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The Honolulu Advertiser
Posted on: Friday, November 23, 2007

Army accused of stalling on Hawaii valley

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By William Cole
Advertiser Military Writer

The Army next month plans to blow up several bombs that were found in Makua Military Reservation a discovery that prevented Hawaiian practitioners from observing the Makahiki.

But the detonation of the old ordnance won't remove the increasing acrimony felt by some community members over cultural access to the 4,190-acre Waianae Coast valley, and it could land the Army in court again.

"We're getting to the point of going back to court because there is no excuse for their (the Army's) continued foot-dragging," said David Henkin, an Earthjustice attorney.

Henkin, who represents community group Malama Makua, maintains the Army is violating a 2001 settlement agreement, adding, "We've notified them of that fact."

The Army said it has "worked diligently" to clear unexploded ordnance to a depth of one foot for cultural access in a valley that has been used as a target range since the 1920s.

At the same time, the Army must balance the dangers of remaining unexploded ordnance against the access requirements of the 2001 settlement agreement.

Federal court is familiar ground for the Army and Malama Makua, where the community group often has prevailed under the legal stewardship of Henkin over the past decade.

Malama Makua wants to return the picturesque valley with more than 40 endangered species and 100 archaeological features to traditional Hawaiian uses.

The Army as late as this year, however, said live-fire practice in Makua is "absolutely critical" to its training strategy. But lawsuits have prevented live-fire training in all but three years since 1998, and no live rounds have been fired there since 2004.

The discovery on Nov. 1 of a World War II 250-pound fused bomb, along with an 81-millimeter mortar and 106-millimeter anti-tank round, and the need to destroy them, seems a straight-forward matter.

The Army said it found them as part of an effort to increase cultural access, and following the burn of 87 acres of vegetation to see the ground and conduct an unexploded ordnance sweep.

But Malama Makua says that and a larger cleanup has proceeded too slowly.

Community members also continue to chafe at a 2005 Pentagon decision that reversed several years of improving access and relations with the Army.

In late 2004, the Department of Defense Explosive Safety Board inspected all military ranges in Hawai'i, including Makua, and cited Schofield Barracks with a safety violation for allowing civilians to enter an area known to contain unexploded ordnance.

The assessment concluded civilians could return to areas cleared to a depth of one foot and if "appropriate safety measures and mitigations were adopted."

Henkin said that decision ran counter to the spirit of the 2001 settlement agreement, which allowed cultural access and some live-fire training. The agreement also included an Army promise to conduct an environmental impact statement analysis of more than a half-century's worth of training in the valley.

Henkin said the Army never sought a waiver to allow a return to access at more than a dozen cultural sites.

The 2001 settlement was made at the highest levels with the secretary of defense and secretary of the Army, Henkin said.

"And when parties enter into a settlement agreement, they are not supposed to make illusory promises," he said. "So for the Army to say, 'Yeah, we promised to provide you with cultural access, but it's illegal, so we won't,' is an illusory promise. They knew what they were getting into."

Previous cultural access hadn't been permitted all over the 4,190-acre reservation, which actually has three valleys.

That access had been limited and monitored by the Army. Between 2001 and 2005, Malama Makua, Hui Malama and other cultural practitioners visited south firebreak road sites with no harm to either people or archaeological features.

In 2006, four sites that were previously accessed were prioritized by Hawaiian practitioners for access again.

Contractor Donaldson Enterprises Inc. conducted an unexploded ordnance sweep in November-December 2006 at cultural sites, trails and overlooks.

The Army later said it had cleared the sites but forgot to specify in the contract that internal roads also be cleared, Henkin said.

A second sweep was conducted from Oct. 29 to Nov. 15, during which the 250-pound bomb and other munitions were discovered.

Two of the cleared areas are not near the discovered bombs, but Henkin said the Army has not allowed cultural access there because it said it now has to do a study on preventing archaeological damage there.

Several years ago, the Army had said it could clear the sites relatively quickly, "and believe you me, back in 2005 I didn't think relatively quickly would be 2008," Henkin said.

The Army said as recently as April, six unexploded munitions were found near cultural sites.

"The clearance procedures are time-consuming," the Army said. "And because Makua is an operating live range, (unexploded ordnance) will be continually encountered. The Army is striving, however, to make some areas safe for civilian access, as required by a court order."

Henkin argued that the latest ordnance discoveries could have been handled before the Nov. 16-17 opening of the makahiki in Makua, which the Army canceled.

Or the makahiki could have been held in the valley far away from the bombs, he said.

Dozens of people usually take part in the opening of the traditional four-month Hawaiian religious and holiday observance.

Despite the 2005 Pentagon decision, cultural observance still was possible on firebreak roads at the makai end of Makua.

The Army said on Wednesday that the Makua ordnance will be detonated on Dec. 3.

"We'd like to do it as soon as we can so we can get the cultural access back for the people that want to get out there, and we sincerely mean that," said Dennis Drake, a U.S. Army Garrison, Hawaii spokesman.

But the longer-term delays have community members skeptical about the Army's desire to provide cultural access to Makua.

"They don't want us to be in the valley," said Fred Dodge, a Malama Makua board member.

The Army also is three years late in completing the promised environmental impact statement.

The service has cited difficulties in conducting "controlled burns" to expose the ground to conduct more unexploded ordnance cleanup and survey for archaeological features.

In the meantime, no live-fire training has taken place.

Dodge said the Army hardly ever consults with community members anymore. "We used to be able to talk and iron out differences. It was a lot nicer atmosphere," he said. "Now, everything is extremely strict, and that's too bad, because it was a much better situation in the past."

Dodge said the makahiki observance will take place later.

Reach William Cole at wcole@honoluluadvertiser.com.

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