Court Battles between Laver Fishermen and New Settlers about the Water Gate of Isahaya Bay Sea Dyke in Nagasaki Prefecture

Court Battles between Laver Fishermen and New Settlers about the Water Gate of Isahaya Bay Sea Dyke in Nagasaki Prefecture

Published: 2023.10.31
Accepted: 2023.10.27
16
Professor
Meiji Gakuin University

ABSTRACT

The Isahaya Bay Land Reclamation Project in Nagasaki Prefecture has been Japan’s largest public farmland investment project for 40 years. This project comprises three elements: (1) constructing a 7-kilometer-long sea dyke at the mouth of Ishaya Bay and desalting its inner water by closing its water gate; (2) reclaiming 942-hectare-wide farmland from a part of the water area inside the sea dyke; and (3) keeping the remaining 2,600-hectare-wide water area inside the sea dyke as a stormwater reservoir for flood control. After the closure of the water gate in April 1997, laver production in the sea areas neighboring Isahaya Bay declined. Assuming that this decline was attributed to the closure of the water gate, laver fishermen requested that the Ministry of Agriculture, Forestry and Fisheries open the water gate. However, new settlers on the reclaimed farmland opposed the opening of the water gate because they feared salt damage. Such conflicts between laver fishermen and the new settlers have resulted in tedious court battles. Finally, in March 2023, the Supreme Court decided to close the water gate. The Isahaya Bay Land Reclamation Project is a typical case in which a large public investment project caused serious implications to the local society.

Keywords: benefit-cost ratio, desalination, environmental rights, penalty money, reclamation, salt damage, storm surge

INTRODUCTION

The Isahaya Bay Land Reclamation Project (IBLRP) in Nagasaki Prefecture presents a typical case in Japan in which a mammoth public construction project brought about great change in the local ecosystem. In December 1986, the Ministry of Agriculture, Forestry and Fisheries (MAFF) announced the IBLRP. The centerpiece of the IBLRP was the construction of a 7-kilometer-long sea dyke, called the Isahaya Bay Sea Dyke (IBSD), at the mouth of Isahaya Bay. Construction work for the IBSD began in October 1992. As soon as the water gate of the IBSD was completed in April 1997, the MAFF began desalting all the water inside the IBSD by closing it. Subsequently, laver production in the sea areas neighboring Isahaya Bay (outside the IBSD) declined. It is suspected that this decline is attributed to the changing tide caused by the closure of the IBSD’s water gate. A group of laver fishermen went to court requesting that the MAFF reopen the water gate. Conversely, a group of farmers, anxious about the risk of salt damage, went to court to request that the MAFF keep the water gate closed. These court battles raged on for over 20 years. In March 2023, the Supreme Court decided that the MAFF should keep the water gate closed.

How did the Supreme Court arrive at this judgement? Why did these battles continue for such a long time? What should we learn from the experience of the IBLRP? This study aims to answer these questions by reviewing the history of the IBLRP.

THE GREAT ISAHAYA RECLAMATION PLAN (GIRP)

Isahaya Bay is part of the Ariake Sea, a 1.7 million-hectare-wide enclosed coastal sea in Kyushu[1]. The Ariake Sea (including Isahaya Bay) possesses favorable features for land reclamation, such as gentle shelving of the bottom and a wide range of tides. Various reclamation plans have taken place in these 300 years. As a result, nearly 11,000 hectares of land have been reclaimed from the Ariake Sea[2].

In 1952, the Nagasaki Prefecture Governor, Chikujiro Nishioka, advanced an ambitious public investment plan called the Great Isahaya Reclamation Plan (GIRP), whereby the entire water area in Isahaya Bay should be reclaimed as paddy fields. The GIRP contained a plan to construct a 10-kilometer sea dyke at the mouth of Isahaya Bay.

At that time, the promotion of rice production was one of the top concerns among the Japanese general public, because their memory of the lack of food in the 1940s was still strong. Local construction companies and those wanting to start farming welcomed the GIRP.

However, fishermen in Isahaya Bay would lose fishing locations if the GIRP were carried out. Moreover, some citizen groups criticized the GIRP for its wasteful use of public funds and destruction of the natural environment. Owing to these problems, the GIRP was postponed without starting any construction work.

THE ISAHAYA BAY LAND RECLAMATION PROJECT (IBLRP)

In the 1960s, rice was oversupplied. This eliminated the necessity of creating new paddy fields. However, it was voiced that the construction of a sea dyke at the mouth of Isahaya Bay would be useful for protecting the local people from storm surges. Storm surges occasionally hit Isahaya Bay. In particular, in July 1985, a massive storm surge damaged 2 piers, 58 houses, and 1,300 hectares of paddy fields. This disaster increased the local people’s concerns about storm surges.

In December 1986, the MAFF launched the IBLRP as a replacement for the GIRP. The IBLRP is different from the GIRP in three ways: (1) by changing the location of the sea dyke, the length of the sea dyke was reduced from 9 km to 7 km; (2) the 942-hectare-wide farmland (only a part of the water area inside the sea dyke) should be reclaimed for growing vegetables (not for rice); (3) the remaining 2,600-hectare-wide water inside the sea dyke should be desalted and retained as stormwater reservoirs for flood control. According to the MAFF, the purpose of the IBLRP is twofold: (1) reduce the risk of storm surges and salty breezes, and (2) promote high-tech farming on reclaimed farmland.

Environmentalists and those concerned about the overspending of public funds formed a campaign against the IBLRP. Regardless of their opposition, the MAFF took strong action to carry out the IBLRP. In 1987, the MAFF paid 20 trillion yen to fishers with fishing rights in Isahaya Bay[3]. In October 1992, the MAFF began construction work for the IBSD. In April 1997, the MAFF began the desalination of water in Isahaya Bay by closing the IBSD’s water gate.

FISHERMEN’S REQUEST TO OPEN IBSD’S WATER GATE

Laver, which is indispensable to Japanese-style meal, is a major marine product produced in the Ariake Sea[4]. However, after the closure of the IBSD’s water gate, the harvest of laver in the sea areas neighboring Isahaya Bay became extremely poor[5]. Laver fishermen suspected that this poor harvest was attributed to the closure of the IBSD water gate.

In March 2001, the MAFF established a special committee comprising of academics who majored in marine resources to investigate the causes of poor laver harvest. In December 2001, the committee made the following recommendations to the MAFF:

  1. In the experiment, the MAFF should open the IBSD’s water gate and observe the change in water quality inside and outside the IBSD.
  2. The MAFF should conduct this type of experiment at least three times, changing the length of the period of opening the water gate.

While there was no legal obligation for the MAFF to follow this recommendation, public opinion pressured the MAFF to open the IBSD’s water gate. However, if the MAFF opened the water gate, the construction work for reclaiming farmland inside the IBSD would have to be suspended until the water gate was closed again. Given this dilemma, the MAFF chose to open the water gate only once, for a short period of time, from April 24, 2002, to May 20, 2002. Based on the results of this four-week opening, the MAFF concluded that the poor harvest of laver in the sea areas neighboring Isahaya Bay was not attributed to the closure of the water gate[6].

However, some experts do not support the conclusions of the MAFF. They argued that this four-week opening was not sufficient for collecting data to investigate the impact of the closure of the water gate. Laver fishermen who believed that the poor laver harvest was attributed to the closure of the water gate of the IBSD formed a plaintiff and commenced a court battle against the MAFF. In November 2002, laver fishermen brought a civil action to the Saga District Court requesting that the MAFF open the IBSD’s water gate.

In addition to this court battle, laver fishermen requested the Environmental Dispute Coordination Commission, an external organ of the Ministry of Internal Affairs and Communications, to admit that the construction of the IBLRP seriously affected the reproduction of laver in sea areas near the IBSD.

The Saga District Court decided the case in favor of the plaintiff in December 2004. However, by appealing to the Fukuoka High Court, the MAFF kept the water gate closed and continued construction work for reclaiming purposes. In May 2005, after concluding that there was insufficient evidence to specify the cause of the poor laver harvest, the Fukuoka High Court revoked the decision of the Saga District Court. While laver fishermen appealed to the Supreme Court, the Supreme Court turned down the appeal in September 2005. In August 2005, the Environmental Dispute Coordination arrived at the same conclusion as the Fukuoka High Court[7].

Some laver fishermen gave up on the continuing legal battles against the MAFF. However, 49 laver fishermen continued by changing the reasons for the lawsuits. In October 2005, they formed a plaintiff and brought a civil action in the Saga District Court to request that the MAFF open the IBSD’s water gate for five years to investigate the cause of the poor laver harvest.

The MAFF completed the construction work to reclaim farmland inside the IBSD in March 2008. New settlers’ farming of reclaimed farmland began in April 2008.

In June 2008, the Saga District Court decided in favor of the plaintiff. This means that the MAFF was obliged to start a five-year-long water-gate opening within three years. However, by appealing to the Fukuoka High Court, the MAFF suspended this obligation and kept the water gate closed.

The change of government in 2009 also affected this court battle. In 2009, the Democratic Party had a landslide victory in the general election and deprived the Liberal Democratic Party of its power, which had been almost entirely in power since its establishment in 1955. A major reason for the Democratic Party’s victory was its severe criticism of the Liberal Democratic Party’s overspending on public construction projects, including the IBLRP. In April 2009, a special team of the Democratic Party submitted a report on the IBLRP that recommended a five-year-long water-gate opening.

In December 2010, the Fukuoka High Court upheld the Saga District Court’s decision. The MAFF was about to make a special appeal to the Supreme Court, however, Prime Minister Naoto Kan, known as a strict criticizer of the IBRLP, insisted that the MAFF conduct a five-year-long water-gate opening, according to the Saga District Court’s decision[8]. Consequently, the MAFF gave up on the special appeal.

Despite Naoto Kan’s inclination to open the water gate, the MAFF was reluctant to start a five-year-long water-gate opening. In September 2011, Naoto Kan stepped down from the Prime Minister position. Succeeding Prime Minister Yoshihiko Noda was not as enthusiastic about opening the water gate as Naoto Kan. In December 2012, the Liberal Democratic Party, which was against opening the IBSD’s sea gate, returned to power. Consequently, it became unclear when (and whether) the MAFF would start the five-year-long water-gate opening.

FARMERS’ REQUEST TO KEEP IBSD’S WATER GATE CLOSED

New settlers who had just started farming on the reclaimed farmland inside the IBSD were afraid that the risk of salty breezes would increase significantly once the IBSD’s water gate opened. In addition, some non-laver fishermen in the Ariake Sea feared that the polluted water inside the IBSD would enter their fishing spots once the IBSD’s water gate opened (industrial and household wastewater, which contains toxic subsistence, has been accumulating inside the IBSD’s water gate). In April 2011, 350 people (most of whom were farmers and non-laver fishermen) formed a plaintiff and brought a civil action against the MAFF at the Nagasaki District Court. The plaintiff requested that the MAFF keep the IBSD’s water gate closed to protect their farmlands and fishing spots.

In November 2011, the Nagasaki District Court issued a provisional disposition prohibiting the MAFF from opening the IBSD’s water gate[9]. This puts the MAFF in an insoluble legal dilemma. If the MAFF opens the water gate according to the Saga District Court’s decision, it would violate the Nagasaki District Court’s provisional disposition. If the MAFF kept the water gate closed, according to the Nagasaki District Court’s provisional disposition, it would violate the Saga District Court’s decision.

In April 2014, the Saga District Court ordered the MAFF to pay Yen490,000 per day (nearly US$4,500) to the plaintiff as a penalty for not opening the water gate. In June 2014, the Nagasaki District Court issued a provisional disposition whereby the MAFF would pay Yen490,000 per day to the plaintiff as a penalty if the MAFF opened the water gate. This means that the MAFF must pay a penalty regardless of whether it opens or keeps the IBSD’s water gate closed. The MAFF’s choice was to keep the water gate closed by paying a penalty to the laver fishermen[10].

THE END OF COURT BATTLES

In April 2014, the MAFF filed a request to nullify the Saga District Court’s decision, which obliged the MAFF to conduct a five-year-long water-gate opening. The MAFF asserted that the situation of the Ariake Sea (including Isahaya Bay) had changed in comparison with the situation of December 2010, when the Saga District Court ordered the opening, in the following four ways: (1) the fishing rights of laver fishermen who were receiving penalty money from the MAFF expired in August 2013; (2) new settlers farming at the reclaimed farmland inside the IBSD had started growing crops; (3) the risk of storm surges had increased because of global warming; and (4) marine resources in the Ariake Sea had started to recover. While the Saga District Court rejected the MAFF’s request in December 2014, the MAFF also appealed to the Fukuoka High Court. In July 2018, approving all four abovementioned points, the Fukuoka High Court overruled the Saga District Court’s decision. Laver fishermen, who had received penalties from the MAFF, appealed to the Supreme Court. In September 2019, the Supreme Court made a judgment to refer the case back to the Fukuoka High Court. Unlike the Fukuoka High Court, the Supreme Court recognized that fishing rights had not expired. Based on this recognition, the Supreme Court requested that the Fukuoka High Court judge whether the MAFF still owed the obligation to open the water gate as the fishing rights were still valid.

In March 2022, the Fukuoka High Court concluded that the MAFF’s obligation to pay a penalty for not opening the IBSD’s water gate lapsed, even if fishing rights were still valid. Unsatisfied with the Fukuoka High Court’s conclusion, laver fishermen who were receiving penalties from the MAFF appealed again to the Supreme Court. In March 2023, the Supreme Court confirmed the Fukuoka High Court’s decision. This meant the end of court battles over the IBSD’s water gate; that is, the MAFF could keep the water gate closed without any further judicial problem.

ENVIRONMENTALISTS’ ANTI-IBLRP MOVEMENT

Before construction work of IBLRP began, Isahaya Bay had a nickname of “the womb of the Ariake Sea” because it was rich in fry (including shellfish fry). In addition, its tidal wetlands are a paradise for benthic organisms, such as mudskippers. However, it was obvious that most of them would die once the IBLRP was completed[11].

In July 1996, seeking an injunction against the construction work of the IBLRP, a group of environmentalists formed a plaintiff and filed a suit in the Nagasaki District Court[12]. The defendants comprised the Japanese government and Minister of Justice Ritsuko Nagao. The plaintiff argued that the IBLRP violated the plaintiffs’ environmental rights. The notion of environmental rights is that any person should proclaim their right to make a living under good environmental conditions. In advanced countries in North America and Europe, environmental rights are widely recognized as part of new human rights. However, environmental rights are not yet deeply rooted in the Japanese legal circles. In March 2000, the Nagasaki District Court rejected the plaintiffs’ appeal.

Environmentalists launched another court battle in October 2000 in the Nagasaki District Court. In this case, the plaintiff (environmentalists) requested that the court issue an injunction against the Nagasaki Prefectural Governor’s expenditures for the IBLRP[13]. The plaintiff also requested that Nagasaki Prefectural Governor, Genjiro Kaneko, and former Nagasaki Prefectural Governor, Isamu Takada, pay a compensation of Yen 34 trillion (nearly US$315 million) to the prefectural treasury because Genjiro Kaneko and Isamu Takada inappropriately permitted expending the prefecture’s money on the construction works of the IBLRP. The Land Improvement Act, on which the IBLRP rested, stipulates that the total benefit of any public construction plan should exceed its total cost. The plaintiff argued that Nagasaki Prefecture should not spend money on the IBLRP because its total cost exceed its total benefit.

The MAFF has its own estimate of the benefit-cost ratio for the IBLRP. It was 1.03 when the IBLRP was announced in 1986. However, it decreased to 1.01 in 1999 and 0.87 in 2002. The plaintiff argued that MAFF’s estimates were overrated because environmental damages were not included in the cost of the IBLRP.

In December 2008, the Nagasaki District Court rejected the plaintiffs’ appeal. However, this is not because the total benefit of the IBLRP exceeds the total cost. The Nagasaki District Court judged that, while the total benefit was much less than the total cost, it was within the administrative discretion of the Nagasaki Prefectural Governor to allocate money for the IBLRP.

CONCLUDING REMARKS

According to the MAFF’s announcement, the purpose of the IBLRP was twofold: the reduction of natural disasters by closing the IBSD’s water gate and promoting high-technology farming on reclaimed farmland. However, several academics disagree with this assertion. For example, Unoki et al., (2008) suggested that the improvement of riverbanks around Isahaya Bay was more effective and less expensive in preventing storm surges than IBLRP. In addition, while high-technology farming started on the reclaimed farmland in 2008, one-third of the farmers soon abandoned farming because the conditions for farming on the reclaimed farmland were unfavorable. The Nagasaki District Court admitted that the IBLRP was not profitable as a public construction project. Moreover, the ecology of Isahaya Bay was severely damaged by the IBLRP[14].

Laver fishermen outside the IBSD’s water gate, who requested the MAFF to open the water gate to improve water quality, and new farmers on the reclaimed farmland, who requested the MAFF to keep the water gate closed to minimize the risk of salt damage, had court battles lasting over 20 years. While the court battles ended in March 2023, the local people’s discontent about the IBLRP continued to smolder.

It is uncertain how much the MAFF was aware of the IBLRP’s possible damages on lavy hervest before the MAFF implemented the IBLRP. If the MAFF had conducted exhausive preparatory surveys on the fishing industry around Isahaya Bay in advance, the MAFF could have more chances to avoid producing irreconsiblable conflicts between laver fishermen and new settlers. The IBLRP offers us a bitter lesson that a large-size public farmland investment project caused serious implications to its local society without careful consideration on its impacts on local natural environment.

REFERENCES

Hanyu, Y., 2010, ‘Isahayawan Kantaku-no Rekishi-to Jittai (Today and the Past of Isahaya

Bay)’ Isahayawan Chosechi-no Jittai (Reality of the Isaya Bay Regulating Reservoir) ed. Toru Takahashi, Kyoto: Kamogawa Shuppan.

Unoki, S., Suganami, T., & Hanyu, Y., 2008, ‘Effect of a Reclamation System with Double Dikes for the Prevention of Coastal Disasters,’ Oceanography in Japan, 17(6), 389-403.


[1] The ecological characteristics of the Ariake Sea are given by:

https://www.maff.go.jp/j/study/other/kaimon/sen03/pdf/data3_1_05.pdf

[2] See Hanyu (2010) for further details.

[3] The fishing spots near Isahaya Bay were expected to be damaged during the construction of the IBLRP. Thus, the MAFF spent 8 billion yen as compensation for fishermen fishing near Isahaya Bay. The MAFF payed this money to fishermen’s associations (not individual fishermen) that were responsible in management of fishing spots. It is unsure how many fishermen received compensation money through fishermen’s association and how much each fisherman received. Most of fishermen who had fishing inside Isahaya Bay gave up fishing and found some jobs on land after construction of the the IBLRP started. Details on the compensation are provided at https://www.pref.nagasaki.jp/shared/uploads/2013/08/1376465173.pdf.

[4] The MAFF estimates that, as of 2022, 56% of Japan’s lavy products was hervested in Ariake Sea ( https://www.maff.go.jp/j/tokei/kekka_gaiyou/gyogyou_seisan/gyogyou_yousyoku/r4/ ).

[5] The hervest of lavy in Ariake Sea turned to be recovering after 2001. However, in 2023, laver hervest dropped to the level of 2001. It is suspected that this poor hervest is attributable to the abnormal climate such as high seawater temperature.

[7] While laver fishermen were not stratified by the conclusion of the Environmental Dispute Coordination, there was no system to challenge it.

[8] Most top officials of the Democratic Party believed that the MAFF should have a special appeal to the Supreme Court. However, Naoto Kan insisted on opening the IBSD’s water gate. For more details, see Yomuri Shumbun’s interview with Naoto Kan, which was recorded on page 27 of the Yomiuri Shimbun Newspaper, the morning edition on July 31, 2018.

[9] This provisional disposition was the final disposition in April 2017.

[10] Seeking the revocation of the Saga District Court’s penalty order, the MAFF appealed to the Fukuoka High Court and Supreme Court in December 2014. These appeals were rejected in January, 2015.

[11] As soon as the MAFF started desalting the water inside the IBSD by closing the water gate in April 2017, the terrible scene of massive deaths of saltwater aquatic animals occurred in Isahaya Bay. This was broadcast loudly throughout the country. Voices against the IBLRP have swelled among the general Japanese public.

[12] The plaintiffs comprised Isahaya Bay, black-headed gulls, dunlins, fiddler crabs, granular arks, and six people from Nagasaki Prefecture; 34 lawyers joined as counsel.

[13] The plaintiffs comprised Isahaya Bay, black-headed gulls, dunlins, fiddler crabs, granular arks, and 23 people from Nagasaki Prefecture. Ten lawyers participated as counsel. The defendants comprised the Japanese government, Minister of Justice Koji Yasuoka, Nagasaki Governor Genjiro Kaneko, and Former Nagasaki Governor Isamu Takada.

[14] The question is why the MAFF launched (and carried out) the IBLRP despite its economic and environmental unprofitability. Hanyu (2010) presents a bitter view of this question; that is, the IBLRP was MAFF’s employment measure. In the early post-World War II period, when consumers presented strong food demands, the MAFF launched farmland reclamation projects across Japan. Consequently, the number of bureaucrats with skills specializing in reclamation increased. However, most of MAFF’s large-scale farmland reclamation projects ended in the early 1980s. It is possible that the MAFF was under pressure to launch (and carry out) new farmland reclamation projects, such as the IBLRP, to maintain its employment.

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