This week, Judge Susan Oki Mollway of the U.S. District Court for the District of Hawai'i issued an order barring the U.S. Army from conducting live-fire training exercises at Makua Military Reservation (MMR) on O`ahu pending a final decision on whether the Army must prepare a comprehensive Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA).
Judge Mollway's order granted the preliminary injunction that Malama Makua had requested at a hearing last Monday (July 9, 2001). Represented by Earthjustice, Malama Makua filed suit in December 2000, challenging the Army's refusal to prepare an EIS for proposed live-fire training at MMR and its claim that training would not significantly affect neighboring communities or the 45 endangered and threatened species and dozens of sacred and cultural sites found at Makua.
"The court agreed with what we've been saying all along, that the Army's own studies reveal the potential for significant impacts on the environment, which is all the law requires before an EIS is necessary," said Earthjustice attorney David Henkin. "We're pleased Judge Mollway looked beyond the Army's rhetoric about national security and based her decision on the evidence before her. That evidence shows that there will be no significant harm to military preparedness from barring training at Makua for a few more months, but that letting the Army conduct live-fire training before Malama Makua has its day in court would threaten irreparable environmental harm to irreplaceable biological and cultural treasures."
In her order, Judge Mollway made the following findings:
"Here, the scientific evidence presented in the Army's own studies reveals the potential for adverse environmental effects. Uncertainty exists, not over whether the environment will be affected, as that is certain, but over the intensity and nature of those effects." (page 36)
"Because the court affords first priority to the declared national policy of saving endangered species, an injunction is warranted to prevent potential harm to, or extinction of, endangered species in Makua Valley." (page 47)
"The additional risks of an adverse environmental impact on Native Hawaiian cultural resources and Native Hawaiian rights, coupled with the Army's failure to at least review Dr. Masters' report on contamination, compels the issuance of an injunction on live-fire training exercises at MMR pending resolution of this action on the merits." (pages 47-48)
"Although the court recognizes the importance of national security and live-fire training, the potential harm to the Army resulting from a brief preliminary injunction will not be significant. ... 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." (pages 48-49)
"The potential threat of wildfires and live-fire training may cause the extinction of endangered species, the loss of cultural resources, the denial of Native Hawaiian rights, and adverse effects on the environment. Malama Makua deserves the chance to be heard on the merits of this case before the Army begins live-fire training exercises that may threaten the environment." (page 50)
The court's order sets an accelerated schedule for final resolution of the case. The parties' motions for summary judgment -- which should resolve the issue of whether the Army's refusal to prepare an EIS violated NEPA -- will be heard before Judge Mollway on October 29, 2001 at 9 a.m.
No training has taken place at MMR since September 1998 when, in response to a letter from Malama Makua indicating its intent to sue, the Army resumed consultations with the Service under the federal Endangered Species Act.
David Henkin, Earthjustice (808) 599-2436, ext. 14
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