Court Rules Army Violated Makua Settlement Agreements

For Immediate Release

Contact: 

David Henkin, Earthjustice (808) 599-2436, ext. 614
Sparky Rodrigues, Mälama Mäkua (808) 352-0059

Court Rules Army Violated Makua Settlement Agreements

Army’s marine contamination study flawed, archaeological survey incomplete

HONOLULU - Today, U.S. District Chief Judge Susan Oki Mollway ruled that the Army
failed to give the community crucial information on how military
training at Mäkua Military Reservation on O‘ahu could damage Native
Hawaiian cultural sites and contaminate marine resources on which area
residents rely for subsistence.

Mälama Mäkua, represented by Earthjustice, filed suit in August 2009 to
set aside the Army’s environmental impact statement (EIS) for proposed
military training at Mäkua until it completes key marine contamination
studies and archaeological surveys.  The Army was required to complete
the studies by an October 2001 settlement of Mälama Mäkua’s earlier
lawsuit challenging the Army’s failure to prepare an EIS for Mäkua, 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 Mäkua poses
to irreplaceable subsistence and cultural resources,” said Mälama Mäkua
president Sparky Rodrigues.

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 Mäkua that
Waiÿanae 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 Mäkua 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 Mälama Mäkua board member Vince Dodge.  “I’m glad the
court recognized I have a right to know if military training at Mäkua is
poisoning the food I put on my family’s table.”

Today’s ruling did not resolve Mälama Mäkua’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 Mäkua could cause,” said Earthjustice attorney David Henkin.

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Earthjustice is a non-profit public interest law firm dedicated to protecting the magnificent places, natural resources, and wildlife of this earth, and to defending the right of all people to a healthy environment. We bring about far-reaching change by enforcing and strengthening environmental laws on behalf of hundreds of organizations, coalitions and communities.

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