Marines barred
from MakuaA federal judge halts next week’s
planned exercises and sets
an April 19 hearing
A federal judge has ruled that Kaneohe Marines cannot conduct live-fire training at Makua Valley next week.
Late yesterday, U.S. District Judge Susan Oki Mollway granted a request for a temporary restraining order by a Waianae community group that challenged the Army's decision allowing the Marine Corps to conduct life-fire exercises from Wednesday to Friday.
"Everyone acknowledges the need for military training, but in the (Endangered Species Act), Congress has charged the court with giving the highest priority to protecting endangered species," Mollway ruled.
"We are extremely pleased that the court recognized the need to preserve the status quo," said David Henkin, the Earthjustice Legal Defense Fund attorney representing Malama Makua. "I think it was a very prudent decision by the court and one that we would hope the military would understand."
Malama Makua attorneys had argued Tuesday that allowing Kaneohe Marines to use mortar and shoulder-launched rockets in Makua Valley violates a 2001 agreement and poses a threat of fire that could harm endangered species and cultural sites.
Army spokeswoman Patricia Simoes had no comment last night but expected to release a response this afternoon.
Mollway plans an April 19 hearing on a preliminary injunction to make permanent the ban on the Marines' live-fire training at Makua.
"We would hope that they (the Marines) would reconsider their current insistence on pursuing this type of destructive training" in Makua, Henkin said. "We really would encourage the military to rethink its strategy."
The 2001 agreement between the military and Earthjustice outlines exercises permitted in Makua Valley.
After last July's "controlled burn" at Makua went out of control and new endangered species were discovered, the Army and the U.S. Fish and Wildlife Service began a formal consultation to determine what types of exercises should be permitted.
The military argued that a biological assessment of the impact of live-fire training in Makua Valley is unnecessary and required only when the activity involves "major construction."
They contend that the Fish and Wildlife Service backs the Army's determination to make sure that no irreparable and irreversible damage will occur.
Henkin of Earthjustice had argued that the military cannot conduct training until formal consultation is completed, because it cannot guarantee that the training will not cause irreparable damage to endangered species.
Mollway ruled that because it is likely that the proposed training violates the 2001 agreement, the court does not have to rule on the necessity of a biological assessment or whether training should be allowed before formal consultation is completed.
"If the government seeks to modify the agreement, it bears the burden of demonstrating the safety of the exercise," Mollway said.
The Marines had proposed using 110 60-mm mortars but fewer troops. The 2001 agreement allows 36 60-mm mortars.
"Tripling the number of these shells used in a training exercise appears to be a modification of the stipulated order," Mollway said, noting that the 60-mm shells have a history of igniting fires at Makua.