Makua case returns to U.S. court

A judge considers the Army's bid to resume live-ammo war games amid rich cultural sites

A federal judge said she is inclined to reject the U.S. Army's request to amend a 2001 agreement that prohibits live-fire training at Makua Valley until a federally mandated environmental impact statement is completed.

U.S. District Judge Susan Mollway said she will defer to the Army to decide when, where and which of its units need training, but she needs to enforce the law.

"Deference to the Army shouldn't be confused with letting the Army violate environmental laws that Congress requires us to follow," she told the parties yesterday.

The Army has been prohibited from conducting live-fire training exercises in the valley near Kaena Point since October 2004 under an agreement reached three years earlier with environmental group Earthjustice and native Hawaiian group Malama Makua.

The Oct. 4, 2001, agreement allowed the Army to conduct up to 35 live-fire exercises during the next three years while it finished the environmental impact statement. But if it did not complete it within three years, the Army would not be allowed to train until it was completed.

The environmental groups had sued the Army earlier, alleging violations of the National Environmental Policy Act for failing to complete the environmental assessment for Makua Military Reservation, which occupies 4,190 acres in Leeward Oahu.

Considered sacred to native Hawaiians, Makua, which means "parents" in Hawaiian, is home to more than 100 identified archaeological and cultural sites, including heiau, Hawaiian burials and petroglyphs. It is also the habitat of the endangered Oahu elepaio bird and endangered plant species.

The federal court ordered a preliminary injunction in July 2001, preventing live-fire training in Makua pending the outcome of the case. Anticipating a battle ahead, the parties settled.

"Here we are 4 1/2 years later, and the Army wants to rewrite the deal," said David Henkin, attorney for Earthjustice, which filed suit on behalf of the groups.

"They want the benefit of three years' training, plus additional training at Makua when they've delayed for years and years finishing the environmental impact statement."

The Army insists that circumstances have changed since the agreement was signed, includ-ing the war on terrorism, the continuing rotation of soldiers into Iraq and events beyond its control delaying the completion of the environmental assessment. They now say the assessment could be completed in April or May.

The Army asserts that its soldiers cannot complete the vital live-fire training necessary to prepare them for combat in Iraq without a change in the agreement.

The 25th Infantry Division says it needs to train 7,000 soldiers belonging to its 3rd Brigade Combat Team and supporting units before they deploy to Iraq this summer.