Imaki, Caitlin B.
Judgment Rendered and Published: 1 October 2009
Court Clerk: Toshihiko Yuuki
Case Number: Heisei 19 (Gyō-U) Dai 16 Go
Case Title: Request to Enjoin Hiroshima Prefecture from Issuing Land Reclamation Licenses
Concluding Oral Arguments Heard: 12 February 2009
DECISION
Named Plaintiffs
See Plaintiff Index in Appendix 1
Attorneys for Plaintiff Representatives
See Representative Index in Appendix 2
Defendant’s Address: 10-52 Moto-machi, Naka-ku, Hiroshima City
Named Defendant
Hiroshima Prefecture
Representative for Hiroshima Governor
Yuzan Fujita
Attorney for Defendant Representative
Haruo Etou
Same
Kazuyuki Yasumura
Same
Shin Kikuchi
Same
Seiji Arai
Same
Sachiko Ōmuro
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Imaki, Caitlin B.
Defendant Designated Counsel
Kazuo Sakae
Same
Shōtarō Ochi
Same
Masaru Morinaga
Same
Tōru Tsushima
Same
Hironori Kawasaki
Same
Yoshifumi Takemoto
Same
Shūji Shibano
Defendant Supporting Intervener Address: 3-5 Higashi Sakura-machi, Fukuyama City,
Hiroshima Prefecture
Defendant Supporting Intervener
Fukuyama City
Representative for Fukuyama City Mayor
Hiroshi Haneda
Supporting Intervener Attorney
Ikuji Tsuchimoto
Same
Masayuki Uchibayashi
Supporting Intervener Designated Counsel Mitsuaki Yokoyama
Same
Michio Yamana
Same
Masafumi Sakamoto
Same
Yasuhiro Fujii
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Imaki, Caitlin B.
Holding
1. The court dismisses every claim made by Plaintiff XXXX, Plaintiff XXXX, Plaintiff
XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff
XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff
XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff XXXX, Plaintiff
XXXX, and Plaintiff XXXX.
2. The governor of Hiroshima may not issue any permit allowing reclamation of the
publically owned water body at issue to any of the defendants or the supporting
interveners. Permits previously issued to the defendants and supporting interveners are
listed in Appendix 3 and 4, respectively.
3. The court costs produced by the plaintiffs in paragraph 1 of the record – those whose
claims were dismissed – shall be the responsibility of each respective plaintiff; however,
the court costs produced by the remaining plaintiffs will be the defendant’s responsibility.
The court costs produced by the defendants shall be divided into 24, and 1/24th of that
cost should be assigned to the joint liability of the plaintiffs listed in paragraph 1 of the
record. The remainder of those 23 shares will be the responsibility of the defendants.
Similarly, the interveners’ court costs should be divided into 24, and 1/24th of that cost
should be assigned to the joint liability of the plaintiffs listed in paragraph 1 of the record.
The remainder of those 23 shares should be the responsibility of the supporting
interveners.
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Imaki, Caitlin B.
Facts and Reasons
I. Claim
The governor of Hiroshima should not issue any permit for the reclamation of the
publically owned water body at issue to any of the defendants or the supporting interveners.
Permits previously issued to the defendants and supporting interveners are listed in Appendix
3 and 4, respectively.
II. Factual Background
The plaintiffs bring suit under the Administrative Case Litigation Act (ACLA), Article 37
Number 4 Paragraph 5, and request the court to overturn the governor of Hiroshima’s
decision to issue land reclamation permits to the defendants and supporting interveners
(permit details are referenced in Paragraph I and laid out in Appendix 3 and 4). Plaintiffs
stipulate that the court should grant their request on two grounds: First, plaintiffs claim that
the land reclamation permits issued do not fall within the scope of land reclamation
permitting as defined by Article 2 of the Publically Owned Water Body Land Reclamation
Law (hereafter referred to as the Public Water Law or PWL). Second, the plaintiffs claim
that the governor exceeded or abused his discretionary authority in issuing the permits.
Subsequently, this opinion refers to each plaintiff by his or her group number, as listed in
the Plaintiff Catalog List of Appendix 1.
1. Uncontested Facts
(1) Parties
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Imaki, Caitlin B.
A. Plaintiff Group A (including plaintiff # 2, 3, 7, 9-25, 27-60, and 62-102) asserts
that they own the customary discharge rights to the publically owned water body
at issue.
B. Plaintiff Group B (plaintiff number # 99 and 100) asserts that they own the right
to fish commercially in the publically owned water body at issue.
C. Plaintiff Group C (including plaintiff # 4-6, 101-156, and 158-163), along with
Plaintiff Group A and Plaintiff Group B (note: some groups overlap) assert
ownership of the right to enjoy the favorable scenery of the publically owned
water body at issue and its surrounding area.
D. The governor of Hiroshima is a de facto defendant because he represents
Hiroshima Prefecture’s local government. As part of the local government, the
governor has the authority to issue public water body land reclamation licenses in
accordance with the Public Water Law. In general, this authority extends to the
publically owned water body at issue in this case.
(2) Tomo Area Road and Harbor Upgrade Project
A. The publically owned water body at issue is the bay on the southern end of the
Seto Inland Sea, located in Tomo-chō, Fukuyama City, Hiroshima Prefecture
(hereafter referred to as Tomo-chō). This bay is hereafter referred to as “the Bay”
and the port along the Bay will be referred to as “Port Tomo.”
B. Hiroshima Prefecture (defendant) and Fukuyama City (supporting intervener)
jointly planned the Tomo Area Road and Harbor Upgrade Project (the
“Development Project”). Hereafter, the two developers will collectively be
referred to as “the developers.” The developer’s project included plans to reclaim
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Imaki, Caitlin B.
land within the Bay for use in constructing roads, parking lots, ferry piers, small
boat piers, facilities for managing the port, and general green space. In addition,
the developers planned to build a bridge running east to west over the bay.
Hereafter, the road and bridge construction project will be collectively referred to
as the “Road Project.”
C. The developers applied to the Hiroshima governor for the requisite land
reclamation permits on May 23, 2007. The total area size of the Bay at issue was
19,000 m2; the defendants proposed to fill in 13,500 m2 and Fukuyama City
proposed to fill in the remaining 5,500 m2. The developers conducted an
environmental assessment when they applied for the license. (A 1(7), 2(7))
Hereafter, this assessment is referred to as the “mini-assessment.”
D. At issue is a one-kilometer stretch of the main Prefectural road, Tomonaga Line,
which runs through the urban district of Tomo-chou. In 1951 (Showa 25) the city
made plans to widen the road to 7 meters and call the newly created road “Urban
Road Kanko-no-Ura.” However, because of the subsequent development of the
historic community along that designated roadway and the desire to protect those
traditional wood-framed houses, widening of the road or the addition of sidewalks
became difficult. Construction still remains unfinished. This project will
subsequently be referred to as the “unfinished road-widening project.” Thus, one
of the goals of the current developers was to improve upon the roads, in light of
this unfinished road-widening project.
E. Under Public Water Law (Article 47, Paragraph 1) and the Public Water Law
Implementing Regulation (Article 32 Sentence Number 1), Hiroshima Prefecture
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Imaki, Caitlin B.
must receive approval for their reclamation license not only from the Governor,
but also from the National Minister of Land, Infrastructure and Transportation. It
is the duty of the Governor to request approval from the Minister after he resolves
to issue the license. In this case, on June 23, 2008, the governor of Hiroshima,
after deciding that Hiroshima Prefecture’s license should be approved, forwarded
the Prefecture’s application to the Minister. Although the national Minister has
final say over the Prefecture license, this extra procedure was not necessary for
the Fukuyama City’s reclamation license. As a practical matter, Hiroshima’s
governor recognized that without the Prefecture’s cooperation, Fukuyama City
would not be able to begin the reclamation project. Thus, the Governor decided to
wait to issue final approval for both the Prefecture and City licenses, pending
approval of the Prefecture’s application by the Minister of Land, Infrastructure
and Transportation.
(3) Developer Plans to Begin Construction
A. The developers planned to begin construction within 3 months of receiving the
reclamation license. In addition, pursuant to the provisions of Article 13 of the
Public Water Law, Hiroshima’s governor generally conditioned all reclamation
licenses on the promise to begin construction within 3 months.
2. Contested Facts
(Contested Facts on the Background)
(1) Whether the ACLA (Article 37, Number 4, Paragraph 3) provides the plaintiffs with a
legal interest (horitsujō no rieki).
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Imaki, Caitlin B.
(2) Whether it is likely the plaintiffs have standing because they either suffered a
significant harm as defined in the ACLA (Article 37, Number 4, Paragraph 1) or
whether they have an adequate means to bring suit as prescribed in the proviso of the
same act.
(Contested Fact on the Merits)
Whether the governor of Hiroshima clearly violated the ACLA (Article 37, Number 4,
Paragraph 5), or in the alternative, exceeded or abused his discretionary authority.
3. Contested Facts on the Background (1) – Did the ACLA provide the plaintiffs with a
legal interest (horitsujō no rieki 法律上の利益)?
(1) Plaintiffs’ Assertion
A. Customary Discharge Rights (Plaintiff Group A)
The purpose of Article 5, Number 4 of the public water law Public Water Law
should be interpreted as follows: this section assigns a duty to any person who
reclaims land from a publically owned water body into which someone is
customarily discharging wastewater, thereby hindering the discharger’s daily life
by preventing him from continuing to discharge wastewater. Under such
circumstances, this duty requires the land reclaimer to either prevent such
reclamation action as quickly as possible, or to take measures to pay
compensation or the like.
In light of this interpretation of the statutory purpose, the statute should define
a person whose livelihood depends on being able to discharge wastewater broadly,
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Imaki, Caitlin B.
and should not be limited to people who established a sewage pipe on their own
accord to drain into a publically owned water body.
For Plaintiff Group A (claiming Customary Discharge Rights), it was
absolutely imperative that they be able to discharge wastewater untreated in order
to maintain their daily and business life. Accordingly, they have historically
discharged wastewater in the least impactful way to the environment possible.
Discharging wastewater is not only an actual custom, but also from a social point
of view, it is a valid, legal benefit that should be preserved. As such, plaintiffs in
Group A are classified as Customary Discharge Rights holders under Public
Water Law Article 5, Number 4; this status gives them the legal right to bring suit
under the ALPA.
(A) People who established their own sewage pipe and continue to discharge their
own wastewater directly into the Bay.
The ancestors of Plaintiff Group A1 (Plaintiff 7 and 9-11) built and
maintained sewage pipes into the Bay through their own investments of
money and labor more than 100 years ago. Today, Plaintiff Group A1 still
continues to use those same pipes to dispose of their wastewater into the Bay.
The ancestors of Group A1 moved to this current location in 1895 (Meiji 27).
Although the exact date of the building construction is unknown, the houses
they lived in existed prior to 1895 (Meiji 27).
The following sewage pipes belong to the respective plaintiffs, and are
currently used to dispose of wastewater into the Bay: Sewage Pipe 9 belongs
to Plaintiff 10, Pipe 10 belongs to Plaintiff 7, Pipe 11 belongs to Plaintiffs 9
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Imaki, Caitlin B.
and 11, Pipe 12 belongs to Plaintiffs 9 and 10 (see appendix 5). Although
Plaintiff 1 currently lives XXXX, he still holds customary discharge rights as
the child of Plaintiff 9, the sibling of Plaintiff 10, as part of the family who
established Sewage Pipe 11 (see appendix 5), and through his continued use
of the pipe when he returns home to visit during the holidays. Thus, all
plaintiffs in Group A1 should be classified as Customary Displacement Right
holders.
(B) Plaintiffs Using the Sewage Pipes belonging to Plaintiff Group A1 to
discharge their wastewater
The ancestors of plaintiff Group A2 (Plaintiff 12-15) received consent
from plaintiff group A1’s ancestors prior to 1895 (Meji 27) to attach their own
line to the main line of sewage pipe number 10 as referenced above, and have
been using this system to dispose of their wastewater since then. In addition,
Group A2 cooperated with other residents upstream to operate and maintain
their own sewage system. Thus, since A2 has the same rights to use the
sewage system as A1, plaintiffs in Group A2 should also be classified as
Customary Displacement Right holders.
(C) Owners, etc. of the Original Town Hall
a. Plaintiff Group A3 (Plaintiff 16 to 25, 27 & 28), as described below, are
joint owners of either the Town Hall building or the land upon which it
sits (甲 B64) at 1167 Tomo, Tomo-machi, Fukuyama City, Hiroshima
Prefecture. This group includes and those who inherited those ownership
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Imaki, Caitlin B.
rights according to the name register (登記名義), and the owner’s family
members who live with them.
More specifically, Plaintiff 16 and 17 are joint owners of XXXX
land under the original Town Hall (甲 B66(1) to (4)); Plaintiff 18 to 21 are
joint owners of XXXXX (甲 B67(1) to (9)); Plaintiff 24 and 28 are joint
owners of the Town Hall building (甲 B65), (甲 B68(1) to (4)); Plaintiff
25 and 27 are joint owners of XXXX (甲 B69(1) to (7). Each Plaintiff
acquired his ownership share through inheritance.
Plaintiff 22 and 23 are joint owners of XXXXX, as described
above (甲 B70(1) to (4)), and are XXXXXX, and live there together with
their families.
The relationship among the inheritance of the above-mentioned
plaintiffs is explained in the record in appendixes 6 to 10.
b. The Original Town Hall was located adjacent to the Bay, and the
wastewater produced through its use was discharged either directly into
the Bay or via Sewage Pipe Number 29 (see Appendix 5). Thus, the joint
owners of the land or the Town Hall building, and their family members
are Customary Displacement Rights Holders.
The ancestors of plaintiffs in group A3 first settled in this area at
least as early as the day when the Town Hall was first registered by the
joint owners on December 17, 1965 (昭和 40). The joint owners of the
land under the Town Hall acquired permission from the owners of the
sewage pipes to discharge wastewater for free around June 2, 1932 (昭和
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Imaki, Caitlin B.
7). Plaintiff group A3 inherited these wastewater discharge rights along
with the inheritance of their other property rights.
(D) Other People with Wastewater Discharge Rights
Plaintiff Group A4 (Plaintiff 2, 3, 29 to 60, 62 to 102) discharge
wastewater into the Bay on a daily basis and are thus also Customary
Displacement Right holders.
(E) Sewage Pipes Use, etc.
The sewage pipes used by Plaintiff Groups A2, A3 & A4 is outlined in the
following table. For sewage pipe numbers, refer to the sewage pipe number
list in Appendix 5.
Sewage Pipe
Number
10
15
18
20
24
26
27
28
29
30
31
Plaintiff Number
12 13 14 15
48 92
49 50 51
76 77 78 79 80
96
22 23 25
27 94 95
18 19 42 43 44 46 47 81
70 71 72 73 74 82 83 84
3 16 17 20 21 31 32 33
38 39 40 41 45 56 57 58
65 66 68 69 75 85 88 90
97
2 24 29 30 52 53 54 55
100
89
98
99
34
59
91
35
60
93
36 37
63 64
101 102
62
67
86
87
In addition, the numbers and routes of sewage pipes used by Plaintiff
Group A are illustrated in Appendix 5.
B. Commercial Fishing Rights • Fishing Rights (Plaintiff Group B)
(A) Under the Public Water Law, it is a general rule (原則)that in order to issue
permission to reclaim land from a publically owned water body, the parties
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Imaki, Caitlin B.
must receive consent from the local fishermen. The aim of that general rule is
to consider the fact that commercial fishermen will be deprived of the benefits
of their rights to fish commercially. In fact, examined more closely, the aim
of this kind of law, i.e., Public Water Law Article 5, number 2 titled
“fishermen rights,” is in accordance with the Fishing Law that outlines the
rights not only of the Fishermen Co-op Association itself (hereinafter referred
to as Fishermen Co-op), but also outlines the rights of the actual members and
quasi-members of the Fishermen Co-op who possess fishing rights.
The Tomo-no-Ura Fishermen Co-op has rights to fish in the Bay; Plaintiff
99 and 100 are members and quasi-members of the Fishermen Co-op,
respectively, and thus Plaintiff 99 and 100 have rights to fish commercially in
the Bay. That being the case, those plaintiffs fall under Public Water Law
Article 5, Number 2 (fishermen rights); this status gives them the legal right to
bring suit under the ALPA.
(B) On March 10, 2006 the Tomo-no-Ura Fisherman Co-op received an
agreement in writing from their 65 members and quasi-members, pursuant to
Fishing Law Article 31, to renounce their fishing rights to the Bay; on March
11 at their ordinary general meeting the Co-op passed a resolution to renounce
part of their fishing rights to the Bay at issue.
However, among the four sections that compose the Tomo-no-Ura
Fisherman Co-Op (E-no-Ura,1 Hara, Ishii-hama, Taira), half of the members
of the E-no-Ura Co-op opposed the measure to renounce their fishing rights,
1
Checked with Hiroo 2/25/12
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Imaki, Caitlin B.
resulting in an invalid agreement to renounce their fishing rights. Also, the
agreement made by Ishii-hama Co-op is also invalid because of fraud and
error: the Ishii-hama Co-op presented the quasi-members with a false secret
agreement, even though the agreement to renounce fishing rights was
supposed to be made with no conditions attached. In addition, the written
agreement drawn up by the Tomo-no-Ura Fisherman’s Co-op to renounce
fishing rights to the Bay did not include the signatures of all the Co-op
members. Rather, it is registered in the printed media that not all members
affixed their seal personally, and there is strong suspicion that some third
parties affixed others seals through forgery. Thus, the agreement made on
March 11, 2006 by the Fisherman’s Co-Op that purports to renounce part of
their fishing rights is invalid.
C. Environmental Interests (claimed by all plaintiffs
Because all plaintiffs are all people who enjoy an environmental interest in
the Bay, they all have a legal interest (horitsujō no rieki 法律上の利益) under
the ACLA. The reason this is true is as follows:
(A) Environmental Interests
In the Kunitachi Mansion Supreme Court Decision (最判平成 18 年 3 月
30 日民集 60 巻 3 号 948 頁: Supreme Court Decision on March 30, 2006;
Published in Minshu, Volume 60, Number 3, page 948) (hereinafter referred
to as the 2006 Supreme Court Decision) the Supreme Court recognized that an
infringement upon environmental interests could conceivably be classified as
a tort under the Civil Code, and that nature of environmental interests should
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Imaki, Caitlin B.
be evaluated on a case-by-case basis, different from standard public interest
claims. In the case of Tomonoura, society recognizes an overall favorable
environmental value based on the many small islands, a port, a historical
harbor facility, and a group of traditional buildings that are accompanied by a
mountain range on the other side with highly valued historical, cultural and
natural properties. The plaintiffs not only understand the above-mentioned
values, but also contribute to the regeneration, preservation and maintenance
of that value through their daily work and life. And, because the plaintiffs
enjoy the possession of this valuable benefit every day, the law mandates that
they should also possess these legally preserved environmental interests.
In addition, the Public Water Law, along with other related laws such as
the Environment Basic Act (kannkyou kihonn hou 環境基本法), the Natural
Parks Act (shizenn kouen hou 自然公園法), the Cultural Asset Preservation
Act (bunnkazai hogo hou 文化財保護法), the Act on Special Measures
Concerning the Conservation of the Environment of the Seto Island Sea
(setounaikai kannkyou hozenn tokubetsu souchi hou 瀬戸に赤い環境保全特
別措置法), the Act for Assessment of Environmental Impacts (kannkyou
eikyou hyouka 環境影響評価法), should be interpreted to mean that the
plaintiffs’ environmental interests should be preserved as individual interests.
As such, the plaintiffs all have a legal interest (horitsujō no rieki 法律上の利
益) under the ACLA.
(B) Tomo’s Historical and Cultural Value
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Imaki, Caitlin B.
a. The Historical Value of the Harbor’s Civil Engineering and Construction
Heritage
Around the world, harbors change easily with the era, leaving us
few examples of old structures. Port Tomo is a rare case that still has
examples of each of the five distinctive Japanese port relics which were so
common in recent times: a gannboku (a terraced dock that accommodates
changes in the tide), a jyōyatō lighthouse, namidome (structure that breaks
waves), a funba (a (place to repair ships), and a funabannjō. Furthermore,
for the boats that entering the port, this scenery is one element that speaks
to the wealth of the town of Tomo. In fact, Tomo Port is the only port in
all of Japan to have all five elements of this kind of “port manmade
heritage” (kouwann doboku isan) remaining. The supporting interveners
say that the only thing that will be lost as a result of the reclamation is the
funaba, but that is an irrational statement that portrays a misunderstanding
of the importance of the function and meaning of the funaba to the entire
port facilities. This kind of historical and cultural value requires
consideration of the surrounding environment as a whole, this kind of
thought process, including preservation of world heritage sites is on par
with international standards. Thus, even the loss of one of the above
mentioned five elements, greatly damages the value of the area. To the
town of Tomo, which has existed as a port city for thousands of years, the
historical and cultural value of the port itself is invaluable.
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Imaki, Caitlin B.
From the above points, the value of the manmade heritage must be
treated with the maximum amount of respect.
b. The Value of Tomo Park as a Place of Scenic Beauty
Within the town of Tomo, Tomo Park has been designated a
national spot of scenic beauty (meishō). The concept of the meishō or
“scenic beauty spot” was introduced into the 1919 National Treasure and
Scenic Beauty Spot Preservation Law. Presently, the Cultural Asset
Preservation Law has inherited the management of scenic beauty spots,
which are defined as places in Japan of high artistic or aesthetic value, and
include things such as gardens, bridges, ravines, beaches, and mountain
ranges.
The scenic area spot designated as Tomo Park includes both island
and land and encompasses the area from Sensui Island to Henten Island
and Takomatu Island, and extends west to Abutokannon. The featured
characteristics of Tomo Park include 1) the contour of the coastline curves
gently around the port, 2) the surface of the sea is entirely blue and
covered with gentle ripple waves, 3) the islands soft and round shapes, 4)
colorful characteristics such as island shape, rocky cliffs, beautiful pine
forests, shrines and other man-made things, and 5) the town – known as a
friendly place – is not far away.
Based on the scope, special characteristics and national importance
of Tomo Park as a special scenic spot, one can easily understand that the
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Imaki, Caitlin B.
aim of this kind of scenic spot preservation system can be used as a
acceptable political vehicle to protect the Tomo area scenery.
c. The Value of the Seto Inland Sea National Park
III. This Court’s decision on preliminary issues, prior to reaching the merits of the case.
1. Preliminary Issue One: Whether Plaintiffs have a legally protected interest under
Administrative Litigation Law.
(1) An individual has a legally protected interest under the Administrative Procedure Act
if administrative decisions have infringed upon his individual rights or his legally
protected interests, or if those decisions will inevitably infringe upon those rights or
interests. If the administrative law upon which a government decision was made is
interpreted as protecting not only the general public’s collective legal interest, but an
individual’s legal interests, then those interests also fall within the legally protected
interest mentioned above. [emphasis added]. The Supreme Court recently
interpreted the Administrative Litigation Law as recognizing a legally protected
interest for persons whose individual interests are protected under the administrative
act that is a basis of the administrative decision if that decision infringes or will
inevitably infringe upon those individual interests. Administrative Litigation Law
Article 9, interpreted by a Supreme Court decision in Heisei 17 (Okakyuu Case,
translator’s note). In addition, in order to decide whether legally protected interests
should be given to people who are not the direct recipients of the administrative law
decision, the court should not only consider the text of the legal provisions that
provided the basis for the administrative law decision, but also consider the purpose
and objective of the law which the decision was based on, along with the nature and
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Imaki, Caitlin B.
contents of the interests that had to be considered when the decision was made.
Furthermore, when considering the law’s purpose and objective, the court should
refer to the purpose and objective of related laws which have a common objective,
and when articulating the nature and contents of the interests, the court should also
consider the contents and nature of the interests which would be infringed upon, and
the nature and extent of the infringement if the administrative law decision was made
by violating the law upon which the decision was based. Administrative Litigation
Law Article 37, Number 4, Paragraph 4 and Article 9, Paragraph 2.
(2) Regarding Customary Discharge Rights
A. Under Public Water Law Article 4, Paragraph 3, if the area that is to be reclaimed
includes an area where someone has “individual rights along the public shore,”
and the government actors cannot obtain the permission of that individual to
proceed with the reclamation, and either the benefits of reclamation do not
outweigh the injury, or the law does not provide for condemnation or the land is
not essential for the project, then the reclamation license must not be issued.
Additionally, Public Water Law Article 6 provides that any person who has been
granted a reclamation permit must compensate a private right holder for any
damage caused or alternatively, establish a system to prevent such injury. And in
addition, Public Water Law Article 5 provides that anyone with customary
discharge rights falls into the category of an “individual rights holder along the
public shore.”
Taking into account the above provisions and discussion, Public Water Law is
not solely concerned with regulating activities for the public good, but rather it
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Imaki, Caitlin B.
can be interpreted to recognize that individuals also have standing rights to
challenge activities in the public water body to which individuals had customary
discharge rights holders, and those Customary Discharge Right holders may also
be considered to have standing to challenge decision to grant the reclamation
license under the Administrative Litigation Act.
B. The Meaning of Customary Discharge Rights
Article 3 of the Act on General Rules relating to applying laws
(hereinafter referred to as the General Rules Act) prescribes that if reclamation of
the public water body interrupts the everyday life and discharge ability of people
with customary discharge rights into public water bodies, or their ability to carry
out their business activities, then it is possible that those rights have been
infringed upon. The intent of the above mentioned provision of the Public Water
Law can be interpreted as a law meant to protect people with these kinds of
discharge rights. That is, recognizing discharge rights as part of customary law
under the above mentioned provisions of the Public Water Law is not an original
concept, but rather Article 3 of the General Rules Act prescribes that people who
customarily acquired discharge rights into the pubic water body can also be
interpreted as having rights under the Public Water Law.
However, in order to acquire customary discharge rights to the Public
Waters under the General Rules Act, the claimant must have discharged water
into the named public water body continually over a long period of time, in
addition to having a societal recognized implied recognition as a person with
rights via one’s maintenance authority or as a fisherman, etc. within the
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Imaki, Caitlin B.
appropriate public body of water; if those requirement are met, it may be
interpreted as sufficient. Furthermore, to illuminate the disposition of societal
recognition, in order to claim that society recognizes the claimants conduct of
discharging into the appropriate pubic water body, the law may be interpreted as
requiring an objective inquiry into whether or not discharge in fact occurred.
Taken from this point of view, although it is clear that this objective inquire
would include anyone who set up and managed their own discharge system would
qualify as a customary discharge right holder, this is not the only situation what
would meet the objective test. Customary discharge right holders can also be said
to include people who only owned and used their own discharge system, in
addition to those who simply used the system repetitively over a long period of
time and were thus objectively recognized as users by society.
The defendant asserts that in order to be a customary discharge rights
holder, one must have established and managed his own discharge system to the
exclusion of others. However, because this assertion is contrary to the court’s
interpretation, we cannot accept it. The defendants also claim that if we do not
follow their suggested interpretation, that there will be no limit to those who
qualify customary discharge right holders, and this will limit the government’s
ability to properly conduct necessary research. However, the provisions of the
Public Water Law act to limit who is considered a customary discharge right
holder as described above, and based on the above analysis, we must reject this
questionable assertion. Furthermore, considering the substance of the matter, it is
impossible for the people considered customary rights holders to be endless
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because in order to be considered a customary discharge rights holder, your act of
discharging must be recognized by society. This is another reason we must reject
the defendant’s assertion.
From here, the court will consider this rule as applied to Plaintiff Class A.
C. Plaintiff Class A and Customary Discharge Rights
(A) According to the aforementioned presumptions, facts, and proof (B20, B21,
XX1(3), (9), 2(3), (9), in addition to the points made during oral argument, we
find the following facts:
a. Plaintiff 7, 10, and the plaintiffs in group B20 and B21 who own their
houses, and those living with them as listed in the Plaintiff Catalog in
Appendix 1.
Plaintiff 7 as listed in Appendix 13 (1(9), paragraph 2) owned
drainage pipe 10, and Plaintiff 10 currently owns drainage pipes 9 and 12
(1(3) paragraph 72, 74; 9(1), paragraph 2; 2(3) paragraph 14, 16; 9(1)
paragraph 2), and used these pipes to discharge daily wastewater into the
public water body at issue (CAN I SAY, THIS PART OF THE SETO
INLAND SEA). This kind of discharge has occurred continuously by
these plaintiff and their ancestors for at least 100 years or more.
Next, the court will discuss whether drainage pipe 10 passes
through government-owned, non-numbered land.
b. Plaintiff 9 and 10 live together in the same house owned by Plaintiff 10.
Plaintiff 9 owns drainage pipes 11 and 12 as listed in Appendix 13
and was considered a customary drainage rights holder by the company
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Imaki, Caitlin B.
who installed those pipes. (1(3) paragraph 72, 74; 9(1), paragraph 2; 2(3)
paragraph 14, 16; 9(1) paragraph 2). Plaintiff 9 used these pipes to
discharge daily wastewater.
c. Plaintiff 11 is the child of Plaintiff 9, and the sibling of Plaintiff 10.
Plaintiff 11 owns drainage pipes 11 as listed in Appendix 13 and
was considered a customary drainage rights holder by the company who
installed those pipes. However, because Plaintiff 11 lives at the address
listed in Appendix 1, he only uses drainage pipe 11 when he visits his
parent’s home in Tomonoura.
d. Project officials plan to build replacement drainage pipes for pipes 9
through 12 when they begin the reclamation project (Exhibit B 1(3),
paragraph 72; 2(3), paragraph 14)
(B) Plaintiff 7 and 10
It is reasonable to conclude that Plaintiff 7 and 10’s discharge activities
have been publically recognized based on a number of factors. First, the daily
wastewater has been discharged from the buildings owned and lived in by
Plaintiff 7 and 10 into the Public Water body at issue since the time of their
ancestors, at least 100 years ago, and this can considered a discharge that
occurs continuously over a long period of time.
Other factors relate to the situation surrounding the discharge activity.
First, plaintiff’s owned their own discharge pipes and from an objective point
of view they in fact discharged into those pipes. In addition, no one can
realistically object to the length of time discharge has been occurring (overall
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Imaki, Caitlin B.
point of oral argument). Finally, the wastewater they discharged was daily
wastewater that came from the buildings the plaintiffs owned and lived in.
Therefore, it is reasonable to conclude that because these plaintiffs owned
their discharge pipes and discharged their daily wastewater from their houses,
society recognized their right to discharge water.
In addition, we can presume that the reclamation will directly affect the
rights of these plaintiffs based on the project officials’ plans to build
replacement pipes for those plaintiffs.
Based on the above discussion, the court concludes that Plaintiffs 7 and 10
are Customary Discharge Rights holders in relation to the public water body at
issue.
The defendant points out that the above-mentioned drainage pipes go
through potentially government owned land, but because we cannot
automatically reject the fact that discharge rights are recognized by society
based on this fact, this point does not affect the court’s analysis.
(C) Plaintiff 9
As for Plaintiff 9, because he no longer lives with Plaintiff 10 who has
Customary Discharge Rights, Plaintiff 9’s standing will depend on whether he
can still claim a reflective standing right based off of Plaintiff 10’s rights.
Because it is difficult to conclude that a household member’s discharge
activity is necessarily an objective representation of all household members,
we must conclude that Plaintiff 9 does not have customary discharge rights in
this case.
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Imaki, Caitlin B.
(D) Plaintiff 11
The court also concludes that Plaintiff 11 does not possess Customary
Discharge Rights because he does not live in Tomo Town, and there are no
other circumstances which he can claim that he continually discharged over a
long period of time (it is not enough to claim that he was assigned discharge
rights as a business person).
D. Plaintiff Group A2
(A) According to the aforementioned presumptions, facts, and proof (B22 through
B24), in addition to the points made during oral argument, we find the
following facts:
a. Plaintiff 12 lives at the address listed in Appendix 1, and lives there in a
house which he owns (B22). Plaintiff 12 joined his own discharge pipe to
discharge pipe 10 as listed in Appendix 13, and owned by Plaintiff 7. In
this way, Plaintiff 12 has been discharging daily wastewater into the
public water body at issue. In this way, Plaintiff 12 and his ancestors have
been discharging water for at least 60 years.
In addition, Plaintiff 14 has owned and been living at his residence
as listed in the Plaintiff Record since about 1968 (Showa 43). Since that
time Plaintiff 14 has joined his own discharge pipe to the discharge pipe
owned by Plaintiff 7 described above, and has been discharging
wastewater into the public water body at issue.
b. Plaintiff 13 and 12 live together.
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Imaki, Caitlin B.
c. Plaintiff 15 owns and lives at the address listed in Appendix 1, the
Plaintiff Record. That building was newly constructed on December 10,
1969 (Showa 44) (B24).
(B) Plaintiff 12 and 14
We can say that Plaintiff 12 is a long-time and continuous discharger into
the public water body at issue because he and his ancestors have been
discharging from the buildings they owned and lived in for at least 60 years.
Similarly, Plaintiff 14 has been continuously discharging in a like manner for
at least 40 years and also can be considered as a long-term, continuous
discharger.
In addition, based on the situation under which discharge occurred,
including the fact that Plaintiff 12 and 14 hooked up their own discharge pipes
to the pipes owned by Plaintiff 7, from an object point of view we can
conclude that plaintiffs actually discharged water. Additionally, we can also
conclude that no one can really object to the stated length of time the plaintiffs
used those drainage pipes (overall point of oral argument). Therefore, based
on the fact that Plaintiff 12 and 14 discharged water from the houses they
owned and lived in as described above, it is reasonable to conclude that these
plaintiffs held publically recognized discharge rights.
Furthermore, as noted above in section C(B), because the current
reclamation project will directly effect Plaintiff 7’s drainage pipes, we can
presume that the reclamation will also affect Plaintiffs 12 and 14’s ability to
discharge their wastewater since their pipes are connected.
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Imaki, Caitlin B.
Based on the above discussion, the court concludes that Plaintiffs 12 and
14 are customary discharge right holders.
(C) Plaintiff 13
Because Plaintiff 13 is simply living with Customary Discharge right
holder Plaintiff 12, just like Plaintiff 9, the court must conclude that Plaintiff
13 is not himself a Customary Discharge Rights holder.
(D) Plaintiff 15
Plaintiff 15 asserts that he is a customary discharge rights holder because
he hooked up his own discharge pipes to those owned by Plaintiff 7 and has
been using them to discharge wastewater. However, the building in which
Plaintiff 15 lives is registered to XXX and it is unclear if Plaintiff 15 actually
owns this building, and what connection he has to XXX. Therefore, similar
to Plaintiff 9, the court must conclude that it is difficult to classify Plaintiff
15 as a customary discharge rights holder.
E. Plaintiff Group A3
(A) According to the aforementioned presumptions, facts, and proof (B3 and B64
through B70), in addition to the points made during oral argument, we find the
following facts:
a. Town Hall, commonly called “Moto-machi Kaikan,” is located at 1167
Tomo, in Tomo City, and is used as the neighborhood association building
(B3).
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Imaki, Caitlin B.
b. Plaintiff 16 and 17 are joint equity holders in the land upon with Town
Hall is built; according to Appendix 6 that lays out inheritance history,
Plaintiff 16 and 17 inherited this land (B64 and B66(1) – (4)).
In addition, Plaintiffs 18 through 21 are also joint equity holders in
the land upon with Town Hall is built; according to Appendix 7 that lays
out inheritance history, these plaintiffs also inherited some of this land
(B64 and B67(1) – (9)).
c. Plaintiff 24 through 28 are joint equity holders in Town Hall’s building;
according to Appendix 8’s inheritance chart they received this share
through an inheritance (B65 and B68(1) – (4)).
d. XXX was an equity shareholder in Town Hall’s building according to
Appendix 9’s inheritance chart, and Plaintiff 25 and 27 are XXX as
described above. (Furthermore, Plaintiffs 25 and 27 claim that they
inherited these rights, however we do not have proof that XXX died.)
(B65 ad B69(1) – (7).
e. While XXX was alive he was a joint equity owner in the land underneath
the Town Hall, and according to Appendix 10’s inheritance chart, he did
in fact inherit those rights. Plaintiff 22 and Plaintiff 23 were XXX’s XXX
(some kind of relative) and were living together with XXX according to
Appendix 1, the Plaintiff’s Record List. (B64 and B70(1) – (4)).
(B) Plaintiff Group A3 asserts that they discharged wastewater into the public
water body at issue when they used the Town Hall either directly or by using
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Imaki, Caitlin B.
drainage pipe 29 as listed in Appendix 5 (the same pipe listed under the same
number in Appendix 13).
However, even if we assume that Plaintiff Group A3’s assertion that they
discharged water through pipe 29 is true, it is unclear if pipe 29 is actually
connected to the drainage system, and it is unclear if wastewater discharged
into pipe 29 actually reaches the public water body at issue.
Based on the above points, the court concludes that A3 plaintiffs have
failed to state legally sufficient facts regarding their discharge of wastewater
from Town Hall to qualify as an objectively recognized discharger, and
therefore, because this discharge was not publically recognized, the court
cannot conclude that A3 plaintiffs qualify as customary discharge rights
holders.
Because we can only say that Plaintiffs 22 and 23 lived together in a
location other than Town Hall with XXX, who was an equity share holder in
the land upon which Town Hall was built, and in light of the fact that they did
not inherit those rights, we cannot conclude that Plaintiffs 22 and 23
discharged water from Town Hall. Therefore, based on these conclusions, the
court finds that Plaintiffs 22, 23, 25 and 27 are not customary discharge rights
holders.
F. Plaintiff Group A4
Even if we assume that all plaintiffs in Group A4 actually used the
drainage pipes they claimed use to dispose of wastewater, plaintiffs were unable
to establish that those pipes were connected to the ones at issue, and therefore
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Imaki, Caitlin B.
plaintiffs were unable to state legally sufficient facts upon which the court could
conclude that their discharge activities were objectively recognized. Therefore,
because this means that their discharge activities were not publically recognized,
the court concludes that A4 plaintiffs do not hold customary discharge rights.
G. All plaintiffs that the court concluded held customary discharge rights have
legally recognized interests under the Administrative Procedure Act.
(3) Rights to Run a Fishing Business
A. Members and quasi-members of the Fisherman’s Co-op Association have rights to
fish in an area that overlaps with the portion of the Seto Inland Sea at issue in this
case (Fisheries Act, Article 8, paragraph 1). In addition, because the proposed
reclamation will directly infringe those fishermen’s rights, those fishermen fall
under Public Water Act Article 5 paragraph 2 (giving rights to people who fish in
the public water body), and under Public Water Act Article 6, they are entitled to
compensation. In light of this kind of regulation, we can interpret the intent of the
Public Water Act to protect commercial fishing rights as individual interests.
Accordingly, the court concludes that the above mentioned members and quasimembers of the Fisherman’s Co-op Association have a legally recognized interest
allowing them to pursue an injunction under the Administrative Procedure Act to
stop the reclamation of the portion of the Seto Inland Sea at issue in this case.
Because the co-op members may only exercise the commercial fishing
rights described above within the area held by the Fisherman’s Co-op, if the Coop relinquishes its right to fish in the portion of the Seto Inland Sea at issue, then
the members and quasi-members of the co-op will also loose their fishing rights.
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Imaki, Caitlin B.
B. Based on the oral argument and evidence presented (Exhibit A, section B3;
Exhibit B, section 1(9), 2(9)), the court makes the following findings of fact.
(A) Under Fisheries Act Article 6, paragraph 1, the Tomonoura Fisherman’s Coop was granted the right to fish within the area of the sea at issue in this case
from September 1, 2003 (Heisei 15) until August 31, 2013 (Heisei 25).
(B) Plaintiff 99 is a member of the Tomonoura Fisherman’s Co-op and Plaintiff
100 is a quasi-member of that Co-op.
(C) On March 10, 2006, all sixty-five members and quasi-members of the
Tomonoura Fisherman’s Co-Op agreed on the contents of a document drafted
in accordance with the provisions of Article 31 of the Fisheries Act to give up
their rights to fish in the portion of the Seto Inland Sea at issue. The next day,
March 11th, those Co-op members approved the document at its general
meeting. Then, on December 19, 2006 the Co-op officially gave the
developers its written consent to the reclamation as required by Public Water
Act Article 4, Paragraph 3, Number 1 (Consent Agreement Requirement).
C. Based on the finding that plaintiffs in Group B are all members or quasi-members
of the Tomonoura Fisherman’s Association, and the finding that the Co-op
relinquished its fishing rights to the Seto Inland Sea area at issue by agreement at
its general meeting, the court finds that plaintiffs in Group B also lost their fishing
rights to the area of the sea at issue. Therefore, none of the plaintiffs in Plaintiff
Group B have a legally protected interest under the Administrative Procedure Act
sufficient to request an injunction against the issuance of the reclamation permit at
issue in this case.
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Imaki, Caitlin B.
D. Plaintiff B asserts that the agreement relinquishing the Co-Op’s fishing rights is
invalid. They make that assertion based on the fact that the Tomonoura Fishing
Co-op is divided into four sections (E-no-Ura,2 Hara, Ishii-hama, Taira), and that
within those sections, half of the members of the Bay Group opposed the
relinquishment of the fishing rights. However, based on the fact that Plaintiffs 99
and 100 took part in drawing up the document relinquishing the E-no-Ura group’s
fishing rights, including rights that applied to the area of the Seto Inland Sea at
issue (Exhibit B, section 1(9) and 2(9)), and the fact that they have presented no
evidence that indicates there was forgery involved in that process, the court must
reject their assertion that the relinquishment agreement was invalid.
In addition, Plaintiff B asserts that the Ishii-hama Group of the Co-op
entered into a secret agreement with the supporting interveners, and thus the
agreement relinquishing their fishing rights is invalid based on fraud and mistake.
However, because plaintiffs have utterly failed to articulate any concrete evidence
about the contents of this secret agreement, the court finds this assertion
completely unreasonable.
(4) Scenery Interests
A. Public Water Law or Related Laws Which Provide a Legal Basis for Scenery
Interests
This section describes the essential provisions of the Public Water Law
and related laws with similar purposes that provide a legal basis for individual
2
Checked with Hiroo 2/25/12
32
Imaki, Caitlin B.
scenery interests upon which plaintiffs can then challenge the reclamation permit
at issue.
(A) Public Water Law and Associated Rules and Regulations
a. Public Water Law Article 4, Paragraph 1, Number 3 requires that all
reclamation permits issued must not conflict with national or local
government plans made in accordance with land use or environmental
conservation laws. Public Water Law Article 2, paragraph 3, number 5,
requires that government body issuing the reclamation permit must follow
guidance documents put out by the Ministry of Land, Infrastructure,
Transportation and Tourism. Public Water Law Regulations, Article 3,
provides that the issuing body must specifically follow the guidance
document titled “Taking Measures to Protect the Environment.”
b. When a prefecture receives an application for reclamation, he must
publish a notice without delay to the general public that includes all the
supporting documents, including the ones approved by the Ministry of
Land, Infrastructure, Transportation and Tourism, outlining the essential
facts of the proposal (Public Water Law Article 2, Paragraph 2). The
public notice must also include the opinion of the local mayor and must be
published for three weeks (PWL Article 3, paragraph 1).
c. When a public notice of reclamation is posted, any person whose interests
are at stake has the right to submit a written opinion on the project to the
governing administrative body until the close of the public notice period
(Article 3, Paragraph 3).
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Imaki, Caitlin B.
(B) Seto Inland Sea Law, the Master Plan [as it relates to the Seto Inland Sea], and
the Prefecture’s Plans.
Based on the following provisions of the Seto Inland Sea Law, and an in
light the Master Plan and the Prefecture Plans required by this law, we can say
that the Seto Inland Sea Law shares common objectives with the Public Water
Law and the Seto Inland Sea laws can therefore be regarded as related to the
Public Water Law.
a. One of the Seto Inland Sea Law’s objectives is to plan for the protection of
Seto Inland Sea’s environment. (Article 1).
b. In light of the fact that the Seto Inland Sea’s picturesque scenery is not
only the most beautiful in Japan, but unparalleled in the world, and the
fact that the citizens rely on the important fishing resources, and that these
treasures which the citizens are blessed with should be inherited by future
generations, in order to implement a valid policy that effectively protects
the environment of the Seto Inland Sea, the government must implement a
Basic Plan that includes provisions that act to protect the water quality and
the natural environment of the Seto Inland Sea. (Article 3, Paragraph 1).
c. Each prefectural mayor of related prefectures must establish a plan for his
prefecture related to the preservation of the Seto Inland Sea’s environment.
(Article 4).
d. When a prefecture mayor issues a license under Public Water Law Article
2, Paragraph 1, the Seto Inland Sea law requires him to give due
considerations to the special characteristics of the Seto Inland Sea as
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Imaki, Caitlin B.
outlined in the Seto Inland Sea Law Article 3, Paragraph 1. (Article 13,
Paragraph 1).
e. Article 3 of the Seto Inland Sea Law places the following requirements on
the national government when formulating their master plan
(Government’s Master Plan is Exhibit A, section C6)
(a) The plan should endeavor to preserve the natural scenery of the Seto
Inland Sea, including the historical landscape, scenic beauty, and any
national monuments (天然記念物), in the best possible condition.
(Master Plan 3(2)).
(b) Any approval or license issuance in accordance with the Public Water
Law must comply with the requirements of the Seto Inland Sea Law
Article 13, Paragraph 2 that requires due consideration be given to the
protection of the surrounding environment. (Master Plan 3(5)).
(c) When an Environmental Assessment is conducted for the reclamation
project, along with considering the possibility of avoiding or
decreasing the projects environmental effect, the study should also
consider what would be adequate compensation, and when considering
what would be adequate, the conclusion should adequately reflect the
opinions of the local citizens. (Master Plan 3(5)).
f. The Prefecture Plan established by the Governor of Hiroshima in
accordance with the Seto Inland Sea Law Article 4, (Exhibit A, section
C7) contains the following provisions.
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Imaki, Caitlin B.
(a) In light of the fact that Tomo Park has been designated a place of
scenic beauty under the Law for the Protection of Cultural Properties,
provisions enacted under related laws and regulations should ensure
the preservation of the natural scenery and the cultural assets of the
area in the best possible condition, and should include proactive
measures to prevent diasters and improve and maintain the natural
environment. (Prefecture Plan, Section 3(2)).
(b) In accordance with the fundamental policy of the Seto Inland Sea Law
as articulated in Article 13, Paragraph 2, all reclamation permits issued
under the Public Water Law Article 2, Paragraph 1 for areas within the
Seto Inland Sea boundaries should adequately consider environmental
protection. (Prefecture Plan, Section 3(5)).
(c) For all reclamation projects, environmental assessments should be
conducted under the Act for Assessment of Environmental Impacts
and Hiroshima Prefecture’s Environmental Assessment Regulations.
When conducting those assessments, where necessary, assessors
should consider what would suffice as adequate compensation
measures and in that case, endeavor that assessment reflects the
opinion of local citizens. (Prefecture Plan, Section 3(5))
(C) Scenery Law, Scenery Law Operational Guidelines, and Related Guidelines
The Scenery Law includes the provisions listed below. Because these
Operational Guidelines, and the various guidelines created pursuant to the
Scenery Law by the Ministry of Land, Infrastructure, Transport and Tourism
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Imaki, Caitlin B.
govern matters including public water body reclamation, it can be said that the
Scenery Law shares a common objective with the Public Water Law and may
therefore be considered a related law [under ALL Article 9, translator’s note].
a. A major objective of the Scenery Law is to promote the formation of
favorable scenery within our country and its agricultural, fishing and rural
villages. To achieve that objective the Scenery Law requires the
government to create a Scenery Plan that embraces a comprehensive
policy and attempts to create a beautiful country, rich living environment,
and vibrant regional communities, which will in turn help improve citizen
quality of life as well as promote the development of a healthy economy
and regional communities. Article 1. In addition, the Scenery Law
imposes a duty on local public bodies to conform to the basic principles of
the Scenery Plan, and to implement and enforce policies whose terms and
conditions appropriately divide up roles between the national and local
government, and work to promote the formation of favorable natural and
cultural scenery in their local area. Article 4
The current law does not give a special definition to the word
“scenery.” This is because many other regulations also do not clearly
define “scenery,” and because of other reasons, including the fact that if
the law included a standard definition, this would result in the protection
of a uniform type of scenery and fail to encompass the range of favorable
scenery existing unique to each region (hereinafter referred to as Scenery
Law Operational Principle III).
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Imaki, Caitlin B.
b. The Scenery Administrative Organization (as a general rule this is usually
one of the major administrative divisions of Japan (todōfuken) or an
ordinance-designated city (seireishitei-toshi), but towns or villages may be
a “scenery administrative organization” if they gain agreement from the
relevant major administrative division (todōfuken)) may establish a plan
for the development of favorable scenery (hereinafter referred to as the
“Scenery Plan”) for any area corresponding to a city, a mountain or
fishing village, any urban area or small community, including any related
water body (Article 8, Paragraph 1). It is assumed that this related water
body may include any river, lake or marsh, a coastline, harbor, or fishing
harbor or adjacent water body that is necessary for the formation of
favorable scenery of the neighboring land, as determined in the Scenery
Plan. The Scenery Plan may also provide for the maintenance and
preservation of certain favorable scenery including a coastline, harbor, or
fishing harbor (Article 8, Paragraph 2, Number 5). In light of the fact that
public “facilities” [kōkyōshisetsu, man-made structures that add to the
scenic beauty of an area] are an important element in forming favorable
scenery, the above-mentioned provisions make it possible to effectively
create favorable scenery by setting approval standards for facilities
maintenance within Scenery Plans. Maintenance standards should be set
for facilities within the core of an area’s scenery including a coastline,
harbor, or fishing harbor.
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Imaki, Caitlin B.
c. Before the Scenery Administrative Organization establishes a scenery plan,
it must take measures to incorporate the opinion of local citizens, such as
holding a public hearing (Article 9, Paragraph 1). In addition, any person
or group of people who own part of the area regulated under the scenery
plan Article 8, Paragraph 1, i.e., an area that is necessary for the formation
of favorable scenery, if that area meets the threshold size requirement,
those owners may propose a provision or change to the scenery plan
(Article 11, Paragraph 1). This provision is to ensure that local citizen’s
opinions are adequately reflected in the scenery plan and taken into
account from the beginning before the plan is fully developed.
d. Coastal Scenery Formation Guidelines have an objective of creating
favorable coastal scenery and provide the government officials who are
responsible for developing a plan for the design and maintenance of
coastal and neighboring areas and the citizens who are involved with city
planning with guidelines that will increase the value of the area through a
policy that shows how to integrate coastal maintenance.
The Coastal Scenery Formation Guidelines were created with the
goal that they be fully utilized as: (a) a reference document to actively
promote scenic harbor formation by a variety of administrators, including
the nation, port administrators, and local governments, who are engaged in
harbor-related issues; this document should be particularly important in
light of the current situation and problems in forming scenic harbors and
the inherent characteristics of scenic harbors, and (b) the guidelines that
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Imaki, Caitlin B.
provide fundamental direction for examining the implementation of
scenery assessment at each stage of harbor planning, construction and
completion. The guidelines also state that principal factors which play a
central role in establishing the scenery of a harbor include things which
can be considered to have high historic value including warehouses,
breakwater structures (bōhatei 防波堤), seawalls, and other things such as
brick or stone buildings, the water surface, lighthouses, lookout towers,
and other historic construction.
B. Relevant Facts
The court finds the following facts based on the point of oral argument and the
evidence (Exhibit A, Number A1 -4, 6, 7, 17, 40, C1(2), 4(1), 16, 18; Exhibit B,
Number 1, 2, 24, 35-38, 48-51, 53-67, 142(2)-(9), (11), (12), (15), (17)-(21), (23)(36); Exhibit C, Number 1).
(A) Tomo-no-Ura’s historical and well-knows structures (Exhibit A, Number A1,
A4, C16)
a. Within the manyōshū [Japan’s oldest anthology of poems; 万葉集,
translator’s note], eight poems have been dedicated to Tomo-no-Ura.
Those poems include stories of Ootomono Tabito leaving all his sorrow
from loosing his wife on the way to a new job with the moro trees of
Tomo-no-Ura (the Moro tree is a common indigenous tree of the Seto
Inland Sea area), and poems written about Tomo-no-Ura’s beautiful whitecapped waves, etc. Of the eight poems mentioned above, there are stone
monuments with their inscriptions for three of the poems in Tomo City.
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Imaki, Caitlin B.
b. The town of Tomo-no-Ura was founded in the middle ages. Taiga-shima
Island (大可島), in the eastern part of Tomo Bay, is an ancient battlefield
from the Nanbokuchō Era [the northern and southern courts period, 13361392, translator’s note] and where Ashikaga Tadafuyu [a military
commander during the Nanbokuchō Era, translator’s note] located the
Chugoku Area’s local commissioner post. The city has designated the
castle remains on Taiga-shima Island a historical landmark. In recent
times, the island is not connected with the mainland due to reclamation
projects.
At the end of the Muromachi-jidai (室町時代) [1392-1573, or
1333-1573, translator’s note] the Mōri family built Tomo Castle.
Fukushima Masanori (福島正則) then rebuilt Tomo Castle at the
beginning of the Edo period [1603-1868, translator’s note], after which the
castle was abandoned. After the Mizuno family (水野氏) took control of
the castle ruins and established their residency, taking control of Tomo
town. During that time Tomo established itself as a “castle town,” and in
the second half of the 17th Century, after the establishment of a western
sea route, kitamaebune [cargo ships that sailed the Sea of Japan during the
Edo period, translator’s note] and Kyushu ships began making stops at the
port there. During that time Tomo established itself as a port and
commercial city and became to be called “Port Tomo.” Tomo is located in
nearly the center of the Seto Inland Sea. When the tides change from high
to low, the tide water flows through the Bungo Channel and the Kii
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Imaki, Caitlin B.
Channel away from Port Tomo, and then when the tide changes from low
to high tide, water flows through those channels towards Tomo. Thus,
ships rode in towards Tomo on the high tides and away from Tomo on the
low tides. Because of this unique geography, Tomo became know at the
“port where you waited for the tides.”
Tomo also played an important role as a sea port. For example, of
the 12 Korean envoys to Japan, except for the ones that travelled through
Tushima Island, they all came to Japan via Port Tomo. One of those
Korean travelers, Ipanon, recorded high praise for the scenic view from
Taishōrō in his journal on a stop with his envoy in 1711 claiming the spot
to be “the most beautiful in Japan” (Taishōrō was built as the reception
hall for Fukuzenji Temple in the traditional Japanese style architecture,
shoindzukuri, and is now designated a national historic landmark).
Furthermore, the Daimyō’s of western Japan used Tomo as one of their
“alternating residences” [a house used on their regular trips to the capital
city of Edo, translator’s note], while the head of the Holland trading
company and envoys from the Ryukyu Islands all stopped over at Port
Tomo.
c. In the closing years of the Edo Era, after the Sonnōjyōi-ha [the group
supporting the emperor alone, translator’s note] lost control of Kyoto to
the Kōbukattai-ha [the group supporting shogun union with the Imperial
family, translator’s note] five of the seven noble families fled Kyoto led
by Sanjyōsanetomi and stopped over in Tomo. While there, the five noble
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families rested at [now famous] Hōmeishu-ya (the Oota Family’s
residence) and wrote a poem praising Hōmeishu. The Oota Family
residence is located at the center of Tomo’s port, and is a relic family sake
distillery brewing Hōmeishu (a medicinal sake made from shō-chu) from
the Edo era. The building is now recognized as an important cultural relic
because the main hall entrance gate is covered with a Chinese cusped
gable (karahafu-zukuri) from which a sign can hung, and below the gable
the roof has a place to hand a traditional cedar ball [indicating a sake
house or bar; see http://ja.wikipedia.org/wiki/ファイ
ル:Ota_house_Tomo01n4592.jpg for a photo of this structure, translator’s
note], plus the building has well-preserved a traditional sake distillery
structure.
There is also a well-known story of Sakamoto Ryōma who
borrowed the ship called “Iroha-maru” from Iyoōzuhan [now, Ehime
Prefecture, translator’s note] and then collided in open sea off the coast of
Mushima Island in Okayama Prefecture with the ship called “Myōkō-maru”
from the Kishū-han Domain. After the collision the Myōkō-maru landed
in Port Tomo. Sakamoto Ryōma followed and led his crew ashore,
tracked down members of the Myōkō-maru and engaged in negotiations
over the proper compensation at Taichōrō. There is an exhibit room built
in the center of Port Tomo depicting the ship Iroha-maru and this story.
(B) The shape of Port Tomo and its Structures (Exhibit A, Section A1, A6)
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a. Port Tomo is a bow-shaped port facing the south. To the east lies Taigashima Island and from there stretches a hato [a narrow structure made of
stone extending from shore to the open sea and used to break incoming
waves and load and unload ships, translator’s note]. To the west lies
Myōjin-misaki Peninsula and the hato that stretches from the Peninsula.
Farther to the south lies Tamatsu-shima Island from which also stretches a
hato. Thus, Tomo is a port surrounded by these many structures and
natural formations.
b. In approximately the center of Port Tomo is a jyōyatō lighthouse (a
lighthouse designed to help guide ships in and out of the port). This
lighthouse is 5.7 meters tall from the foundation to the top, and the base is
3.4 meters tall itself. The lighthouse rests on top of a rounded stone
pedestal, and all together the lighthouse is over 10 meters tall. There are
carved letters on the west side reading “seventh month of the Ansei Era
year six” (1859) and on the east side is inscribed “Donated by Nishimachichū”
c. To the east side of the lighthouse, practically covering the coastline is a
gangi (a stepped pier to facilitate boat landings). This stepped pier was
made when the rocky area of Yūshutsu-soba was filled in and reclaimed
and is now called the “large stepped pier of hōmeishū beach” or the “large
stepped pier of Yūshutsu beach”
d. Port Tomo is a naturally good port, but a landing port was still necessary
to protect ships from typhoon’s strong winds. Thus, in 1791, about 90
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meters off the coast of Taiga-shima Island, a 36 meter-long hato [narrow
stone structure to break waves] was made extending from Yodohime-jinja
Shrine. Later, because the structure was damaged, in 1824 the Tomo
shogun administrator, with the cooperation of the local citizens, undertook
repairs of the hato and extended its length to 144 meters. In 1847
construction of the hato extending from Tamatsu-shima Island was
completed, and the port basically resembled what it currently looks like
today.
e. Because shellfish such as barnacles and oysters, as well as seaweed and
wharf roaches stick to wooden boats, it is necessary to burn and dry out
the bottom of these ships. This process is called taderu and the place
where it occurs is called tadeba (焚場). Boat repair is also carried out at
the tadeba. Because the waves at Port Tomo are calm, and the difference
between low and high tide is great, the area is suitable for a tadeba. In
addition, Tomo was well-known for manufacturing anchors and boat
spikes, so many ship builders lived there. The sandy beach to the west of
the lighthouse is the remains of the tadeba.
f. At the highest point behind the base of the hato stretching out from Taigashima Island are the remains of a boat guardhouse (a site built up from an
existing stone wall). The upper part of that structure was converted into a
belltower in 1680, and a larger bell was recast in 1684. The bell was rung
in case of emergencies in the port area.
(C) Tomo’s Townscape (Exhibit A, Section A1, A6)
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a. In the middle of the town of Tomo there is a local hill road (saka-michi)
that connects to a prefectural road, and located along the hill road is a
building known as “the mercantile on top of the hill.” The main building
was built in the Edo period. Three rooms came off of an interior groundlevel corridor called tōri-niwa. The entry room was used as a store were
goods were displayed on the wooden floor; the store was open to the
public. In addition, farther along the tōri-niwa corridor lay a middle room
and a back room, followed by a veranda-like structure known as “en” on
the outside of the building. The store operated as a dry goods and
shipping outfitter store from the Edo period to the beginning of the Meiji
period, and then later as a fishing net manufacturer and seller of fishing
tackle and ship rigging. The store is now designated as an important
cultural relic for the town of Tomo.
b. Within the center of the Tomo’s historic townscape, historic row houses
that are the remains of the old Fukuyama Castle are preserved. Because
this tiled, gabled roof building [irimoya-dzukuri] has many living rooms
within its structure, it is called a “row house” [nagaya-mon]. The sake
house, etc. was destroyed by fire due to a peasant uprising in 1871, and in
order to rebuild the historic shop, it was dismantled and reconstructed in a
different spot.
c. The Ōta Family residence has been restored to its condition at the end of
the Edo Era. The large plot is completely surrounded by small roads and
the main building, the cookhouse, and seven warehouses line those streets.
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To the east of the road dividing the Ōta Family residence, is an important
cultural relic, the Ōta Family residence Chousōtei. This building was used
as an alternating residence for the Chōshū and other daimyō. In addition,
north of the roads mentioned above, past the townscape is the Sawamura
Family residence. This was a mercantile house selling ship rigging from
the Edo period, where the lattice doors and shutters still remain.
(D) The history of Tomo’s town and port scenery (Exhibit A, Section A(2)(1), (4);
Section A3; the general point of oral presentations).
On October 8, 1925 (Taisho 14), a portion of Tomo Town was designated
as Tomo Park because of its scenic beauty. All of Tomo Port is within the
area designated as the Seto Inland Sea National Park. In addition, Tomo Port
and the surrounding area was chosen as one of the 100 Japanese Historical
landscapes during the 40th year memorial designation under the Old City
Preservation Act Regulations because (1) the area has historical and cultural
assets that are of historical importance; (2) the historical and cultural assets
are well-incorporated into the surrounding natural environment, creating a
beautiful, scenic atmosphere; (3) because the historical and cultural assets are
so numerous, together they create a unified landscape; (4) the local citizens
are doing well to preserve and manage the area and its assets; and (5) because
the current preservation policies take measures, or it is possible to take
measures, in accordance with laws and regulations enacted to preserve the
historical features for future generations .
(E) Scenery Preservation Public Projects, etc.
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Around 1973 (Showa 48), Tomo was listed by the Agency for Cultural
Affairs as a “traditional building concentration area.” Then, in 1975 (Showa
50) Tomo was chosen by the Agency for Cultural Affairs as one of ten
municipalities targeted for grant assistance to conduct research. Accordingly,
Fukuyama City’s Board of Education and Cultural Asset Association
inventoried the current condition of all the buildings that made up the town’s
unique scenic landscape, in order to create the necessary basic documents
required by the preservation plan, and establish necessary preservation
measures. This research was possible in part due to grants from the Agency
for Cultural Affairs (800,000 yen grant) and the Hiroshima Prefecture Board
of Education (200,000 yen grant), and was completed within a total budget of
2,200,000 yen. The groups conducted the research on measures needed to
preserve groups of traditional building structures from May 1975 to March
1976 and published a final report on March 31st, 1976 titled Tomo-nomachinami [Tomo’s Townscape]. Exhibit A, Section A6.
Then, in 1978 (Showa 53), the Fukuyama Board of Education conducted
additional local research to better understand the scenery and thus restore the
historic townscape. The Board’s goal in conducting this research was to
create a practical blueprint laying out the elements necessary to protect the
historic town blocks. It hoped to accomplish this goal by expanding upon the
original study and include various types of research that would analyze
practical preservation aspects.
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Even though Tomo is a place that prospered from ancient times serving
maritime traffic as a port where boats moved through the sea lanes with the
tides, and it is a place with many cultural assets and historical structures, and
it is known as model representative of picturesque scenery in the Seto Inland
Sea, it is also a place facing economic recession and terrestrial traffic
problems. Thus, in 1996 (Heisei 8) the supporting intervenors decided to
create a Master Plan for Tomo that would create a town that unified its
terrestrial and marine aspects and solve the above-mentioned problems. One
of the objectives of the above-mentioned Master Plan was to preserve and
revitalize the town’s historical and cultural heritage, and to restore those assets
to their original condition and continue to improve the values of those assets
until Tomo is designated as a “national important traditional building
preservation area” (kuni no jyūyō dentō-teki kenzōbutsugu hozon-chiku). In
order to achieve that objective the supporting intervenors [Fukuyama City]
implemented 27 subsidized projects in 1998 (Heisei 10), to be carried out over
the next five years. Then, in 2002 (Heisei 14) the supporting intervenors
designated an 8.6 hectares [1 hectare equals about 2.47 acres, translator’s
note] area surrounding Tomo as the townscape preservation maintenance area.
In 2005 (Heisei 17) that area was designated as an “important traditional
building preservation area,” solidifying the general consensus to preserve the
maintenance area.
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(F) Details leading to the decision to reclaim the water body at issue in this case
(Exhibit A, Section A17, C4(1), C16(paragraph 6); Exhibit B1(2)(paragraph
76 and below), 24(62), 35-38, 48-51, 53-67).
The defendants’ current plan began to take form when in 1983 (Showa 58)
the Fukuyama Harbor Plan was revisited. At that time the defendants
developed a plan to reclaim 4.6 hectares of the ocean surface of the bay at Port
Tomo (about 4.3 hectares as of March 1986, Showa 61) and use the reclaimed
land for urban planning, improving traffic, and other wharf construction. The
defendants then reconsidered their plan based upon the demands of the
Hiroshima Board of Education to consider the effects on the local scenery.
Then, at the end of February in 1993 (Heisei 5), the “Tomo Area Road and
Harbor Plan Investigative Committee” issued a final report analyzing the
scope of the reclamation project, taking into account concerns that the project
limit changes the bay’s shape and minimize the area to be reclaimed (the
committee members supported a plan proposal to reduce the area to about
half). Accordingly, the defendants amended their plan and proposed to
instead reclaim 2.3 hectares, about half of what the original plan called for.
Then, the Tomo Area Road and Harbor Scenery Investigative Committee
was created in order to consider what facilities would be necessary to maintain
the scenic and cultural harmony of Tomo in response to the “Fukyama Port
Regional Port Investigative Committee” findings that such a plan necessarily
be established to maintain facilities that would harmonize Tomo’s historical
and cultural heritage. Based on the report from Fukuyama’s Committee, and
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the fact that in May 1998 (Heisei 10) the remains of a tadeba were confirmed
the reclamation plan was further amended to change the road position farther
seaward and reduce again the overall reclamation size in order to preserve as
much of the tadeba as possible. Project managers created their detailed plans
for this reclamation project in accordance with this final, amended plan.
(G) The Reclamation Project’s Execution Details
The reclamation project construction plans are as follows.
a. Reclamation (Exhibit A, Section A16, A17; Exhibit B, Section 1(1)-(3),
1(7)(paragraph 229), 2(1)-(3), 2(7)(paragraph 229).
(a) This reclamation called for the reclamation of 19,000 m2, divided
into two construction areas; the defendants planned to fill in 13,500 m2
and the supporting intervenors planning to reclaim the remaining 5,500
m2. The reclaimed area was planned to be used for things such as
parking lots, road construction, a ferry wharf, and a small boat dock.
(b) As a result of the reclamation, at least 20% of the tadeba remains
would be filled in. It is believed that originally this was a large-scale
tadeba that extended approximately 200 meters. Presently, the
location of only about 100 meters has been confirmed; the reclamation
project managers have promised to bury and preserve what they can of
the area that has been confirmed.
b. The Bridge (Exhibit A, Section C1(2), C16; Exhibit B, Section 1(2)(from
paragraph 91 and down), 24(38)).
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The developers plan to construct a bridge spanning from the east
side of Tomo Bay (near where Fukuyama-Tomo Line reaches Tomo
Bay) to the west side of Tomo Bay (near where the reclamation will
occur). The base of the bridge will be located approximately 5.81
meters above the standard water level; the bridge will be 179 meters
long, and the road that will be constructed on the bridge will be 14
meters wide. There will be eight supporting pillars. Because of this
layout, the scenic view will be interrupted and the bridge structure will
invade your field of vision if one is trying to view the surrounding
islands from the lighthouse, of if one is standing at the southwestern
end of the bay in the low-lying areas and trying to view the lighthouse.
C. Based on the above related laws and facts, the court will decide if the plaintiffs
have a scenery interest that counts as a legally protected interest under the
Administrative Case Litigation Law.
(A) Scenery has an objective value when it is integral to developing human’s
historical and cultural environment, and such scenery helps to configure a rich
living environment. People living in areas neighboring scenery with such an
objective value and enjoy the blessing of such nice scenery daily, have close
interests against infringement upon the objective value of that scenery.
Drawing upon private law principles, those scenery interests, enjoyed by
people who possess the interest (scenery interest) and enjoy the blessing of
favorable scenery, are worthy of legal protection. (See 2006 Supreme Court
Decision, Kunitachi Mansion).
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Applying this principle to the case at hand, as confirmed by the above
mentioned facts, including the calm nature of the Seto Island Sea and the view
of all the neighboring islands, in addition to the scenery of the harbor itself—
including the bow-shaped coastline, the hato protruding into the ocean, the
stepped pier set in the wharf, the lighthouse in the center of the harbor, the
boat guard station site located on dry ground—together with the historic
townscape and buildings where so many related historical events took place,
Tomo is area of beautifully formed scenery. The above mentioned port
facilities, including the remains of the old townscape and historic buildings,
are evidence that Tomo prospered as a port city for many years where legend
and stories developed recording historic tales of the economical, political and
cultural aspects of people’s lives. Based on that history, it can be said that the
value of the above mentioned scenery does not stop at the beautiful view, but
also is valuable in terms of historical and cultural worth (hereinafter this
inclusive scenery will be referred to as Tomo’s scenery). Because it is clear
that this kind of scenery is integral to the creation of a rich daily life for
people living nearby, such a scenery interest belonging to people who enjoy
the blessing of favorable scenery every day is an interest worthy of legal
protection under private law and related laws.
Taking into account the above discussion, the court rejects the defendant’s
shallow and incorrect assertions related to the evaluation of Tomo’s scenery.
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(B) Proceeding, the court will now consider whether a person who possesses the
scenery described above is a person who possesses a legally recognized
interest under the Administrative Case Litigation Act.
To analyze this question the court will first consider Public Water
Reclamation Law Provision 3. This provision provides that during the period
when public notice of the reclamation is given, any person with an interest at
stake may submit a comment to the relevant administrative governor. It can
be interpreted that an interest sufficient to submit a comment is also a legally
protected interest. In addition, any person with a scenery interest that may be
infringed upon by the current reclamation project is considered to have an
interest at stake sufficient to submit a comment. Furthermore, it is clear that
this construction project will infringe upon the scenery interests described
above in section (A) when comprehensively considering the reclamation
execution plan, especially the location and size of the area to be reclaimed, the
location and height of the bridge to be constructed, and the cars that will then
pass over the bridge. Therefore the people who possess such scenery interest
fall within the category of individuals having a sufficient interest at stake to
submit a comment as described above [under Public Water Reclamation Law
Article 3]. Accordingly, this provision of the Public Water Reclamation Law
can be considered to provide the above-described person with an individual
interest that allows such a person to take part in the administrator’s decisionmaking process regarding the public water reclamation decision by allowing
that person the chance to express his opinion.
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Second, the court will consider the Seto Inland Sea Law Article 13,
Paragraph 1. This provision provides (1) that when the relevant prefectural
governor is issuing a permit for reclamation under the Public Water
Reclamation Law Article 2, Paragraph 1, he must fully consider the special
characteristics of the Seto Inland Sea as listed in the Seto Inland Sea Law
Article 3, Paragraph 1, and (2) that as for the Seto Inland Sea’s special
characteristics, “the Seto Inland Sea boasts of picturesque scenery that is not
only the best in Japan, but unparalleled in the world, a blessing that should be
enjoyed equally by all citizens and inherited by future generations.” This
provision can be interpreted to intend to protect the general scenery interests
related to the Seto Inland Sea belonging to all citizens.
Third, the court will consider the Public Water Reclamation Law Article 4,
Paragraph 1(3). This provision forbids the granting of a reclamation permit if
such a grant would violate a land use or environmental protection plan created
by the national government or a local public body in accordance with any law.
In addition, not only does the national Basic Plan [developed under the
Scenery Law], in addition to Hiroshima Prefecture’s Basic Plan require that
“when issuing a reclamation permit pursuant to Public Water Reclamation
Law Article 2, Paragraph 1, the grantor should adhere to the Seto Inland Sea
Law’s fundamental policy and in doing so adequately consider environmental
protection measures” but it also provides that “project managers should
endeavor to reflect local citizens opinions when planning for the above
mentioned reclamation projects.” These provisions can be interpreted as
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having the intent to protect the scenery interests in particular of local citizens
living near the Seto Inland Sea who have a strong connection with the area.
Considering not only the above explained provisions and interpretations of
the Public Water Reclamation Law and related laws, but those laws together
with the nature and extent of the infringement upon rights related to the value
of Tomo’s scenery and the difficulty faced to recover such scenery once the
reclamation and bridge building occurs, the court concludes that the Public
Water Reclamation and Related laws intent is to protect the rights of those
who enjoy Tomo’s scenery as an individual interest. Accordingly, any
plaintiff who the court determines possesses the above mentioned scenery
interest has satisfied the interest requirement under the Administrative Case
Litigation Act to request an injunction to stop this reclamation project.
Although the Seto Inland Sea Law’s intent is to protect the scenery of the
area, no regulations have been promulgated to this effect. However, because
it would be virtually impossible to draft detailed government regulations for
scenery protection because the area covered by the Seto Inland Sea Law is so
large and varied, the absence of such regulations may not be used as a reason
to overturn the court’s conclusion regarding the intent of such laws.
D. The Court Will Now Examine Which Plaintiffs Possess the Above-Described
Scenery Interest.
(A) First, the court makes the following findings of fact regarding the area where
the plaintiffs live.
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a. In accordance with Appendix 1, Plaintiff 11’s address is XXX, Plaintiff
59’s address is XXX, and Plaintiff 163’s address is XXX (based on the
plaintiff’s self-acknowledgment).
b. Plaintiffs 60, 95, 128 have moved out of Tomo and thus no longer reside
there (Exhibit B, Section 142(20), (15), (12)).
c. The following plaintiffs claim that they live in Tomo, but there is
insufficient proof to support their claim.
Plaintiff 17 (Exhibit B, Section 142(17)); Plaintiff 24 (Exhibit B,
Section 142(18)); Plaintiff 30 (Exhibit B, Section 142(19));
Plaintiff 75 (Exhibit B, Section 142(21)); Plaintiff 101 (Exhibit B,
Section 142(2)); Plaintiff 102 (Exhibit B, Section 142(3)); Plaintiff
106 (Exhibit B, Section 142(4)); Plaintiff 109 (Exhibit B, Section
142(5)); Plaintiff 110 (Exhibit B, Section 142(6)); Plaintiff 111
(Exhibit B, Section 142(7)); Plaintiff 112 (Exhibit B, Section
142(8)); Plaintiff 113 (Exhibit B, Section 142(9)); Plaintiff 118
(Exhibit B, Section 142(1)
d. The court recognizes that all plaintiffs besides those described above in
sections a through c above live at the address listed in the Plaintiff Record
Appendix, which are all within the town of Tomo. (Exhibit B, Section
14(26) through (36), overall point of oral argument).
(B) Based on the fact that the town of Tomo is a relatively small administrative
district and that the Bay at issue lies at the center of that town (Exhibit B,
Section 1(2), paragraph 3), we can assume that all residents of Tomo enjoy the
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benefit of the scenery on a daily basis. Accordingly, we may conclude that all
residents of Tomo have a legal interest recognized under the Administrative
Case Litigation Law sufficient to seek an injunction against the issuance of the
reclamation permit at issue in this case. However, because it is difficult to
conclude that plaintiffs who are not residents of Tomo enjoy its scenery on a
daily basis, the court concludes that non-residents do not have a legal interest
as required under the Administrative Case Litigation Law sufficient to seek an
injunction against the issuance of the reclamation permit at issue in this case.
2. Second Preliminary Issue (Administrative Case Litigation Act’s (Section 37-4, paragraph
1) requirement that an injunction order may only be issued if serious damage is likely
absent the injunction, and only if there are no other appropriate means to avoid such
damage).
(1) The court makes the following finds of fact based on the evidence presented (Exhibit
B, Section 1, 2, 24(51), 24(74)) and the overall point of oral argument.
A. The projected length of time between the permit issuance and the beginning of
construction
Hiroshima Prefecture’s governor has already submitted an application to
the Minister of Land, Infrastructure and Transportation for permission to reclaim
the land at issue in this case (at least the permission necessary for the construction
the defendant’s planned to carry out); once the Governor received this permission,
he would then be able to issue the reclamation permit. If the permit issued, the
construction company planned to begin construction on the reclamation project
within three months, and in fact the governor of Hiroshima, in accordance with
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Article 13 of the Public Water Reclamation Law, planned to condition the
issuance of the permit on the condition that construction begin within three
months.
The current construction company was chosen to undertake the
reclamation and bridge construction through a competitive bidding process and
planned to carry out the construction through contracting out the work. It
normally takes at least one month from the time a company make a bid to when
they contract agreements are formed. In addition, after the contracting company’s
bid is accepted, because they must then make detailed arrangements for things
including personnel, machines and raw materials, it is nearly impossible for them
to begin construction the day after forming the contract. At the earliest,
construction may begin about one month after receiving a permit, and in fact it
may be more likely that pre-construction preparation will take approximately two
months.
B. Construction Details and Work Schedule for the Tomo Project
The construction company had the following plan related to the
reclamation project at issue. (Exhibit B, Section 1(3)).
(A) Reclamation Methods (Exhibit B, Section 1(3), beginning at paragraph 43)
Although it will take approximately eight years to complete the Tomo
reclamation project, because there is a need to allow for a landing site for
small boats as soon as possible, the construction company planned to divide
the construction area into two sections and complete the reclamation
sequentially.
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As for the first area, the plan includes (1) nearly finishing various
structures such as the partitioning revetment, the road revetment, part of the
connective revetment, the boat landing area, part of the bridge abutment, and
the main portion of the connective revetment for the small pier; (2)
partitioning off the construction area from the outer sea; (3) filling in the
reclamation area with fill dirt from a deck barge; and (4) moving the dirt
around with a bulldozer to achieve ground level dirt.
As for the second area, the plan includes first (1) nearly finishing the
vegetated revetment, the remaining portions of the bridge abutment and the
connective revetment and also creating a cofferdam with sheet-piling (a
method commonly used when constructing bridge abutments) in order to
partition off the construction area from the outer sea; then (2) filling in the
reclamation area with fill dirt from a deck barge; and finally (3) moving the
dirt around with a bulldozer to achieve ground level dirt.
(B) Work Plan for the First Area during the first eight months of construction.
(Exhibit B, Section 1(3), from paragraph 67, 2(3) from paragraph 11).
a. The first four months of construction
Workers will begin preliminary construction of the revetment
partition by excavating the area where the ocean dike will be constructed
(this will take about 1.5 months), followed by placement of stones into this
partition dike (this work will begin about 1.5 months after construction
begins).
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In addition, ancillary construction will begin at the same time as
the main construction in order to install a membrane that will limit water
pollution (this construction is intended to help limit the main
construction’s effect on causing murky water outside the reclamation area;
the membrane will be set along the boundary line of the construction area
and removed after the construction is completed).
b. After the first four months of Construction
Next, the workers will complete pouring the concrete for the actual
partitioning dike structure (which will take about 5.5 months), and then
they will install stones on the landward side of the partitioning dike for
reinforcement (which will be finished 8 months after construction starts).
Combined with the ancillary membrane construction stones, this will
complete the drainage construction.
(C) In addition to construction on the actual reclamation project, the construction
company also planned to establish alternate drainage pipes leading to places
other than the reclamation area for drainage pipes listed in Appendix 13(9)
through (12) (Exhibit B: Section 1(3) paragraph 72; (8) from paragraph 1; 2(3)
paragraph 14; 8 from paragraph 1).
Specifically, within Area One, dike construction will have no effect on the
drainage pipes from year one through the beginning of year four and thus
plaintiffs may continue to use those pipes as usual. From the middle of year
four the workers will construct a temporary drainage pipe system to ensure no
interruption in drainage pipe usage until a new drainage system is installed.
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After the new system is completed, it will be connected to the pipes in current
use to maintain the drainage function. (Exhibit B, Section 24(51)). In
addition, there are plans to install a valve to prevent backflow into the new
drainage pipe system at the point of discharge into the bay (overall point of
oral argument).
C. Construction plans call for the reclamation project’s outer perimeter dike to be
built higher than the highest tide ever recorded at Fukuyama Harbor; the highest
tide ever recorded was 4.96 m CDL,3 and the plan is to build the dike to a height
of 5.00 meters CDL. The base of the reclaimed land will be 5.00 m CDL; the
lowest part of the dike at the water’s edge will be 3.78 m CDL and the highest
part of the construction (the part used for the road) will be 5.8 m CDL. (Exhibit B,
Section 1(3), paragraph 1).
In addition, the construction plans call for the creation of a ditch along the
coastline (for overflow or crossing purposes). (overall point of oral argument).
(2) The likelihood of serious damage
A. In order to decide whether there is “serious damage likely to be caused” as
required under the Administrative Case Litigation Act Article 37-4(1), the court
shall consider the degree of difficulty in recovering from the damage and shall
take into consideration the nature and extent of the damage as well as the content
and nature of the original administrative disposition or administrative disposition
on appeal. (ACLA 37-4(2)). However, on some occasions, even if a plaintiff
wins an injunction suit brought under this provision asking for a revocation of an
3
“Chart Datum Line”
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original administrative decision or an appeal of an administrative decision and
thus receives a stay of execution, such a victory will be insufficient to protect his
rights and legal interests. Thus, as a method to gain relief prior to the issuance of
such an administrative decision, and with the objective of developing an efficient
type of lawsuit that may give relief to citizens trying to protect their rights and
legal interests, if the nature of a plaintiff’s rights are such that they would not be
protected by winning a lawsuit even if they received a stay of execution, then the
court must interpret this type of infringement as the type of “serious damage”
required to bring an injunction suit under 37-4(1).
B. Customary Discharge Rights
As acknowledged above, because the developers plan to construct
substitute discharge pipes, they therefore plan to take measure that will guarantee
a way to discharge wastewater.
Plaintiffs however claim that during high tides or typhoons, when water
may come inland over the reclaimed area, that the reclamation project will
obstruct water drainage back to the ocean. In addition during those high tide or
typhoon events when flood damage to inland areas is especially high, plaintiffs
claim that there is a danger that ocean water will flow through the drainage pipes
inland.
However, plaintiffs have failed to produce sufficient evidence to show a
significant risk exists that during high tides or typhoons inland areas risk flood
damage: in light of the above mentioned acknowledgement of the historic high
tide mark in Port Tomo, along with the height of the proposed reclamation and the
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plan to establish a ditch, the court finds it difficult to imagine that sea water will
wash inland over the reclamation area. As for the claim that ocean water will
wash backwards through the drainage pipes to inland areas, the plaintiffs have
failed to produce sufficient evidence to show that this is a significant possibility,
and in light of the fact that the construction company plans to connect the new
discharge pipes to the existing discharge pipe structure and install a reverse flow
prevention valve on the outfall pipe, the court finds such a state of affairs difficult
to imagine. Furthermore, in any case, any reclamation construction that ensues as
a result of the permit issuance will not immediately cause any of the purported
dangers the plaintiffs claim.
Based on these points, the plaintiffs with customary discharge rights
associated with the water body at issue do not face the above described “serious
damage” necessary to bring an injunction suit under the Administrative Case
Litigation Act.
C. Scenery Interests
We can say that the concrete divider dike to be constructed in this
reclamation project will change the scenery of the bay and public water body at
issue in Port Tomo (the defendants do not dispute this point), and we can presume
that after the completion of the concrete divider dike restoration to the previous
condition will not be simple. In addition, if the construction company receives a
permit, it has plans to begin construction within three months and have completed
the concrete divider dike in the first construction area within five months after
that. In addition, based on the fact that this matter contains many points of
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contention, making any decision not simple, and that the first phase of oral
argument that has now been completed, even if plaintiffs file a revocation suit
immediately after the permit issues and request a stay of execution, it is difficult
to imagine that the plaintiff’s would receive that stay of execution immediately.
Based on the above points considering the possible injury to scenery interests,
even if plaintiffs file a revocation suit and receive a stay of execution, the
possibility for relief will be significantly diminished.
Based on the above points, considered together with the fact that although
the nature of a scenery interest is markedly different from a life or property
interest, it is an interest intimately connected with daily life, and it is an interest
that once harmed, is difficult to recover based on monetary damages, it is suitable
to recognize that the plaintiffs with a scenery interest may be considered to suffer
the requisite “significant risk of damage” [as required by the Administrative Case
Litigation Act] if the reclamation permit is issued.
(3) In light of the findings in the above section (2)C concerning the nature of damage to
scenery interests, the court concludes that this is not a case where there are
“appropriate means to avoid such damage,” as required by the Administrative Case
Litigation Act Section 37-4(1).
IV. Court’s Decision on the Merits (Whether, under ACLA provision 37-4(5) a disposition
would clearly be contrary to law, or go beyond the administrator’s discretion, or constitute an
abuse of discretion).
1. Framework for the court’s decision corresponding to the Public Water Reclamation Law
Article 4, Section 1, Clause 1.
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Public Water Reclamation Law Article 4, Section 1, Clause 1 requires that if
Hiroshima Prefecture’s mayor issues a reclamation permit, that such a permit must be for
a “rational and suitable use of the Country’s resources.” Because this is a restricted
discretionary act, when determining whether or not to grant a reclamation permit under
the Public Water Reclamation Law, it can be interpreted that the Hiroshima Prefecture
Governor can exercise his discretion to conform to the above requirement based on a
political decision.
However, The Seto Inland Sea law was enacted with the purpose of protecting the
environment of the Seto Inland Sea and, accordingly, provision 13-1 requires the relevant
prefectural governor to adequately consider the special characteristics of the Seto Inland
Sea as articulated in the Seto Inland Sea Law Article 3-1 when issuing a reclamation
permit pursuant to the Public Water Law Article 2-1. In addition, article 3-1 of the Seto
Inland Sea law defining the special characteristics of the area states that future
generations should inherit the beautiful scenery of the Seto Inland Sea. In addition, the
Seto Inland Sea Law requires the government to establish a Basic Plan to guide the
preservation of the Seto Inland Sea environment (Article 3-1), and requires the relevant
prefectural governors to establish their prefectural area plans regarding the preservation
of the Seto Inland Sea environment in accordance with the Basic Plan (Article 4).
Furthermore, the government’s Basic Plan establishes that “the government should
endeavor to preserve the natural scenery of the Seto Inland Sea and its integral parts
including historical landmarks, famous naturally scenic national monuments, etc.” And,
the plan established by the mayor of Hiroshima Prefecture points out that the Law for the
Protection of Cultural Properties has designated Tomo Park as a place of famous natural
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beauty, and establishes that measures should be actively taken to preserve the cultural
assets, which are an integral part of the Seto Inland Sea natural scenery, by ensuring
facilities for disaster-prevention, preservation repair and environmental maintenance, etc.
exist. Considering the above-mentioned provisions and earlier referenced provisions of
the Scenery Law as a whole, it can be interpreted that the administrative objective for the
country’s resources should be to preserve the scenery interests that include cultural and
historical value of Tomo’s scenery in the best possible state.
Accordingly, to decide whether Hiroshima Prefecture’s governor’s act in issuing a
reclamation permit is for a “rational and suitable use of the Country’s resources,” the
court must not only balance the effects the reclamation and bridge project will have on
Tomo’s scenery with the necessity and public benefit from the bridge and reclamation
project, but also the permit decision must also be rational in that it takes into account the
intent of the Seto Inland Sea law to endeavor to preserve the favorable scenery of the
Seto Inland Sea area. A decision that is not rational will be considered to be an act
beyond the administrator’s discretion and therefore illegal conduct.
2. In order to reduce the effects on the scenery, the project managers, with regard for the
investigation and deliberations of the Tomo District Road and Harbor Scenery
Investigation Committee (Heisei 10, March), have proposed to take the following
measures (Exhibit B, 1(7)(302), (303); 2(7)(302)(303))
(1) Construct an artificial shoreline to the west of the project reclamation site as a
substitute for the shore that will be lost to the reclamation project. When landscaping
the area, in addition to selecting trees to those already planted, planners also intend to
plant trees in random positions in order to create a natural-looking forest. From the
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reconstructed shore to the breakwater point of the reclaimed area planners intend to
construct the beach line in a way that preserves the crescent-shaped beach line of
Tomo’s harbor.
(2) In order to preserve the scenery surrounding the lighthouse, the plan calls for the
construction of a rocky beach inlet north of the land to be used as a green area at CDL
+0.50 – 3.00 meters in height. This will allow for the tide to wash in and out over the
small stones, reproduce the rocky fishing area, and contribute to the revival of the
ecosystem.
(3) As for the space created by the reclamation, as many trees as possible will be planted
to create a rich and intimate/familiar area. The form, design, materials and color of
all buildings and other construction established after the reclamation will be made by
endeavoring to harmonize the new construction with the existing townscape. The
breakwater maintenance road in front of the land to be used for the ferry wharf will be
made of wood decking. The design and color of all protective fencing, lighting, and
beacon lights will be constructed in a way that harmonizes with the background
townscape and historic atmosphere and creates a unified area.
(4) Plantings will be made in such a way that thickets of tall trees do not obstruct the
view of the townscape from the harbor, or the view of the harbor from land.
(5) The passenger terminal will be harmonized with the stepped pier and townscape, and
in consideration of the design image of the historic buildings from the Edo period.
The horizontal base of the bridge will be built at least 25 meters from the lighthouse
and will incorporate the Yatsuhashi Bridge design, which was inherited as a
component of the Japanese garden, and the end of the handrail will constructed in the
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hanedashi design [sloping up on the end; find website from Kato-Sensei for photo].
In order to best preserve the view from the sea and shore, the bridge will raise up at as
gentle a slope as possible and the supporting beams and bridge piers will be slender.
(6) As for the area between the wharf in front of the land to be used for a pier and the
dike for the green area, the plan calls for a stepped pier made of highly hydrophilic
natural stones that is harmonized with the stepped pier remaining from the Edo period
and thus preserves that continuity. All buildings constructed after the reclamation
should incorporate a traditional cultural design that considers harmonizing the new
construction with the historical cultural buildings in the area.
3. The effect the current reclamation and bridge project will have on altering Tomo’s
scenery and the extent of Hiroshima Prefecture’s governor’s discretion.
As previously acknowledged, this reclamation project will fill in approximately
190,000 m2 of the public water body inside Tomo Bay and result in the same amount of
land being created. On that land, the plan calls not only for the construction of things
including a parking lot, a road, a ferry wharf, and a small boat landing site, but also the
construction of a ferry terminal and other buildings. In addition, at least half of the
remains of the tadeba will be covered within the reclamation. Furthermore, the project
will be constructed spanning from the east (where Fukuyama-Tomo Line reaches the bay
at issue) to the west (to the eastern tip of the current reclamation project). That bridge
will raise up 5.91 meters above average sea level, will span 179 meters, and will include
8 bridge support piers. On that bridge will be a 14 meter wide road upon which cars will
pass.
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In light of the above mentioned construction plan and the planned usage for the
area, there is no question that the construction of the bridge and other things will obstruct
Tomo’s scenery, and once the bridge and its support piers are constructed inside Tomo
Bay, and the planned road is finished and cars begin passing over the bridge, there will be
a complete change of Tomo’s scenery. There is also no doubt that this will harm Tomo’s
overall scenery, and the court recognizes that this will cause a great decrease in Tomo’s
cultural and historical value. Even if the construction company takes all the measures it
has proposed as outlined in section 2 above, in light of the fact that Tomo’s scenery is as
described above, those measures cannot be considered sufficient to compensate for the
harm to the scenery.
In light of the court’s previous analysis regarding whether or not scenery should
be protected as a private interest and the law as outlined in section 1 above, the value of
Tomo’s scenery is not only something that should be legally protected as a private
interest, but because the scenery is an integral component of the Seto Inland Sea’s
beautiful landscape, in addition to having cultural and historic value, Tomo’s scenery
should be considered a national asset for the public good. Furthermore, once this
construction is finished, it is of the nature that restoration to the original state will be
impossible. In light of these points, the effect of the current construction, including
bridge, on Tomo’s scenery is significant and cannot be made light of. Thus, any political
decision must be made with care, and if the foundation upon which that decision is based,
including any research or investigation, is insufficient, or if the decision is not rational,
then the decision to issue a permit will be considered irrational and thus beyond the scope
of discretion under the ACLA 37-4(5).
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4. The necessity and public nature of the current reclamation and bridge project.
(1) Effect on Road Maintenance
A. Current Road Traffic Conditions (from Exhibit B, Section 1(2)(20)).
Tomo District’s master plan is to divide up each district from the north,
beginning with Shirokaya district, Central Tomo Urban District, Tomo Bay Area
District, Flat Area District, Murohama District, and then also divide up the
districts around Sensui-jima Island. (Exhibit C, Section 1) (hereinafter, the
Central Tomo Urban District and the Tomo Bay Area District will be referred to
together as the Tomo District).
The main road of Tomo-Matsunaga Route stretches from Fukuyama City
Matusnaga District located in the northwest of Tomo District, and the main road
of the Fukuyama-Tomo Route connects the Tomo District to the Central
Fukuyama City District (to the north of Tomo District) and then connects to
Highway 2.
Sections of unfinished road-widening projects are identified in the figures
in appendix 15 by orange squares and wavy lines. The total length equals about
one kilometer; besides public buses and micro buses, all large vehicles are
forbidden from using those sections of road. The light blue sections on the same
figures indicate sections of road that are at least 4.9 meters wide (the width
required for two standard private cars to pass each other going opposite directions
without stopping), and the rest of the road on the figure is less than 4.9 meters in
width.
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B. Fukuyama Consultants Research (Exhibit A, Section C16, C24, Exhibit B Section
145). Research Contents and Results Were as Follows.
(A) Traffic Volume Research
a. Research Entry
Research Location: As listed in the figures in Appendix 16 (Exhibit A,
Section C24(5).
Research Day and Time: The 12 consecutive hours between 7 AM and 7
PM on Heisei 18, August 22. The weather was
fine that day.
Research Methods: Count the traffic volume and type of car travelling in
each direction and record the results each hour.
Car type was classified as either (1) passenger
vehicle; (2) small cargo truck; (3) bus; or (4)
large cargo truck. Pedestrians and two-wheeled
vehicles (including bicycles and motorcycles)
were also each counted and the results recorded
each hour.
b. Research Results
(a) Traffic Volume is listed in the table in Appendix 17 (Exhibit A,
Section C(24)(7)). According to this table, the traffic volume for the
12 hour period at point 3 on the Fukuyama Tomo Line (this point is
noted on the figure in Appendix 17; the same applies to other points
listed below) was 4,600 cars; on the same road at point 4 where the
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road enters Tomo District, researchers recorded 2,000 cars; along the
road between point 4 and 5 (a one-way road) there were 1,700 cars;
about 2,800 to 2,700 cars were recorded on the stretch of road
connecting point 5 with point 8; along the road from point 8 in the
direction of Matsunaga, there were 3,600 cars In addition, along the
small road within Tomo District researchers recorded about 1,000 cars.
(b) Generally speaking, traffic congestion is usually denoted as a ratio of
the actual traffic volume over the road’s potential volume. A ratio of
less than 1 indicates that there is no congestion problem and that traffic
flows smoothly at all times; a ratio between 1 and 1.25 indicates that
during peak times there is the potential for traffic congestion; a ratio
between 1.25 and 1.75 indicates that congestion occurs not only at
peak times, but also potentially at other times during the day; and a
ratio above 1.75 indicates a chronic traffic congestion problem.
The daily traffic congestion rate for the areas with unfinished roadwidening projects as listed in Appendix 16: near the neighborhood of
cross-section 6 the ratio was 2.4; in the area along the right hand curve
outbound from point 8 the ratio was 6.9 (hereinafter referred to as the
“highest congestion area”); in the area from point 8 to point 5 the ratio
was 3.9; from point 5 to point 4 the ratio was 3.1.
(c) The volume of cars along the route from Matsunaga to Fukuyama
(inbound route) with the highest congestion area as differentiated by
time of day was as follows: just less than 500 cars during the 7:00 AM
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hour; just over 200 cars in the 8:00 AM hour; and between 9:00 AM
and 7:00 PM about 100 cars passed the research point.
In addition, the volume of cars heading from Fukuyama to
Matsunaga (outbound route) along the same route as differentiated by
time of day was as follows: between 7:00 AM and 5:00 PM
approximately 100 cars; from around 4:00 PM traffic volume began to
increase and about 200 cars passed in the 6:00 PM and 7:00 PM hours.
If we add together the traffic amount from both the inbound and
outbound routes in the highest congestion areas, approximately 600
cars passed in the 7:00 AM hour, approximately 350 cars passed in the
8:00 AM hour; approximately 250 cars passed in the 9:00 AM hour.
From there the amount of traffic steadily decreased: in the 1:00 PM
hour approximately 200 cars passed; between the 2:00 PM and 4:00
PM hours just less than 200 cars passed; approximately 200 cars
passed in the 5:00 PM hour; and approximately 300 cars passed in the
6:00 PM and 7:00 PM hours.
(d) Within the Tomo District, approximately 500 people passed on foot or
bicycle over the 12 hour period, and approximately 100 people passed
through the Tomo District on motorbike over the 12 hour period.
(B) Traffic Speed Research
a. Research Entry
Research Location: As listed in the figures in Appendix 16: from the
point listed as “in front of the provisional Tomo
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office” to the point listed as “Taira-wakare”
(approximately 1 km in length).
Research Day and Time: Same as traffic volume research.
Research Methods: Using a research car, make three round trips in one
hour through the study area and measure how
much time it takes to pass through the principal
intersections.
b. Research Results
Although the average travelling speed on the inbound route was
between 12 and 15 kph, the average travelling speed fell to 10 kph
between 9:00 AM and 10:00 AM, between noon and 2:00 PM, and
between 3:00 PM and 4:00 PM. Especially between noon and 1 pm the
speed was only 6 kph. That speed was highly variable depending on
whether there was oncoming traffic or not.
On the inbound route the cars travelled at the lowest speed
between 8:00 and 9:00 AM, at 10.6 kmh. During other time periods, cars
travelled at around 15 kph, and on occasion up to 20 mph.
(C) License Plate Research
a. Research Entry
Research Location: The six locations listed in the figures in Appendix 18
(Exhibit A, Figure in Section C24(14)).
Research Day and Time: Same as traffic volume research.
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Research Methods: For both inbound and outbound traffic, record the car
make and model, license plate number and the
time of passing (in minute intervals). Research
was conducted by two people: one person
observed and one person recorded.
b. Methods Used to Convert the Research Results into the OD table
Depicting the Present Situation
(a) Convert the license plate information collected in each area into data.
(b) Cross-check data in paired intervals to determine the origination and
destination of each car. Based on this information, predict the OD
amount for each section of road.
(c) Collect similar data from the non-neighboring points.
(d) As the next step, make the OD table (“O” means the point where the
traffic observation began, the “origination” and “D” means the point
where the traffic observation ended, the “destination”) divided into six
zones (the six locations listed in the above mentioned figure)
(e) Calculate the present (Heisei 18) traffic volume for each direction in
each of the six zones based on the plate calculations and fill in the OD
table for the 12 hour period.
(f) Use the census data index from Heisei 17 and based on the Internal
Tomo District situation, divide zone three, four and five each into two
zones as depicted in appendix 19 (Exhibit B, Section 6(3)). Based on
this new zoning, create the OD table for the 12 hours of data from
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Heisei 18 (hereinafter each zone will be referred to as the zone listed
according to the figure).
(g) Multiply the results from all 9 zones (Heisei 18) by a day/night rate of
1.27 to convert the 12 hour OD table into a 24 hour OD table showing
the current (Heisei 18) 24 hour situation. The day/night rate was based
on a number from research conducted on August 23, Heisei 17.
c. Making the future OD table based on the research results.
(a) Create the future (Heisei 42) OD table (24 hours) by multiplying the
present 24-hour OD table by 1.0336 (which is the latest increase in
average traffic volume, taking into account the distance travelled per
unit, within the Sanyō District).
(b) Traffic Volume Estimation
Based on the above 24-hour OD table depicting the current
situation (Heisei 18), [consultants] will first pre-define the road
network conditions, and then using the estimation technique called
Minimum Generalized Time Route search method, [consultants] will
estimate current traffic flow. Then [consultants] will verify the model
validity by comparing the results with the actual traffic volume as
recorded in the above-mentioned license plate research. This
confirmation is to verify the model parameters (number of divisions,
setting the proportion of divisions, relationship between the zone
distribution and the roads under study, etc. Exhibit A, Section C24) to
ensure the validity of the future traffic volume estimation. If this
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verification is sound, then we can assume the parameters are sound
(network conditions, estimation technique, etc.) and we can use the
model to predict future traffic amount using the above-mentioned
future (Heisei 42) OD table (24-hour). Future traffic volume was
estimated for the current network (Heisei 18), the network that would
exist in light of the reclamation and bridge project (for both the
situation with an access road to the proposed project and without an
access road to the proposed project), and the potential network that
would exist in light of the proposal to build a tunnel through the
mountain. The Minimum Generalized Time Route search method is
an incremental assignment method that chooses a route based on a
generalized time. In the case of a toll road, the generalized time value
includes the actual driving time plus a converted amount of time based
on the toll fee. If the goal is to have only non-toll routes, the method
will not consider a toll route, and then simply chooses the shortesttime route. Because there are no toll roads in the Tomo District, the
incremental assignment method based on the shortest route according
to time was used. (Exhibit B, All of section 145).
(c) Results
The present conditions (Heisei 18) for the (1) six zones OD Table
(12-hour), the (2) nine zones 12-hour OD Table (Heisei 18; hereinafter
referred to as the “Present 12-hour OD Table”), and (3) the nine zones
24-hour Table (Heisei 18) are all listed in Appendix 20 (Exhibit A,
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Imaki, Caitlin B.
Section 24(19)), Table 3-4, Table 3-5, Table 3-6, respectively. In
addition, the future OD Table (Heisei 42) is listed in Appendix 21
(Exhibit A, Section C(20)), Table 3-9 (hereinafter referred to as the
“Future OD Table”). As for reproducing the current traffic conditions
(Heisei 18), the reproduction rates were close to the traffic volume
recorded in the above-mentioned actual license plate research.
(Exhibit A, Section C24(32)).
d. Fukuyama Consulting stated their future (Heisei 42) traffic volume
estimation rates in its above-mentioned research report (Exhibit A, Section
C24) and those estimations are as follows (from page 36 onward from the
report).
(a) Under the Plan for Reclamation and a Bridge (with an access road)
Approximately 5,100 cars will use the road constructed per day if
the reclamation plan is executed. Most of the traffic volume on
Prefectural roads within the Tomo District will shift to the new road.
This will include the less than 100 cars per day that pass through the
unfinished road-widening project sections of road, and with the
exception of the Fukuyama-Tomo line Route, most of the traffic
volume from surrounding roads with unfinished road-widening
projects in the area that have traffic volume of less than 100 cars per
day, or just about 100 cars per day. (The plaintiffs claim that this
above-mentioned result is illogical based on the following presumed
facts: (1) The traffic volume on roads within Tomo Town is less than
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Imaki, Caitlin B.
100 cars per day; (2) traffic volume on the district roads is estimated to
be less than 100 cars per day; (3) there is only about 100 cars per day
using roads within each district area. However, Fukuyama
Consultants estimated results as described above were not simply
based on adding up the traffic volume within Tomo Town or Tomo
District as a total of less than 100 cars per day as plaintiffs claim.)
The congestion rate for the unfinished road widening project areas
(for a traffic volume of 100 cars per day), based on the above future
estimated results is from 0.1 to 0.2 (Exhibit A, Section C(16)(18)). An
access road would be a road constructed from area point 8 extending
south to intersect at a perpendicular angle with the proposed new road
(Exhibit A, figure on page 34 of Section C24) (Although originally the
supporting intervenors answered that, based on Hiroshima Prefecture
Governor’s questionnaire, the access road was a necessary future road
(Exhibit B, Section 24(16)), constructing the access road will require
acquiring land from private citizens (this point was clear from the oral
argument), and therefore, it is now unclear whether the access road
will in fact be a definite part of the proposed construction).
(b) Under the Plan for Reclamation and a Bridge (without an access road)
Approximately 4,800 cars will use the road built under the current
plan daily. Accordingly, some of the traffic volume within the Tomo
District will remain, and thus approximately 400 to 500 cars will pass
through the unfinished road-widening project sections on a daily basis.
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(c) Mountain-side Tunnel
If there is a mountain tunnel constructed under the proposed
mountain tunnel plan (depicted by the dotted line as the “Tunnel
Proposal” in the figure in Appendix 18, referred to hereinafter as the
“Tunnel Route”), although approximately 3,300 cars will be diverted
to the tunnel from other routes, including vehicles passing through the
Tomo District (1,100 cars per day), between the Taira-chiku–
Fukuyama City Center areas (1,800 cars per day), and some of the
traffic between the Numakuma and Tomo Areas (400 cars per day),
most of the traffic between the Numakuma and Tomo areas (1,300 cars
per day) will still use the unfinished road widening areas. In all, the
unfinished road widening areas will still have 1,900 cars pass each day.
Based on the above results, when calculating the traffic congestion
ration for the unfinished road widening areas, for the areas where
1,900 cars are predicted to pass each day, the congestion ratio is 2.1 to
2.9. (Exhibit A, Section C16-18).
The tunnel’s sphere of influence is estimated in the figure in
Appendix 22 (Exhibit A, Section C24(39)).
C. Environmental Research Institutes’s Research (Exhibit A, Section F(12)(1))
Research methods and results are as follows.
(A) Research Methods
Research Day:
November 7, Heisei 19
Research Time:
6:00 AM to 8:00 PM, 14 hours
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Research Methods:
Using a counting machine, record the number of
large and small cars that pass each hour. Recording
points were located along the Fukuyama–Tomo
Road near cross-section 1 on the figure in Appendix
16 (hereinafter referred to as Location 1 in this
section) and near cross-section 6 on the Matsunaga–
Tomo Road (hereinafter referred to as Location 2).
In addition, the principal 4th digit on all number
plates was recorded on paper in addition to a voice
recording.
(B) Research Results
Research results are recorded in Appendix 23 (Exhibit A, Section
F12(1)(4)). Transit traffic is the number of vehicles that passed through
Location 1 on the mountain side after having passed through Location 2 on
the mountain side and the number of vehicles that passed through Location 2
on the ocean side after having passed through Location 1 on the ocean side.
D. Discussion
(A) On August 22 during the 12 hour period between 7:00 AM and 7:00 PM
between 2,800 and 2,700 cars were recorded on the stretch of road between
Point 5 and Point 8 (Fukuyama Consulting research results). Based on this,
we may presume that generally the same amount of cars will pass through this
road on a daily basis. In addition, this is the principal road through the Tomo
District, and although it has not adopted a one-way regulation, because the
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road is narrow and the width is less than 4.9 meters, it is a difficult road where
cars often have to carefully navigate around each other. In addition, this
neighborhood block is an area where people regularly pass through on foot or
bicycle in the course of their daily life. In light of type of use that occurs on
this road, from the point of view of traffic speed and safety, etc., because
compared with roads in most areas we can say that this above mentioned road
has inferior traffic conditions, it then follows that there is a need to improve
the road and that such improvement is a high public priority.
(B) The most heavily congested time on the unfinished road widening project
sections occurs as noted above in Section B(A)b(c). And, based on the fact
that wide fluctuations in traffic congestion occur depending on the time of day
in this area, we can presume that these same differences in traffic volume and
congestion occur during the same time periods on other parts of the road as
well.
Further analyzing the difference in traffic volume depending on the time
of day as noted above for the most heavily congested area, most of the traffic
volume occurs between 7:00 and 8:00 AM and consists of cars leaving the
area on the inbound route, followed by a period of time between 9:00 AM and
around 4:00 PM when only 200 to 250 cars pass by. The, from 4:00 PM there
is an increase in traffic volume, and between 5:00 and 7:00 PM approximately
300 to 400 cars pass this area. The increase in traffic volume after 4:00 PM is
likely caused by the heavy morning traffic heading in the outbound direction.
In addition, the heavy volume time periods overlap with commute times to
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and from work: particularly if we consider the time to commute to work, the
amount of traffic on the inbound route in the 7:00 AM hour reaches up to just
under 500 cars, and in light of the fact that this route is connected to roads
heading between Numakuma Town and Fukuyama City, it is highly likely that
most of the traffic volume that occurs in the most heavily congested area
between 7:00 and 8:00 AM and between 5:00 and 7:00 PM is commuter
traffic. And, in light of this conclusion, we may presume that this traffic not
only passes through the most heavily congested areas, but also passes through
all of the unfinished road widening project areas. Furthermore, considering
the above data in addition to the fact that there are few places to commute to
within the area surrounding the bay at issue in this case (Exhibit A, Section
B1), we may infer that most of the traffic volume in the morning between 7:00
AM and 8:00 AM is heading from Numakuma or the Taira District in Tomo
(Zone 5, 6) to the center of Fukuyama City (Zone 1, 2) or perhaps the northern
end of Tomo’s Central District (Zone 3-1), and that most of the traffic in the
afternoon between 5:00 PM and 7:00 PM is heading from the center of
Fukuyama City, or perhaps from the northern end of Tomo’s Central District
towards Numakuma or the Taira District.
Furthermore, as acknowledged above, Fukuyama Consulting stated “we
estimate that the proposed tunnel will influence the area noted on the figure in
Appendix 22.” Comparing that figure with the figure in Appendix 19, the
proposed tunnel would appears to influence not only zone 1, 2, and 5, but also
part of zone 3-1 and part of zone 4.
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Considering all of the above points together, there is a high possibility that
the majority of traffic that we inferred was in fact commuter traffic will stop
using the unfinished road-widening project sections and start using the tunnel
if it is completed. If that is the case, considering the effect on reducing the
traffic congestion on the unfinished road-widening project sections during the
comparatively high use time periods during the 7:00 AM and 8:00 AM hours
when people are leaving the area, and the relatively high use time periods
between 5:00 and 7:00 PM, there is a high possibility that there will be a
significant difference between the results produced by the reclamation and
bridge project compared with the proposed tunnel project.
In addition, as for other time periods during the day, even if we only look
at other time periods for the most congested areas, on top of the fact that
hourly traffic volume already does not exceed the road capacity, in addition to
the likelihood that a fixed amount of this traffic will be diverted through the
tunnel, we may predict that even the tunnel proposal will have a satisfactory
effect on reducing the traffic congestion problem in the unfinished roadwidening and other construction project areas.
(C) The Minimum Generalized Time Route search method, used to estimate the
24-hour traffic situation, was limited by the OD table created by Fukuyama
Consulting because the table only included 12-hour and 24-hour traffic flow
through the various zones. However, in light of the court’s holding in the
above Section (B), namely that there are differences in traffic volume along
the unfinished road widening and other construction project sections
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depending on the time of day, and especially that there is a considerable traffic
congestion problem during the commuting hours, and the fact that there is a
high possibility that for these periods of time there will be a significance
difference between the results of the proposed reclamation and bridge project
compared with the proposed tunnel project, and also in light of the fact that
even the tunnel proposal will have a sufficient effect to relieve the congestion
problem through the unfinished road-widening and other construction areas
during peak traffic hours, in order to precisely compare the effects of the
reclamation and bridge project to the proposed tunnel project to understand
the effects of each on reducing traffic congestion (these indices are some of
the most important indices that should be used to compare the merits of each
proposal), research should not stop at comparing the traffic flow during a 12
hour and 24 hour period. Rather, research should include understanding
traffic flow on an hourly basis, and also to what extent traffic can be diverted
from its current route to the proposed bridge road and tunnel on an hourly
basis, and what percentage will remain taking the unfinished road widening
and other construction areas, and finally needs to investigate the degree to
which each proposal may contribute to reducing the traffic congestion
situation.
However, because Fukuyama Consulting did not perform research as
described above, based on this point we must conclude that Fukuyama
Consulting’s research and investigation is inadequate.
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Imaki, Caitlin B.
(D) Fukuyama Consulting used the Minimum Generalized Time Route search
method to estimate the future traffic volume on the reclaimed bridge road and
the mountain tunnel road. Because this technique requires establishing
estimates of conditions such as road conditions and segment numbers, if there
are changes in those conditions, then we can anticipate big changes in the
predicted outcome. Therefore, we can say that the accuracy of Fukuyama
Consulting’s estimated results will depend on the validity of the established
estimated condition values.
As to this point, the defendants claim that because their prediction of
current traffic volume is close to the actual traffic volume recorded that this
alone verifies the validity of the estimated conditions. However, because the
confirmation of current traffic predictions is only related to the current traffic
network, we must conclude that doubtful points remain as to whether the
validity of those estimated conditions will equally apply to estimates of new
road networks such as the tunnel or bridge road. Therefore, as for the validity
of the estimated conditions used by Fukuyama Consulting, the court cannot
conclusively determine that the necessary accuracy investigation occurred,
and therefore cannot immediately adopt Fukuyama Consulting’s estimated
results.
(E) Based on the above-described zones as established by Fukuyama Consulting,
none of the traffic volume between Zone 3-2 and Zone 5-1, 5-2 or Zone 6
would be diverted through the tunnel route, but may use the road constructed
in the proposed reclamation and bridge project. Based on the future OD table,
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that volume of traffic per day would be 96 vehicles, 73 vehicles, and 214
vehicles, respectively, and collectively 383 vehicles.
In addition, none of the traffic volume between Zone 3-2 and Zone 4-1 or
4-2 (according to the future OD table, the daily traffic volume is 80 vehicles
and 101 vehicles, respectively), and none of the traffic volume between Zone
3-1 and Zone 4-2 (according to the future OD table, the daily traffic volume is
245 vehicles) would be diverted through the tunnel, but some of the traffic
volume from both areas would use the reclamation and bridge road upon
construction.
Furthermore, Fukuyama Consulting’s research result suggests that none of
the traffic between Zone 3-1 and Zone 5-1 or 5-2 (according to the future OD
table, the daily traffic volume is 234 vehicles and 180 vehicles, respectively)
would be diverted through the tunnel, but that there is a possibility that this
traffic may use the reclamation and bridge road. However, because the
tunnel’s sphere of influence, as established by Fukuyama Consulting, reaches
into the trip generation point within Zone 3-1, and Zone 5-1 and Zone 5-2 are
within that sphere of influence, it stands to reason that some percentage of
those vehicles will be diverted through the tunnel. On the other hand, as for
the vehicles passing through Zone 3-1 and Zone 6 (according to the future OD
table, 524 cars per day), although some will detour from the unfinished roadwidening and other construction areas through the tunnel, considering the
entire travelling distance, and recognizing that the detour distance is relatively
short, and the fact that the roads through the unfinished road-widening and
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other construction areas are narrow, and that there is a high possibility that
some people may prefer to take the wider tunnel road, it is logical to conclude
that a large number of people using those road sections will in fact use the
tunnel road instead.
Based on the above discussion, in the case where we base our decisions on
the future OD table, no cars will be diverted through the tunnel, but the traffic
volume through the proposed reclamation bridge (that is, the difference
between the reclamation and bridge project and the tunnel proposal), could be
estimated as high as 1,000 vehicles, and will regardless be a large number of
vehicles even with an underestimate. If that is the case, then there is a
relatively high possibility that under the tunnel proposal the degree of traffic
congestion on the unfinished road-widening project area will be significantly
less than the estimated congestion rate presented by Fukuyama Consulting.
Furthermore, when comparing the road maintenance effect of the
reclaimed bridge project with the tunnel project, from the point of view of
how road maintenance will contribute to traffic convenience and safety, rather
than looking at 24-hour traffic flow, one should examine the 12-hour traffic
data when there is comparatively higher traffic volume. Such a decision
would be considered adequate, and from such a premise, there will be even
less difference in the traffic amount using the two different proposals (based
on the 12-hour OD table, even an overestimate predicts approximated 800
cars).
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Considering the above points all together, there is a high possibility that
after a public knowledge campaign much of the traffic currently passing
between Zone 3-1 and Zone 5-1 or 5-2 will be diverted through the proposed
tunnel (if there is a tunnel constructed, the traffic administrators are hopeful
that such an education campaign will be conducted). As for the proposed
reclamation and bridge project, there is no proof on the likelihood that an
access road will be constructed to connect the highly congested unfinished
road-widening and other construction areas to the bridge, and the defendants
can’t deny the possibility that construction will be difficult. And, if no access
road can be built, then the difference between the two proposals will be even
less. Considering all these points together, although one may conclude that
the reclamation and bridge project may be superior to the tunnel proposal
regarding the potential to reduce traffic congestion through the unfinished
road-widening and other construction areas, even the tunnel proposal will
have a substantial effect on reducing traffic congestion, and there is a great
possibility that the tunnel proposal will guarantee traffic convenience and
safety. Thus, because it is highly doubtful whether the advantages associated
with the bridge proposal go so far as to require the sacrifice of preserving of
Tomo’s scenery, further research and investigation is required.
(F) As discussed above, in addition to the fact that the court must conclude
Fukuyama Consulting’s research to be inadequate because it fails to
differentiate traffic volume based on time of day, in light of the findings
articulated in sections (D) and (E) above, because Hiroshima Prefecture’s
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governor relied only upon the estimated results produced by Fukuyama
Consulting when evaluating the road maintenance effects of the reclamation
and bridge project, the court must conclude that Hiroshima Prefecture’s
governor’s decision was unreasonable.
(2) Parking Lot Maintenance
A. Facts related to Tomo’s Parking Lots are as follows (if not otherwise indicated,
results are from the statistic results from Heisei 17) (Exhibit B, 1(2)).
(A) Of the tourists visiting Fukuyama City each year, approximately 27%, or
1,082,000 tourists visit the Tomo District (page 13).
(B) Of the tourists visiting the Tomo District, approximately 62% arrive by
passenger vehicle or bus (48.6% by passenger vehicle, 13.4% by bus), 36.1%
arrive by train (this includes tourists riding the JR line to Fukuyama Station,
and then taking either a shuttle bus, regularly scheduled bus, taxi, or rental car
to arrive at Tomo District), 0.8% arrive by boat, and 1.1% by some other
means of transportation (from page 41).
(C) There are 7 parking lots within Tomo District that together have the capacity
for 261 cars (including 9 spaces for tourist buses) (from page 41).
(D) Based on Hiroshima Prefecture’s research conducted during Golden Week, on
May 3, Heisei 18, eighty-eight vehicles were parked along the section of the
principal local road, the Fukuyama–Tomo Line, in front of the Fukuyama City
Office, Tomo Branch.
(E) Every year from the middle of February to the end of March many tourists
visit the Tomo District for a Japanese Doll Festival (44,000 tourists in Heisei
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17). Because there are insufficient parking spaces during that peak tourist
season, the town temporarily opens an industrial park as a parking lot and
employs a free shuttle bus to transport tourists to the center of the Tomo
District. In addition, every year in May for approximately three weeks many
visitors come to Tomo to enjoy a historical fishing festival (10,800 tourists in
Heisei 17). However, during that time the above-mentioned ground is being
used for sports and other recreational activities and is therefore not available
to be used as a parking lot (from page 41).
(F) Based on the book “Tourism Planning Approach” edited by the Japan Tourist
Association, Inc., Tomo lacks three large vehicle spaces (for tourist buses) and
201 compact car spaces (spaces reserved for individual tourists visiting the
area by car). This number of compact car spaces was determined by starting
with the standard number of tourists visiting in the busiest tourist season
(260,000 visitors in August) and then multiplying that number of daily tourists
by the turnover rate (1/2.4) and the parking lot utilization rate (0.8), and then
dividing by three (since usually three people come in one car). That result is
then multiplied by the transportation facilities allotment rate (the ratio of
tourists to the number of passenger cars was 0.486, Section (B) above) to
determine the requisite number of compact car spaces. The number of largesize parking spaces is based on the estimate that approximately 50 people per
day arrive by bus (from page 41).
(G) The reclamation work plan calls for creating parking lots on the reclaimed
land that would include 153 compact spots (fulfilling 76% of the parking
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needs as calculated in section (F) above), 3 handicapped parking spots
(fulfilling 100% of the needs), and 3 large-size parking lots (for tourist buses)
(from page 102).
B. Discussion
(A) Based on the above-acknowledged facts, and in light of the number of tourists
to Tomo, we may conclude that the current number of parking spaces is
insufficient. Accordingly, this can be a matter of public concern that requires
policy measures to be taken in order to resolve this problem.
(B) However, based on the overall point of oral argument, a number of parking
spaces for buses and compact cars could be created in the space labeled
“Pachinko Hall”4 on the map in Appendix 14 since this establishment is no
longer in business. In addition, project managers recognize that the
preservation of Tomo’s scenery is a matter of administrative concern, and on
the other hand, as described above, the resolution of the lack of parking spots
is also an administrative concern. Thus, it is not only natural, but necessary,
that administrators examine a policy that guarantees the existence of scenery
while securing adequate parking. In the reclamation reasoning report
(umetate hitsuyō riyū-sho) (Exhibit B, Section 1(2)), project managers claim
the reclamation project is necessary because they cannot otherwise secure a
sufficiently large plot of land on the existing land base, in order to secure
enough parking for 153 compact cars and 3 large buses. However, even if we
assume that the number of required additional parking spots is a reasonable
4
Pachinko Halls are pinball-like gambling game centers prevalent throughout Japan.
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number, if we consider the land required to accommodate the 201 extra
vehicles or even the 153 vehicles as predicted in the project plan, is the same
land that is required to be preserved in the center of Tomo for tourism, one
may conclude that it would be a worthy exercise to sufficiently investigate
whether dividing up those parking spaces (for example, the above mentioned
pachinko hall may host some of the parking spots) would address the parking
needs (even if those spots are slightly removed from the center of Tomo, the
city could take measures to establish a shuttle bus to the center of town).
However, we have not heard any proof that the administrators investigated or
considered implementing this kind of policy. Furthermore, not only have the
administrators not investigated or attempted to implement this policy, but in
the course of developing a plan to reclaim the bay in part to secure parking
spots, the project managers have underestimated the value of Tomo’s scenery
and neglected the fact that scenery preservation is also an administrative
priority. Therefore, not only is this policy and lack of implementation
unreasonable, but the Hiroshima Prefecture’s governor’s decision to issue a
reclamation permit in order to guarantee parking spots is irrational.
The plaintiffs point out that there is an area near the breakwater along the
sea front that may also be used for parking, but if they are referring to the
western end of the location indicated on Appendix 14 as the “breakwater,”
then this area is already used by local residents on lease from the
neighborhood association, and also by tourist buses as a free parking lot (this
is one of the seven existing parking lots noted by the project managers;
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Imaki, Caitlin B.
Exhibit B, Section 1(2)(44)) (Exhibit B, Section 136, 137). Furthermore,
although the “I Love Tomo Association” in their report outlining a proposed
parking lot plan identified the ferry landing parking lot as an area that could
accommodate around 30 cars, the project managers already identified this area
as well an existing parking lot (capable of accommodating 35 vehicles).
Within that same report, there is also a proposal to use the area below the pier
as a parking lot. However, because these spaces are shorter than typically
required for passenger vehicles, and because use of these spaces would require
that cars turn around on the Fukuyama Tomo Line (Exhibit B, Section 138(1)
to (4)), we cannot conclude that this is an appropriate measure to take. Also
with that parking lot proposal report is a plan to create multi-story parking lots
in place of existing parking lots to accommodate the spots that would be
created through the reclamation project. However, because the safety and
constructability of that proposal are unclear, points of contention remain.
Regardless, we have already laid out the business operators’ lack of
investigation and implementation above, and these last points do not influence
the court’s decision.
(C) The necessary number of parking spots as noted above in section A(F) was
based on the numbers for the month of August, the highest tourist month of
the year with 260,000 visitors. Other months typically see the following
number of tourists: January, 30,000; February, 24,000; March, 30,000; April,
80,000; May, 250,000; June, 67,000; July, 125,000; September, 86,000;
October, 85,000; November, 40,000; December, 25,000 (Exhibit B, Section
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1(2)(42)). Based on the large disparity in numbers among the different
months and the fact that tourist numbers are usually much lower compared
with August, and considering the fact that it would be possible to guarantee
transportation by things such as increasing the number of buses running in the
busiest tourist season, there are many remaining points of contention
surrounding the conclusion that the number of required additional parking
spots as calculated in Section A(F) above will be a constant requirement.
(D) Furthermore, section (1) above outlines the disputable points regarding the
claim that the reclamation project is necessary for road improvements. And,
even if we set aside general governmental road-improvement objectives, in
light of the points outlined above in section (B) and the value of Tomo’s
scenery, a number of points continue to cast doubt on the conclusion that it is
reasonable to proceed with the reclamation project in order to establish
parking lots.
(E) Considering all the above-mentioned points together, the court must conclude
that Hiroshima Prefecture’s governor’s decision to issue a reclamation license
on the basis that it was necessary for the creation of a parking lot was
irrational.
(3) Establishment of a Small Boat Landing
A. Usage Conditions in Tomo Port
(A) Fishing Activities (Exhibit B, Section 1(2) from paragraph 9)
The Tomo Fishing Co-op is in charge of all fishing-related activities
occurring in the harbor within Tomo City. These activities include managing the
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ingress and egress of fishing boats to the harbor, pre-fishing preparation activities
(preparing fishing tackle, managing boat oil and water supplies, repairing boat
and fishing tackle), hauling fishing catch onto land, and shipping it. Because the
current Fishing Co-op was formed by a merger of the Hara, E-no-ura, Ishii-hama,
and Taira Co-ops in Showa 40, the current Co-op’s activities are still divided up
along previous Co-op boundary lines. There are three previous areas, which
include Hara Area (the harbor lying along the Tomo-Fukuyama Road north of
Tomo), Tomo Area (the harbor at issue in this case, and the harbor bordering
Benten-jima), and Taira Area (the harbor surrounding the Taira fishing port).
Fishing activities in each area still occur as follows: the previous members of the
Hara Fishing Co-op still fish in the Hara Area, previous members of the E-no-Ura
and Ishii-Hama Co-ops continue to fish in the Tomo Area, and previous Taira
Fishing Co-op members continue to fish in the Taira Area.
(B) Moorage Facilities (Exhibit B(1)(2), from paragraph 51)
We find the following as it relates to the moorage facilities in Tomo Bay:
a. Michigoe No. 1 Quay (Public)
The Michigoe No. 1 quay extends from Taiga-shima and joins
Tomo Bay along the Harbor. Within this moorage, the water is shallow,
near 0 meters deep, and the length extends 19 meters. Fishing boats in
need of a temporary place to stop use this quay.
b. Michigoe No. 2 Quay (Public)
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Michigoe No. 2 quay lies north of Michigoe No. 1 quay. The
water is shallow, near 0 meters deep, and the length extends 21 meters.
Fishing boats in need of a temporary place to stop use this quay.
c. Tomo No. 1 Floating Pier; Tomo No. 2 Floating Pier (Public, Prefectural)
Tomo No. 2 Floating Pier lies to the north of Michigoe No. 1 quay,
and Tomo Floating Pier No. 1 lies even farther north of Tomo Floating
Pier No. 2. Water depth for Tomo No. 2 Floating Pier is 4 meters, and 3
meters at Floating Pier No. 1; Floating Pier No. 2 moorage area extends 70
meters, while Pier No. 1 extends 42 meters. Although this area is
designated as a passenger wharf, it is actually used as a mooring area by
fishing boats.
d. Tomo No. 1 Quay (Public)
Tomo No. 1 quay lies to the north of Tomo No. 1 floating pier and
extends to near the point where Tomo-Fukuyama Road reaches the
coastline. Within this moorage area the water depth is about 1 meter, and
the length is about 90 meters. Fishing boats in need of a temporary place
to stop use this quay.
e. Tomo No. 2 Quay (Public)
Tomo No. 2 quay lies to the north of Tomo No. 1 quay. The water
in this area is shallow, near 0 meters deep, and the area extends sixty-two
meters. Fishing boats in need of a temporary place to stop use this quay.
f. Tomo No. 3 Quay (Public)
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Tomo No. 3 quay lies to the north of Tomo No. 2 quay, and
extends the farthest of all the moorage areas into Tomo Bay. The water in
this area is shallow, near zero meters deep, and the area extends for fiftyfive meters. Fishing boats in need of a temporary place to stop use this
quay.
g. Tomo No. 4 Quay (Public)
Tomo No. 4 quay covers the thirty-nine meters from the base of
the lighthouse to Tomo No. 3 quay. Here, the water is shallow, near zero
meters deep, and fishing boats in need of a temporary place to stop use
this quay.
h. Tomo-no-Ura Fishing Co-op Pier (Private)
This pier lies to the west of the lighthouse. The water is 2 meters
deep, and the area extends for 30.4 meters. This pier is reserved for
fishing boats, and is used for things such as preparing and unloading.
(C) Passenger Ship Operations (Exhibit B(1)(2), from paragraph 47)
A passenger ship makes a regular round trip between Tomo Harbor and
XX-shima five times per day, and three times per day between Tomo Harbor
and Onomichi (however, this operation schedule does not apply to weekends
or holidays between March 17 and November 25, as well as between April 28
and May 6). Tomo No. 1 Floating Pier serves as the mooring facility for these
passenger ships.
(D) Current Problems with the Mooring Facilities (Exhibit B(1)(2), from
paragraph 51)
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a. Tomo No. 1 quay through Tomo No. 4 quay are moorage facilities that
include terraced-dock construction (gangi), which has been acknowledged
as having historic value. And from the viewpoint of a harbor manager
who is interested in respecting that value, one cannot justify the
installation of a concrete mooring facility for the purpose of improving the
facility’s maintenance, convenience, and safety.
b. Boats which cannot dock at the current moorage facilities, dock either at
private houses in front of a revetment, in the open ocean, at a breakwater,
or at Tomo Floating Piers No. 1 or No. 2, which are designated for
passenger ships. When fishing boats that anchor in private areas in front
of a revetment or in the open ocean need to load fishing tackle or other
supplies, or need to unload their catch, they typically utilize a small
transport boat.
c. Fishing boats and passenger boats moor alongside each other in a state of
congestion at Tomo Floating Piers No. 1 and No. 2.
(E) Storage Facility Site (Exhibit B(1)(2), from paragraph 51)
Commercial fishing requires a local storage facility that includes an open
storage area, a drying area, a warehouse, and a fueling facility, etc.
However, because Port Tomo does not currently have open storage, drying,
or warehouse facilities, the fishermen are forced to make do with the small
space available along the quays, on the breakwaters or on tide flats in front of
the private residences to temporarily store their tackle, and wash, dry, and
store their equipment.
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In Showa 52, a fueling facility was installed on Tomo-no-Ura’s Fishing
Co-op’s pier (including a fuel tank and dispenser, etc.), but that facility is
currently inadequate due to progressive deterioration, and its inability to
efficiently meet current fuel needs.
(F) Catch Unloading and Sorting Site (nisabaki-yōchi) (Exhibit B(1)(2), from
paragraph 51)
Because there is no current unloading and sorting site in Tomo-no-Ura,
fisherman sort, clean, weigh, pack, and otherwise prepare to ship their catch
on their boats, which are unstable, on floating piers, or on the limited space
(Apron-jiki) along the quays. Notably, although the floating piers were
designed to be used for preparation and unloading, the floating piers are now
the primary place where fishermen prepare their catch for sale. Because of
this, only a limited number of boats can use this area. Furthermore, because
the floating piers are unstable, using the pier to unload and sort their catch
poses a danger to fishermen.
(G) Boatyard (Exhibit B(1)(2), from paragraph 51)
Because there is no designated boatyard, fishermen utilize whatever
makeshift boat haul-out areas they can find to conduct things such as smallscale repairs and boat cleaning. Because the time period during which such
work may occur is determined by the ebb and flow of the tide, repair time is
limited, and maintenance is often performed inadequately. When the tide is
too high for fishermen to conduct their own repairs or maintenance, they must
ask a local, private repair shop to complete the work. In this case, in addition
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to requiring extra monetary expenditures to pay for the work, fishermen are
forced to spend time waiting their turn, and then waiting for the work to be
finished.
B. Use of Tomo Floating Pier No. 1 and No. 2, and surrounding areas (Exhibit A(F9),
from paragraph 25, general points in oral argument).
(A) Although there was once a stepped pier in the northeast portion of Tomo Bay,
this area was reclaimed, though the harbor area was preserved. However, the
merchants who buy up the fresh fish from the fishermen have nearly occupied
the currently available space with their ice vending machines and parking
spaces designated for long-term parking of their refrigerated vehicles.
(B) Tomo Floating Pier No. 1 is used primarily as a docking point for ships
regularly travelling between XXX Island or Onomichi and Tomo, and in the
evening it is used as a mooring space for the municipal ferry that runs between
Tomo and XXX Island. Although there are three mooring spots on this
floating pier, an abandoned wooden fishing boat has been moored on the
eastern side of the pier for a long period of time.
(C) Until Showa 53, Tomo Floating Pier No. 2 was used as the mooring space for
the ferry that ran between Tomo and XXX (presently, Fukuyama Port is used
as the ferry port). This pier has three moorage spots, two of which are used by
fishing boats from XXX and other nearby islands. The remaining spot is not
used by fishing boats. Instead, this mooring spot is used by XX Island’s local
governmental inn as a loading spot, as a loading area for company name boats
from XX Island (private business), a loading spot for propane gas companies,
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a docking spot for emergency boats coming from XX island carrying patients,
and understood by all users as a necessary spot to leave open on the pier.
(D) Passenger cars are also left parked on top of the floating pier and walkway.
(E) In Showa 54, with the intention to decrease the amount of fishermen mooring
their boats in Port Tomo, local authorities established a port in XXX, at the
very northern end of Tomo-machi. However, these fishermen did not shift to
using the newly established port because it lacked a breakwater, and for other
reasons. Then, around Heisei 13, a breakwater structure and three floating
piers were installed in the above-mentioned area. But even then the fishermen
did not change to using the new port, but continued to moor in Port Tomo, and
during the young sardine season (chirimen) (from May to July), the fishermen
exclusively use the pier at Port Tomo to unload their catch. Presently, part of
the above-mentioned area (that the authorities had hoped to develop) is used
as a dumping ground for old cars, fishing equipment and nets, large trash, and
in another part large containers, ice machines, and the decks of scrapped
vessels lie unreclaimed.
C. Potential Improvements to Small Boat Docking pursuant to the Proposed
Reclamation (Exhibit B(1)(2), from paragraph 115)
(A) Expansion of Moorage Sites
Based on the projects objective of creating twenty-nine docking sites for
fishing boats, the moorage site must be expanded as follows: 31.[86]5 meters
The original text indicates 31.68, but I suspect this is in error as the total would be
incorrect.
5
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for land space (widthwise6), 31.86 meters for preparation space (widthwise),
and 117.60 meters for actual moorage space (lengthwise7), for a total
extension of 181.32 meters.
The plan requires the establishment of the following structures in front of
the river revetment within the reclaimed land: one floating pier (thirty meters
on the land and twenty meters for actual moorage space), three floating
moorage sites (sixty-three meters of moorage space), and one floating pier
adjoined to the boat yard (thirty meters for preparation space and eighteen
meters of actual moorage space), for a total of a 161 additional meters.
(B) The Quay Site
The floating piers or the floating docks along the shore will require the
installation of an “apron.” The apron’s width will be 6 meters. Accordingly,
the entire quay site will require a 680.87 square-meter area.
(C) Storage Facility Site
Based on the Hiroshima Prefecture Fisheries Division calculation method8
(revised), the plan estimates that an open storage area 1547 square-meters in
size is required to accommodate existing fishing tackle; the plan has identified
1149.85 square-meters that could be used for this purpose.
Using the same estimation method (revised) created by the Hiroshima
Prefecture Fisheries Division, and based the current amount of fishing tackle,
This is the space required assuming the boats are moored alongside each other, with the
short end of the boat along the dock.
7 This is the space required assuming the boats are moored with their longside along the
dock.
8 An officially sanctioned government protocol.
6
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the plan estimates that108 square meters of land is required to construct an
adequate storage facility; however, the project proposal has identified only
98.59 square meters. The proposal indicates the storage facility will be built
on that land.
Similarly, the current number of boats, etc. requires an oil tank 3.11
meters in diameter and 4.36 meters high to be installed. This will require
securing an additional five meter buffer zone area for saftey. Accordingly, the
plan calls for an oil storage site 172 square meters in size.
Based on historic fishing catches in the Tomo area, and using the
Hiroshima Prefecture Fisheries Division estimation method (revised), the plan
predicts the fishing industry will require a catch unloading and sorting site 560
square-meters in size; the plan has identified 528.80 square-meters for this
purpose.
(D) Boat Yard Site
Timely boat repairs will require a moorage extension of 12 meters in
width and 29.76 meters in length, and an additional 475.33 square meters in
order to accommodate the ingress and egress of supporting vehicles and an
area to store necessary parts.
D. Discussion
(A) In light of the Moorage Facilities problems discussed in Section A(D) above,
it can be said that measures need to be taken to implement a policy that would
help solve issues such as ensuring uninterrupted fishing activities, and
improving fishing safety and convenience. Furthermore, the current project
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includes plans to make some of the reclaimed land available for quay areas,
storage facilities or boat yard sites. The size of land the project expects to be
able to provide [for this purpose] is approximately 3105 square-meters; it
would be essentially impossible secure such a large space a space which is
impossible to secure presently within Tomo Port area. If this site is secured,
and the facilities being planned in the current project are constructed upon that
land, and those facilities are actually used, then this would reduce the lack of
convenience and danger associated with the current inadequate facilities.
Furthermore, if the project could possibly vastly improve the efficiency and
safety of the fishermen’s fishing activities. If such improvements occurred,
then the current reclamation project could be said to be in the public interest.
(B) Originally the project developers justified their reclamation project by
claiming the current mooring facilities are in need of repair (Exhibit B(1)(2),
(2)(2)), but in light of the fact the wooded stepped piers can be repaired, and
the other floating piers can be replaced with new structures, the barriers
associated with deteriorating mooring facilities would no longer exist, and
thus, the current reclamation project can obviously no longer be justified by a
need to address the deteriorating facilities. There is, however, no proof that
the defendants and others who are managers of the afore-mentioned facilities
attempted to develop a policy to manage the deterioration problem which
would include some kind of maintenance or replacement of the bad structures,
or attempted to actually repair or replace the structures. Rather, their acts
have been nothing but irrational.
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(C) The developers of this project claim that the reclamation is necessaryin
large partto ensure that small boats will have a place to land, in light of the
fact the water in the bay is so shallow, and the moorage facility’s necessary
extension has been inadequate (Exhibit B1(2), 2(2)).
However, the planners estimate the moorage facility will need to include
31.689 meters for unloading, 31.86 square-meters for the preparation space,
and 117.60 meters for the actual moorage space (for a total of 181.32 meters)
in order to serve the estimated number of twenty-nine ships in their target plan.
Even if we assume this is a rational number of ships, the current length of all
the moorage facilities within the bay (not including the length of Tomo
Floating Piers No. 1 and No. 2) is 316.4 meters, which is already sufficient.
The developers also explain the necessity of their reclamation project by
claiming one may inferbased on the facts laid out in section A (B) above
explaining the problems with shallow water in the baythat there is a great
need to extend the length of the moorage facility. (However, in the developers
original reclamation proposal and report explaining the need for the project,
the developers did not clearly identify any reasons associated with this area.).
However, according to the evidence submitted (Exhibit A(A1), from
paragraph 35) and discussed during oral argument, since early modern times
sand has been accumulating on the ocean floor within the harbor after XX
Island was connected with the mainland. Further, after the completion of the
hato to break the waves, even more sand and dirt accumulated on the ocean
9
I suspect this was meant to be 31.86 in light of the total.
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floor, which required dredging from time to time. Accordingly, because of
the harbor’s natural structure, the water depth in Port Tomo will inevitably be
too shallow, which is a problem that may be solved by periodic dredging as
necessary. However, there is no evidence the developers gave serious
consideration to such an existing method available to solve the shallow water
problem, or attempted to do anything about it.
Furthermore, as previously pointed out, the project’s plan to secure such a
large area of land for the proposed a quay area, a storage facility or boat
mooring site (approximately 3105 square-meters in total area) is literally
impossible based on the actual, present size of Tomo harbor. However, in
spite of the fact that the new harbor area to the northeast has already been
reclaimedwhich was the previous site of the wooden stepped pierthat
reclaimed site is now mostly occupied by things such as an ice machine
facility installed by the fishing industry, and a parking lot used for the longterm parking of refrigerated trucks. Therefore, local fishermen cannot use the
site for their fishing activities. It is rational to conclude a harbor manager
should first take administrative measures to study whether this land could be
better used for necessary fishing activities. If land at this site could be used, it
would mean that quite a bit of necessary land could be secured.
As for the shallow water problem, it is generally recognized that even
under the project’s plan, it will be difficult to secure more land through
reclamation than would be available if all the land currently occupied by the
fishing industry could be used for other fishing activities. If a developer plans
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to preserve the value of Tomo’s scenery, while still planning to improve the
safety of fishing activities, it seems reasonable to conclude the developers
should first study methods to utilize the currently available space to the
maximum extent, and if that still fails to yield enough usable land, then the
planners should ask fishermen for their opinions and input. However, the
developers have not taken such action.
(D) Furthermore, in the case such a large space of land as previously described is
secured, and such facilities built, nowhere in the report outlining the
reclamation proposal and its necessity (Exhibit B1(2)) do the developers
discuss the burden of future management costs. If the new area is not
managed appropriately, then there is a possibility the newly constructed area
will fall into mismanagement similar to the afore-discussed XXX area (the
court notes the project developers have already employed such poor
management in other locations). Furthermore, in light of the fact this will be
built with public money, it is reasonable to assume fishermen would be
required to pay a fee when utilizing the quay, storage facility, or the catch
unloading and sorting site. But, depending on the fee, fishermen may decide
they would be better off simply using the existing facilities. In that case, it is
possible that the newly constructed facilities would not be used. There is no
indication that the development plan considered these kinds of ideas or
possibilities in any of their planning documents.
(E) As discussed above, in light of the fact no policy has been considered which
would address the shallow water problem, and no one has considered how
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best to deal with the land currently occupied by the fishing industry or how to
most effectively and practically use the land which already exists, we must
conclude the developers studies and investigations are inadequate to support
their conclusion that reclamation is necessary to provide adequate facilities for
small boats. In light of this inadequacy, and the fact it is unclear whether the
developers considered how the site and facilities would be managed after
reclamation, we must conclude the developers first decided they wanted to
proceed with the reclamation project, and later developed the plan of
providing small boat moorage space. In light these points, Hiroshima’s
governor acted irrationally when he decided to grant a reclamation permit
based on the need for small boats moorage spot.
(4) Ferry Pier
A. The court makes the following findings as it relates to maritime traffic.
(A) Maritime Traffic (Exhibit B(1)(2), paragraph 25, 47, and 24(17)).
The regular passenger ferry which runs between Port Tomo and Hashirijima island makes five round trips per day (the passage takes thirty minutes
and costs 550 yen); the passenger ferry between Port Tomo and Onomichi
runs three times per day on weekends and holidays between March 17 and
November 25, and every day between April 28 and May 6. These passenger
ferries arrive and depart from Tomo Floating Pier No. 1.
The ferry between Port Tomo and Hashiri-jima island is used by Hashirijima Islanders to commute to work and school, and in Heisei 18
approximately 81,000 people road on the ship (approximately 6,500
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passengers per month). Usage spikes in August to approximately 9,000
passengers, mostly due to tourists (for swimming and fishing) and former
residents returning to their homes.
(B) Hashiri-jima Island (Exhibit B(24)(18), (123) from paragraph 26, oral
argument).
a. Hashiri-jima Island is 2.09 square kilometers in size, 7.8 kilometers in
circumference, and has a mountain range about 100 meters in elevation
with peaks as high as 180 meters. Steep slopes characterize most of the
island, but there are three communities located in the relatively flat areas.
Hashiri-jima Island is approximately seven kilometers from Tomo Harbor.
b. In Heisei 12, the island population was approximately 770 people. The
population decreased 21.5% from Heisei 2 to Heisei 12, and in Heisei 12
approximately 34.7% of the population was over the age of 65. In the
center of the island (the Motoura area) there are limited schools, medical
facilities, and shops, but the islanders are largely dependent on the
mainland for basic necessities.
c. The only way to travel off the island is via the ferry described in section
(A) above. That ferry operates in part based on national government
subsides.
d. There are four roads on the island, extending 6.6 kilometers in total,
93.4% of which are paved. There is no public transportation on the island.
According to research conducted in Heisei 11, residents on the island
owned 459 cars, but most of those cars were parked on the mainland.
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e. As of Heisei 12, there was one hospital clinic on the island, one doctor
(who commuted to from the mainland), three nurses (two of whom
commuted from the mainland), who specialized in internal medicine and
surgery, and was open two days per week. In the case of an emergency,
patients were typically transported by private boat to Port Tomo, and from
there, rode in an ambulance to the hospital in Fukuyama City.
f. There are no companies that offer nursing care service on the island, so
each time nursing is requested a company from outside the island comes to
provide such care.
g. As for trash collection on Hashiri-jima Island, in Heisei 12 non-flammable
trash was collected three times per month and transported off the island
via a charter boat, while all combustible trash was burned at an incinerator
on the island. However, because the incinerator was in a state of disrepair,
and not adequately functioning, when the Act on Special Measures
Concerning Countermeasures Against Dioxins was passed in January
Heisei 13, the incineration plant had to be shut down. In response to these
circumstances, the Commerce and Industry Section Chief in Fukuyama
City’s Commerce, Industry, and Labor Division, decided on a policy to
strengthen the trash collection and transport system off the island, and
indicated he was considering changes to the ferry system as possibly
necessary. Currently, trash trucks come to the island via charter ferry
three times per month and collect all trash and take it off the island.
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h. The main industry on the island is fishing, and in Heisi 12 there were
thirty-one fish processing areas on the island, and fishermen exported 225
tons of product yearly (based on Heisei 10 statistics). Because there is no
way to transport this product by car, it is put back on fishing boats to be
transported to Port Tomo.
(C) Plans to Change to a Ferry System, etc. (Exhibit B(24)(18), 123)
In May of Heisei 5, the defendants settled on a plan to promote the vitality
of Hiroshima’s offshore small islands, and decided a major part of that
initiative should be to improve the ferry system to Hashiri-jima Island. In
June Heisei 11, the supporting intervenors asked the Hashiri-jima Island
Steamboat Ltd., which operated the regular passenger boats from Port Tomo
to Hashiri-jima Island, to switch over to general ferry services. Although the
steamboat company was originally against converting their boats into ferries,
after repeated discussions on December 4, Heisei 12, in conjunction with the
supporting intervenors declaration of their intention to provide as much
support as possible, the company agreed to convert their ships to ferries, and
the next day, on December 5, the Hashiri-jima Island Steamboat Ltd.
submitted an application to the Chugoku Transport Bureau requesting
permission to switch its boats to ferries. In December of Heisei 13 a ferry pier
was completed on Hashiri-jima Island.
B. Ferry Pier under the Current Development Plan (Exhibit b(1)(2), from paragraph
105).
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Reclamation under the current plan would secure 2385.90 square-meters
of land for use as a ferry pier. 468.30 square-meters would be used as a ferry
terminal, 600.95 square-meters would be used for a parking lot, 694.03 squaremeters for roads, and 622.62 for use as a river dike. The terminal building would
contain things such as a waiting area, shops, restroom, and an office.
C. Discussion
In light of the transportation conditions on Hashiri-jima Island as
described above, particularly emergency transportation, trash collection, and the
transport of fishing industry products, if there was a regular ferry run between
Hashiri-jima Island and Port Tomo, this would increase the convenience and
speed of travel between the island and the port, and it could be said this would
contribute to increasing the living conditions of Hashiri-jima Island residents, as
well as the island’s industry.
However, there needs to be an independent study on where the ferry pier
will be located on the mainland, and even if a pier on the mainland is necessary to
allow for maritime traffic from Hashiri-jima Island, it is not necessarily a given
that the pier must be located on the land created from the currently proposed
reclamation project. In light of the administrative objective to preserve Tomo’s
scenery in the best possible condition, although one could say the administrative
authorities should first study plans to create the required pier without relying on
the reclamation of Tomo Bay, there is no proof the project managers have
conducted this kind of study or considered this kind of alternative. In this regard,
the project manager’s studies and investigations have been inadequate.
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Furthermore, we held earlier in section (1) it was doubtful reclamation was
necessary for road maintenance purposes, and when you no longer take into
account the administrative objective of road maintenance, serious doubts remain
about whether or not it is rational to decide the reclamation is necessary for the
sole purpose of constructing the ferry pier. And, after conducting the appropriate
research and investigation, even if we arrive at the decision that some reclamation
is necessary to solve the ferry pier problem, one could conclude the required
location and scope would be smaller than that of the currently proposed plan.
Considering all of the above discussion, we must conclude that
Hiroshima’s governor’s decision to grant the reclamation permit based on the
need for a ferry pier was unreasonable.
(5) Disaster Prevention Improvements
A. Evacuation Area
(A) The pamphlet produced by the developers to describe the current project
(Exhibit A(C)(16)) made the following claims:
Four sites, Tomo Middle School, Tomo Public Hall, Tomo Community
Center, and Tomo Elementary School, are designated as evacuation sites.
But with the exception of Tomo Public Hall, all of those sites are within
the area designated as in danger of landslides. Accordingly, it is unclear
whether the remaining three areas will adequately function as an
evacuation area in case of a landslide disaster. If reclamation occurs
pursuant to the current project, the parking lots and green areas, which will
be constructed on top of the reclaimed land, could be used as evacuation
sites, and this will reduce the anxiety associated with potential landslide
disasters.
The defendants make the same claim.
However, the government manual (Exhibit A(C)(21) points out the
following:
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Simply because most major flood damage occurs as a result of large-scale
typhoons, citizens must not forget the importance of taking caution in the
face of flood and landslide natural disasters caused by other things. For
example, even when the chance of high tide is low, it is necessary for
citizens to keep in mind the chances of mud slides, cliff slides, and
avalanches occurring are still high. Furthermore, it is necessary to fully
consider a disaster prevention system which takes into account the dangers
inherent to an evacuation site, which include the possibilities of loosing
one’s footing when ditches overflow in heavy rains, and getting caught up
in landslide disasters including mountain and cliff slides, and mudslides.
It is obvious from these points that many calamities are associated with largescale typhoons, and furthermore, since most landslide disasters are the result
of heavy rains, and as for the new porta port where ships must wait for the
tide, and where danger associated with high tide is highly dependent on the
weatherwhen major typhoons are offshore or make landfall, one can
envisage a chain of events consisting of heavy rain, high tides and landslides.
Under such circumstances, it would not be appropriate to use a reclaimed
ocean area as an evacuation site. Therefore, if the landslide disasters are as
described above, then we cannot conclude that the current reclamation area
will be appropriate as an evacuation site.
(B) The defendants make the following claims:
An evacuation site is necessary not only for damage from high tides, but
also in the case of an earthquake or large-scale fire. Because the current
evacuation sites, which are located at the elementary and middle schools,
face steep slopes and are some distance from the bay’s coastline, it is
likely they will not be able to function as an evacuation site. In addition,
because the reclamation site is located along the Seto Inland Sea, even in
the event of an earthquake, a tsunami wave is unlikely, and so cases in
which the reclamation area can be used as an evacuation site is not few.
The defendants attempt to bolster the potential for the reclamation area as an
evacuation site by making the above-mentioned claims that the area can be
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used in the case of disasters other then landslides, specifically earthquakes and
large-scale fires. However, while it is true that the reclamation area may be
able to be used as an evacuation site in the case of a large-scale fire, generally
earthquakes are accompanied by tsunami waves, and therefore the reclamation
area would not be appropriate as an evacuation site.
(C) The developers pointed out the following in their pamphlet describing this
project:
If roads are constructed according to the current project proposal, we will
be able to secure a safe evacuation route, an evacuation site along the main
road, transportation of emergency materials, a road for emergency vehicle
use, and a disaster prevention facility.
To be sure, so long as passage on the road constructed according to the
project proposal is not dangerous, the developers’ above-referenced points
would be generally correct. However, if there are high tides as the result of
large-scale typhoons, or heavy rainsas the defendants assertedthen one
could say that simply driving a vehicle on the road proposed in the
reclamation plan would be dangerous in and of itself.
(D) Taking into account the court’s holdings to this point, although one could say
the proposed reclaimed land could be used as an evacuation site in the case of
a disaster emergency, and also that the proposed road could be used as an
evacuation route, we cannot say there would be dramatic increases in the
efficiency of the evacuation compared with currently available evacuation
sites and the road leading to it. Furthermore, although it is true there is some
potential to use the reclaimed land as an evacuation site, and this benefit
would not be associated with the mountain tunnel proposal, the developers
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have always asserted that usage as an evacuation site is a secondary effect of
the project, and have never claimed the need for an evacuation site as a direct
basis for the project’s necessity. Accordingly, if Hiroshima’s governor
granted the license solely on the grounds the reclamation would provide land
for an evacuation site, we must conclude such a decision would be
unreasonable.
B. High Tides
The developers described the following in their pamphlet on the project:
By reclaiming the frontal area we can expect a decrease in the amount of area that
is directly affected by high tides, and avoid approximately 30% (approximately
15,000 square meters) of inundation. The developers estimated the area the
current project could protect from inundation by basing their
calculationslargely recognized as accurateon the area that was inundated as a
result of the high tides associated with Typhoon No. 16 in Heisei 16 (Exhibit
A(C)(16)). Furthermore, it is true that the mountain tunnel proposal will not offer
similar counter-measures to protect against abnormally high tides.
However, the developers have always asserted that reduction in high tides
is a secondary effect of the project, and have never claimed the need for a
reduction in areas inundated by high tides as a direct basis for the project’s
necessity. Therefore, if Hiroshima’s governor granted the permit solely on the
need for a reduction in high tide inundation risk, we must conclude such a
decision would be lacking in reasonableness.
(6) Sewer Construction
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A. The defendants make the following assertions:
A secondary benefit of the construction will be to make the drainage
system’s management easier: as a result of the reclamation project, an
appropriate alternative road will be secured, thus, drainage system
maintenance will be able to be smoothly carried out with minimal affect
on citizen’s daily lives.10
According to the evidence (Exhibit A(C)(16), B(24)(73), B(25)(10) and
the overall points raised during oral argument, the supporting interveners received
a permit for drainage pipe construction on the 24.8 hectares constituting the
northern side of Tomo’s urban area (which totals 90.7 hectares) in Heisei 11,
began construction in that area in Heisei 19, received a permit for drainage pipe
construction on 35.2 hectares in the southern part of Tomo’s urban area in Heisei
19, and plan to complete all construction by Heisei 26. No construction permit
has been issued for the 28.7 hectares that constitutes the lowest reaches of the
southern area (near Tomo bay, the area that includes the unfinished road widening
project). In areas that do not currently have drainage pipes installed, sewage is
either physically removed on a regular basis, or discharged into individual septic
systems. However, in those areas odor problems persist, and there is always the
possibility of inundation or flooding into the sewage holding tanks, in which case
drainage pipes empty directly into the bay, creating a well-recognized potential
problem of diminishing water quality in Tomo Bay. Based on these facts, it can
be said the area with the incomplete road-widening project needs to have a
drainage system installed, and taking measures to solve this administrative
problem is in the public’s best interest.
Essentially, the developers are claiming the alternate route will allow for alternate ways
of travel in the event of road closures during sewer maintenance.
10
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B. The developers report the following in their pamphlet describing this project
(Exhibit A(C)(16):
If a drainage system is constructed in the unfinished road-widening area,
there is no alternate road within the current road network which could be
used as a detour route, and such a drainage system could not be
constructed if the current road system is in use. In order to construct the
drainage system, the current unfinished road-widening area must be closed
to all traffic for a minimum of forty days. Once the road proposed under
this plan is completed, we will be able to secure an alternate route around
the drainage pipe construction area, so even if traffic is completely
stopped as noted above, the impact on your daily lives will be kept to a
minimum. If the tunnel proposal is chosen, the congestion associated with
the unfinished road construction project will remain as it is, and since
there will be times when many people will travel at once, there will be a
large effect on citizen’s daily life.
C. The court makes the following findings of fact based on the evidence (Exhibit
A(F)(7) from paragraph 52, Exhibit B(24)(73), and points raised in oral argument).
(A) The area for which a detour route is missing from the unfinished road
widening area is a 240-meter stretch in the Enoura Moto-machi area.
(B) Sewage pipe may be laid by not excavating the road through the “pipe jacking
method” (a method by which a shaft is dug on either end of the planned pipe
section, an excavation machine burrows the length of the shaft, and then the
pipe is laid). Use of the pipe jacking method would call for small scale laying
of pipe as follows:
a. Permissible Extension Length: 400 meters
b. Beginning Shaft Width: 2.80 meters; Length: 5.40 meters
Ending Shaft Width: 2.00 meters; Length 4.00 meters
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c. Approximately ten meters can be completed in one eight-hour work day;
therefore, if the project requires 240 meters in length of pipe, the
construction will take twenty-four days.
d. If the road is four meters wide, it will be necessary to stop traffic during
the digging of the shaft for approximately seven days, and two more days
to reconstruct the road pavement.
e. It will also be necessary to excavate some of the road to construct a
manhole. The manholes will need to be placed every 100 meters, and will
be 2.0 meters wide.
f. Even if the pipe jacking method is used, traffic will need to be stopped in
order to conduct buried object research and excavation in order to install
the pipe. (Exhibit B24(73))
g. If the above-mentioned excavations are not performed during the day, but
rather at night, then it should be possible to keep traffic interruptions to a
minimum. However, in cases where the pipe is connected to private
residences, excavation may be necessary, and therefore night construction
may not always be the most appropriate.
D. Recognizing the facts laid out in section C, we can only conclude the statement in
the pamphlet claiming “such a drainage system could not be constructed if the
current road system is in use” was made based on the mistaken exclusion of the
pipe jacking method as a possible construction method. Although the defendants
claim adoption of the pipe jacking method would be difficult, and would still
require various restrictions to traffic flow, based on the contents of their assertion
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and the evidence presented, it is difficult to conclude the developers have
adequate research and investigation into the possibility of using the pipe jacking
method, and if it is possible, what actual effect such construction would have on
restricting traffic or residents daily life. Even assuming the road situation will
continue as it is presently, it is possible the drainage system could be installed in
the unfinished road-widening area, and even if that construction occurs, the
possibility such construction will not greatly hinder citizens’ daily life, or affect
traffic conditions can’t be denied (although at the most extreme, it is possible the
pipe jacking method may not be used, or would be difficult, based on soil quality
or the geological strata which would affect an underground installation, as
outlined above, it is difficult to say these possibilities have been adequately
studied or investigated). Based on the above discussion, we cannot directly
accept the defendants claims as outlined in section (6)A.
Furthermore, the developers have claimed the benefits of constructing a
new drainage system are a secondary benefit of the reclamation project, and
because it is not claimed as a basis upon which the necessity of the project is
based, if Hiroshima’s governor based his decision to issue the reclamation permit
solely on the grounds discussed in this section, we would have to conclude such a
decision would be unreasonable.
5. As the court previously pointed out, the government must preserve the benefit to the
public of Tomo’s scenery, which has a high value, and Hiroshima’s governor must make
a decision such as the granting of a reclamation permit, which will impair this scenery,
carefully, and only after adequate research and investigation. If the foundation of such a
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policy decision is based on faulty research or inadequate investigations, or the decision is
unreasonable, then the act of issuing of the reclamation permit in this case would be
unreasonable, and such an act would be considered an abuse of the discretion as defined
under the ACLA Article 37, Number 4, Paragraph 5. In this case, the developers
supported their claim that the proposed reclamation and bridge building project was
necessary and a public benefit, based on facts and circumstances laid out in sections 4(1)
through (6). But as we held in those sections, the developer’s assertions were either
based on inadequate research and investigation, or, even if we recognize some of those
assertions as somewhat reasonable, those assertions cannot support a conclusion the
reclamation project is necessary. Furthermore, while we recognize the potential
advantage the proposed project may provide by integrating the achievement of all the
administrative objectives laid out in Sections 4(1) through (6) simultaneously, these
advantagesin light of the additional administrative goal of protecting Tomo’s scenery,
and the fact it is unlikely actual harm would result if an integrated approach were not
takenare insufficient to alter our previous conclusion. Accordingly, pursuant to ACLA
Section 37, Number 4, Paragraph 5, the court concludes, without considering all the
arguments the plaintiffs have raised, that Hiroshima’s governor’s decision to issue the
reclamation permit was an abuse of discretion.
V. Conclusion
Accordingly, we dismiss the claims of the following plaintiffs for lack of standing:
Plaintiff Numbers 11, 17, 24, 30, 59, 60, 75, 95, 101, 102, 106, 109, 110, 111, 112, 113, 118,
128, and 163. The court acknowledges that the remaining plaintiffs’ claims are meritorious,
and hereby issues a judgment consistent with the contents of this opinion.
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Hiroshima District Court, Civil Division, Section Three
Before: Nose Akio, Presiding Judge, & Fukuda Nobuhisa and Toda Yūko, District Judges
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