On Friday, U.S. District Chief Judge Susan Oki Mollway ruled that the Army breached a court-ordered settlement “by failing to test limu (seaweed) and other marine resources that are eaten by residents of the Waianae Coast to evaluate whether they posed a human health risk” due to contamination from military activities at Mākua Military Reservation (MMR). Judge Mollway concluded that the Army’s breach deprived “area residents … of actual [contamination] data” about commonly consumed marine resources like octopus and sea cucumbers. She further found that, because the Army tested only species of limu that Wai‘anae Coast families do not eat, its “conclusion regarding the human health risks presented by limu actually eaten by area residents lacks any meaning.”
“In 2007, the Army promised it would conduct a meaningful study to find out if military training at Mākua is poisoning the food that local families put on the table to feed their keiki (children),” said Mālama Mākua president Sparky Rodrigues. “Instead of testing the things we actually eat, the Army simply sampled whatever trash species were easiest to pick up along the shoreline without getting wet. We appreciate Judge Mollway’s decision, which means that local families will finally find out if the food they gather from Mākua is safe.”
Judge Mollway’s ruling was based on evidence from the June 2011 trial in a lawsuit brought by Earthjustice on behalf of Mālama Mākua challenging the Army’s issuance of a final environmental impact statement (EIS) for proposed military training at MMR. Under a January 2007 settlement of an earlier lawsuit, prior to issuing a final EIS, the Army was required to complete studies to determine the potential for training activities at MMR to contaminate fish, shellfish, limu and other marine resources at Makua that Wai‘anae Coast residents gather for subsistence.
At trial, the Army claimed it could not test the octopi, sea cucumbers and limu that area residents consume because their contractor was not authorized to dive to gather samples. The evidence at trial showed that, at the same time it conducted its study at Mākua, the Army hired local fishermen who successfully dived to gather octopi and limu for a contamination study at Ordnance Reef, which is just down the Wai‘anae Coast from Mākua.
“We’ve offered to the Army that, if its contractors can’t dive, we’d be happy to gather the samples for the study,” said Mālama Mākua board member Vince Dodge, who frequently dives at Mākua to gather octopus and limu. “We’re just looking for good information about whether the resources at Mākua are contaminated.”
Judge Mollway’s latest ruling supplements her order last year, which found other settlement violations. On October 27, 2010, Judge Mollway concluded the Army “did not comply with its contractual obligation to conduct a meaningful [marine contamination] survey” when it failed to conduct routine tests to determine whether the arsenic it found in marine resources at Mākua is inorganic—and thus highly carcinogenic—or organic, which does not pose a human health risk. Judge Mollway also faulted the Army’s failure to gather limu from any background locations, which prevented meaningful evaluation of “the potential that the Army’s activities at [Mākua] were contributing to contamination.”
In her October 27, 2010 decision, Judge Mollway also concluded that the Army violated a separate settlement obligation to complete comprehensive subsurface archaeological surveys to identify cultural sites that could be damaged or destroyed if mortar rounds, artillery shells, and other ordnance go astray during training exercises, as they have in the past.
“Now that the Court has issued its ruling, it’s time for the Army to live up to its commitments and complete the studies,” said Earthjustice attorney David Henkin. “The public is entitled to accurate information about the harm to public health and cultural sites that military training at Mākua can cause.”