William S. Richardson School of Law, Environmental Law Fall 2007, Professor Antolini, HELS December 15, 2007

NEPA AND THE STORY OF MĀKUA VALLEY:

HOW THE NATIONAL ENVIRONMENTAL POLICY ACT SAVED A VALLEY. Jacquelyn T. Tryon

Photograph By 25th Infantry Division (Light), US Army Mākua Valley on the Waianae Coast, near Kaena Point

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William S. Richardson School of Law, Environmental Law Fall 2007, Professor Antolini, HELS December 15, 2007

NEPA AND THE STORY OF MĀKUA VALLEY:

HOW THE NATIONAL ENVIRONMENTAL POLICY ACT SAVED A VALLEY. Jacquelyn T. Tryon

“When young men and woman are going into Iraq sacrificing their lives and you ask me to choose between their lives and a snail’s, the snail goes.” –Theodore Meeker1 “If a place is named the “parents” and treated as a genealogy, it is your ancestors. How much then do you take, a hand, an arm? You cannot mitigate this kind of thing.” – Kyle Kajihiro2

I. INTRODUCTION

Mālama Mākua v. Rumsfeld (Mākua)3 played a pivotal role in creating a framework for

future citizen suits against federal agencies to follow when the issue involves the interest of

national security, culture, and the environment. Currently, America is at war and the safety of

American troops depends on their ability to adequately train before they engage in combat. It is

for these reasons that many military personnel, judges, and policy makers feel that the

environment must be sacrificed in order to secure our nation. Mākua, however, tells an

alternative story about how it is possible to balance these competing interests without choosing

one over the other. It tells a story about how National Environmental Policy Act (“NEPA”) 4

can protect the interest of the military, the environment, and the local community by fairly and

1. Interview with Theodore Meeker, former Assistant U.S. Attorney (Nov. 4, 2007). 2. Interview with Kyle Kajihiro, American Friends Service Committee (Oct. 25, 2007). 3. Mālama Mākua v. Rumsfeld, 136 F. Supp. 2d 1155 (D. Haw. 2001). 4. National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. §§ 4321-4370F (2007), establishes a broad national framework for protecting our environment. NEPA’s basic policy is to assure that all federal agencies give proper consideration to the environment prior to undertaking any major federal action that significant affects the environment.

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equally addressing each of their concerns in a space where the military has tended to trump those

rights in the interest of national security.

Mākua Military Reservation (“MMR”) is located in the western portion of O‘ahu near

Kaena Point. Mākua was decided on July 16, 2001 in the United States District Court for the

District of Hawai‘i before United States District Court Judge Susan Oki Mollway. The case was

filed by Mālama Mākua (Mālama), a non-profit, unincorporated, community organization based

on the Wai´anae Coast of O‘ahu. Mālama was formed in 1992 with the mission to “mālama”5

(care for) Mākua Valley by protecting the cultural, environment, and historical integrity of the

Ahupua‘a6 (district) of Kahanaha‘iki, Mākua, and Ko‘iahi on the Island of O‘ahu from

degradation.7 Represented by David Henkin, an attorney with Earthjustice Legal Defense Fund

(Earthjustice),8 Mālama filed a lawsuit against the Army, represented by Theodore Meeker, a

former Assistant United States Attorney, in October 1998 to force the Army’s compliance with

NEPA for training of the soldiers of the 25th Infantry Division (Light) (“25th ID(L)”) and related

activities at MMR.

The story of Mākua is important because it illuminates the dichotomy between the

preservation of the environment and Native Hawaiian culture with the military’s interest of

national security. It is particularly important to Hawai‘i because it provides a model for how

issues involving the military’s use of land on environmentally sensitive and culturally sacred

areas can be balanced in such a way that the interests of all sides are fairly represented. This

5. Mālama. 1. To take care of, tend, care for, protect, save. MARY KAWENA PUKUI & SAMUEL H. ELBERT, HAWAIIAN DICTIONARY 9 (University of Hawai‘i Press rev. ed. 2004) (1986). 6. Ahupua‘a. 1. Land division usually extending from the uplands to the sea. PUKUI & ELBERT, supra note 5, at 9. 7. Telephone Interview with Lynette Cruz, Board Member of Mālama Mākua (Nov. 9, 2007). 8. Earthjustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund) is a non-profit, public-interest, environmental law firm.

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story focuses on the NEPA litigation9 and explores the language of section 10210 of the Act that

requires a federal agency prepare an Environmental Impact Statement (“EIS”) whenever a

proposed major federal action will significantly affect the quality of the human environment.

A. HISTORY OF MĀKUA VALLEY

Mākua Valley has a sacred history and it begins with the story of how the parents of

Hawaiians first met. The mo’olelo (oral histories) of Wai´anae claim the entire coastline from

Ka´ena to Kawaihapai are a wahi pana (sacred place).11 It is here that the Kanaka Maoli12

(indigenous Hawaiian) were formed from the ‘āina (land). The word mākua means “parent” and

it is the site where Papa (the earth-mother) and Wakea (the sky-father) meet.13 Mākua is also the

name of a famous fisherman who, with a chief named Kawela, fished off Kaena Point.14 Perhaps

most importantly, Mākua is a sacred site where one’s spirit is believed to return to Pō (the spirit

realm) at Leina a Ka´uhane (soul’s leap).15

Many legends are also associated with Mākua. Kāneana cave, also known as Mākua

cave, was said to be the dwelling place of a shark goddess who held sway from Kaena Point to

Kepuhi Point. When she took the form of a woman, she came up through a sea entrance and

9. Mālama, represented by Earthjustice, also filed a lawsuit in 2004 asking for an injunction until the Army completed the ongoing “consultation” process with the federal Fish and Wildlife Service mandated by the Endangered Species Act (ESA). All ESA claims are out of the scope of this paper and will not be discussed. 10. National Environmental Policy Act of 1969 § 102, 42 U.S.C. § 4331(a) (2007). 11. MARION KELLY & NANCY ALECK, MAKUA MEANS PARENTS: A BRIEF CULTURAL HISTORY OF MAKUA VALLEY (American Friends Service Committee 1977). 12. Kanaka. 1. Human being, man, person, individual, party, mankind, population. Pukui & Elbert, supra note 5, at 127. Maoli. 1. Native, indigenous, aborigine, genuine, true, real, actual. Id. at 240. 13. KELLY & ALECK, supra note 11. 14. MARION KELLY, CULTURAL HISTORY REPORT OF MĀKUA MILITARY RESERVATION AND VICINITY MĀKUA VALLEY, OAHU, HAWAII 8-9 (unpublished manuscript, 1977). 15. Id.

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lived in the cave.16 One legend tells of a shark-man named Nanaue, who lived near Mākua Cave.

His parents were Kamahoalii, king of all sharks in Hawaiian waters, and a beautiful maiden

named Kalei.17 The story that is told today is that Kaneana was a shark god who could change

himself into a man and whose girlfriend was the mo’o (lizard) of Koiahi Valley stream.18

Prior to the 1830s, Native Hawaiians practiced a complex system of land tenure and land

use. Land tenure at Mākua and throughout the Hawaiian Islands was closely linked with

Hawaii’s unique system of social rank and order. Ali‘inui (high chiefs) controlled entire islands

and held land in communal trusts for the whole population. Each island was divided in smaller

parcels or moku and administered by regional chiefs. At the time of Kamehameha III, the island

of O’ahu had six separate moku. Within each moku land was further subdivided into ahupua‘a

which used natural boundaries to define land rights and usage. The ideal ahupua‘a was

triangular in shape, running from mountain tops down valley ridges to the ocean. Ahupua‘a

lands were administered by konohiki (sub-chiefs or land agents) and lands were worked by

maka‘ainana (commoners). Maka‘ainana produced food for the chiefs as well as farmed plots

for their own use. Maka‘ainana also had certain gathering rights in non-cultivated lands.19

This traditional system of land tenure changed drastically in 1848 through an act

proposed by King Kamehameha III called the Great Mahele (the Great Land Division). The

Mahele abolished the previous land system of the ahupua‘a. After the division nearly all the

land went to the chiefs, the government, or the crown. One of the provisions of the Great

Mahele was the Kuleana Act of 1850. Under this provision, commoners were allowed to petition

16. Id. 17. Id. 18. Id. 19. JON J. CHINEN, GREAT MAHELE: HAWAII’S LAND DIVISION OF 1848 (University of Hawaii Press 1994).

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for title to land that they cultivated and lived on.20 In the middle of the 19th century, 19 kuleana

awards, encompassing a total of more than 180 acres, were granted to Hawaiian families living

in the joined Valleys of Mākua and Kahanahaiki. The majority of the ownership of the

remaining areas of the former ahupua‘a of Mākua however, remained with the kingdom.21

With the construction of the railroad around Ka’ena Point in the early 1900s and

increased privatization of lands, ranching became the predominant activity in the Valley.22 The

first recorded lease of Mākua Valley by the Hawaiian Government is General Lease No. 113,

issued to Joseph and John Booth in 1864 by the Minister of Interior, G.M. Robertson.23 The

lease included Kahanahaiki and the government portion of Keawaula, as well as Mākua Valley.

The terms of the lease were for twenty-five years beginning February 12, 1864, at the cost of

$175 per year for 2,323 acres.24 On February 21, 1910, the lease was issued to L.L. McCandless

for ten years and the use of the Valley for ranching continued.

Hawaiians also raised taro on terraces in the upper Valley.25 The earliest remembrances

of farming in the Valley are those of a woman who was born there:

I was born on the hill, right in Mākua, and they call it Pu’upa’i. The place is a flat hill as you’re going up, away in the Valley . . . you can see it from down the beach as you look up. You see a flat hill, my dad had his ranch house . . . he had cows . . . horses and . . . vegetables too. And alongside of his place was a stream. It was a beautiful place.26

20. KELLY, supra note 14, at 19. 21. LILIKAKA KAME‘ELEIHAWA, NATIVE LAND AND FOREIGN DESIRES: PEHEA LA E PONO AI? HOW SHALL WE LIVE IN HARMONY? (Bishop Museum Press 1992). 22. KELLY, supra note 14, at 25. 23. Id. at 15. 24. Id. 25. Id. 26. Id. at 22. A former resident of Makua Valley, as told to Marion Kelly.

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B. HISTORY OF THE MĀKUA MILITARY RESERVATION

The U.S. military has used Mākua Valley since 1929, when three parcels on the upper

Mākua Valley floor were leased.27 After the bombing of Pearl Harbor on December 7, 1941, the

Army used its authority under marital law to take over the entire Mākua-Kaena Point area for

security and training operations.28 After the war, the military determined that Mākua Valley was

an ideal place for on-going training exercises.29 In December 1942, the Army issued a real estate

directive for 6,000 acres of land at Mākua that were already being used. Private parcels within

the property were taken by condemnation, whereas territorial lands were conferred by the

territorial governor’s consent.30

After Hawai‘i was granted statehood in 1959, the federal government exercised its option

to set aside lands for its continued use.31 In 1964 President Lyndon B. Johnson issued Executive

Order 11166 that reserved the interior portion of the Valley as Mākua Military Reservation and

provided a sixty-five year lease to the Army for the lower portion of the Valley. The cost to the

Army was $1.00 for the term of the lease. The federal government granted the coastal area to the

State as a public trust and allowed public access and use, except when training activities would

present a danger.32 The Army holds the lease from the State of Hawai‘i until 2025.33

27. U.S. ARMY DRAFT ENVIRONMENTAL IMPACT STATEMENT, ES-1 (2005) at http://www.makuaeis.com. 28. Hedy Hager, The Hottest Spot on Oahu: Impacts of Army Live Fire Training on Endangered Species and Nearby Residents at Mākua Valley, Oahu, Hawaii (1995). 29. Id. 30. KELLY, supra note 14. The 6,600-acre area occupied by the Army went beyond Makua Valley proper (an area of 2,266 acres) and also included Keawaula Valley and Kuaokala (together about 4,300 acres) up to the coast of Ka‘ena Point. 31. DEIS supra note 27. 32. KELLY & ALECK, supra note 11. 33. U.S. ARMY 25IDL, PILILA‘AU RANGE COMPLEX & MAKUA MILITARY RESERVATION at http://www.25idl.army.mil/makua/.

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In 1985, the Army prepared an Environmental Assessment (“EA”) and Finding of No

Significant Impact (“FONSI”) for its use of MMR.34 At that time, there was no formal military

range in Hawai‘i where the Army could conduct live-fire training.35 The 1985 EA only

addressed the need for soldiers to train in the successful detection, recognition, and engagement

of enemy targets.36 In 1988 however, the Army built a Company Combined Arms Assault Court

(“CCAAC”) at MMR for infantry training37 that was not included in the 1985 EA and the

military failed to propose a supplemental EA.

The CCAAC allowed military units to conduct live-fire and combined arms maneuver

training at MMR.38 After the construction of the CCAAC, fires in the Valley sprang out of

control and caused destruction of the environment, damage to cultural sites within the lower

Valley, and threatened the endangered tree snails (genus achatinella) that were placed on the

federal endangered species list in 1981.39

C. HISTORY OF CULTURAL AND NATURAL RESOURCES AT MĀKUA

More than forty species of tree snails populate O´ahu and are found in and around Mākua

Valley, but their survival is rapidly depleting.40 There are at least thirty-two endangered plants,

two endangered birds (the “Oahu creeper” and the “Oahu elepaio”), and one endangered

mammal (the “Hawaiian hoary bat”) located in MMR.41

34. U.S. ARMY SUPPLEMENTAL ENVIRONMENTAL ASSESSMENT, at http://www.25idl.army.mil/makua/. 35. Id. at 2. 36. Id. 37. Id. at 1. 38. Id. 39. ENDANGERED SNAILS OF MAKUA VALLEY ARE PLACED AT RISK BY ARMY FIRES, 1-10, 3 (Environment Hawai‘i, Inc. vol. 3 no. 5 1992). 40. Id. at 1. 41. Id.

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1. Potential Threat to the Environment

Numerous types of weaponry are utilized by the Army for training activities at MMR

which are potential threats to the environment. Live-fire training, large-scale troop movement,

and operation of heavy equipment at MMR are serious threats to native species.42 Fires consume

native forests and are replaced with fire-adapted weeds in a trend that increases the range and

intensity of these fires.43 The use of heavy motor equipment and large-scale troop movements

change the characteristics of the soil and introduce and spread unwanted invasive species.44

Furthermore, debris from the munitions and heavy metals remain in the soil, run into the streams,

and flow into the ocean poisoning the flora and fauna.45

2. Potential Threat to Cultural Resources

Mākua Valley was a thriving Hawaiian community in the days before Western contact.46

As many as three heiau (Pre-Christian place of worship) were built in Mākua Valley. One was

of the po’okanaka (skull) class, reserved exclusively to the highest chiefs of the island.47 The

majority of cultural sites discovered in Mākua Valley are located within the firebreak road where

most of the training is proposed. A 1998 report noted that explosive ordinance detonation,

maneuvering activities, and vegetation clearance posed “significant threats to archaeological

sites at MMR.”48

42. Threats: Hawaiian High Islands Ecoregion, THE NATURE CONSERVANCY (2006), at http://www.hawaiiecoregionplan.info. 43. Id. 44. Id. 45. Paul Achitoff, Citizens File Lawsuit to Protect Makua Valley, EARTHJUSTICE, Dec. 20, 2000, at http://www.earthjsutice.org. 46. Environment Hawai‘i, supra note 39. 47. Id. 48. See U.S. Army Supplemental Environmental Assessment, 1 (2000).

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The history and cultural significance of Mākua Valley continues to remain an important

site to the local community of Waianae, which is predominantly Native Hawaiian demographic.

The Army’s use of the Valley does not only impact the historical past but also intimately affects

the local Hawaiian community in the present. Frenchy De Soto expresses her anger when

reading the military’s draft EIS as not taking into account the effects on Hawaiians today stating

it “ignores the mo‘olelo, the sources of fresh water, the relationship that Hawaiians have with the

‘āina,49 certainly their kuleana . . . it fails to recognize that Hawaiian culture is alive and exists

today in Mākua and will exist in Mākua into the future.”50

II. THE MĀKUA NEPA LITIGATION

Beginning in 1998 and continuing until 2007, there have been three major claims against

the military to comply with NEPA. These challenges ultimately ended in a settlement agreement

wherein the military agreed, inter alia, to complete an EIS within three years.

A. LEGAL FRAMEWORK OF NEPA

NEPA was signed into law on January 1, 1970.51 It established the following policy:

[T]he continuing policy of the Federal Government . . . to use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans.52

1. The Heart of NEPA – Section 102 of the Act

The heart of NEPA is section 102 of the Act that requires a federal agency to prepare an

EIS whenever a proposed major federal action will significantly affect the quality of the human

49. ‘Aina. 1. Land, earth, meal. PUKUI & ELBERT, supra note 5, at 11. 50. In re Makua Military Reservation Draft Environmental Impact Statement Public Comment Meeting (Aug. 23, 2005). 51. National Environmental Policy Act, 42 U.S.C. §§ 4321-4370F. 52. Id. § 4331(a).

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environment.53 This requirement “seeks to ensure that each agency decisionmaker has before

him and takes into proper account all possible approaches to a particular project which would

alter the environmental impact,”54 and “guarantees that the relevant information will be made

available to the larger audience that may also play a role in both the decisionmaking process and

the implementation of that decision.”55 It also establishes a three-member Council on

Environmental Quality56 (“CEQ”) to coordinate agencies’ compliance with NEPA.57

2. Timing of the EIS under NEPA

Generally, NEPA requires a federal agency to prepare its report before it takes any action

in order to make an informed decision. The Supreme Court in Kleppe v. Sierra Club58 held that

NEPA is triggered at “the time at which [an agency] makes a recommendation or report on a

proposal for federal action.”59 If a federal agency has taken action before its report, the 9th

circuit has adopted a balancing test approach which considers four factors when deciding

whether an injunction should be issued against a federal agency until after it completes the

requirements of NEPA. The four factors the 9th Circuit considers are: (1) the likelihood of the

plaintiff’s success on the merits, (2) the threat of irreparable harm to the plaintiff if the injunction

is not imposed, (3) the relative balance of the harm to the plaintiff and the harm to the defendant,

and (4) the public interest.60 Judge Mollway summarized the 9th Circuits decisions61 as

53. Id. § 102(2)(c). 54. Calvert Cliffs Coordinating Comm. v. U.S. Atomic Energy Comm., 449 F.2d 1109, 1114 (D.C. Cir. 1971). 55. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 56. NEPA § 202, 42 USCA § 4342. 57. ROBERT V. PERCEIVAL ET AL., ENVIRONMENTAL REGULATION LAW, SCIENCE, AND POLICY 1-1202, 797 (5th ed. 2006). 58. 427 U.S. 390 (1976). 59. Kleppe v. Sierra Club, 427 U.S. 390 399 (U.S. 1976) (emphasis added). 60. Malama Makua v. Rumsfeld, 163 F.Supp.2d 1202 at 1215, (citing Alaska v. Native Village of Venetie, 856 F.2d 1384 (1988)).

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“representing two points on a sliding scale, with the required degree of irreparable harm

increasing as the probability of success decreases.”62

Mākua is a unique situation because the Army was not proposing a new action at MMR.

The military had control over MMR prior to the enactment of NEPA in 1970. The Army had not

completed any document under NEPA prior to 1985 when it issued an EA and FONSI for its use

of MMR.63 The 1985 EA evaluated the construction of a formal live-fire range at MMR to

support company-size military units. In 1988 the Army built its CCAAC for infantry training

however neglected to revise the 1985 EA to evaluate the additional training. If the parties had

not settled, Judge Mollway would have balanced the public interest in allowing the military to

train at MMR with the degree of irreparable harm caused by the training in order to decide

whether or not the military would be enjoined from training while complying with the

requirements under NEPA.

B. MĀLAMA’S CHALLENGE TO COMPEL THE ARMY TO COMPLY WITH NEPA

Mālama first went to Earthjustice in 1998 because it was concerned with the fires that

were burning in the Valley.64 One month later, Mālama filed suit against the Army, challenging

its failure to comply with NEPA for its use of MMR as a live fire training area.65 The lawsuit

resulted in a Stipulated Dismissal and Order wherein the Army agreed not to conduct any

military training activities at MMR until thirty days after the completion of a NEPA document

that would address all activities that the Army proposed to resume at MMR.66

61. See Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir. 1993). 62. Makua, supra note 60, at 1215. 63. Id. at 1204. 64. Id. at 1205. 65. Id. 66. Id. at 1206.

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1. Whether or Not to Prepare an EIS.

The court in Hanly v. Kleindienst67 held that federal agencies must “affirmatively develop

a reviewable environmental record.”68 This “reviewable environmental record” has become

what is known as an “environmental assessment.”69 The CEQ regulations reflect these decisions

in setting out the process by which agencies determine whether an EIS is required. The CEQ

regulations directs agencies to determine whether the proposal is one that: (1) normally requires

an EIS,70 or (2) normally does not require either an EIS or an EA.71 If the proposed action does

not fall within either of these two categories, environmental review begins with the development

of a draft EA.72 An EA, is defined as: “a concise public document” that “(1) briefly provide[s]

sufficient evidence and analysis for determining whether to prepare an environmental impact

statement or a finding of no significant impact, (2) aid[s] an agency’s compliance with the Act

when no environmental impact statement is necessary, and (3) facilitate[s] preparation of a

statement when one is necessary.”73

The Army believed that its training at MMR was not an action that normally required an

EIS and decided that a supplement to its 1985 EA was sufficient.74 In compliance with Judge

Mollway’s order that the military comply with NEPA, on September 23, 2000 the Army

published a Draft Supplement Environmental Assessment (“DSEA”). The Army held two

community meetings in Wai´anae, on September 25, 2000 and October 11, 2000, to announce

67. Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972). 68. Id. at 827. 69. Id. See also ROBERT V. PERCEIVAL ET AL., supra note 57, at 828. 70. Code of Federal Regulations, 40 C.F.R. § 1501.4 (2007). 71. Id. § 1508.27. See PERCEIVAL ET AL., supra, note 57. 72. PERCEIVAL ET AL., supra, note 57, at 829. 73. Id. at § 1508.27. 74. Meeker, supra note 1.

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the availability of the DSEA and to solicit public comment and participation before it published

the final SEA.75 On December 14, 2000, the Army announced the completion of its SEA and

FONSI.76

2. Whether the Army’s FONSI was arbitrary and capricious

Immediately after the Army published the December 2000 SEA and FONSI, Mālama

filed an action on December 20, 2000 against the Army challenging those findings and the

Army’s decision not to prepare an EIS relating to the resumption of training at MMR.77 Mālama

also filed a motion for a preliminary injunction, seeking to enjoin the Army from resuming live-

fire training alleging that the Army’s FONSI was arbitrary and capricious.78 The Army

maintained its position that its concentrated efforts along with the various federal and state

agencies in developing environmental and cultural programs would enhance Mākua Valley and

ensure that the impact of training would not adversely or significantly impact the environment

and its treasured resources.79

The community of Wai´anae was called upon to support Mālama80 and the turnout was

overwhelming. Over 500 people attended a meeting held on January 27, 2001 at the Waianae

Community Center held by the Army to receive public comment on the December 2000 SEA.81

Thousands of letters were submitted by residents of the community to the Army regarding the

75. Id. 76. Makua, supra note 60, at 1206. 77. Id. 78. Id. 79. A letter from Colonel, William Puttmann, Jr., U.S. Army, to respond a public comment on Army’s Environmental Assessment on Makua, at http://www.cosmos.ne.jp/~miyagawa/hawaii/usarmyletter.html. 80. KYLE KAJIHIRO, OPINION PIECE ON MAKUA/LETTERS TO THE EDITOR OF THE HONOLULU STAR BULLETIN (2001) at http://www.cosmos.ne.jp/~miyagawa/hawaii/makua2e.html#article03. 81. Makua, supra note 60, at 1206.

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SEA and FONSI.82 Upon review of the community’s letters and comments, the Army

determined that at least fifteen issues were raised by the public that required further

consideration and might require a modification of the December 2000 SEA and reconsideration

of the FONSI to adequately address the community concerns.83

3. The Army’s Decision to Complete an EIS

The Army knew that reconsideration of the December 2000 SEA and FONSI would

result in either a decision to issue the same or a revised SEA or to prepare an EIS. The Army

also knew, from the community outreach programs that solicited comments on the SEA, that the

Wai´anae community and Earthjustice would not stop until the Army prepared an EIS. It was a

combination of these things that pushed the Army into ultimately deciding to prepare an EIS.84

Once Earthjustice and Mālama heard that the Army decided to prepare an EIS they were

relieved.85 Mālama had been trying to compel the Army to complete an EIS since the beginning

of this litigation in 1998. When asked how Mālama felt to the Army’s original position that an

EIS was not required, Sparky Rodrigues of Mālama Mākua said, “the Army’s decision not to do

an EIS [was] a grave disappointment for the Wai´anae community, which has said for years, that

the military’s training at Mākua Military Reservation has a significant impact on the people, the

land, and the resources at Mākua.”86 Paul Achitoff, managing attorney of Earthjustice, expressed

his sentiments on the matter by stating, “doing an EIS right off the bat, rather than trying to get

by with an EA, would have been the best use of taxpayer money.”87

82. SEA, supra note 34. 83. Makua, supra note 60, at 1206. 84. Meeker, supra note 1. 85. Cruz, supra note 7. 86. Paul Achitoff, Citizens File Lawsuit to Protect Makua Valley, EARTHJUSTICE, Dec. 20, 2000, at http://www.earthjustice.org. 87. Id.

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Once the Army agreed to complete the EIS, it argued Mālama’s motion for injunctive

relief was moot. It was the Army’s position that it could continue to train in Mākua while it

completed the EIS. Earthjustice on the other hand did not agree with the Army’s reasoning and

contended that Mālama’s claims were ripe when the lawsuit was filed and that the injunction

claim was not moot. Furthermore, Earthjustice contended that the Army could not train at MMR

until after the EIS was completed. Judge Mollway applied a balancing test. 88 She looked at the

conclusions drawn in the military’s FONSI and the evidence introduced by Earthjustice that

significant environmental harm would occur from military training at MMR. After balancing the

evidence, Judge Mollway denied the Army’s motion to dismiss and ruled that the Army had not

met its burden of showing that the withdrawal of the December 2000 SEA and FONSI rendered

this case moot.89

C. PROVISIONS OF THE SETTLEMENT AGREEMENT

The settlement agreement was entered three weeks after September 11, 2001 and

according to David Henkin this was not a coincidence.90 Arguably, the settlement agreement is

favorable for both the Army and Mālama. Before the settlement, the military had agreed to

complete an EIS but Earthjustice was asking for an injunction against the Army to cease live fire

training until after the EIS was completed. Under the terms of the settlement agreement,

however, the military agreed to complete an EIS within three years and the Army was allowed to

train and conduct a limited number of exercises at MMR while it completed it. Although Judge

Mollway may have enjoined the military from training at MMR until after it completed an EIS, it

88. Interview with David Henkin, Staff Attorney, Earthjustice Legal Defense Fund Regional Office in Honolulu, Hawai‘i (Nov. 6, 2007). These comments came from David Henkin. Judge Mollway was contacted but could not be reached due to the ongoing nature of the litigation. 89. Malama Makua v. Rumsfeld, Civil No. 00-00813, 1-42, 3 (D. Haw. 2006) (order granting preliminary injunction). 90. Id.

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was a litigation risk that David Henkin was not prepared to take, especially because of the

proximity to September 11th and the heightened sense of national security.91

The terms of the agreement limited training from a total of fifty-four live fire exercises in

three years (eighteen per year) to thirty-seven exercises in the three years. Earthjustice and the

military agreed that the first year the military would have sixteen CAALEX, the second year

nine, and the third year twelve.92 Furthermore, the terms of the agreement provided Mālama

with a $50,000 technical assistance fund so that the people of Waianae could hire a hydrologist

and fishery biologist, toxicologist and anyone needed to do a peer review of the Army’s studies.

Mālama was also granted cultural access through the agreement.93 It granted cultural access over

night twice a year and day access once a month. This is the first time that the Army has ever

granted civilians access onto a live fire training reservation.94

D. THE WAR IN IRAQ – CHANGED CIRCUMSTANCES?

The settlement agreement provided that “in the event defendants fail to complete the EIS

. . . within three years . . . , no live fire training shall be conducted at MMR until defendants

complete the EIS.”95 Furthermore, “the parties reserve the right to seek to modify the limitations

on training set forth in this Agreement due to changed circumstances.”96 As of today, the

military has not yet completed an EIS and as a consequence the military has not been able to

train at MMR since 2004. In February of 2006, the military returned to Judge Mollway and

argued that circumstances had changed since it entered the agreement with Earthjustice in 2001

and therefore should be allowed to modify its terms. The Army contended that because of the

91. Henkin, supra note 88. 92. Id. 93. Henkin, supra note 88. 94. Settlement Agreement and Stipulated Order § 4(b). 95. Id. 96. Id. § 4(c) (2001) (emphasis added).

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War in Iraq it should be able to commence live fire training again at MMR. However, Judge

Mollway did not agree with the military’s argument and responded by stating that although the

military did not know it would be at war with Iraq, it knew it would be at war with someone after

September 11th, and therefore she did not modify the agreement.97

E. THE ARMY’S DRAFT EIS

Under NEPA, the military does not have to choose environmental responsible

alternatives. NEPA only requires the Army to fully analyze, discuss, and disclose adequate

alternatives in order to make a better informed decision.98 The Army had until October 2004 to

finish the EIS, but failed to meet that deadline. In 2005 the military released a draft EIS that

Earthjustice anticipates to challenge in court as being inadequate.99

1. Is the Draft EIS Adequate?

The focus of judicial review shifts from determining whether an agency must prepare an

EIS to the adequacy of that document once the agency has prepared an EIS. The CEQ

Regulations describe the basic structure and content of the EIS.100 Each EIS must include: (1) a

summary (to facilitate public review), (2) an explanation of the purpose of and need for the

proposed action, (3) a description and comparative assessment of alternatives, (4) a description

of the environment that will be affected by the action, and (5) an analysis of the environmental

consequences of the proposal and alternatives.101

97. Henkin, supra note 88. 98. Id. 99. Id. 100. Code of Federal Regulations, supra note 70, §§ 1502.10-1502.18. 101. See PERCEIVAL ET AL., supra note 57, at 839.

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a. Alternatives

NEPA requires that agencies assess and consider adequate alternatives to proposed

actions102 by requiring agencies to “study, develop, and describe appropriate alternatives to

recommended courses of action in any proposal which involves unresolved conflicts concerning

alternative uses of available resources.”103 Analysis of alternatives is a crucial step in

completing an adequate EIS. In its regulation on the scope of an EIS, CEQ requires agencies to

consider three types of alternatives: (1) no action, (2) other reasonable courses of action, and (3)

mitigation measures not already included in the proposed action.104

b. The Army’s Draft EIS Does Not Consider Other Alternative Sites Merely Degree

of Training at MMR

The Army’s Draft EIS evaluates four alternatives,105 all of which fail to consider other

alternative training areas such as Pohakuloa Training Area on the Big Island. The Army’s four

alternatives considered in the DEIS are: (1) No Action, (2) Reduced Capacity Use with Some

Weapons Restrictions, (3) Full Capacity Use with Some Weapons Restrictions, (4) Full Capacity

Use with Fewer Weapons Restrictions. Alternative 3 is the Army’s preferred alternative, while

according to David Henkin, alternative 1, no action, is the only reasonable alternative the DEIS

proposes.106

David Henkin contends that the draft is inadequate because the Army failed to consider

reasonable alternatives for its training at MMR.107 Earthjustice does not accept the Army’s

argument that MMR is vital to training and there is no reasonable alternative because the Army

has been able to train elsewhere during the years it was enjoined from training at MMR. David

102. NEPA, supra note 4, at § 102(2)(c)(iii). 103. Id. § 102(2)(E). 104. Code of Federal Regulations, supra note 70 § 1502.14. 105. DEIS, supra note 27. 106. Henkin, supra note 88. 107. Id.

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Henkin said that “the Army’s contention about how vital the range is to training should be

viewed in the context that since 1998, the Army has been allowed to do live-fire training at

MMR only for three years.”108

2. The National Defense Operational Act and the Requirement to Disclose Alternatives

In 2007 the National Defense Operational Act was passed which required the Army to

study alternatives to using the Wai´anae Coast Valley. U.S. Rep. Neil Abercrombie, D-Hawai‘i

asked the Army what it needed, how much it will cost, and that he would make it happen. In a

report to Congress the Army said that Mākua Valley is “absolutely critical.”109 The Army said

that the only theoretically possible alternative would be to spend up to $600 million to build a

similar training facility at Pohakuloa Training Area on the Big Island, an effort that would take

seven to twelve years.110

Even U.S. Rep. Abercrombie was not happy with the Army’s response. He said the

Army has spent millions to unsuccessfully defend in court the use of a training range that can be

replaced and is ill-suited in particular to Stryker brigade training. He also stated that the

military’s attempts to hold on to Mākua, a place of importance to Hawaiians, have become a

“symbol of arrogance, a symbol of indifference to Hawaiians, [and an] indifference to the

land.”111

108. Id. 109. William Cole, Makua Valley ‘essential’ to Army, THE HONOLULU ADVERTISER, April 20, 2007, at http://the.honoluluadvertiser.com. 110. Id. 111. Id.

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III. THE TWO PERSPECTIVES AT ODDS

Hawaiians call the island of Oahu “The Gathering Place” and Mākua Valley their

“Parents” while the soldiers of the 25th ID(L), refer to MMR as “Death Valley.”112 For

Hawaiians the Valley is alive and sacred. For the soldiers at MMR, the Valley is dead and seen

as a place for target practice. It is because of these two conflicting views the litigation of MMR

has continued for nearly ten years.

A. MMR IS CRITICAL TO PREPARE SOLDIERS FOR COMBAT

In 1999 at the Citadel, President Bush said, “The military must improve the quality of

training. Shortfalls on the proving ground become disasters on the battlefield.”113 For the Army,

MMR is absolutely critical to prepare its soldiers for combat. It provides for the necessary type,

level, duration, and intensity of live-fire and other military training exercises at MMR for the

combat units assigned to the 25th ID(L).114 To maintain proficiency, the Army requires a wide

variety of maneuver land and fixed firing ranges.

The military contends MMR is needed because there are no training areas on O‘ahu,

outside of MMR, that can support a company-level CALFEX.115 The necessary criteria to

support military training must consist of a training area no smaller than 1,136 acres and close

enough to Schofield Barracks to ensure that the time spent transporting companies to and from

the training area does not prevent the units from completing other training and operational

112. Captain Feoggrey C. DeTingo, Live-Fire Convoy Training in Hawaii, at http://www.almc.army.mil/ALOG/issues/Marapr96/ms891.htm. 113. CHALLENGES TO NATIONAL SECURITY: CONSTRAINTS ON MILITARY TRAINING: Hearing Before the House Comm. On Government Reform, 107th Cong. (May 9, 2001), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_house_hearing&docid=f:75041.wais (last visited on November 26, 2007). 114. DEIS, supra note 27, at 28. 115. Id. at 29.

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requirements.116 In defending military use of Mākua, U.S. Sen. Daniel Inouye notes that the

Navy lost Kaho‘olawe for target practice years ago and the Marines can now only use “a small

sliver of a beach” at Bellows Air Force Station.117 Without Mākua, the Army’s readiness has

been handicapped, said Major General James Dubik, 25th Division commander. Schofield

Barracks now can accommodate only smaller squad and platoon-level training.118

1. The Military’s Use of MMR is Degrading the Environment

One of the environmental concerns that was brought up at the Wai´anae community

outreach meetings was the toxins from the shells running off into the streams and into the ocean.

Fred Dodge, a board member of Mālama Mākua and a long time community leader involved

with Mākua issues testified as follows:

These are the animals and plants that are found in our waters, both in the muliwai as well as in the ocean. These contaminants go up the scale of biological organisms so that the smaller ones may survive and have small amounts of these contaminants but as they get eaten by larger organisms . . . these contaminants tend to accumulate and become toxic.119 Today, most people would agree that testing and training to fight wars has significant

impacts on the environment. Even though the military originally issued a FONSI, it has

subsequently acknowledged that it was wrong and is now working on an EIS.120 In fact, the

Army justified its occupation of Mākua Valley in the 1950s by saying that the site was so

contaminated by the Army’s activities that no one else could possibly use it.121

116. Id. 117. Gregg K. Kakesako, Makua: Activists Fight the Army’s Plan to Resume Training in the Valley, STAR-BULLETIN, Jan. 19, 2001, at http://starbulletin.com. 118. Id. 119. DEIS, supra note 27. 120. Meeker, supra note 1. 121. Environment Hawai‘i, Inc., supra note 39.

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2. The Military’s Use of MMR is Degrading the Human Environment.

The people who have been affected most by the military’s use of MMR have been the

community of the Wai´anae coast. Many Hawaiians feel that federal and state laws do not afford

them protection. According to Frenchy De Soto:

Federal environmental laws offer Hawaiians no protection. We kanaka Maoli have survived the scourge of the Pakemai. Now you bring us more danger and pollution. Stryker conveys filled with ammunition passing on our highways, dangerously – oh so dangerously close to our schools that are filled with mostly Hawaiian children. Oh, what the hell. What’s a few more Hawaiians?122

The presence of the military on the Wai´anae coast has also added another layer of issues

-- economic and environmental justice. The military argues that Hawai‘i is dependent on them to

sustain the economy. For residents of Wai´anae, unfortunately, they see a very different

economy. For Kyle Kajihiro of the American Friends Service Committee, the military’s

presence is like being addicted to a drug:

We had a shot of steroids that beefed up the economy during the war and we got to keep it going. But steroids lead to heart attacks, liver problems, and death. That is why they are illegal. We are addicted to that growth at the expense of other things that allow you to have a healthy economy. Those are the costs that have not been factored in. Officers get $3,000 a month for housing. They are given an advantage and compete with local folks. Meanwhile we have an exiting population of local folks to the mainland or living on the beach. No one has factored that in the environmental cost. Kaho‘olawe is a good example, $400 million dollars to clean up and ten years later 1/10th of the Island is safe while the rest is still considered hazardous.123

Native Hawaiian rights continuously fail to be represented and are often over looked as

unimportant. Activist groups such as Mālama Mākua have had to resort to civil disobedience

campaigns to make their voices heard. According to Kyle Kajihiro, the harm the military is

inflicting from the use of MMR rises to the level of abuse of human rights and environmental

122. Makua Military Reservation DEIS Public Comment Meeting (Aug. 23, 2005). 123. Id.

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justice.124 For Kyle Kajihiro and other Hawaiian activists, the only way they feel they can make

a difference is through organized resistance that will delay and raise the cost politically so that

decision makers may stop and think and ask themselves is this truly worth it.125

B. THE NEED FOR PONO

Mākua Valley is a powerful example of how issues of Native Hawaiian rights, the

environment, and the presence of military in Hawai‘i need to strike a balance through fair and

equal processes of the law. In 2001, Mālama built an ahu126 (alter) at the entrance of MMR to

serve as a reminder to the Army of its responsibility to protect the land that Native Hawaiians

have cared for long before the presence of the military.

1. The Military’s Violation of the Settlement Agreement

The struggle for pono127 (righteousness), however, is infinite. On November 16, 2007,

the Army discovered a WWII 250-pound bomb the Army claims threatens public health and

safety.128 Mālama was denied its overnight access granted to them by the terms of the settlement

agreement and protesting commenced. Since the discovery of the bomb, the military has

violated two provisions of the settlement agreement which provide that, “in order to reduce the

risk to individuals on Mākua beach and Farrington Highway, the 25th ID(L) shall finalize and

submit to [Army Headquarters] for approval a plan for [unexploded ordinance] clearance for the

area”129 and

124. Id. 125. Id. 126. Ahu 1. Altar, shrine. PUKUI & ELBERT, supra note 5, at 8. 127. Pono 1. Righteousness, Goodness, uprightness, morality, moral qualities, correct or proper procedure. PUKUI & ELBERT, supra note 5, at 340. 128. See Earthjustice Press Release, Native Hawaiians, Community Protest Army Failure to Remove Bomb from Makua, (2007), http://www.earthjustice.org. 129. Settlement Agreement, supra note 93, § 7a.

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[M]embers of the Wai´anae Coast community, including Mālama Mākua, will be allowed daytime access (sunrise to sunset) to MMR to conduct cultural activities at least twice a month. Additionally, members . . . will be allowed overnight access . . . to MMR to conduct cultural activities on at least two additional occasions per year.”130

2. Public Safety versus Access to Cultural Practices

The Army is concerned for the public’s safety while Hawaiians want the Army to honor

the agreement and allow them access to cultural sites. The Army says it is doing all it can to

provide cultural access but it had to close the reservation once it found the weapons.131 “We

want to be able to open Mākua back for cultural access just as fast as possible,” said Army

Public Information Officer Dennis Drake.132 “But at the same time, now that the ordnance has

been found you know, we have to be prudent with public safety. That’s absolute paramount.”133

Mālama, however, believes the Army is lying about the threat to public safety.134

William Aila, a spokesperson for Hui Mālama ‘O Mākua, another community group involved

with issues at Mākua, believes the military’s no action is proof it is self interested. “We resent

the Army’s double talk about the bomb. If the Army is really concerned about safety, it should

get rid of the bomb immediately to protect the families who use Mākua beach, fish off-shore, and

travel along Farrington Highway.”135

C. LESSONS LEARNED FROM THIS STORY

The settlement agreement reached between the Army and Mālama provided a means --

military training -- to an end -- protection of the environment and completion of an EIS. It put a

restriction on the number of how many live fire trainings would be conducted within the three

130. Id. § 13. 131. Julia Norton-Dennis, Makua Bomb Injustice, KGMB9, Nov. 17, 2007 at http://kgmb9.com. 132. Id. 133. Id. 134. E-mail correspondence with Lynette Cruz, Board Member of Mālama Mākua (Nov. 20, 2007). 135. Norton-Dennis, supra note 131.

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year time limit the Army had to complete the EIS. It also provided cultural access and many

more provisions that NEPA did not require the Army to do. At the same time it allowed the

Army to continue using MMR while it worked on the EIS. It is because of these reasons that this

settlement agreement should be a model of how to handle future situations involving federal

actions that trigger NEPA.

IV. CONCLUSION

The story of Mākua highlights the difficulties in finding a balance between two often

conflicting relationships – national security and the rights of the environment and national

security and the rights of the local community. The National Environmental Policy Act presents

an effective way to mitigate these dichotomies and create “conditions under which man and

nature can exist in productive harmony.”136 In the case of Mākua, NEPA put enough pressure on

both the military and Earthjustice to cause a settlement.

In many ways the policy established under NEPA also parallels Hawaiian ideologies of

mālama and pono. To mālama is to take care of, tend, care for, preserve, or protect it. Pono

signifies goodness, uprightness, morality, well-being, or equity. NEPA establishes the policy of

creating and maintaining “conditions under which man and nature can exist in productive

harmony.” Therefore, NEPA seeks to establish conditions that preserve or mālama nature by

finding pono or equity between man and nature. The heart of NEPA is section 102 that requires

a federal agency to prepare an Environmental Impact Statement whenever a proposed federal

action will significantly affect the quality of the human environment. This requirement ensures

that federal agencies are informed decision makers and do not act until they are aware of the

possible negative effects their action will have on the local community and the environment.

136. NEPA, supra note 4.