Earthjustice sent a letter on behalf of Wai`anae Coast community group Malama Makua notifying the United States Army ("Army") of the group’s intent to sue for violations of the federal Endangered Species Act ("ESA") unless the Army promptly reinitiates formal consultation with the United States Fish and Wildlife Service ("Service") to assess potential impacts of military activities at Makua Military Reservation ("MMR") on more than 40 endangered plant and animal species. The ESA requires the Army to reinitiate such formal consultation based on the "new information" provided by the catastrophic fire at MMR set by the Army on July 22, 2003, which burned much of MMR and destroyed at least 71 individual endangered plants and 150 acres of designated critical habitat (areas essential to species recovery) for the endangered O`ahu `elepaio (a forest bird) and endangered plants. Reinitiation of formal consultation is also required due to the designation on June 17, 2003 of critical habitat for at least 35 species of endangered plants on MMR’s borders, some of which burned during the July 2003 fire. To date, the Army has refused to comply with the legal mandate to reinitiate formal consultation, despite repeated requests from the community to do so.
"For nearly two months, we’ve been asking the Army to do the right thing, to go into formal consultation to make sure that military activities at Makua don’t push native species to extinction," said Malama Makua board member Sparky Rodrigues. "But enough is enough. It’s time for the Army to stop foot dragging and start consulting."
Earthjustice sent a similar notice letter on behalf of Malama Makua in September 1998, prompting the Army to enter into formal consultation. In ultimately concluding that the Army’s activities would not violate the ESA’s prohibitions on pushing endangered species at MMR to extinction or destroying critical habitat, the Service specifically relied on conservation measures proposed by the Army, including a new, and allegedly improved, fire management plan. This earlier consultation made it clear that if the Army failed to implement the fire management plan, or if its measures proved ineffective, reinitiation of consultation would be required.
"If the Army’s fire management plans were adequate, the July 2003 fire would not have turned into a disaster," explained Earthjustice attorney David Henkin. "You have to remember
that this fire was not started by accident; it was not something the Army had to rush to fight on short notice. Rather, it was a planned event, part of the Army’s fire management program, set within the firebreak road system. The Army had every opportunity to have all of its firefighting assets fully briefed and at the ready before the blaze was ignited. The Army’s total failure to contain the flames demonstrates that its fire management plan is completely ineffective. The law requires the Army immediately to reinitiate consultation to ensure that such a disaster never happens again."
"Frankly, I don’t know what the Army is waiting for," said William `Aila, spokesperson for Wai`anae community group Hui Malama o Makua. "We already know that the fire caused major devastation to endangered species and impacted the mana (spiritual force) of Makua’s cultural sites. What else does the Army need to know before it admits that it has go back to the drawing board with its conservation plans?"