Army return to Makua delayed

By William Cole
Advertiser Military Affairs Writer

Opponents of live-fire training in Makua Valley have initiated a new round of legal wrangling over the controversial issue, with a July 9 hearing scheduled in federal court to determine if and when the Army will be allowed to resume training in the valley.

Community group Malama Makua is seeking a preliminary injunction to prevent Army training with explosive materials at Makua until a lawsuit brought in December can be resolved.

The request for an injunction follows the Army's release May 15 of a supplemental environmental assessment and finding of "no significant impact" to resumed training in the 4,190-acre Leeward Coast valley. The findings triggered a 30-day waiting and public comment period, but the Army also announced that the 25th Infantry Division (Light) based at Schofield Barracks could resume live-fire training as soon as July or August.

On June 11, Malama Makua filed court papers seeking to prevent a return to live-fire training.

The community group is seeking a more comprehensive environmental impact statement analysis of military live-fire exercises in the valley — something the Army has been opposed to as unnecessary, costly and time-consuming.

Both sides have agreed to a ban on live-fire training until U.S. District Judge Susan Oki Mollway rules on the request for an injunction, said attorney David Henkin of the EarthJustice Legal Defense Fund. EarthJustice represents Malama Makua. Henkin said the Army also has agreed to provide two days notice before there is any other type of training in the valley.

In the court filing, Malama Makua and EarthJustice said past live-fire training at Makua Military Reservation "has a proven track record of destroying endangered species and irreplaceable native Hawaiian cultural sites," and that reports prepared by the Army and its own consultants "confirm that any live-fire training at (Makua), by its nature, inherently poses serious threats to the biological and cultural treasures found there."

To date, the Army's consultation with the U.S. Fish and Wildlife Service has identified 30 endangered species in Makua Valley that the proposed training "threatens with extinction," Malama Makua said.

"The record makes it clear that it is not a question of whether catastrophic wildfires will occur due to military training at (Makua), but when, where and how often," court papers say.

The use of mortars and prescribed burns — which led to two of the most destructive fires at Makua in 1995 and 1998 — are activities the Army plans to continue under its latest plan, Malama Makua notes.

Therefore, the organization argues that Army actions meet National Environmental Policy Act threshold requirements for an environmental impact statement, because there is "the potential" for a significant effect on the environment.

In a June 21 court filing opposing the preliminary injunction, the Army said Malama Makua is relying in part on an outdated 1976 environmental assessment to bolster its argument of "significant" impact.

Tracers, incendiary munitions and anti-tank missiles have been eliminated, and the Army says from 1970 to 1998, 61 percent of fires were caused by the now-prohibited munitions. An enhanced fire management plan also is in place. The Army suspended training in Makua in 1998 following a series of fires.

A "long, careful" review of environmental impacts concluded there would be no significant impact to the environment, and there is no National Environmental Policy Act violation, the Army says.

Fish and Wildlife, meanwhile, found the Army's proposed return is "not likely to jeopardize the continued existence" of rare species, court papers state.

From a legal standpoint, the Supreme Court noted an agency takes a sufficient "hard look" when it obtains opinions from its own and outside experts, the Army said.

"In the end, plaintiffs are simply disagreeing with the conclusions of the Army and (Fish and Wild-

life) about the effects of the proposed action on the threatened and endangered species," Army court papers state. "Mere disagreement is insufficient as a matter of law to establish a violation of NEPA."

EarthJustice's Henkin said he wants the injunction, if granted, to be in place until the lawsuit is resolved. Attorneys predict it could be six to 12 months before arguments are heard.

U.S. Army, Hawai'i, reiterated yesterday that the Pilila'au Range Complex at Makua is essential to training, and planning has begun for a return.

"If permitted to do so, we have units that will conduct squad live-fire training exercises as soon as practical after the court decision," said Army Capt. Stacy Bathrick.

The Army said 16 comments were received during the comment period. After reviewing the comments, officials determined the supplemental assessment "addressed all potential impacts."