Court Rules Army Violated Makua Settlement Agreements

Army's marine contamination study flawed, archaeological survey incomplete


David Henkin, Earthjustice, (808) 599-2436, ext. 614


Sparky Rodrigues, Mälama Mäkua, (808) 352-0059

Today, U.S. District Chief Judge Susan Oki Mollway ruled that the Army failed to give the community crucial information on how military training at Mäkua Military Reservation on O‘ahu could damage Native Hawaiian cultural sites and contaminate marine resources on which area residents rely for subsistence.

Mälama Mäkua, represented by Earthjustice, filed suit in August 2009 to set aside the Army’s environmental impact statement (EIS) for proposed military training at Mäkua until it completes key marine contamination studies and archaeological surveys. The Army was required to complete the studies by an October 2001 settlement of Mälama Mäkua’s earlier lawsuit challenging the Army’s failure to prepare an EIS for Mäkua, as well as a related settlement in January 2007.

“We’re pleased the judge agreed with us that the Army must finally tell the community the truth about the threats that training at Mäkua poses to irreplaceable subsistence and cultural resources,” said Mälama Mäkua president Sparky Rodrigues.

Under the October 2001 and January 2007 settlements, the Army is required to complete comprehensive subsurface archaeological surveys to identify cultural sites that could be damaged or destroyed by military training. In today’s ruling, the court concluded that the Army “failed to conduct any subsurface survey” in several areas within MMR’s Company Combined Arms Assault Course (“CCAAC”) and, thus, “violated its agreement to survey ‘all areas’ of the CCAAC.”

The settlements also require the Army to conduct comprehensive studies to determine the potential for training activities to contaminate fish, shellfish, limu (seaweed) and other marine resources at Mäkua that Waiÿanae Coast residents gather for subsistence purposes. Judge Mollway concluded the Army “did not comply with its contractual obligation to conduct a meaningful survey … that evaluates the potential that the Army’s activities at MMR were contributing to contamination or posting a human health risk to area residents who rely on marine resources for subsistence.”

“The Army’s study says that, if the arsenic it found in limu at Mäkua is present in its toxic form, even recreational consumption of that limu would pose the same cancer risk as smoking a pack of cigarettes each day, but then it didn’t bother to figure out if the arsenic was or was not toxic,” said Mälama Mäkua board member Vince Dodge. “I’m glad the court recognized I have a right to know if military training at Mäkua is poisoning the food I put on my family’s table.”

Today’s ruling did not resolve Mälama Mäkua’s claim the Army violated its duty to identify and study the fish, shellfish, limu, and other marine resources on which area residents rely for subsistence. That issue will be resolved at trial, which is scheduled for February 23, 2011.

“Today’s ruling vindicates the public’s right to accurate information about the harm to public health and cultural sites that resuming training at Mäkua could cause,” said Earthjustice attorney David Henkin.

Additional Resources

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.