Posted on: Tuesday, July 17, 2001

Judge bars Makua training

By William Cole
Advertiser Military Affairs Writer

A federal judge yesterday granted a preliminary injunction temporarily barring the Army from resuming live-fire training in Makua Valley, a decision environmentalists heralded as a "huge victory."

Although the order is in effect only until an Oct. 29 hearing, U.S. District Judge Susan Oki Mollway picked apart the Army's argument that a more comprehensive environmental impact statement is not needed, bolstering the hopes of community group Malama Makua, which sued the Army in December.

In granting the injunction, Mollway's ruling prevents the Army from conducting live ammunition training until either it complies with the impact statement or Mollway hears the case and resolves the lawsuit.

Among the points noted by Mollway is that an environmental impact statement is necessary if proposed actions are "highly uncertain."

"Here, the scientific evidence presented in the Army's own studies reveals the potential for adverse environmental effects," Mollway said. "Uncertainty exists, not over whether the environment will be affected, as that is certain, but over the intensity and nature of those effects."

Mollway also said a supplemental environmental assessment released May 15 did not "consider certain matters fundamental to any evaluation," and that the failure calls into question whether the Army decision was "truly informed."

Earthjustice attorney David Henkin, who represents Malama Makua, hailed the ruling in what he called a "David-and-Goliath" battle.

"Any time you go into court against the military and they are raising the issue of national security, it's an uphill battle," Henkin said. "The judge saw through the rhetoric and got to the real issue here — there is clear evidence of a substantial threat to the environment and no threat to military preparedness. That's a huge victory for this community."

The 25th Infantry Division (Light) issued a brief statement saying, "Naturally, we would have preferred a decision that allowed the Army to resume training now. Our position throughout this process has been that the Army needs Makua in order to conduct realistic training. We remain committed to demonstrating to the court that we can protect the environment in Makua and maintain the readiness of our forces in Hawai'i."

Malama Makua wants the Army to do a comprehensive analysis of the effects of past live-fire training in the 4,190-acre valley. The Army has opposed this request as unnecessary, too costly and too time-consuming.

In the 52-page order issued yesterday, Mollway said, "Because Malama Makua raises serious questions going to the merits of this case, and because the balance of hardships tips decidedly in favor of Malama Makua, the court enjoins the Army from conducting live-fire training at (Makua Military Reservation)."

"After all these years of bombing and training and burning, it's nice to know you have someone who will listen to the community," said Kathy Reynolds of Ma'ili, vice chairwoman of Malama Makua, after hearing the news. "Temporary or no, we see this as a victory in and of itself."

Henkin said he expects both sides to seek summary judgment during the Oct. 29 hearing at what is expected to be an administrative records review by the judge without trial.

Malama Makua brought suit in December seeking the environmental impact statement after the Army said in a preliminary report that company combined arms live-fire exercises with 150 troops experiencing the thump of artillery and mortar fire and helicopters firing machine gun bullets overhead would have "no significant impact" on the environment.

Following a round of community meetings, the Army finalized the decision on May 15 and announced training would resume on 456 acres within the valley this month or next.

Training was halted in Makua in September 1998, after a series of fires led to a U.S. Fish & Wildlife Service review to determine the effects of live ammunition on endangered plants and animals. There are more than 30 endangered or threatened species in the valley.

The Army in court papers filed last month said it could not afford a six- to 12-month delay in training until the merits of the case are weighed.

Mollway questioned that logic. The judge noted the Army voluntarily suspended training in 1998, and last December issued a "final" environmental assessment and finding of "no significant impact," but subsequently withdrew it to address community concerns. The voluntary withdrawal caused a five-month delay in the case.

"The Army cannot now come into this court and say that national security will be jeopardized by a delay of a few months to determine this case on the merits," Mollway said.

Army attorney Col. David Howlett previously argued the Army "rationally" reached its finding of no significant impact, which included a Fish & Wildlife opinion that a return to training "is not likely to jeopardize the continued existence" of rare species with certain measures.

The Army agreed to eliminate munitions like anti-tank missiles and tracer rounds that it said caused 61 percent of fires in the valley.

But Mollway said it appears the Army has not examined the potential for stray ordnance to damage cultural resources, and its supplemental environmental assessment fails to specify and quantify the risk of wildfires for the public, which the Army has said are inevitable if training is resumed.

Advertiser military affairs reporter William Cole can be reached at 525-5459 or wcole@honoluluadvertiser.com.