'Informal' Makua talks criticized

By William Cole
Advertiser Military Writer

The Army has initiated what it says are "informal" talks with the U.S. Fish and Wildlife Service on environmental damage from last week's fire in Makua Valley, but the Earthjustice Legal Defense Fund said the step falls short of the comprehensive review that is legally required.

"If they refuse to do (the comprehensive review) we'll evaluate their reasons, and we'll seriously consider taking legal action," Earthjustice attorney David Henkin said.

For the Army, it could be a bad case of deja vu.

In 1998, after a string of training-related fires, Earthjustice served notice that it intended to sue the Army to force it to complete the first such review.

After a Marine training accident involving mortars subsequently scorched 800 acres in the 4,190-acre valley, the Army agreed to the habitat-protection study, and training was stopped voluntarily.

A repeat could mean a halt to training this fall, just as the Army prepares for the consecutive deployment of two brigades of 3,500 soldiers each to Afghanistan.

"The linkage to (training in) Makua Valley, it really hits home when you get the call to go into combat," said Schofield Barracks spokeswoman Maj. Stacy Bathrick.

In a letter faxed Wednesday to the Fish and Wildlife Service, the Army asked for "informal consultation" to discuss last week's fire, which burned approximately 2,100 acres and three species of endangered plants by the Army's latest count.

Less than 10 percent of the 'akoko, one percent of the nehe, and less than one percent of kulu'i in Makua were burned, the Army said. The valley and adjoining areas are home to 45 at-risk plants and animals. The ongoing assessment also uncovered "a number" of archaeological and agricultural terraces, according to the Army.

The Army told Fish and Wildlife that it wants to discuss "prescribed burns due to the fire occurring outside the firebreak road."

But Henkin said informal consultation, which is intended to provide quick solutions, is limited to situations where there's a conclusion that the activity is "not likely to adversely affect endangered species."

"They burned up populations of at least three different species of plants," he said. "I think we have 'likely to adversely affect.' In fact, we have 'adversely affected,' so it's not even a close call here."

The formal review that Henkin says is required under the Endangered Species Act includes a 90-day consultation period, and 45 additional days for Fish and Wildlife to issue a habitat report with steps to best protect species — during which time the Army could be precluded from live-fire training.

The Army's "controlled" burn of 900 acres that got out of control and charred twice that acreage triggered the review of the 1999 biological assessment. At the time of the assessment, the Army was required to take a number of fire-prevention steps so plant and animal species wouldn't be lost.

Henkin said the Army is dragging its feet with informal talks when it should bite the bullet and initiate the comprehensive review.

"At the end of the day, they are going to have to do a formal consultation, and they might as well do it now," he said.

Formal vs. informal

Army officials said the talks with Fish and Wildlife could become formal if the service decides that future prescribed burns in the valley may adversely affect endangered species or critical habitat — land deemed essential for a species' survival.

Barbara Maxfield, a Fish and Wildlife spokeswoman, said too much emphasis is being placed on "formal" and "informal" consultations.

"We'd still be doing the exact same thing if they (the Army) had requested a formal consultation," she said. "The Army is still gathering information about what's been affected and why. All of that needs to be done before we could initiate anything formal anyway, and if we can resolve the issue informally, that's a whole lot easier on everyone involved."

The Endangered Species Act requires any federal agency, including the Army, to ensure that its actions will neither push a species to extinction nor destroy critical habitat.

In 1999, Fish and Wildlife determined that 30 species — 29 plants and the O'ahu tree snail — would be pushed to extinction by Army training in Makua, Henkin said. But with a "mitigation plan" including outplanting of species, fencing to keep out goats and pigs, and implementing a comprehensive fire plan, training was allowed.

Two environmental lawsuits were filed, and the Army did not return to live-fire training in Makua until 2001.

Reach William Cole at wcole@honoluluadvertiser.com or 525-5459.