Citizens and Military Reach Settlement in Makua Lawsuit
David Henkin, Earthjustice, (808) 599-2436
Sparky Rodrigues, Malama Makua, (808) 352-0059
Today, Wai'anae Coast community group Malama Makua, represented by Earthjustice, and the federal government lodged a settlement in the federal district court for the District of Hawai'i that, if approved by the court, would resolve Malama Makua's lawsuit seeking to limit military activities at Makua Military Reservation (MMR) on O`ahu pending completion of the U.S. Army's ongoing formal consultation with the U.S. Fish and Wildlife Service under the Endangered Species Act. Under the agreement, the military would not conduct any prescribed burns and would severely limit its use of mortars, rockets and other weapons posing substantial risk of starting fires until the Army completes its consultation with the Service regarding the overall impact of military activities at MMR on the forty-five endangered and threatened species and hundreds of acres of critical habitat present in the area. Should the court approve the settlement, the temporary restraining order issued by Judge Susan Oki Mollway on March 19, 2004 would be lifted, and the Marines would be allowed to proceed with an announced five-day live-fire exercise beginning April 5, 2004, subject to the agreement's limitations on training.
"I'm glad that the military has chosen to seek common ground with the community in the spirit of our 2001 agreement," said Malama Makua board member Sparky Rodrigues, citing the settlement in 2001 of a previous Malama Makua lawsuit, in which the Army agreed to limit training and prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). "We've said all along we prefer no training at Makua and the eventual clean-up and return of the valley to a cultural and traditional use, but, following the spirit of the 2001 agreement, just want the military to respect the community, environment, and the law."
To address Malama Makua's concerns regarding the use of weapons that have a history of causing fires at MMR, such as mortars and rockets (both identified by the Army as posing a "medium" fire risk), the agreement restricts use of such weapons to times when the official "burn index," or fire danger rating, is in the "green" zone, defined as conditions presenting a "low" fire risk, in which "[w]eather conditions [are] favorable for all authorized munitions." The military may use "low" risk weapons, such as rifles and other small arms, as long as the burn index remains in the "green" or "yellow" ("medium" risk) zone. Other terms of the settlement include:
- MMR's range control personnel will provide burn index calculations every 15 minutes (as opposed to the usual one-hour intervals) while using "medium" risk weapons. All training with these weapons must stop if range control cannot obtain a positive "green" burn index reading.
- All training will stop if either a fire is observed or a mortar or rocket lands outside the firebreak road, and may not resume until safe conditions are confirmed. If a fire starts outside the firebreak road, training will cease altogether pending further consultation with the Service.
- All units training at Makua will implement various firefighting measures, such as providing two firefighting helicopters on-site (instead of the one usually provided) and a firefighting vehicle, and dedicating 20 soldiers as firefighting personnel, in addition to the federal firefighters already present. The training units will also place clearly visible markers at the limits of the zone of fire to reduce the risk of misfires.
- No prescribed burns will take place pending completion of the consultation.
"These measures, particularly the restrictions on mortars and rockets, will go a long way toward ensuring that endangered species and critical habitat will not be destroyed while the consultation – whose focus is their protection – continues," said Earthjustice attorney David Henkin. Henkin noted that, in December 2003 and January 2004, Malama Makua had agreed to limited training exercises during the consultation period. The group had no choice but to take the military to court when the Marines insisted on conducting training with mortars and rockets without adequate protections in place.
"We appreciate that the military has again agreed to work with the community to safeguard the precious natural heritage at Makua," said Malama Makua board member Fred Dodge. "I am hopeful that the military is learning. It is not too early to increase efforts to clean up the valleys, not only for endangered species and cultural sites, but also for the community's health."
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