Tuesday, July 17, 2001

holds at Makua

A judge's preliminary injunction
prevents the Army from
resuming live-fire exercises

By Gregg K. Kakesako

U.S. District Judge Susan Oki Mollway has set back Army training in Makua Valley -- suspended since September 1998 -- for at least an extra three months.

Yesterday, Mollway granted a motion for a preliminary injunction requested by Malama Makua, a group of Waianae residents that oppose the military's use of the 4,100-acre valley as a live-fire training range.

Mollway said there are "sufficiently serious questions" about the training in granting the preliminary injunction.

She set Oct. 29 as the date she will hear arguments on whether the Army should prepare an environmental impact statement before resuming training.

She questioned the adequacy of information provided by the Army on the way it would prevent and control range fires, which are the greatest threat in the Leeward Oahu valley, believed by some Hawaiians to be a sacred place.

The Earthjustice Legal Defense Fund maintains that continual live-fire training in Makua Valley by the military will destroy endangered species and irreplaceable native Hawaiian cultural sites.

David Henkin, an attorney with Earthjustice, said, "We're pleased that the judge has rendered a decision that there is potential for significant impact on the biological and archaeological resources in Makua."

Capt. Stacy Bathrick, 25th Infantry Division (Light) spokeswoman, said: "Naturally, we would have preferred a decision that allowed the Army to resume training now. Our position throughout this process has been that the Army needs Makua in order to conduct realistic training. We remain committed to demonstrating to the court that we can protect the environment in Makua and maintain the readiness of our forces in Hawaii."

Art The Army relied on the findings of the U.S. Fish and Wildlife Service when it determined that a modified training schedule with smaller groups of soldiers and fewer incendiary weapons would have "no significant impact" on Makua's surroundings.

The 25th Division, which would limit training to 456 acres of the 4,100 acres it controls in Makua, had hoped to resume training in Makua this summer, but under a modified program with fewer soldiers and weapons less prone to setting fires. It had used Makua as a training and bombing range since 1943. Fires have always posed the greatest threat to Makua's ecosystems.

In approving the preliminary injunction, Mollway rejected a supplemental environmental assessment released by the Army in May. She did not believe the delay "would significantly impair the public's interest."

"Training has not occurred at the MMR (Makua Military Reservation) for almost three years," Mollway said in her 52-page decision. "Another few months will not cause irreparable harm."

Mollway rejected the Army's arguments that substitute training sites are too far away and too expensive.

"There is no evidence in the record to indicate that training at other sites pending resolution of this case will significantly impair the ability of the Army to defend the nation," the judge said.

Henkin said that although Mollway's action was only the first step, he was gratified to see that she did not accept the Army's arguments that a delay would affect the national security of the country.

The Army had argued that continued reduction in training would place the lives of soldiers at risk and negatively affect national security.

But Henkin, whose public-service law firm represents Malama Makua, said the Army did not offer any such proof in its written arguments, and he was happy to see that Mollway did not accept the Army's oral arguments that were presented last week in federal court.

"When concerns of national security are raised," Henkin said, "you are always fighting an uphill battle."

Henkin said it is now up to the Army to prepare the administrative record of the case -- materials on which it based its May environmental assessment. Mollway said it has to be filed by Aug. 10.

If Earthjustice is successful in convincing Mollway that an environmental impact statement is necessary, Henkin said he expects another motion would be made to further suspend training until the environmental report is completed. This could set back training even longer, with estimates that it would take the Army up to a year to complete the study.

In October the Army is supposed to begin the process of determining how the islands and a brigade of nearly 3,000 25th Division soldiers will fit into its new fast-reaction force.

Just last week, Army Chief of Staff Gen. Eric Shinseki announced that Hawaii would get one of four new rapid-deployment brigades equipped with the Army's newest eight-wheeled light armored troop carriers.

No details were given except that Hawaii would receive an additional 480 soldiers and 300 light armored vehicles.

Earthjustice rejected the Army's modified training program, which cut the number of soldiers firing weapons in Makua to about 150 at a time, and the Army's proposal to ban rockets, missiles and other incendiary weapons.

Earthjustice believes the major problems in Makua caused by renewed training are:

>> Threats to 32 endangered plants, two endangered birds, one endangered bat and one endangered snail that live in Makua and along the ridge line.

>> Wildfires set off by ammunition during training and by the Army to control vegetation growth.

>> Threats to cultural resources and the impact on Hawaiian cultural practices.

>> Potential ground-water contamination.

On the issue of fires, Mollway said she is bothered by the Army's repeated statements that there always will be fires. She said the Army's environmental assessment "contains no specific studies or documentation of the estimated nature, size, frequency or impact of possible wildfires under the proposed action," especially in the 425-acre training area.

Mollway said she cannot determine the chances that fires started by the Army will escape the firebreak road that surrounds the proposed training area and threaten endangered species.

A large wildfire in September 1998 resulted in the Army suspending training while it investigated the effects of the fires and re-evaluated its firefighting program.

In the area of archaeological, historical and cultural sites found in Makua, Mollway said the Army's environmental assessment is faulty.

She said, "The Army has not conducted sufficient studies to explore the potential effects on the training on cultural and archaeological sites."

Although the Army proposes to move its targets away from archaeological and cultural sites, the current study does not assess the damage that might occur by stray fire.

As for native Hawaiian cultural practices, the Army fails to address such issues as rights to gather plants and animals, she said.

William Aila, whose family used to live in Makua, welcomed Mollway's decision, saying it shows that Malama Makua was "right all the time."

Aila added that the Army "studies done to date are incomplete and not sufficient enough to arrive at the conclusion of no significant impact.

"This is a good indication that the merits of the case are leaning to Malama Makua," Aila said.

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