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High court ruling on Isahaya Bay floodgates highlights national gov't brazenness

The Isahaya Bay dike and floodgates are pictured in this file photo taken from a Mainichi Shimbun helicopter on May 21, 2018. (Mainichi)

A July 30 Fukuoka High Court ruling nullified a 2010 decision by the same court that had ordered that floodgates of a dike at Isahaya Bay in Nagasaki Prefecture be opened, siding with the central government in a lengthy court battle against local fishermen. The ruling effectively approved the position of the government, which has defied the earlier court order to open the floodgates for years.

At the same time, however, the latest ruling failed to address how to restore the affected Ariake Sea, to which Isahaya Bay belongs and which local fishermen used to call a "treasure sea." The fishermen are poised to appeal the July 30 ruling to the Supreme Court.

The floodgates for the roughly 7-kilometer-long dike have been closed since 1997 as part of a government project to create some 670 hectares of farmland and a 2,600-hectare reservoir. Full-fledged farming on the reclaimed land began in 2008.

Local fishermen filed a suit demanding that the floodgates be opened, claiming that their fishing was severely affected by the closure of the gates. In 2008, the Saga District Court ruled in favor of the fishermen, ordering the government to open the floodgates. The decision was upheld by the Fukuoka High Court in 2010 and finalized after the then administration led by the Democratic Party of Japan did not appeal it to the top court.

However, the Nagasaki District Court issued a provisional injunction in 2013 not to open the gates, conflicting with the high court decision. The current government has refused to comply with the order to open the floodgates citing division among court decisions. The government then clarified its policy of having no intention to open the floodgates after the Nagasaki District Court handed down a ruling on a full-scale lawsuit in April 2017 banning the floodgates from being opened.

The state then launched a suit demanding that the 2010 ruling be nullified, citing a major change in the conditions that provided the basis for the previous ruling.

In the July 30 ruling, the appeal court pointed out that 10-year common fishing rights, which the fishermen had at the time of oral proceedings for the earlier trial, expired in August 2013, and concluded that the fishermen have accordingly lost the right to demand that the floodgates be opened.

The national government has apparently taken advantage of division among court rulings and the expiration of the 10-year fishing concession.

Therefore, the latest ruling effectively approved the central government's strategy of seeking to gain from holding out.

At the same time, however, the court failed to examine key points of contention that are important for the future of the Ariake Sea, such as an increase or decrease in fish catches and the pros and cons of the government's project to restore the sea.

Ryoichi Hori, a lawyer representing the fishermen, criticized the ruling for failing to examine damage to the Ariake Sea environment.

"The ruling, which didn't make judgment on points of contention such as the cause of the deterioration of the Ariake Sea, was evasive. The court relinquished its judicial role," he said.

Kagoshima University professor of fisheries economics Masaaki Sano also commented, "It's impossible to protect fishermen's rights if a ruling on their lawsuit becomes invalid after a certain amount of time has passed. The ruling doesn't fit the reality of fishing."

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