Army may face uphill battle over Makua
By Ken Kobayashi
Advertiser Courts Writer
By Ken Kobayashi
A federal judge expressed reservations yesterday about granting the Army's request to modify a 2001 court-sanctioned agreement to resume live-fire training at Makua Valley.
The lawyer for the Army warned that Schofield Barracks troops are being deployed to Iraq this summer and casualties in the 25th Infantry Division (Light) will be higher without the training.
But the attorney for Malama Makua argued that the Army has other locations to train troops and U.S. District Judge Susan Oki Mollway told the lawyers she wasn't sure what changed since 2001 to require the modification.
At the time, the Army knew it had to prepare for war, she said.
Mollway said she plans to rule by the end of next week.
The hearing is the latest over the Army's controversial use of the 4,190-acre Makua Valley for live-fire training.
Earthjustice, which represents the community group Malama Makua, had sued the Army claiming it violated federal environmental laws by failing to conduct an intensive environmental study of the impact of the training exercises on the Wai'anae Coast valley, its endangered species and its archaeological sites.
Mollway had granted a preliminary injunction halting exercises until the study was completed.
In the aftermath of the Sept. 11, 2001, attacks, Earthjustice and the Army reached a settlement that called for limited live-fire exercises in the next three years and the completion of the study.
The Army has yet to complete the study, but wants the agreement changed to allow for the training this year.
The last live-fire training exercise occurred in summer 2004.
Robert Lewis, a lawyer with the environmental law division of the U.S. Army Litigation Center in Arlington, Va., told the judge yesterday the study was delayed in part by a "prescribed burn" that went out of control and the Army's hopes to put together "the best document available." The study should be completed in March or April, he said.
Lewis urged Mollway to grant the Army's request because "unanticipated" developments warranted the modification. When the settlement was reached, the country had not yet invaded Afghanistan or Iraq, he said.
The duration of the war, its intensity and the rotation levels for soldiers going to Iraq could not have been foreseen, he said.
But David Henkin, Earthjustice lawyer, pointed out that the U.S. started bombing Afghanistan only three days after the settlement was reached.
Mollway said even though the country was not at war at the time, war had been anticipated. "Clearly, the Army was contemplating it would be in combat," she said.
She also pointed out that the Army's environmental impact statement is long overdue, now nearly 4 1/2 years after the signing of the agreement. "Deference to the Army shouldn't be confused with letting the Army violate environmental laws," she said.
William Aila Jr., a member of Malama Makua, later said he was pleased that the judge indicated she didn't completely agree with the Army's contention about unanticipated circumstances.
He also disputed the Army's contention that casualties will rise, citing other training areas, including the National Training Center in California.
"I think the Army is in the position to give them the training," he said.
Reach Ken Kobayashi at email@example.com.