December 1996, the SCC members approved the SACO recommendation to replace MCAS Futenma with an offshore, sea-based facility somewhere off the east coast of Okinawa. Id.; Pls.’ Exh. 13, SACO Final Report.

The final site selection and design of the FRF depended upon, among other considerations, U.S. operational requirements which the DOD established in September 1997. Undisputed Facts ¶¶ 8, 10; Pls.’ Exh. 16. The operational requirements were developed with the involvement of representatives of at least eight DOD sub-agencies and were approved by high-ranking officials in the U.S. Army, Navy, and Marines. Undisputed Facts ¶ 10. The 1997 operational requirements established parameters for any replacement facility Japan would construct and provide to the U.S. in accordance with the Treaty and SOFA. Id. While Japan would select the ultimate site of the FRF and fund and carry out its construction, DOD would oversee and monitor its design, engineering, and construction to ensure that the FRF met U.S. operational requirements. Id. ¶¶ 10, 11, 13.

In August 2000, the Consultative Body of Futenma Relocation, composed of local and national officials from the Government of Japan, was established to produce a “Basic Plan” to identify the location, size, construction method, and runway orientation of the FRF. Id. ¶ 11. The Basic Plan, issued by the Consultative Body in July 2002, approved the decision to relocate MCAS Futenma to Nago City’s Henoko District, immediately offshore from Camp Schwab. Id. As already mentioned, the U.S. military’s Camp Schwab is located adjacent to and in Henoko Bay which is a dugong habitat.

Although SACO’s initial recommendation called for the construction of the FRF as a sea-based facility, those plans were officially abandoned on October 29, 2005 when the SCC issued the “Alliance Transformation and Realignment Agreement” (“ATARA”). Id. ¶ 12; Pls.’ Exh. 18. The *1086 ATARA stipulated that the U.S. and Japan would locate the FRF in an “L-shaped” configuration that combined the shoreline areas of Camp Schwab and adjacent water areas of Henoko and Oura Bays. Undisputed Facts ¶ 12. Although Japan suggested locating the FRF entirely on the land area of Camp Schwab and/or the adjacent Central Training Area, DOD’s operational requirements made such an arrangement impossible. Id. The site selected to locate the FRF, as described in the ATARA, did meet DOD operational and safety concerns. Id. The ATARA also directed the respective staffs of both governments to develop plans for the initiatives agreed upon, including implementation schedules, no later than March 2006. Id.

On May 1, 2006, following a meeting of the SCC that included U.S. Secretary of Defense Donald Rumsfeld in addition to U.S. Secretary of State Condoleezza Rice and the other SCC members, Japan and the United States issued an agreement entitled “United States-Japan Roadmap for Realignment Implementation” (“2006 Roadmap”). Id. ¶ 13; Pls.’ Exh. 19. The 2006 Roadmap is a joint plan of action between the United States and Japan and reflects bilateral agreement on the initiatives set forth in the ATARA, including the plans for the Futenma Relocation Facility. Undisputed Facts ¶ 13. The Roadmap establishes that Japan will construct the FRF in a location and configuration that combines the Henoko-saki (Henoko Point) portion of the Camp Schwab installation and adjacent water areas of Oura and Henoko Bays. Id. Instead of an “L-shaped” runway as stipulated in ATARA, the Road-map stipulates a “V-shaped” runway which will be partially built on landfill extending into Oura and Henoko Bays. Id. Each runway will be 1,600 meters in length plus 200 meters as “overrun” areas. Id.

The 2006 Roadmap, like the ATARA, is a bilateral executive agreement between two sovereign nations which covers a number of restationing and military realignment issues in addition to the planned closure, return, and relocation of MCAS Futenma. Id. ¶ 14. The agreements reached in the Roadmap have received needed approvals at the national levels of both governments, but the Government of Japan is still working to obtain needed approvals from affected local and prefec-tural governments. Id. Both the U.S. and Japanese governments are now cooperating to implement the Roadmap, and construction of the FRF is targeted for completion in 2014. Id. The process has already begun in the form of surveys and testing by the Japanese government which, under Japanese law, is required to conduct an environmental impact assessment before construction of the FRF begins. Moriya Dec. ¶¶ 13-18.

III. Procedural History

Plaintiffs filed their complaint on September 25, 2003 and amended the complaint on November 24, 2003. Defendants filed an answer on December 9, 2003 and moved to dismiss the first amended complaint on May 17, 2004 for failure to state a claim and for lack of subject matter jurisdiction. Because both parties submitted matters beyond the pleadings, the court converted defendants’ motion to dismiss into a motion for summary judgment. The court issued its order on March 2, 2005, addressing the narrow issue of whether the National Historic Preservation Act (“NHPA”) applies to the circumstances of this case. Dugong v. Rumsfeld, 2005 WL 522106 (N.D.Cal. March 2, 2005). In that order, the court denied defendants’ motion and held that the Okinawa dugong is “property” protected under Japan’s equivalent of the National Register. Id. at *12. The court withheld judgment and ordered additional discovery on the issues of whether defendants’ activities related to *1087 the Futenma Replacement Facility constitute an “undertaking,” whether the activities “may directly and adversely affect” the dugong, and whether defendants have “taken into account” the effects of the replacement facility on the dugong. Id. at *16, 17, 18.

Following the announcement of the 2006 Roadmap for the FRF, plaintiffs filed a second amended complaint on July 19, 2006. Defendants filed an answer on August 1, 2006. To avoid a dispute over pretrial discovery, the DOD compiled four separate administrative records, each covering a different aspect of the planning effort for the FRF. Now before the court are the parties’ cross-motions for summary judgment on the issue of whether defendants have taken into account the effects of the Futenma Replacement Facility on the Okinawa dugong, as required under section 402 of the National Historic Preservation Act.

LEGAL STANDARD

I. Summary Judgment

Summary judgment is proper when the pleadings, discovery and affidavits show that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the non-moving party’s case.” Id.

Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party’s allegations. Id.; Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

The moving party may “move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof.” Fed.R.Civ.P. 56(a). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e).

II. National Historic Preservation Act

Congress enacted the NHPA in 1966 with the goal of preserving the “historical and cultural foundations of the Nation ... in order to give a sense of orientation to the American people.” 16 U.S.C. § 470(b)(2). The Act establishes that “[i]t shall be the policy of the Federal Government, in cooperation with other nations and in partnership with the States, local governments, Indian tribes, and private organizations and individuals to ... provide leadership in the preservation of the prehistoric and historic resources of the *1088 United States and of the international community of nations.” Id. § 470-1(2).

Under section 106 of the NHPA, federal agencies are required, when undertaking any federally assisted action within the United States, to “take into account the effect of the undertaking on any district, site, building, structure, or object that is included or eligible for inclusion in the National Register.” 1 Id. § 470f. The NHPA delegates to the Secretary of the Interior authority to expand and maintain a National Register of Historic Places. Id. § 470a(a)(1)(A). The NHPA also establishes the Advisory Council on Historic Preservation (“ACHP”), Id. § 470i, and delegates to the ACHP authority to promulgate regulations necessary to implement the section 106 take into account process, Id. § 470s. The section 106 regulations promulgated by the ACHP set forth a multi-step process by which an agency takes into account the effects of an undertaking. A basic review process includes: (1) identification of historic properties and consulting parties, see 36 C.F.R. §§ 800.2, 800.4; (2) notice to consulting parties, including the public, of initiation of consultation, see id. §§ 800.2(d), 800.3(e)-(f); (3) assessment as to whether the project will or will not have an adverse effect on the historic property, see id. § 800.5(a)-(b); (4) notice to consulting parties of finding of no adverse effect and opportunity for consulting parties to respond, see id. § 800.5(c); and, if adverse effects are found, (5) continued consultation with the public and other parties to develop and evaluate alternatives or modifications to the undertaking that could avoid or mitigate the adverse effects, see id. §§ 800.5(d)(2), 800.6. An agency’s findings and determinations must be sufficiently documented to enable reviewing parties to understand their basis, see id. § 800.11, and must describe, for example, the undertaking, id. § 800.11(d)(1); its effects on the historic property, id. § 800.11(e)(4); and if appropriate, any conditions or future actions to avoid, minimize or mitigate the adverse effects, id. § 800.11(e)(5).

In 1980, Congress amended the NHPA to implement the United States’ participation in the Convention Concerning the Protection of the World Cultural and National Heritage (“World Heritage Convention”). Pub.L. 96-515. The amendment added to the NHPA section 402 governing undertakings outside the United States. Section 402, therefore, is the international counterpart to section 106 governing domestic undertakings. The full text of section 402 is as follows:

Prior to the approval of any Federal undertaking outside the United States which may directly and adversely affect a property which is on the World Heritage List or on the applicable country’s equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction over such undertaking shall take into account the effect of the undertaking on such property for purposes of avoiding or mitigating any adverse effects.

*1089 16 U.S.C. § 470a-2. The Secretary of the Interior is charged with directing and coordinating United States participation in the World Heritage Convention, and Congress has delegated authority to the Secretary to nominate properties to the World Heritage List. Id. § 470a-1. The ACHP regulations implementing section 106 domestic undertakings were first adopted in 1974, and thus, were in effect at the time Congress passed section 402 governing foreign undertakings. The domestic regulations, however, do not apply directly to section 402 and no separate implementing regulations have been promulgated for that section.

Under NHPA section 110 each federal agency “shall establish, ... in consultation with the Secretary [of the Interior], a preservation program for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties.” Id. § 470h—2(a)(2). An agency’s preservation program under section 110 “shall ensure,” among other things, “that the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning.” Id. § 470h—2(a)(2)(C). Section 110 also requires that an agency’s preservation program include procedures for compliance with the domestic section 106 take into account process, id. § 470h-2(a)(2)(E), and that the agency’s section 106 procedures are consistent with the ACHP regulations discussed above, id. § 470h-2(a)(2)(E)(I). The Secretary of the Interior is authorized to promulgate guidelines to assist other federal agencies in fulfilling responsibilities under section 110. Id. § 470a(g). Under this authority, the Secretary in 1998 published guidelines which “have no regulatory effect,” but nevertheless provide “formal guidance to each Federal agency on meeting” their responsibility under section 110 to establish a preservation program. 63 Fed.Reg. 20496-20508, 20496 (April 24, 1998).

III. Administrative Procedures Act

Because the NHPA does not provide an independent basis for judicial review of agency actions, an aggrieved party must pursue its remedy under the Administrative Procedure Act (“APA”). San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir.2005). The APA authorizes judicial review of final agency actions “for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Final agency actions are defined as actions which “mark the consummation of the agency’s decision making process,” defined as not “merely tentative or interlocutory [in] nature,” and which determine “rights or obligations” or from which “legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotations and citations omitted). Ripeness of agency action for judicial review turns on the “fitness of the issue for judicial decision” and the “hardship to the parties of withholding court consideration,” but in close questions, courts are “guided by a presumption of reviewability.” Cibar-Geigy Corp. v. EPA, 801 F.2d 430, 434 (D.C.Cir.1986); Nat 'l Mining Ass’n v. Fowler, 324 F.3d 752, 757 (D.C.Cir.2003). An agency action or decision may be set aside if the court finds it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), and a court may “compel agency action unlawfully withheld or unreasonably delayed,” id. § 706(1). A court’s inquiry must be “searching and careful,” but the standard of review is ultimately narrow. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations and citations omitted).

*1090 DISCUSSION

Defendants assert five bases for barring the court’s review including: 1) lack of “final agency action" as required under the APA; 2) plaintiffs’ lack of standing; 3) non-ripeness of the claims for judicial review; 4) act of state doctrine; and 5) failure to join the Government of Japan as a necessary and indispensable party under Rule 19 of the Federal Rules of Civil Procedure. Plaintiffs argue that the court has a proper basis to review the matter and that they are entitled to summary judgment on the substantive issue of whether defendants have complied with the NHPA. They argue as a threshold matter that section 402 of the NHPA applies to the circumstances of this case because DOD’s involvement in the FRF constitutes a “federal undertaking” which “may directly and adversely affect” the Okinawa dugong, a “property” protected under Japan’s equivalent of the National Register. Compliance with section 402, plaintiffs argue, requires defendants to “take into account” the effects of the FRF on the Okinawa dugong by, among other things, consulting with the public and interested organizations and taking measures to mitigate or avoid adverse effects. Defendants assert that in the absence of any standards or regulations directly applicable to foreign undertakings, the DOD may determine, in the reasonable exercise of its discretion, what requirements are necessary to comply with section 402.

I. Limitations on Judicial Review

A. Final Agency Action Under the APA 2

Defendants argue that this case does not involve “agency action” that is “final” for purposes of triggering the court’s review under the APA. The APA authorizes a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action,” to bring suit seeking judicial review of that agency action. 5 U.S.C. § 702. Agency action is statutorily defined to “include[ ] the whole or part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act.” Id. §§ 551(13), 701(b)(2). According to the Supreme Court, the five categories — rule, order, license, sanction and relief, as they are defined in 5 U.S.C. sections 551(4), (6), (8), (10) and (11) — each involve “circumscribed, discrete agency actions.” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (hereinafter “SUWA”). The terms following those five categories — the “equivalent ... thereof,” “denial thereof,” and “failure to act” — are not defined in the APA. Id. “But an ‘equivalent ... thereof must also be discrete (or it would not be equivalent), and a ‘denial thereof must be the denial of a discrete listed action (and perhaps denial of a discrete equivalent).” Id. “The final term in the definition [of agency action], ‘failure to act,’ is in [the Supreme Court’s] view properly under *1091 stood as a failure to take an agency action — that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13).” Id. Thus, a claim under 5 U.S.C. § 706(1) to compel agency action unlawfully withheld or unreasonably delayed “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. ” Id. at 64, 124 S.Ct. 2373. The requirement of discrete agency action “rule[s] out several kinds of challenges,” including “broad programmatic attack[s],” that “entangle[ ]” a court in “abstract policy disagreements” requiring it to “enter general orders compelling compliance with broad statutory mandates.” Id. at 64, 66, 124 S.Ct. 2373; see also Center for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir.2005).

In this case, plaintiffs allege that DOD has approved the 2006 Roadmap, including plans to construct the Futenma Replacement Facility, without having taken into account the effects of the facility on the Okinawa dugong. Plaintiffs allege that this failure to take into account (1) is a failure to take agency action required under section 402 of the NHPA and (2) constitutes agency action that is unlawfully withheld and/or unreasonably delayed. Second Amended Complaint, Prayer for Relief ¶ 3. Plaintiffs ask this court, under its authority in 5 U.S.C. section 706(1), to compel defendants to comply with the take into account procedures 3 . Id. The court agrees with plaintiffs that DOD’s obligation to take into account is a discrete agency action that is non-discretionary and specific. NHPA section 402 states that a federal agency “shall” take into account the effect of an undertaking specifically “for the purpose of avoiding or mitigating any adverse effects.” 16 U.S.C. § 470a-2. Taking into account is discrete, required agency action, and therefore, the failure to take into account is also agency action reviewable under the APA. Far from launching a “broad programmatic attack” that requires the court to enter a “general order compelling compliance with broad statutory mandates,” plaintiffs complain of a circumscribed, discrete agency action mandated by a specific provision of the NHPA. This duty to take into account relates to how a specific DOD facility, located at a specific site on the coast of Okinawa and configured in a specific pattern, will adversely affect the Okinawa du-gong, a specific property of cultural and historic significance.

Plaintiffs make a separate, but related argument that the 2006 Roadmap is also agency action for purposes of APA review. See Pls.’ Motion to Strike. Although DOD’s participation in and approval of the 2006 Roadmap are, in a colloquial sense, “actions” taken by a federal agency, they are not “agency actions” for purposes of the APA. As the court explains in the standing analysis that follows, plaintiffs do not “suffer[ ] a legal wrong” and are not “adversely affected or aggrieved” simply by virtue of DOD’s approval of design plans for construction of the Futenma Replacement Facility. Instead, plaintiffs’ injury is a procedural injury caused by DOD’s participation in and approval of the Roadmap, without having taken into account the effects of the facility construction on the Okinawa dugong. The relevant agency action which causes plaintiffs to *1092 suffer a legal wrong and which the court has authority to review, is the failure to take into account, not the approval of the Roadmap or the design and construction of the FRF.

DOD’s approval of the Roadmap, however, is relevant for the court’s analysis in determining whether the failure to take into account is agency action that is “final.” In this case, the NHPA does not provide an independent basis for judicial review of agency action, and therefore, review is only proper if the agency action plaintiffs complain of is final. 28 U.S.C. § 704; SUWA, 542 U.S. at 61-62, 124 S.Ct. 2373 (“Where no other statute provides a private right of action, the ‘agency action’ complained of must be final agency action.’ ”). “As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency’s decision-making process, ... [and] it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotations and citations omitted). The finality requirement is to be applied in a “flexible” and “pragmatic” way, and courts are “guided by a presumption of reviewability.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149-52, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

That DOD has not taken into account the effects of the military facility on the dugong, yet has already established operational requirements which the facility must satisfy and has also approved the Road-map containing final plans for the facility’s design and construction, implies that the failure to take into account is “final” for purposes of triggering review under the APA. Under the first prong of Bennett, the Roadmap is not tentative or interlocutory in nature. As already discussed, the Ro-admap is the final agreement between the United States and the Government of Japan marking the consummation of years of negotiation and planning. Defendants argue that the Roadmap is merely a “general commitment of the [United States Government] to commence a series of planning efforts ... to realign the United States-Japan military and security forces in the Western Pacific Ocean.” Defs.’ Reply at 4. The court does not agree with this overly broad characterization. Far from establishing a mere framework to commence planning efforts, the Roadmap contains detailed specifications for the FRF including where and how it will be built, when it is expected to be completed, how much it will cost, and the number of personnel that will be relocated there once it is operational. Planning efforts have not just recently commenced. Rather, those efforts have been underway for several years and have now been consummated in a formal agreement to move forward with the construction of the FRF.

Under the second prong of Bennett, the Roadmap is an agreement by which rights and obligations are determined and from which legal consequences will flow. The Roadmap was approved by the Secretary of Defense and embodies DOD’s formal decision concerning final plans for the FRF. In its March 2005 order, the court held that DOD’s actions in 1997 establishing operational requirements for the FRF provided finality triggering judicial review. Dugong, 2005 WL 522106 at *17. The court stated that the establishment of operational requirements “triggered important legal consequences, because they established the benchmark by which” the ultimate decision to approve or reject the final implementation plans would be judged. Id. Since the court’s March 2005 order, the final implementation plans have *1093 in fact been approved and the earlier established operational requirements have in fact been incorporated into those final plans. Just as DOD’s earlier action establishing operational requirements provided finality triggering the court’s review in 2005, DOD’s more recent action approving the 2006 Roadmap also provides finality triggering the court’s review now.

Finally, then, as now, the court is “guided by the presumption of reviewability and the risk of irreparable harm.” Id. Any question regarding final agency action, therefore, should be resolved in favor of the plaintiffs. Moreover, as the court explains in Part III below, NHPA section 402 imposes an obligation to take into account within a certain time frame — that is, “[pjrior to the approval of any Federal undertaking.” 16 U.S.C. § 470a-2 (emphasis added). As explained in Part II below, defendants concede that approval of the 2006 Roadmap constitutes approval of a federal undertaking for purposes of triggering obligations under NHPA section 402. The failure to take into account, therefore, can never have any more finality than it does now. The court concludes that DOD’s failure to take into account pursuant to NHPA section 402 is agency action, and that the failure to take into account is final.

B. Standing

To demonstrate standing under Article Ill’s case-or-controversy requirement, a litigant must show: (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Nuclear Info. & Resource Service v. Nuclear Regulatory Comm’n, 457 F.3d 941, 949 (9th Cir.2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130,