Court rules Army failed to provide crucial info on damage, contamination at Makua

HONOLULU—U.S. District Chief Judge Susan Oki Mollway ruled this morning that the U.S. Army failed to give the community crucial information on how military training at Makua Military Reservation on Oahu could damage Native Hawaiian cultural sites and contaminate marine resources on which area residents rely for subsistence.

Malama Makua, represented by Earthjustice, filed suit in August 2009 to set aside the Army’s environmental impact statement (EIS) for proposed military training at Makua 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, which challenged 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 in a statement.

Under the October 2001 and January 2007 settlements, the Army is required to complete comprehensive subsurface archaeological surveys to identify cultural sites that could be damaged or destroyed by military training. In today’s ruling, the court concluded that the Army “failed to conduct any subsurface survey” in several areas within MMR’s Company Combined Arms Assault Course (“CCAAC”) 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, limu (seaweed), 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 MMR were contributing to contamination or posting a human health risk to area residents who rely on marine resources for subsistence.”

“The Army’s study says that, if the arsenic it found in limu at Makua is present in its toxic form, even recreational consumption of that limu would pose the same cancer risk as smoking a pack of cigarettes each day, but then it didn’t bother to figure out if the arsenic was or was not toxic,” said Malama Makua board member Vince Dodge. “I’m glad the court recognized I have a right to know if military training at Makua is poisoning the food I put on my family’s table.”

Today’s ruling did not resolve Malama Makua’s claim 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 in a statement.