U.S. District Chief Judge Susan Oki Mollway ruled that the Army failed to give the community crucial information on how military training at Makua Military Reservation on the island of Oahu could damage Native Hawaiian cultural sites and contaminate marine resources on which area residents rely for subsistence.
The community organization, Malama Makua, represented by Earthjustice, the only nonprofit environmental law firm in Hawaii, filed suit in August 2009 to set aside the Army's environmental impact statement for proposed military training in Makua Valley until it completes key marine contamination studies and archaeological surveys.
The Army was required to complete the studies by an October 2001 settlement of Malama Makua's earlier lawsuit challenging the Army's failure to prepare an EIS for Makua, as well as a related settlement in January 2007.
"We're pleased the judge agreed with us that the Army must finally 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.
Loulu palm, Pritchardia kaalae, an endangered species, is found only on the ridgelines above the Makua Valley Military Reservation on Oahu. (Photo courtesy U.S. Army Environmental Command)
Makua Valley is a 4,190-acre valley located on the dry leeward side of Oahu's Waianae Mountains. The valley contains more than 40 endangered plant and animal species.
Malama Makua points to archaeological evidence indicating that Makua Valley had a thriving Hawaiian community before European contact. Makua Valley is a sacred place to native Hawaiians, the mythic birthplace of the Hawaiian people.
Under legal settlements agreed in October 2001 and January 2007, the Army is required to complete comprehensive subsurface archaeological surveys to identify cultural sites that could be damaged or destroyed by the planned resumption of live-fire military training in the valley.
In today's ruling, the Judge Mollway concluded that the Army "failed to conduct any subsurface survey" in several areas within Makua's Company Combined Arms Assault Course and, thus, "violated its agreement to survey 'all areas' of the CCAAC."
The settlements also require the Army to conduct comprehensive studies to determine the potential for training activities to contaminate fish, shellfish, edible seaweed called limu, and other marine resources at Makua that Waianae Coast residents gather for subsistence purposes.
Judge Mollway concluded the Army "did not comply with its contractual obligation to conduct a meaningful survey ... that evaluates the potential that the Army's activities at [Makua] were contributing to contamination or posting a human health risk to area residents who rely on marine resources for subsistence."
"The Army says that, if the arsenic it found in limu at Makua is toxic, even occasionally eating it would put you at risk of cancer like smoking a pack of cigarettes each day," said Malama Makua board member Vince Dodge. "But then the Army didn't bother to figure out if the arsenic is or isn't toxic."
"I'm glad the court is telling the Army it needs to finish the study and let me know if military training is poisoning the food I put on my family's table," Dodge said.
Today's ruling did not resolve Malama Makua's claim that the Army violated its duty to identify and study the fish, shellfish, limu, and other marine resources on which area residents rely for subsistence. That issue will be resolved at trial, which is scheduled for February 23, 2011.
"Today's ruling vindicates the public's right to accurate information about the harm to public health and cultural sites that resuming training at Makua could cause," said Earthjustice attorney David Henkin.
Malama Makua is a non-profit, community organization based on the Waianae Coast of Oahu. Formed in 1992 to oppose the Army's open burn/open detonation permit application to the U.S. Environmental Protection Agency, Malama Makua has continued to monitor military activities at Makua and has participated in community initiatives to care for the land and resources at Makua.
Copyright Environment News Service (ENS) 2010. All rights reserved.