The court held that, in finalizing its list of high priority sites on April 22, 2008, over five and a half years after the deadline established in a legal settlement, the Army improperly relied on outdated information and excluded public participation at the Makua Military Reservation on the Wai'anae Coast of Oahu, 38 miles northwest of Honolulu.
The court affirmed the U.S. Army's duties under a October 4, 2001 settlement with Malama Makua, a community organization represented in the case by the nonprofit law firm Earthjustice.
In its ruling, the court said if the Army were allowed to identify the high priority sites in 2008 based on information available in 2002, they would have gained years of noncompliance with the terms of the settlement at no cost to themselves "exacerbat[ing] their unjust enrichment."
Accordingly, the court clarified its April 9, 2008 order holding that the Army violated its duty to identify high priority sites.
The Army was ordered to revise its priority list based on input from a minimum of two public comment periods and to focus on increasing access to high priority cultural sites.
Makua Valley on the west coast of Oahu (Photo courtesy U.S. Army)
"In negotiating the 2001 settlement, Malama Makua insisted that high priority sites be identified and cleared of unexploded ordnance because that's the only way to bring cultural life back to Makua," said Malama Makua president Sparky Rodrigues.
"By refusing to ask local practitioners to give their mana'o [input] about their highest priorities, the Army turned the process into a sham. We're pleased the court understands that and has insisted that the Army give the people of the Wai'anae Coast meaningful opportunities to participate."
Makua, which means "parents" in Hawaiian, is a sacred area, rich in cultural resources. More than 100 Native Hawaiian cultural sites have been identified within the military reservation, including Hawaiian temples known as heiau, altars, burials and petroglyphs.
The court order requires the Army to finalize the revised high priority list by June 12, 2009, and then to set forth a "'good faith' plan to clear [unexploded ordnance] from each of the [high priority] sites" in an October 15, 2009 report to the court."
Thereafter, the Army must report to the court quarterly regarding its efforts to clear unexploded ordnance until all high priority sites have been cleared of unexploded ordnance, or until the court orders otherwise.
"We shouldn't have to take the Army to court twice to get it to live up to its promise to move quickly to expand cultural access," said Earthjustice attorney David Henkin. "We hope the clear commands in today's order will finally ensure Native Hawaiian practitioners can reconnect with the valley's sacred sites."
Use of Makua Valley by the Army and other U.S. armed forces dates back to the 1920s.
The valley was used for combined-arms assault course training exercises by the 25th Infantry Division based at Scofield Barracks on Oahu from May 1988. In September 1998, the Army temporarily suspended training at Makua after several wildfires burned outside the firebreak roads.
In July 2001, the U.S. District Court barred the Army from continuing live-fire training.
Malama Makua is a nonprofit organization formed in 1992 to oppose the Army's open burn and open detonation permit application to the U.S. Environmental Protection Agency. In addition to the sacred sites, there are over 50 endangered plant and animal species in the region affected by the training exercises.
Malama Makua has continued to monitor military activities at Makua and has participated in a number of community initiatives to care for the valley's land and resources.
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