The community organization Malama Makua, represented by the public interest law firm Earthjustice, had asked the court in August to set aside the Army's environmental impact statement for proposed military training at the military reservation 38 miles northwest of Honolulu until it completes key marine contamination studies and archaeological surveys.
Makua Valley, Oahu, Hawaii (Photo by Isaac Lau)
"For years we've been insisting that the Army tell the community the truth about the threats that training at Makua poses to irreplaceable subsistence and cultural resources," said Malama Makua president Sparky Rodrigues. "Now the court has told the Army that it can't get away with junk science."
Under two previous legal settlements with Malama Makua, the Army was required to conduct comprehensive studies to determine the potential for combat training activities to contaminate fish, shellfish, edible seaweed and other marine resources at Makua that Waianae Coast residents gather for subsistence purposes.
The Army was also required to prepare comprehensive subsurface archaeological surveys to identify cultural sites that could be damaged or destroyed by military training.
The Army agreed to take these actions in an October 2001 settlement of Malama Makua's earlier lawsuit, which challenged the Army's failure to prepare an environmental impact statement for training at the Makua Military Reservation, as well as a related settlement in January 2007.
The Army filed a motion seeking to dismiss Malama Makua's August complaint, arguing that, regardless of the scientific adequacy of its studies, it had met all its responsibilities under the settlement agreements.
In denying the Army's motion, U.S. District Chief Judge Susan Oki Mollway wrote, "The Army has not demonstrated that the settlement agreement provided it with the sole right to determine what was meant by [an archaeological] 'survey.' Taken to its logical conclusion, the Army's argument would allow the Army to satisfy its burden by poking a stick into the ground and calling that action a 'survey.'"
Judge Mollway also found that Malama Makua had a viable claim when it asserted that the Army had failed to meet its obligations under the settlement agreement in regard to studying the contamination of subsistence marine resources along the Waianae Coast on Oahu's western shore.
"At the hearing on this motion, the Army argued that it was entitled to summary judgment because the settlement agreement only required it to do a study, which it did," Judge Mollway wrote.
"The Army contended that what kind of study it did was in its sole discretion. At the hearing, the Army went so far as to argue that it could have satisfied the 'study' requirement by simply having a luau, serving food from the area, and seeing whether anyone got sick," Judge Mollway wrote.
Sgt. Thomas Tallman, 25th Combat Aviation Brigade locates grid coordinates for aviators during an exercise conducted over Makua Valley. April 10, 2008. (Photo courtesy U.S. Army)
"The Army points to nothing in any agreement giving it the sole discretion to interpret what constitutes any 'study' required by any agreement," Judge Mollway wrote.
The judge said she was not persuaded by the Army's overall argument that, "as the settlement agreements required no particular methodology, any methodology sufficed."
"To make a rational decision about whether to allow training at Makua, it's vital that decision makers and the public have accurate information about the harm to public health and cultural sites that resuming training at Mäkua could cause," said Earthjustice attorney David Henkin. "This ruling puts the Army on notice that the Court will not allow the Army to pass off woefully inadequate studies as meaningful."
The primary use of Makua Military Reservation has been for company-level training exercises by the Army's 25th Infantry Division, which is based at Schofield Barracks on Oahu.
During these exercises, the Army unit orchestrates the application of several military units, such as infantry, aviation, artillery, engineers, and others, to achieve a combined effect on the enemy greater than if each weapon system were used individually.
In addition, convoy live-fire exercises have been held at Makua Military Reservation, MMR.
In September 1998, the Army temporarily suspended training at MMR due to several wildfires that burned outside the south and north firebreak roads. "There are over 50 occurring or potentially occurring endangered plant and animal species in the MMR region of influence," the Army states in its final environmental impact statement. "The proximity of these species to a fire hazard presents significant challenges."
The Army consulted with the U.S. Fish and Wildlife Service, most recently in 2005. The Service advised that the training exercises would not likely jeopardize the continued existence of any species or adversely modify or destroy designated critical habitat.
A June 2008 amendment to the environmental impact statement identifies conservation measures to be implemented on private land but not on the MMR.
While MMR was used for limited training from 2001 to 2004, since the suspension of training there in September 1998, the 25th Infantry Division has attempted to meet its live-fire training requirements by sending its companies to other training locations.
Makua Valley petroglyph (Photo by Tammy Yee)
The Army says that given the present number and types of units stationed in Hawaii requiring use of Army live-fire ranges, Hawaii needs the range capacity to support 32 company-level convoy live-fire exercises annually.
The topography of MMR, with steep valley walls enclosing the relatively flat company combined-arms assault course on three sides, and Makua's isolation from population centers provide the necessary buffer areas that facilitate live-fire training at the reservation, the Army states.
On the other hand, Malama Makua says the valley is a sacred place to native Hawaiians, the mythic birthplace of the Hawaiian people.
Frequent brushfires that imperil the fragile native ecosystem and the potential destruction of Hawaiian artifacts in the valley are the organization's concerns. Malama Makua also objects to military amphibious exercises conducted on the beach fronting the valley.
Over 100 Native Hawaiian cultural sites have been identified at MMR, including Hawaiian temples, altars, burials and petroglyphs, but the Army, claiming the danger of unexploded ordnance, has refused access to the community except at one cultural site.
"I've observed training at Makua and many times have seen mortar rounds missing their targets and landing in places we know are full of ahu [shrines], petroglyphs, imu [earthen ovens], and other cultural sites," said Malama Makua member and cultural practitioner Leandra Wai. "If the Army doesn't live up to its promises and do a comprehensive survey of Makua's cultural sites, we'll never know what we stand to lose if the Army returns to training."
Malama Makua has criticized the State of Hawaii for leasing the lands to the military in 1964, at the rate of $1.00 for 65 years, until the year 2029.
Copyright Environment News Service (ENS) 2009. All rights reserved.