Judge Sustains Makua Complaint

Judge sustains Makua complaint
The ruling reveals doubt about whether Army environmental surveys were sufficient
By Gregg K. Kakesako
Honolulu Star Bulletin
POSTED: 01:30 a.m. HST, Nov 20, 2009

A federal judge has sided with Hawaiian activists who want the Army to stop training in Makua Military Reservation, putting the military on notice that it will have to show that maneuvers in the Leeward valley would not contaminate ocean resources or damage cultural sites.

U.S. District Chief Judge Susan Oki Mollway’s actions keep alive a request by the organization Malama Makua to have the court set aside the Army’s environmental impact statement until it completes more marine contamination studies and archaeological surveys.

The Army completed the EIS in June, and in August filed a motion seeking to dismiss Malama Makua’s complaint.

In denying the Army’s motion Wednesday, Mollway wrote that the Army does not have the sole right to determine what qualifies as a 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,’” the judge wrote.

Earthjustice attorney David Henkin, who has represented Malama Makua since 2000, said that he hopes that Mollway will act early next year to permanently bar further training in Makua before the Army resumes any operations using live ammunition.

The Army, which conducted both a survey of cultural sites and several scientific studies on possible water and soil contamination, has said it had met all terms of their October 2001 settlement agreement with Malama Makua.

Under the terms of the agreement, the Army was required to conduct studies to determine the potential for training activities to contaminate fish, shellfish, limu and other marine resources off Makua beach. The Army was also required to prepare subsurface archaeological surveys to identify cultural sites that could be damaged or destroyed by training.

“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,” 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.”

Malama Makua President Sparky Rodrigues said: “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. Now the court has told the Army that it can’t get away with junk science.”

Said Earthjustice attorney Henkin: “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 Makua could cause. This ruling puts the Army on notice that the court will not allow the Army to pass off woefully inadequate studies as meaningful.”

Dennis Drake, an Army spokesman, yesterday said it is Army policy not to comment on ongoing litigation: “We will abide with the dictates of the court.”

In August Col. Matthew Margotta, commander of U.S. Army Garrison Hawaii, said the Army hoped to resume live-fire training before the end of summer since it believed that the environmental statement completed in June fulfilled its legal obligations. However, no training with live-fire ammunition has taken place.

The Army has said that it needs to rebuild several dirt roads and firing ranges in the training area damaged by heavy rain last year. The Army stopped live-fire training in the 4,190-acre valley in 2004, pending completion of the EIS.