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Judge rules against Army

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The Army’s bid to resume live-fire training at Makua Valley hit a snag yesterday when a federal judge ruled that the Army failed to adequately study the impacts on potential cultural sites and seaweed at Makua Beach.

U.S. District Judge Susan Oki Mollway ruled that the Army violated agreements required for its environmental impact statement to conduct a subsurface archaeological survey of certain areas at the Makua Military Reservation.

In addition, she ruled that the Army did not adequately study the effect of its activities on the limu at the nearby shoreline.

"Today’s ruling vindicates the public’s right to accurate information about the harm to the public health and cultural sites that resuming training at Makua could cause," Earthjustice attorney David Henkin said.

Henkin represents Malama Makua, which has been waging a years-long effort to halt the live-fire training until its impacts are adequately considered.

"The Army acknowledges and will abide by the ruling of the Hawaii District Court," said Jack Wiers, an Army spokesman in Hawaii.

It was unclear when the Army had planned to resume live-fire training and whether yesterday’s ruling would push back the date.

Henkin said the Army would know better how long it would take to do the studies to comply with the judge’s ruling, but said it would take months at least.

Army officials had announced last year that they completed an environmental impact statement that was required under federal law for the resumption of the live-fire training.

But Malama Makua filed a lawsuit asking the court to set aside the statement, alleging that it did not include adequate studies that the Army had agreed to do as a result of earlier court settlements.

"We’re pleased the judge agreed with us that the Army must finally tell the community the truth about the threats that training at Makua poses to irreplaceable subsistence and cultural resources," Malama Makua President Sparky Rodrigues said.

The Army halted live-fire training in the 4,190-acre Leeward valley in 2004 as part of the litigation by Malama Makua.

The Army agreed to suspend live-fire training until it completed the environmental statement and had reached settlement agreements with Malama Makua that it would conduct certain studies.

In her 25-page ruling, Mollway agreed with Makua Malama on two points.

The Army did not conduct an archaeological survey of below-ground cultural sites because it had assumed that there was a high likelihood of sites in those areas, according to Mollway’s ruling.

"The Army was not justified in merely assuming that subsurface sites existed (in those areas) given the settlement agreements’ requirement that the Army actually conduct subsurface surveys of all areas," she said.

The judge also agreed with Malama Makua that the Army violated a settlement agreement by simply concluding that the limu at Makua Beach was contaminated and potentially dangerous to human health.

She said such a conclusion is not a "meaningful study" because the Army did not test seaweed at other locations to evaluate the impact of the Army’s activities on the limu.

In addition, the judge said she was not convinced by the Army’s suggestion that arsenic levels found in the limu at Makua Beach were the same as levels in limu all around the islands.

"There is no dispute that the Army did not test the naturally occurring levels of arsenic in Hawaii limu," she said. "The Army provides no basis on which to say whether it caused the arsenic to be present in the limu tested."

One issue that wasn’t resolved by Mollway’s ruling was whether the Army violated an agreement to study the impact on marine resources that area residents rely on for subsistence.

That issue is left for a trial scheduled for Feb. 23.

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