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The Honolulu Advertiser
Posted on: Wednesday, March 12, 2008

Army ordered to step up its efforts on Makua access

By Will Hoover
Advertiser Staff Writer

A federal judge yesterday ruled that the Army violated a 2001 settlement with Native Hawaiian groups on providing access to sacred sites in Makua Military Reservation, and imposed conditions to address access by cultural practitioners.

U.S. District Judge Susan Oki Mollway ordered the Army to begin submitting quarterly reports to the court until unexploded ordnance has been cleared from designated high-priority locations in the training range. The Army has until April 15 to identify those areas. Mollway gave the Army until July 15 to provide a good-faith plan that includes a schedule outlining how those sites would be cleared.

While Mollway said the Army is the final decision-maker regarding limitations on public access to the reservation, she said it cannot do so without first consulting with Native Hawaiian practitioners about access to those sites. She also made it clear that the court was not saying the Army must always follow the wishes of those practitioners.

The court ruling was the latest step in a protracted effort by the environmental law firm, Earthjustice, representing Malama Makua, to compel the Army to live up to the 2001 settlement decree. That agreement followed an Earthjustice lawsuit challenging the Army's failure to complete a required environmental impact statement for training at Makua Valley.

Because of the Army's failure to complete the EIS, it has been prohibited from conducting live-fire training at the reservation since 2004.

The intent of the 2001 settlement was to allow Native Hawaiian groups expanded access to cultural sites within the reservation while the Army identified and cleared high priority locations of unexploded ordnance. The judge chided the Army for the untimely manner in which it has complied with those provisions.

Instead of opening up the valley to Hawaiian groups, Earthjustice contends that since 2005 the Army has done the opposite by severely restricting cultural practices in the valley, citing safety concerns.

"In 2001, the Army promised it was going to make a good-faith effort to move forward on this promptly, and they didn't do it," said David Henkin, an attorney for Earthjustice. "So, the court is exercising its power to ensure that its orders are not ignored."

Henkin said yesterday's ruling puts the Army on "a very short leash with regular reporting and regular deadlines to move forward to make sure that the promises made in 2001 are not empty."

The Army said it was pleased that Mollway gave it the final say on access to the valley.

"The Army's intent, within the bounds of safety and applicable regulations, has always been to abide by all laws, regulations and agreements to grant access to cultural sites at Makua Military Reservation," said Col. Matthew Margotta, commander, U.S. Army Garrison, Hawai'i.

"In that respect, the Army is pleased the court recognized the danger that unexploded ordnance poses to visitors at Makua and that the Army, after appropriate consultations with the community, is the final decision-maker as to limitations on public access."

Margotta said that to expand access to cultural sites and to provide for the safety of its soldiers, the Army has spent $1.16 million removing unexploded ordnance from the reservation since 2001. He said the Army has spent another $4.3 million to provide a safe haven for threatened and endangered plants and animals in the valley.

"The Army takes seriously its obligation to protect precious environmental, cultural and historic resources. Just as importantly, we take seriously our obligation to provide the best training possible for our soldiers," Margotta said.

Reach Will Hoover at whoover@honoluluadvertiser.com.