2020.03.26

2019 (Gyo-Hi) 367

Minshu Vol. 74, No. 3

Judgment concerning the reclamation approval under Article 42, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies, and a national government organ's "distinct status as a government entity" referred to in Article 7, paragraph (2) of the Administrative Complaint Review Act

Case seeking revocation of the illegal involvement of the State (administrative determination) under Article 251-5 of the Local Autonomy Act

Judgment of the First Petty Bench, dismissed

Fukuoka High Court, Naha Branch, Judgment of October 23, 2019

Reclamation approval under Article 42, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies cannot be regarded as a disposition for which a national government organ is the party subject to the disposition "with its distinct status as a government entity" referred to in Article 7, paragraph (2) of the Administrative Complaint Review Act

Article 245, item (iii) and Article 251-5, paragraph (1) of the Local Autonomy Act, Article 7, paragraph (2) of the Administrative Complaint Review Act, and Article 42, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies



Local Autonomy Act

(Meaning of Involvement)

Article 245, item (iii)

The term "involvement of the State or a prefecture in an ordinary local public entity's affairs" as used in this Chapter means any of the following acts performed by an administrative organ of the State (meaning the Cabinet Office as the organization in charge of the affairs prescribed in Article 4, paragraph (3) of the Act for Establishment of the Cabinet Office (Act No. 89 of 1999), the Imperial Household Agency, the organs prescribed in Article 49, paragraph (1) or (2) of the same Act, the organs prescribed in Article 3, paragraph (2) of the National Government Organization Act (Act No. 120 of 1948), organs established under the jurisdiction of the Cabinet based on provisions of laws, or organs established within these organs; hereinafter the same applies in this Chapter) or an organ of a prefecture in connection with the administration of affairs by an ordinary local public entity (limited to cases where an ordinary local public entity with its distinct status as the addressee regarding the act, and excluding such acts concerning the payment and return of expenses to an ordinary local public entity by the State or a prefecture):

(iii) in addition to the acts set forth in the preceding two items, an act that is specifically and individually related to an ordinary local public entity for the purpose of achieving a certain administrative objective (excluding an award and any other act performed for the purpose of coordinating the interests between persons with conflicting interests (limited to cases where both parties are the addressees regarding the act), and a determination, decision or any other act regarding a request for review or any other complaint).

(Filing of Action Concerning Involvement of the State)

Article 251-5, paragraph (1)

(1) In any of the following cases, the head or any other executive agency of an ordinary local public entity that has filed an application for review under the provisions of Article 250-13, paragraph (1) or (2) may file an action with a high court against the administrative authority of the State, which was the respondent in the application for review (if the administrative authority's power has been transferred to another administrative authority after the involvement of the State took place or an application, etc. was filed, the other administrative authority), to seek the revocation of the involvement of the State in relation to the application for review or a declaration of illegality of the inaction of the State in relation to the application for review; provided, however, that in the case of filing an action to seek the revocation of the involvement of the State, if there is no administrative authority which is to stand as a defendant, the action must be filed against the State:

(i) if the head or other executive agency is dissatisfied with the result of the review or the recommendation by the committee under the provisions of Article 250-14, paragraphs (1) to (3);

(ii) if the head or other executive agency is dissatisfied with the measure taken by the administrative authority of the State under the provisions of Article 250-18, paragraph (1);

(iii) if the committee does not conduct a review or make a recommendation under the provisions of Article 250-14, paragraphs (1) to (3) even after 90 days have passed since the day on which the application for review was filed; or

(iv) if the administrative authority of the State does not take any measure under the provisions of Article 250-18, paragraph (1).



Administrative Complaint Review Act

(Exclusion from Application)

Article 7, paragraph (2)

(2) The provisions of this Act do not apply to dispositions rendered to national government organs, local public entities, other public entities, or their organs, for which these organs or entities are the parties subject to the dispositions with their distinct status as governmental entities, and to inaction pertaining thereto.



Act on Reclamation of Publicly-Owned Water Bodies

(Case of Reclamation by the State)

Article 42, paragraph (1)

If the State is to carry out reclamation, the relevant government agency must obtain approval from the prefectural governor.

The final appeal is dismissed.

The cost of the final appeal shall be borne by the appellant of final appeal.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, KATO Yutaka, et al. (except for the reasons excluded)

1. The Okinawa Defense Bureau had obtained approval under Article 42, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies from the governor of Okinawa Prefecture with regard to the reclamation of a publicly-owned water body for constructing a replacement facility of the Marine Corps Air Station Futenma (MCAS Futenma) (located in Ginowan City, Okinawa Prefecture) in the Henoko coastal area, Nago City, Okinawa Prefecture (hereinafter referred to as the "Reclamation Project" and "Reclamation Approval," respectively). However, the Reclamation Approval was revoked on the grounds of the circumstances, etc. that later came into light (hereinafter referred to as the "Revocation of the Reclamation Approval"). Dissatisfied with this, the Okinawa Defense Bureau filed a request for review with the appellee under the Administrative Complaint Review Act, and the appellee made a determination to revoke the Revocation of the Reclamation Approval (hereinafter referred to as the "Determination"). In this case, the appellant filed an action against the appellee to seek the revocation of the Determination under Article 251-5, paragraph (1) of the Local Autonomy Act, alleging that the Determination constitutes the illegal "involvement of the State."

2. The outline of the facts lawfully determined by the court of prior instance is as follows.

(1) With regard to the MCAS Futenma used by the United States Marines, the State of Japan reached an agreement with the United States to the effect that the MCAS Futenma site would be returned to Japan after taking certain measures, and subsequently, the State decided to construct a replacement facility of the MCAS Futenma in the Henoko coastal area, Nago City.

(2) On March 22, 2013, the Okinawa Defense Bureau submitted an application for approval of publicly-owned water body reclamation to the governor of Okinawa Prefecture, seeking approval of the reclamation of the publicly-owned water body in the area adjacent to Henokosaki (the Reclamation Project), in order to construct the abovementioned replacement facility in the Henokosaki area within the premises of Camp Schwab located in Henoko, Nago City, and the water area adjacent thereto.

Then Okinawa Governor NAKAIMA Hirokazu determined that this application conformed to the requirements under the items of Article 4, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies, and gave the Reclamation Approval on December 27, 2013.

(3) A. On July 31, 2018, ex-Okinawa Governor ONAGA Takeshi, notified the Director-General of the Okinawa Defense Bureau of the schedule of holding a hearing on the revocation of the Reclamation Approval on August 9, 2018. The hearing was held on the scheduled date and concluded.

B. Ex-Okinawa Governor ONAGA passed away on August 8, 2018. Because of the ex-governor's death, Deputy Governor TOMIKAWA Moritake, who was supposed to perform the duties of Okinawa Governor in his place (Article 152, paragraph (1) of the Local Autonomy Act), delegated Deputy Governor JAHANA Kiichiro under Article 153, paragraph (1) of the same Act to administer the affairs concerning the "revocation of the approval of publicly-owned water body reclamation for the Futenma Replacement Facility Construction Project," for the period of delegation from August 16 to the day preceding the day of public notice of the successful candidate in the election for Okinawa Governor.

C. Based on the delegation mentioned above, on August 31, 2018, Deputy Governor JAHANA revoked the Reclamation Approval once given to the Okinawa Defense Bureau, on the grounds including that given the circumstances ascertained after the Reclamation Approval, the Reclamation Project failed to conform to the requirements under Article 4, paragraph (1), items (i) and (ii) of the Act on Reclamation of Publicly-Owned Water Bodies, and that the Okinawa Defense Bureau violated the points to consider which served as incidental provisions for the Reclamation Approval.

D. TAMAKI Yasuhiro won the election for the governor of Okinawa Prefecture held on September 30, 2018, and public notice of this fact was issued on October 4, 2018.

(4) A. Dissatisfied with the Revocation of the Reclamation Approval, on October 17, 2018, the Okinawa Defense Bureau filed a request for review with the appellee, the minister in charge of the Act on Reclamation of Publicly-Owned Water Bodies, pursuant to Article 2 of the Administrative Complaint Review Act and Article 255-2, paragraph (1), item (i) of the Local Autonomy Act.

B. As of April 5, 2019, the appellee made the Determination to revoke the Revocation of the Reclamation Approval on the grounds that it is illegal and unjust.

C. As of April 22, 2019, the appellant filed an application for review with the Central and Local Government Dispute Management Council, while designating the appellee as the respondent, pursuant to Article 250-13, paragraph (1) of the Local Autonomy Act, stating that the Determination constitutes the "involvement of the State" (Article 250-7, paragraph (2) of the same Act) and the appellant is dissatisfied with this.

D. As of June 17, 2019, the Central and Local Government Dispute Management Council made a decision to dismiss this application for review, stating that because the Determination does not constitute such "involvement of the State" as mentioned above, it does not fall within the scope of subject for review by the council and therefore the application for review is unlawful.

E. Dissatisfied with this decision, on July 17, 2019, the appellant filed this action against the appellee to seek the revocation of the Determination pursuant to Article 251-5, paragraph (1) of the Local Autonomy Act.

3 (1) The subject regarding which an action may be filed under Article 251-5, paragraph (1) of the Local Autonomy Act is stipulated as the "involvement of the State" (Article 250-7, paragraph (2) of the same Act). However, the provisions in parentheses in Article 245, item (iii) of the same Act exclude "determination, decision or any other act regarding a request for review or any other complaint" (hereinafter referred to as a "determination, etc.") from the scope of the "involvement of the State." In this respect, a determination on a request for review under the Administrative Complaint Review Act is clearly included in the scope of determination, etc.

Meanwhile, Article 7, paragraph (2) of the Administrative Complaint Review Act provides that the provisions of this Act do not apply to dispositions rendered to national government organs, local public entities, other public entities, or their organs (hereinafter referred to as "national government organs, etc."), for which these national government organs, etc. are the parties subject to the dispositions "with their distinct status as governmental entities." Thus, under this Act, it is not anticipated that a request for review would be filed with regard to a disposition for which a national government organ, etc. is the party subject to the disposition "with its distinct status as a government entity" and some sort of determination would be made in response to the request for review. Therefore, even if a request for review is filed with regard to such disposition based on that Act and a determination is made in response, such determination cannot be regarded as a determination on a request for review based on that Act but it is deemed to lack a legal basis, and hence, it does not fall within the scope of determination, etc. to be excluded from the scope of the "involvement of the State."

Accordingly, in connection with whether the Determination constitutes the "involvement of the State" and falls within the scope of subject regarding which an action may be filed under Article 251-5, paragraph (1) of the Local Autonomy Act, a question arises as to whether the Revocation of the Reclamation Approval is a disposition for which the Okinawa Defense Bureau, which is a national government organ, is the party subject to the disposition "with its distinct status as a government entity."

(2) The counsel argue as follows: since reclamation approval under Article 42, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies (hereinafter referred to as "reclamation approval") is a disposition for which a national government organ is the party subject to the disposition with its distinct status as a government entity, the revocation thereof, or the Revocation of the Reclamation Approval in this case, should also be regarded as a disposition for which the Okinawa Defense Bureau, which is a national government organ, is the party subject to the disposition "with its distinct status as a government entity;" however, the court of prior instance denied this and ruled that the Determination falls within the scope of determination, etc. to be excluded from the scope of the "involvement of the State" and therefore that this action to seek the revocation of the Determination is unlawful; in ruling as such, the court of prior instance misinterpreted the laws and regulations.

4 (1) A. The purpose of the Administrative Complaint Review Act is to establish a system for allowing citizens to file complaints against administrative agencies broadly under simple, prompt and fair procedures, with the aim to provide relief for the rights and interests of the citizens, and to ensure proper operations of the administration (Article 1, paragraph (1)). Article 7, paragraph (2) of the same Act is interpreted as excluding dispositions rendered to national government organs, etc. which are not suitable as the subjects under this system in view of the abovementioned purpose of the Act, namely, providing relief for the rights and interests of citizens, from the scope of application of the Act. In light of the purport of Article 7, paragraph (2) of the same Act, it is reasonable to interpret that the "distinct status as a government entity" as referred to in the same paragraph means the special position in which only a national government organ, etc. can stand, or in other words, the position in which private citizens (meaning persons except for the national government and national government organs, etc.; the same applies hereinafter) can never stand.

B. The Administrative Complaint Review Act provides for the procedures concerning complaints about dispositions rendered by administrative agencies (e.g., the procedure to review the appropriateness or reasonableness of the disposition in question), and the "distinct status as a government entity" mentioned above is a criterion for deciding whether a disposition rendered by a national government organ, etc. can be the subject of these procedures. From this viewpoint, in the course of examining whether the disposition in question is a disposition for which a national government organ, etc. is the party subject to the disposition, while standing in the position in which private citizens can never stand, attention should be paid to the rules governing the relevant disposition which stipulate the scope of subject of a review to be conducted in response to a complaint about the disposition.

Whether a national government organ, etc., while standing in the abovementioned position, can be the party subject to a disposition that is required in order to carry out a specific work or project, such as the reclamation approval argued by the counsel, should be determined in consideration of whether the persons who may carry out the work or project are limited to national government organs, etc., and if there is no such limitation, whether national government organs, etc. are given special treatment, such as preference over private citizens, in acquiring the status of being able to carry out the work or project. If both national government organs, etc. and private citizens can acquire the status of being able to carry out the work or project only after obtaining a disposition, and there is no substantial difference between them in terms of the requirements and other rules for obtaining the disposition, it is reasonable to consider that a national government organ, etc. cannot be the party subject to the disposition while standing in the position in which private citizens can never stand, and therefore that the disposition can equally be the subject of the procedures concerning complaints under the Administrative Complaint Review Act, even where there are special provisions regarding the name, etc. of a disposition rendered to a national government organ, etc. In this respect, even if there is difference between national government organs, etc. and private citizens in terms of the supervision and other rules for the implementation process of the work or project after the disposition is rendered, the existence of such difference alone cannot be the reason for excluding the disposition rendered to a national government organ, etc. from the scope of application of that Act, because a review of the disposition in response to a complaint is not conducted directly according to those rules, and hence, it does not affect the interpretation mentioned above.

(2) A. The Act on Reclamation of Publicly-Owned Water Bodies does not limit the entities that may carry out the reclamation of a publicly-owned water body (hereinafter referred to as "reclamation"), but generally requires that a person who intends to carry out reclamation obtain a license from the prefectural governor (or the designated city mayor if reclamation is to be carried out within the area of a designated city referred to in Article 252-19, paragraph (1) of the Local Autonomy Act; the same applies hereinafter) (hereinafter referred to as "reclamation license") (Article 2, paragraph (1)). The Act further provides that if the national government intends to carry out reclamation, the organ in charge of carrying out reclamation (the "relevant government agency") must obtain approval from the prefectural governor (Article 42, paragraph (1)). Since publicly-owned water bodies are under the ownership of the State (Article 1, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies), the State is considered to originally have the power to carry out reclamation of publicly-owned water bodies based on its own decision as part of its power to control publicly-owned water bodies. This Act thus also requires the national government to obtain a disposition by the prefectural governor, probably for the purpose of entrusting the prefectural governor to make the primary decision on whether to permit reclamation in an integrated manner, because: it is appropriate to have the prefectural governor, who is familiar with the circumstances in the region, examine whether reclamation could cause any problems in the surrounding areas, and this equally applies in the case where the national government intends to carry out reclamation; and if the national government is allowed to carry out reclamation only based on its own decision whereas reclamation by a person other than the national government is made subject to reclamation license granted by the prefectural government, this leads to the lack of consistency between reclamation projects and could cause problems in the management of publicly-owned water bodies. A national government organ is able to carry out reclamation lawfully if it obtains reclamation approval, and in this respect, reclamation approval has the same effect as in the case where a person other than the national government obtains a reclamation license.

Thus, the Act on Reclamation of Publicly-Owned Water Bodies provides that both national government organs and persons other than the national government may carry out reclamation, and that they can acquire the status of being able to carry out reclamation lawfully only after obtaining a reclamation approval or reclamation license, which are dispositions rendered by the prefectural governor.

The counsel argue that in the case of reclamation license, the public use of the publicly-owned water body is discontinued and the licensed person acquires ownership of the reclamation site (Article 24, paragraph (1) of the Act on Reclamation of Publicly-Owned Water Bodies) only after construction is completed and the prefectural governor authorizes the completion of construction (Article 22 of the same Act), whereas reclamation approval given to a national government organ has an effect of vesting the legal status or power in the national government organ to discontinue the public use of the publicly-owned water body and acquire ownership of the reclamation site only by notifying the prefectural governor of the completion of construction (Article 42, paragraph (2) of the same Act), and hence, the effects of reclamation license and reclamation approval are different in substance. However, the reason why a notification of the completion of construction made by the national government organ in charge to the prefectural government suffices in the case of reclamation carried out by the national government is considered to be that publicly-owned water bodies are under the ownership of the State in the first place and they are originally subject to the control of the State, and there is no reason to consider that the legal status or power to discontinue the public use of a publicly-owned water body is vested in the national government organ by means of reclamation approval. Therefore, it should be said that the counsel's argument lacks a premise.

B. Given that reclamation approval is a disposition that a national government organ must obtain and that the State originally has the power to control publicly-owned water bodies, the Act on Reclamation of Publicly-Owned Water Bodies uses the term "approval" instead of "license" to refer to that disposition (Article 42, paragraph (1)), while it provides that the provisions concerning reclamation license apply mutatis mutandis to reclamation approval (Article 42, paragraph (3)), including provisions concerning the application procedure (Article 2, paragraphs (2) and (3)), the examination procedure (Article 3), the license criteria (Articles 4 and 5), prohibition of commencement of construction before performing the obligation to compensate for right holders of water bodies (Articles 6 to 10)), and public notice of dispositions (Article 11). Furthermore, even if applications regarding reclamation in the same area are filed both by a national government organ and a person other than the national government, there is no such system under the Act to give preference to the application for reclamation approval filed by the national government organ over the application for reclamation license filed by the person other than the national government, but rather there is a rule for these applications to be examined on an equal footing according to the prescribed criteria (Articles 3 and 30 of the Enforcement Order of that Act). In other words, there is no difference between a reclamation approval and reclamation license in terms of procedures and requirements for obtaining them.

Thus, although different names, "approval" and "license," are used to refer to dispositions that national government organs and persons other than the national government must respectively obtain in order to acquire the status of being able to carry out reclamation lawfully, there seems to be no substantial difference in terms of the requirements and other rules for obtaining the respective dispositions.

C. On the other hand, under the Act on Reclamation of Publicly-Owned Water Bodies, some of the provisions applicable to reclamation to be carried out by a person other than the national government based on reclamation license do not apply mutatis mutandis to reclamation to be carried out by the national government based on reclamation approval. These provisions include provisions concerning collection of license fees (Article 12), provisions concerning the obligation to commence and complete construction within the designation period (Article 13), provisions concerning the transfer and succession of the right to carry out reclamation (Articles 16 to 21), provisions concerning authorization of the completion of construction (Articles 22 to 24), provisions concerning supervision of illegal conduct, etc. (Articles 32 and 33), and provisions concerning expiration of reclamation license (Articles 34 and 35).

However, these provisions are intended to control the implementation process of the work or project after giving a reclamation license, and the Act on Reclamation of Publicly-Owned Water Bodies presumably applies mutatis mutandis the provisions concerning reclamation to be carried out by a person other than the national government only to the extent necessary in relation to the implementation process of reclamation in the case where a national government organ is given reclamation approval regarding a publicly-owned water body in a specific area and acquires the status of being able to carry out reclamation lawfully, because the State originally has the power to control publicly-owned water bodies. This cannot be regarded as the proof showing that the rules for acquiring the status of being able to carry out reclamation lawfully differ in substance between national government organs and persons other than the national government, and hence, even though some provisions do not apply mutatis mutandis, it cannot be said that national government organs are the party subject to reclamation approval while standing in the position in which private citizens can never stand.

D. As explained above, both national government organs and persons other than the national government can acquire the status of being able to carry out a reclamation project only after they obtain dispositions rendered by the prefectural governor (reclamation approval or reclamation license), and there is no substantial difference in terms of the rules for obtaining the respective dispositions, and therefore, even taking into consideration the difference in terms of the names of the dispositions and the rules concerning the implementation process of the project, it cannot be said that national government organs are the party subject to reclamation approval while standing in the position in which private citizens can never stand.

Consequently, reclamation approval cannot be regarded as a disposition for which a national government organ is the party subject to the disposition "with its distinct status as a government entity" as referred to in Article 7, paragraph (2) of the Administrative Complaint Review Act.

(3) There is no reason to consider the Revocation of the Reclamation Approval, which is the revocation of such reclamation approval, differently from the above. Accordingly, the Revocation of the Reclamation Approval cannot be regarded as a disposition for which the Okinawa Defense Bureau was the party subject to the disposition with its "distinct status as a government entity."

5. For the reasons stated above, the ruling of the court of prior instance can be upheld in that it stated that the Revocation of the Reclamation Approval cannot be regarded as a disposition for which the Okinawa Defense Bureau was the party subject to the disposition with its "distinct status as a government entity" as referred to in Article 7, paragraph (2) of the Administrative Complaint Review Act. The judgment in prior instance does not contain such violation of law as argued by the counsel, and the counsel's arguments cannot be accepted. Incidentally, other reasons for a petition for acceptance of final appeal were excluded by an order to accept a final appeal.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment.

Justice MIYAMA Takuya

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi