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Court Finds Army "Unjustly Enriched" by Years of Delay in Hawai`i

Victory: Army ordered to involve public, focus on increasing access to sacred sites at Makua
January 23, 2009
Honolulu, HI —

Today, the U.S. District Court for the District of Hawai'i affirmed the U.S. Army's duties under a October 4, 2001 settlement with Malama Makua (represented by Earthjustice).

 

The Army must "provide meaningful opportunities for the people of the Wai'anae Coast to participate in identifying and prioritizing" cultural sites to be cleared of unexploded ordnance at Makua Military Reservation ("MMR") on O'ahu and "focus on increasing access to cultural sites." 

The court held that, in finalizing its list of high priority sites on April 22, 2008, over five and a half years after the settlement's October 4, 2002 deadline, the Army improperly relied on outdated information and excluded public participation. 

The court stressed:

"if Defendants were allowed to identify the high priority sites in 2008 based on information available in 2002, they would have gained years of noncompliance at no cost to Defendants," "exacerbat[ing] their unjust enrichment."

Accordingly, the court clarified its April 9, 2008 order holding the Army violated its duty to identify high priority sites and instructed the Army to revise its priority list based on input from a minimum of two public comment periods and to focus on increasing access to high priority sites.

"In negotiating the 2001 settlement, Malama Makua insisted that high priority sites be identified and cleared of unexploded ordnance because that's the only way to bring cultural life back to Makua," said Malama Makua president Sparky Rodrigues. "By refusing to ask local practitioners to give their mana'o (input) about their highest priorities, the Army turned the process into a sham. We're pleased the court understands that and has insisted that the Army give the people of the Wai'anae Coast meaningful opportunities to participate."

Today's order requires the Army to finalize the revised high priority list by June 12, 2009, and then to set forth a "'good faith' plan to clear [unexploded ordnance] from each of the [high priority] sites" in an October 15, 2009 report to the court. Thereafter, the Army must report to the court quarterly regarding its efforts to clear unexploded ordnance until all high priority sites have been cleared of unexploded ordnance, or until the court orders otherwise.

"We shouldn't have to take the Army to court twice to get it to live up to its promise to move quickly to expand cultural access," said Earthjustice attorney David Henkin. "We hope the clear commands in today's order will finally ensure Native Hawaiian practitioners can reconnect with the valley's sacred sites."

Background

Makua, which means "parents" in Hawaiian, is a sacred area, rich in cultural resources. Over 100 Native Hawaiian cultural sites have been identified at MMR, including heiau (Hawaiian temples), ahu (altars), burials and petroglyphs.

On October 4, 2001, Malama Makua, represented by Earthjustice, and the Army entered into a settlement agreement to resolve litigation challenging the Army's failure to prepare an environmental impact statement to evaluate impacts to the human environment from military training and related activities at MMR, as well as reasonable alternatives that could accomplish the Army's goals with less environmental harm.  Paragraph 8(b) of the settlement required the Army, "within one year of the date of settlement" (i.e., no later than October 4, 2002), to "identify additional, high priority areas at MMR for [unexploded ordnance] clearance, with the focus on increasing access to cultural sites."  Because of the importance of this issue to local cultural practitioners, the Settlement Agreement further required the Army to "provide meaningful opportunities for the people of the Wai'anae Coast to participate in identifying and prioritizing" the areas to be cleared for cultural access.

On March 11, 2008, the U.S. District Court for the District of Hawai'i held the Army was over five years late in complying with its duty to finalize a high priority list of sites for unexploded ordnance clearance and ordered the Army to do so no later than April 15, 2008. The court amended its order on April 9, 2008, extending the Army's deadline to finalize the list until April 22, 2008.

Read the order (PDF)

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Malama Makua is a non-profit, community organization based on the Wai'anae Coast of O'ahu.  Formed in 1992 to oppose the Army's open burn/open detonation permit application to the EPA, Malama Makua has continued to monitor military activities at Makua and has participated in a number of community initiatives to care for the land and resources at Makua.

Earthjustice is a non-profit, public-interest, environmental law firm.  The Hawai'i regional office opened in Honolulu in 1988 as the Sierra Club Legal Defense Fund, and has represented dozens of environmental, native Hawaiian, and community organizations.  Earthjustice is the only non-profit environmental law firm in Hawai'i and the Mid-Pacific, and does not charge clients for its services.  

Contacts

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

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.